R v Blakeley; Ex parte Australian Theatrical & Amusement Employees Association [1949] HCA 58

High Court of Australia Latham C.J. Rich, Dixon, McTiernan and Webb JJ. R v Blakeley; Ex parte Australian Theatrical & Amusement Employees Association [1949] HCA 58

ORDER Order absolute so far as order of Conciliation Commissioner applies in respect of respondents to the award other than the Cinematograph Exhibitors Association and members thereof respondents to the award. Order nisi otherwise discharged. Prosecutor to pay costs (including reserved costs) of respondent association.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 6 Latham C.J.

This is the return of an order nisi for a writ of prohibition against Mr. Arthur Blakeley, a conciliation commissioner appointed under the Commonwealth Conciliation Act 1904-1949, and the Cinematograph Exhibitors' Association, which is an organization registered under the Act. The prosecutor is the Australian Theatrical and Amusement Employees' Association, which is also an organization registered under the Act. The prosecutor seeks a prohibition against any proceeding to enforce or carry out the provisions contained in an order varying a certain award which is binding upon the prosecutors and the respondent association. The ground of the application is that the variation relates to a matter which was not within the ambit of the industrial dispute between the parties in respect of which the award was made. The employees affected by the challenged variation were—(1) male or female ushers; (2) ticket takers; (3) receptionists; (4) monitors—all in country theatres (with specified exceptions) in Victoria and Tasmania. The variation directed that they should be paid 1s. 9d. per half-hour or part thereof with a minimum payment as for two hours.

The evidence shows that in October 1947 the union sent by post to employers, including the respondent association, a log of rates of payment and conditions. Claims were made in this log in respect of rates of wages and conditions of employment for many occupations in the theatrical industry. The rates of payment varied in many cases according to whether the persons concerned were engaged by the week or by the hour or by the performance.