R v Wallis [1949] HCA 30

High Court of Australia Latham C.J. Rich, Dixon, McTiernan and Webb JJ. R v Wallis [1949] HCA 30

ORDER Order absolute in each case. Federated Clerks' Union to pay costs of prosecutors.

Cur. adv. vult.

The following written judgments were delivered.:—

Aug. 4 Latham C.J.

Return of two orders nisi directed to Alfred Russell Wallis a Conciliation Commissioner appointed pursuant to the Commonwealth Conciliation and Arbitration Act 1904-1948, and the Federated Clerks' Union of Australia. The High Court has jurisdiction to grant a writ of prohibition for the purpose of preventing proceedings by a conciliation commissioner in a matter beyond his jurisdiction: R. v. Galvin; Ex parte Metal Trades Employees' Association [2] .

1. (1949) 77 C.L.R. 432.

The question which is raised in each case is whether a conciliation commissioner can make an award for what is called compulsory unionism—not in the sense that the effect of the award would be to make it a criminal offence for a man to fail or to refuse to become a member of a trade union, but in the sense that it would be an offence for an employer bound by the award to employ any person who was not a member of a particular union, with the result that the members of that union would have a monopoly of work in any industry which, so far as employers and employees in that industry were concerned, was subject to the terms of the award. Such a monopoly would prevail not only against non-unionists, but also against unionists members of other unions than that to which the award required persons to belong in order to obtain employment.

In one case the prosecutors are companies carrying on the business of wool-selling brokers. The Federated Clerks' Union seeks the inclusion in an award of clauses providing that the following conditions of "employment and continued employment" shall apply in respect to each person now or hereafter employed by the employers bound by the award, namely:—"(1) No such person shall be continued in employment beyond a period of 28 days from the date hereof or the date upon which such person is engaged for employment (whichever be the later) unless such person:—(a) is a member of the Federated Clerks' Union of Australia or (b) within such period of 28 days makes application and otherwise complies with the requirements for admission to Membership of the said Union in accordance with the Rules thereof. (2) No such person shall be continued in employment for a period beyond 28 days after ceasing to be a member of the Federated Clerks' Union of Australia."