R v Graham; ex parte Moore

[1977] HCA 20

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ.

THE QUEEN v. GRAHAM; Ex parte MOORE

(1977) 138 CLR 164

21 April 1977

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Conciliation and Arbitration Commission—Powers—Interim award—Prohibition—Industrial dispute—Demand by union upon employer concerning rates of pay for employees not members of union—Conciliation and Arbitration Act 1904 (Cth), ss. 28, 41 (1) (b).

Decisions

1977, April 21.
The following written judgments were delivered: -
BARWICK C.J. My consideration of the course of events in connexion with the disputes CNo. 1723 of 1976 and CNo. 3489 of 1976 has led me to the same conclusions as those reached by my brother Gibbs and expressed by him in reasons for judgment which I have now had the advantage of reading. I am content to say that I agree with both the conclusions and reasons there expressed and feel no need to supplement or qualify them. In my opinion, the order nisi should be discharged. (at p165)

GIBBS J. This is the return of an order nisi to prohibit further proceedings in two matters in the Australian Conciliation and Arbitration Commission ("the Commission"), identified respectively as C No. 1723 of 1976 and C No. 3489 of 1976. (at p165)

2. Three of the respondents, Australian Lubricating Oil Refinery Pty. Ltd., Australian Oil Refining Pty. Ltd. and Total Refineries Australia Ltd., are companies which conduct oil refineries in New South Wales. When the proceedings in the Commission commenced, most of the persons employed as operators in those oil refineries were members of the Australian Workers' Union ("the respondent union"), which is registered under the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"), as an organization of employees, and which is also a respondent to the present application. A branch of the respondent is registered under the Industrial Arbitration Act, 1940 (N.S.W.), as amended, as an industrial union of employees. It will be convenient to refer to this branch as "the State registered union", but it will not be necessary to consider its status or its relation to the respondent union. The wages and conditions of the members of the respondent union employed as operators in the oil refineries conducted in New South Wales by the three respondent companies were, at least until 27th September 1976, governed by industrial awards or industrial agreements made or registered pursuant to the Industrial Arbitration Act, 1940 (N.S.W.), as amended. However, the wages and conditions of members of the respondent union employed as operators in refineries conducted by other companies in Queensland and Victoria were governed by the provisions of awards made under the Act - federal awards. There were other refineries in Australia, including one in Western Australia at which members of the respondent union were employed; some of these were, and some were not, governed by federal awards. It appears that the wages of the operators employed in the three respondent companies in New South Wales were higher than those of operators employed in other States. This, it was suggested, was an anomaly which might justify increased wages to those operators employed under federal awards. An industrial dispute arose on this question but it did not concern the three respondent companies. However, in the course of that matter on 11th August 1976 a Commissioner made a detailed report on the alleged anomalies. (at p166)

3. On 3rd August 1976 the respondent union served on a number of companies, which operated the refineries in Queensland, Victoria and Western Australia at which members of the respondent union were employed, a letter of demand together with a document in the form of a draft award. No reply to this demand was received within the time specified in the letter and the respondent union, acting under s.25 of the Act, notified the Industrial Registrar of the existence of an industrial dispute. This dispute became matter C No. 1723. (at p166)

4. This letter of demand was not served on any of the three respondent companies. At about this time delegates of the union at the refineries of the three companies made claims in respect of wages and conditions of persons employed there, and on 10th August 1976 employees at Australian Oil Refining Pty. Ltd. and Australian Lubricating Oil Refinery Pty. Ltd. resolved to stop work. A compulsory conference was convened by the Industrial Commission of New South Wales, which on 17th August 1976 determined to make an interim award relating to members of the respondent union employed in those two companies. (at p167)

5. In the meantime, on 16th August 1976 a letter of demand, together with a log of claims as to the wages and conditions of members of the respondent union employed in the oil refining industry, was served on the respondent union. This demand was made on behalf of all the companies upon whom the respondent union's letter of 3rd August 1976 had been served (except one small family company), and also on behalf of the three respondent companies. Hereafter when I refer to "the companies" I shall mean the companies on whose behalf this demand was made - the respondent companies and others. No reply having been made to this demand within the specified time, the companies notified the Industrial Registrar of a dispute under s. 25. This dispute became matter C No. 3489. (at p167)

6. On 23rd August 1976 the two matters (C No. 1723 and C No. 3489) came on separately for hearing before a Commissioner. The State registered union was granted leave to intervene in matter C No. 3489. In that matter the Commissioner made the following finding:

"Having examined the file in this matter and in view of what has been put to the Commission I am satisfied that there is an interstate industrial dispute within the meaning of the Act, the matter in dispute being the wages and working conditions of employees members of the Australian Workers' Union employed by those employers who have served the demand, the parties to the dispute being the Australian Workers' Union and those employers."

