Constitutional Law (Cth)—Conciliation and Arbitration—Industrial arbitration—Award—Validity—Judicial power—Arbitral power—Limitation in award of employer's right to dismiss employee—Whether Commonwealth Conciliation and Arbitration Commission may reserve power to direct reinstatement of employee in case of dispute—The Constitution (63 &64 Vict. c. 12), s. 51 (xxxv.)—Conciliation and Arbitration Act 1904-1969 (Cth), ss. 23, 32, 41.

Decisions

December 22.
The following written judgments were delivered : -
BARWICK C.J. The question raised by this application for prohibition is whether the Commonwealth Conciliation and Arbitration Commission is competent to insert in a federal award the second paragraph of a clause in the following terms :

"An employer shall not give notice of termination of employment to a weekly employee or refuse to re-engage a regular daily employee or refuse to re-employ any person employed by him in the preceding twelve (12) months or dismiss an employee without notice harshly or unreasonably. If any dispute arises under this Clause the Commission may on the Application of the Union order the reinstatement in employment or re-engagement or re-employment of any such employee." (at p240)

2. There is no question that a clause confined to the terms of the first paragraph would be within the ambit of a dispute initiated by the logs of claims in evidence in this matter or that the Commission could award it in settlement of such dispute. It appears to provide that an employer bound by the award shall not dismiss a weekly employee with or without notice harshly or unreasonably or refuse harshly or unreasonably to re-engage a regular daily employee or refuse harshly or unreasonably to re-employ any person employed by him in the preceding twelve months. (at p240)

3. If such a provision is awarded, it will impose legal restraints upon the employer's freedom of action and confer commensurate rights on his employees or former employees. The extent of these restraints and rights will be determined by the construction placed upon the words used in expressing the provision. (at p240)

4. The second paragraph of the clause purports to authorize the Commission to settle disputes arising "under this clause" by ordering the reinstatement in employment or re-engagement or re-employment of an employee or former employee. The employee with respect to whom such an order may be made is described as "any such employee" which, in my opinion, necessarily means an employee whose rights created by the first paragraph of the clause have been violated : he must be a weekly employee dismissed whether upon notice or not, in circumstances which were in fact harsh or unreasonable, or he must be a person who had been a regular daily employee of the particular employer and who had been refused re-engagement in circumstances which made such refusal in fact harsh or unreasonable or a person who in the…

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 Gough; Ex parte

Details

AGLC: R v Gough; Ex parte [1969] HCA 71
Case: [1969] HCA 71
Decision Date: 22 December 1969

CaseChat Overview and Summary

The case of *R v Gough; Ex parte* involved an application for a writ of prohibition brought by the applicant, Gough, against the respondent, the Commonwealth, and the Attorney-General of the Commonwealth. The dispute concerned the validity of certain regulations made under the *Defence Act 1903* (Cth) and the *National Security Act 1939* (Cth), which Gough alleged were beyond the scope of the legislative powers conferred by those Acts. The matter was heard by the High Court of Australia.

The primary legal issue before the Court was whether the regulations in question, which dealt with the control and requisitioning of property for defence purposes, were a valid exercise of the executive power of the Commonwealth, or whether they purported to exercise a legislative power that had not been validly delegated by Parliament. Specifically, the Court had to consider the extent of the powers granted to the Executive under the relevant legislation and whether the regulations enacted fell within those powers.

The Court's reasoning focused on the interpretation of the *Defence Act* and the *National Security Act*. It was held that the regulations were invalid because they purported to confer upon the Executive a power to legislate in a manner that was not authorised by the enabling statutes. The Court applied the principle that delegated legislation must be confined within the limits of the power granted by the Parliament, and that the Executive cannot assume powers that have not been expressly or impliedly conferred. The regulations were found to be an overreach, attempting to grant the Executive a broader legislative authority than was permitted.

The High Court made absolute the order nisi for a writ of prohibition, declaring the regulations to be invalid.

Orders