R v Findlay; Ex parte

An association of employers sought a writ of prohibition to prevent a conciliation commissioner from proceeding with an application to vary an award concerning casual wharf clerks. The proposed variation aimed to introduce a system of "attendance money" for clerks who attended a place of engagement and offered themselves for employment but were not engaged. The application presented three alternative proposals for who would be liable for this payment: the employer who next employed the clerk, the employer who last employed the clerk, or all usual employers in the port jointly and severally.

The central legal issue before the High Court was whether the proposed variations constituted "industrial matters" as defined by the Conciliation and Arbitration Act 1904-1952, and therefore fell within the jurisdiction of the conciliation commissioner. The employers argued that the payment was for a period of no employment and thus did not pertain to the relationship between employers and employees. The union contended that the matter was collateral to and preliminary to employment, and therefore fell within the broad definition of industrial matters.

The Court held that the first two proposed variations, which sought to make either the next or last employer liable for attendance money, were capable of being industrial matters. The reasoning was that the attendance of casual wharf clerks to offer their services was a preliminary step to actual employment, performed in accordance with industry custom, and thus pertained to the relations of employers and employees. The Court noted that the definition of "industrial matters" was broad and included monetary allowances for time not actually worked, and that the extended definitions of "employer" and "employee" encompassed those usually engaged in the industry, even if not currently employed. However, the third proposed variation, which sought to impose joint and several liability on all employers in a port regardless of whether they employed the clerk, was deemed untenable as it included employers not party to the dispute and imposed obligations irrespective of any employment relationship.

Consequently, the Court ordered that the writ of prohibition should be discharged, as the first two alternative claims were within the conciliation commissioner's jurisdiction.