R v Foster

This case concerned an application for orders nisi for prohibition and a case stated, brought before the High Court of Australia. The dispute arose from an order made by Judge Foster of the Commonwealth Court of Conciliation and Arbitration concerning the employment of females by Crown Crystal Glass Proprietary Limited. The Australian Glass Workers' Union was also a party to the proceedings. The core of the dispute involved the interpretation of Regulation 6(1)(b) of the Women's Employment Regulations and the validity of an order made under the National Security (Industrial Peace) Regulations.

The legal issues before the Court were twofold. Firstly, the Court was required to determine the correct interpretation of Regulation 6(1)(b) of the Women's Employment Regulations, specifically whether the phrase "work was performed by males" required exclusive male performance of the work or merely substantial male employment. Secondly, the Court had to consider whether Judge Foster had the jurisdiction to make an order under the National Security (Industrial Peace) Regulations that effectively replicated a previous decision made under the Women's Employment Regulations, particularly after that previous decision had been declared a nullity. The validity of a specific clause in the order, which stipulated its duration until a High Court decision on the interpretation of Regulation 6(1)(b), was also in question.

The Court held that the phrase "work was performed by males" in Regulation 6(1)(b) meant a class of work which was mainly performed by males. Regarding the order made under the Industrial Peace Regulations, the Court found that orders with the same operation and effect as those empowered by the Women's Employment Regulations could not be made under the Industrial Peace Regulations if the conditions of the former were not met. Furthermore, the Court determined that paragraph IV of Judge Foster's order, which made its duration contingent on a future High Court decision, contravened Section 28 of the Commonwealth Conciliation and Arbitration Act 1904-1934, as awards must specify a duration not exceeding five years. Latham C.J. also noted that the Women's Employment Regulations did not prevent the Commonwealth Court of Conciliation and Arbitration from making an award concerning females, provided it was not inconsistent with an order made under those Regulations.