R v Blakeley; Ex parte

The Australian Theatrical and Amusement Employees Association (the prosecutor) sought a writ of prohibition against a Conciliation Commissioner and the Cinematograph Exhibitors Association. The dispute concerned a variation to an industrial award that had been made to settle an earlier industrial dispute arising from a log of demands served by the prosecutor on various employers. The original award prescribed minimum rates of pay for a range of employees in the theatrical industry, with rates specified for engagement by the week, by the performance, or by the hour. However, for certain front-of-house employees in picture shows, the log and the subsequent award did not specify an hourly rate for those engaged in non-continuous shows. The Cinematograph Exhibitors Association subsequently applied for a variation to the award to introduce an hourly rate for these specific employees in country theatres in Victoria and Tasmania.

The primary legal issue before the High Court was whether the Conciliation Commissioner had the power to vary the award to include an hourly rate for employees for whom no such rate was claimed in the original log of demands, and consequently, for whom no dispute existed in relation to hourly engagement. The prosecutor argued that this variation went beyond the ambit of the original dispute, as no claim for an hourly rate had been made for these employees in the log, and therefore, no dispute concerning such a rate could have arisen. The Cinematograph Exhibitors Association contended that the log, when properly construed, created a dispute regarding all forms of engagement and rates, or alternatively, that a new dispute had arisen which the Commissioner had jurisdiction to settle.

A majority of the High Court (Latham C.J., McTiernan and Webb JJ.) held that a writ of prohibition should not issue. Latham C.J. reasoned that even if the variation was outside the ambit of the original dispute, the application for variation, when opposed by the union, constituted a new dispute that the Commissioner had jurisdiction to settle. He further relied on section 16(1) of the Commonwealth Conciliation and Arbitration Act 1904-1949, which prevents prohibition on grounds of procedural error where jurisdiction exists. McTiernan and Webb JJ. found that the variation was within the ambit of the original dispute, as the rejection of the log by employers brought the entire question of rates and periods of engagement into dispute, allowing the Commissioner to include provisions for hourly rates.

Consequently, the order nisi for prohibition was made absolute only in respect of respondents to the award other than the Cinematograph Exhibitors Association and its members. This outcome reflected the view that while the Commissioner had jurisdiction to vary the award in relation to the parties involved in the variation proceedings, the variation could not bind other employers who were not parties to those specific proceedings. Rich and Dixon JJ. dissented, finding that the variation was outside the ambit of the original dispute and that no new dispute had been validly created to justify the Commissioner's order.