Australian Workers' Union Claimant; and Adelaide Milling Company Limited

The Australian Workers' Union brought a plaint before the Commonwealth Court of Conciliation and Arbitration against numerous respondents, including the States of New South Wales and Victoria. The dispute concerned wages, hours, and conditions of employment for members of the Union engaged in wheat lumping, stacking, and related operations. The States of New South Wales and Victoria objected to the jurisdiction of the Commonwealth Court, asserting that their involvement in wheat marketing constituted governmental rather than trading operations. The President of the Commonwealth Court of Conciliation and Arbitration stated a case to the High Court of Australia for its opinion on these jurisdictional questions.

The High Court was required to determine whether the Commonwealth Court of Conciliation and Arbitration possessed the power to hear, inquire into, and investigate the industrial dispute as it related to the States of New South Wales and Victoria. Further, the Court had to consider whether it had the authority to attempt to reconcile the parties and induce a settlement, and, if no agreement was reached, whether it could determine the dispute by making an award, all in relation to these two States. These questions hinged on whether the States' operations in wheat marketing were considered governmental or trading in nature, and whether such operations fell within the scope of the Commonwealth Conciliation and Arbitration Act 1904-1915 and the constitutional power of the Commonwealth Parliament under section 51(xxxv).

A majority of the High Court, comprising Barton, Isaacs, Gavan Duffy, Powers, and Rich JJ., held that the operations of the States of New South Wales and Victoria in wheat marketing were governmental and not trading in nature. Applying principles derived from cases such as *D'Emden v. Pedder* and the *Railway Servants Case*, the majority concluded that the Commonwealth Court of Conciliation and Arbitration lacked the power to hear, inquire into, attempt to reconcile, or determine the dispute as it related to these States. They reasoned that the scheme was a temporary measure undertaken to address wartime exigencies, specifically transport difficulties, and was not conducted for profit. Isaacs and Rich JJ. further noted that the American cases cited by the claimant were distinguishable as they did not involve the State itself as the respondent.

Higgins J., dissenting, argued that the Constitution did not exempt State operations like wheat marketing from the federal power under section 51(xxxv) of the Constitution, unlike specific provisions for State banking and insurance. He contended that the definition of "industrial dispute" in the Commonwealth Conciliation and Arbitration Act expressly included disputes in industries carried on by or under the control of a State. Therefore, he concluded that the Commonwealth Court had jurisdiction to deal with the dispute concerning the States. Ultimately, the majority decision meant that the Commonwealth Court of Conciliation and Arbitration had no power to proceed with the dispute against the States of New South Wales and Victoria.