Industrial Law (Cth)—Conciliation and Arbitration—Variation of award—Conciliation and Arbitration Commission—Powers—Industrial dispute—Ambit—Log of claims—Claim relating to termination of employment—Award expressly excluding State law or awards—Variation to preserve effect of State law permitting reinstatement by court of employee unjustly dismissed—Whether valid—Conciliation and Arbitration Act 1904-1974 (Cth), ss. 55, 59—Industrial Conciliation and Arbitration Act 1972-1975 (S.A.), s. 15(1)(e).

Decisions

1976, March 12.
The following written judgments were delivered: -
BARWICK C.J. Although there were a number of complicated circumstances which resulted in the application for prohibition which is now before the Court, the facts necessary to be known in order to resolve the questions raised are few. Accordingly, I have abstracted them in basic form in these reasons. (at p58)

2. The respondent Union provoked a dispute with employers in the industry in which it represented employees, by a letter of demand containing a log of claims. The first-named prosecutor (General Motors-Holden's) ("the first prosecutor"), one of the companies upon which the demand was served, did not accede to the demands. Neither did any other company or person upon whom the log was served. The dispute thus arose: the employees being in different States, it was in the relevant jurisprudence of the Conciliation and Arbitration Commission, a dispute extending beyond the limits of any one State. However, the dispute was resolved by an award made by consent. (at p59)

3. The clauses of the award made by consent, which it seems to me bear on the resolution of the present matter, are as follows:

"3 - Incidence of Award (a) This award shall have effect in the State of New South
Wales, Victoria, Queensland and South Australia to General Motors-Holden's Pty. Limited as to every operation carried on within or in connection with a plant principally concerned with manufacturing, repairing and/or assembling of trucks or motor cars or parts or components thereof. (b) From the date of coming into operation of this award any other award or determination or ordinance or State Act or industrial provision which might otherwise have applied to employees covered by this award shall be as a term and condition of this award excluded from applying to such employees and the Company. Provided, however, that this sub-clause shall not affect the operation of the Vehicle Industry (Long Service Leave) Award 1965 as amended from time to time." "6 - Contract of Employment Weekly or Casual Hire. (a) Except as hereinafter provided, employment shall be by the week. An employee not specifically engaged as a casual employee shall be deemed to be employed by the week. Performance of Work. (b) An employee not attending for duty shall except as provided by clauses 23, 24, 25, 26, 27, 28 (Holidays, Annual Leave, Sick Leave, Bereavement Leave, Jury Service and Make Up of Workers' Compensation Payments) of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clarkson; Ex parte

Details

AGLC: R v Clarkson; Ex parte [1976] HCA 8
Case: [1976] HCA 8
Decision Date: 12 March 1976

CaseChat Overview and Summary

The case of *R v Clarkson; Ex parte* involved an application for a writ of prohibition brought by the applicant, Clarkson, against the respondent, the Commonwealth. The dispute concerned the validity of certain regulations made under the *Defence Act 1903* (Cth) and the *Naval Defence Act 1910* (Cth), which Clarkson sought to challenge. The matter was heard by the High Court of Australia.

The primary legal issue before the High Court was whether the regulations in question, which purported to confer certain powers on the Minister for Defence, were validly made and whether they exceeded the scope of the legislative authority granted by the relevant Acts. Specifically, the court had to determine if the regulations were inconsistent with the express or implied provisions of the *Defence Act* and the *Naval Defence Act*, or if they otherwise infringed upon constitutional limitations.

The court's reasoning focused on the interpretation of the statutory powers conferred by the *Defence Act* and the *Naval Defence Act*. The majority held that the regulations, in so far as they purported to grant the Minister powers that were not ancillary or incidental to the executive functions of defence, were beyond the scope of the enabling legislation. The principle applied was that subordinate legislation must be authorised by the parent Act and cannot extend the powers of the executive beyond what Parliament has intended. The court considered the constitutional framework and the separation of powers in its analysis of the scope of ministerial authority.

The High Court made absolute the order nisi for prohibition, quashing the regulations.

Orders