Moore, Re; Ex parte Co-operative Bulk Handling Ltd

High Court of Australia Gibbs CJ Murphy, Aickin, Wilson, Brennan J. Moore, Re; Ex parte Co-operative Bulk Handling Ltd

Gibbs CJ, Murphy, Aickin, Wilson and Brennan JJ.

The court has reached the conclusion that this application should be refused. Mr Priestley did not seek to argue that there was no interstate dispute which enlivened the Commission with jurisdiction. His contention was that in the exercise of its jurisdiction the Commission gave consideration to extraneous matters, or failed to consider matters which it was bound to consider, and that in consequence there was no proper exercise of its discretion. His first submission was that it was irrelevant to the questions which arose under s 41(1)(d) of the Conciliation and Arbitration Act 1904 Cth, as amended, to consider the wishes of the employees concerned. That argument cannot be accepted. Under both par. (ii) and par. (iii) of s 41(1)(d) it is a relevant consideration that the employees affected wish to have their conditions regulated by a federal award, or a State award, as the case may be. Alternatively, it was suggested that the Commission placed undue emphasis on the wishes of the employees, and by considering the wishes of the men as to which union should cover them distracted itself from the true questions which arose under s 41(1)(d). However, as Mr Justice Dixon pointed out in R. v. Taylor; Ex parte Professional Officers' Association—Commonwealth Public Service (1951) 82 C.L.R. 177, at p. 186, we should be very careful in a matter of this kind to maintain the distinction between error in deciding a matter and excess of power. The weight to be given to a relevant consideration is a matter for the Commission to consider. If it were to be established that undue weight had been given to a particular matter, that might show that there had been an erroneous determination, but it would not show a want or excess of jurisdiction, unless the conclusion reached was so unreasonable that no reasonable tribunal could have reached it.