Anthony Hordern & Sons Ltd v Amalgamated Clothing And Allied Trades Union of Australia

Anthony Hordern & Sons Ltd sought a writ of prohibition and a determination under section 21AA of the *Commonwealth Conciliation and Arbitration Act 1904-1930* concerning an award made by the Commonwealth Court of Conciliation and Arbitration. The award, made in December 1931, varied existing awards by granting preference to female members of the Amalgamated Clothing and Allied Trades Union of Australia. Specifically, employers with fewer than fifty operatives were required to employ female union members in preference to other females, while those with fifty or more operatives were to employ female union members in preference to other females, "other things being equal." The applicants argued that this award was beyond the jurisdiction of the Arbitration Court.

The central legal issue before the High Court was whether the Arbitration Court had the power to make the award granting preference to female union members, and if so, whether the specific terms of the award complied with the limitations imposed by section 40 of the *Commonwealth Conciliation and Arbitration Act 1904-1930*. The applicants contended that section 40 provided the exclusive mechanism for granting preference and that the award did not adhere to its requirements, particularly the "other things being equal" condition and the scope of preference granted. They also argued that the preference awarded was not within the ambit of the industrial dispute that the Arbitration Court was empowered to settle.

A majority of the High Court, comprising Gavan Duffy C.J. and Dixon J., held that the award was invalid. They reasoned that section 40 of the Act, which specifically grants the power to award preference subject to certain limitations, must be read as excluding the exercise of a more general or unqualified power to grant preference. The award's failure to consistently include the "other things being equal" condition and its broad application beyond cases where individuals were simultaneously offering or desiring employment meant it did not comply with section 40. Furthermore, they concluded that the general powers of the Arbitration Court to settle industrial disputes did not permit it to override the specific, qualified power granted by section 40. Starke and Evatt JJ. dissented, with Starke J. finding the award to be within the Court's jurisdiction and Evatt J. focusing on the potential for exploitation of female labour as a justification for the award.

The majority of the Court found that the order of the Commonwealth Court of Conciliation and Arbitration dated 1st December 1931 was invalid. Consequently, the rule nisi for a writ of prohibition was discharged, meaning the prohibition would not be issued.