R v Commonwealth Court of Conciliation and Arbitration; Ex parte

The parties to this matter were the Commonwealth Court of Conciliation and Arbitration and others, and the Federated Gas Employees' Industrial Union. The dispute concerned an award made by the Chief Conciliation Commissioner in the gas industry, to which the Union had consented. A clause in the award stipulated that employers could require reasonable overtime, and that no organisation party to the award should be involved in any ban or restriction on working overtime. The Union sought a writ of prohibition to prevent the Commonwealth Court of Conciliation and Arbitration from making orders under sections 29(b) and 29(c) of the Commonwealth Conciliation and Arbitration Act 1904-1949, arguing the Court lacked jurisdiction.

The central legal issue before the High Court was whether the Commonwealth Court of Conciliation and Arbitration had the power under section 29(b) of the Act to order a union to comply with a negative covenant in an award, specifically by ceasing to be involved in bans on overtime. A related issue concerned the scope of section 29(c) and its application to breaches of awards versus contraventions of the Act itself. The Union contended that section 29(b) only permitted orders to remedy past defaults, not to enforce future compliance or to cease ongoing breaches.

The High Court, in a majority decision, held that the Commonwealth Court of Conciliation and Arbitration did possess the power under section 29(b) to make an order requiring the Union to cease being concerned in bans on overtime, thereby enforcing compliance with the award. The Court reasoned that the language of section 29(b) was not limited to rectifying past breaches but extended to ordering compliance with award provisions, including negative covenants. However, the Court found that section 29(c) was intended to address contraventions of the Act itself, not merely breaches of an award, and therefore the Arbitration Court lacked jurisdiction to make an order under that section in this context.

Consequently, the order nisi for prohibition was discharged in relation to the order made under section 29(b), meaning the Commonwealth Court of Conciliation and Arbitration could proceed with making an order for compliance with the award. Conversely, the order nisi for prohibition was made absolute in relation to the order sought under section 29(c), preventing further proceedings on that basis. There were no orders as to costs.