R v Metal Trades Employers' Association; Amalgamated Engineering Union, Ex p [1949] HCA 17

High Court of Australia Latham C.J. Dixon and McTiernan JJ. R v Metal Trades Employers' Association; Amalgamated Engineering Union, Ex p [1949] HCA 17

ORDER Order nisi discharged with costs.

The following judgments were delivered:—

Latham C.J.

This is the return of an order nisi for prohibition directed to Mr. George A. Mooney, Chief Conciliation Commissioner under the Commonwealth Conciliation and Arbitration Act 1904-1948 and to certain organizations of employers who are bound by an award binding also the Metal Trades Employers Association. An application has been made to Mr. Mooney for variation of the consolidated award applying to the industries specified in the award, and the variation is a variation which is contended by the employers to be necessary or desirable by reason of action taken in the State of New South Wales under the Gas and Electricity Act 1935-1948.

Difficulties have arisen with respect to the supply of electricity to industry in New South Wales, and particularly in Sydney within the County of Cumberland, and under the statute which I have mentioned regulations were made on 18th May which provided for a reduction in factories after 1st June of the consumption of electricity to a maximum of seventy per cent of the maximum rate at which electricity was consumed in a factory between specified hours during three months, namely, June, July and August, in 1948. The decrease of power available is considered by the employers to justify some alteration in the award applying to their industries.

Accordingly, an application was made to Mr. Mooney for a variation of the award in the following terms: to insert in the award the following new clause 11a:—"Notwithstanding anything elsewhere contained in this award any employer in the State of New South Wales required to restrict the consumption of electricity in accordance with regulations made under the Gas and Electricity Act, 1935-1948, may, whilst such regulations continue in force, require employees to work the ordinary hours prescribed by this award at any time or on any day on the basis of 40 hours per week or 80 hours per fortnight and the ordinary rates prescribed by clauses 2, 3, 4, 5 and 6 shall be paid for such work."