The prosecutors concede that these findings cannot be challenged. The material before us does not show it, but it is agreed that a finding of the existence of an interstate industrial dispute was also made (and properly made) in matter C No. 1723. (at p167)

7. Subsequently, both matters were referred to a Full Bench of the Commission, and were listed for hearing on the day fixed to consider the matter of the alleged anomaly discussed in the Commissioner's report of 11th August. This latter matter was heard first and a sharp difference of opinion emerged between the respondent union and the State registered union. The former sought common rates throughout Australia; the latter strongly opposed any suggestion that the operators in other States should have equality with those in New South Wales. The Commission reserved its decision on this question and, after an adjournment, proceeded with the other two matters. The State registered union then applied to the Commission to dismiss that part of the dispute which related to the employees of the respondent companies, or to refrain from further hearing it, on the ground that the alleged dispute, or part thereof, was proper to be dealt with by the Industrial Commission of New South Wales, and that further proceedings were not necessary or desirable in the public interest. (See s. 41 (1) (d) (ii) and (iii) of the Act). The respondent union supported this request, although it made the reservation that the operations of the New South Wales refineries are not different from the operations of those in other States. (at p168)

8. On 15th September 1976 the Full Bench gave its decision in the matter of the alleged anomalies. The proceedings in that matter are not the subject of this application for prohibition, and it is sufficient to say that the Full Bench, although not satisified that the New South Wales rates should be used to establish a national minimum, held that a case had been made out for the establishment of common categories and wage structure for operators in the oil industry. Conferences were convened with a view to bringing this matter to finality. (at p168)

9. On 20th September 1976 the Full Bench announced its decision refusing the application under s. 41 (1) (d) to dismiss part of the dispute. In the course of its reasons, the Full Bench said:

"We positively believe that it is in the best interests of all that these three refineries should be regulated federally either by agreement or award. In confirmation of this we point out that at least in recent years negotiations carried out federally or decisions made by this tribunal, have flowed to these employees." (at p168)

10. On 27th September 1976 the respondent union wrote to the solicitors for the companies, on whose behalf the demand of 16th August 1976 had been served, a letter in the following terms:

"Reference is made to your letter of 16th August 1976 and accompanying log of claims... That log (C. No. 3489 of 1976) has been before Mr. Commissioner Neil and a Full Bench of the Commission. The Union rejects the claims in your log and contends that the wages and conditions of employment of all employees of the Companies who are parties to disputes C. No. 1723 and 3489 of 1976 should be in accordance with the Union's log (C. No. 1723 of 1976). In particular the Union contends that there should be uniformity of the wages and working conditions of all persons employed by the Companies which are parties to matters C. Nos. 1723 and 3489 of 1976 whether or not such employees are members of the A.W.U. However we demand that preference of employment be given to financial members of The Australian Workers' Union." (at p169)

11. On the same day (27th September 1976) the two matters came on for further hearing before the Full Bench. The representative of the State registered union sought an adjournment. He said that the delegates representing the employees in the three refineries in New South Wales had recommended that all those employees who were members of the respondent union should resign from that union, and that a number had already resigned. He accordingly submitted that, if the Commission did make an award, it would not apply to any employees in New South Wales. The Full Bench refused the application for an adjournment. The representative of the respondent companies then asked the Commission to make awards in the terms of the existing State awards and on an interim basis. He said that neither his clients nor the respondent union agreed with all of the provisions in those awards. He mentioned that the employees at two of the refineries had indicated an intention to strike in protest against the decision of the Full Bench given on 20th September 1976. (In fact it appears that by this time the employees had stopped work, and that on the same day proceedings were taken in the Industrial Commission of New South Wales in an attempt to secure a resumption of work). He said that since that decision two attempts had been made to have the dispute dealt with by the Industrial Commission of New South Wales. He asked the Commission to make interim awards and to adjourn into conference so that the stoppage could be dealt with. The representative for the respondent union said that, in the light of the circumstances, he had no choice but to agree that the interim awards should be made. He said:

"The employees in New South Wales are - unfortunately we believe - no matter what anybody does, covered by the federal commission and have been taken out of the hands of the state commission. For that reason we are forced to assent to the implementation of these interim awards."

He then tendered a copy of the letter of 27th September 1976 sent on behalf of the respondent union to the solicitors for the companies, and said: "We insist that if these interim awards are made, they should be made in the terms of that letter." (at p169)

12. At the conclusion of the hearing, after considering the submissions made, the President on behalf of the Full Bench made the following statement:

"The employers and the federal AWU are in agreement as to the making of interim awards, although the federal AWU has today demanded of the employers that any award made on the employers logs should apply to all employees whether members of the AWU or not. As the employers have not had time to consider this demand this matter cannot now be dealt with by us. Mr. Mahony intervening for the State AWU opposes the making of an award and the government of New South Wales has asked us to consider the public interest. It is our view that the public interest would best be served if we acceeded (sic) to the agreement of the parties and made the interim awards which are virtually replicas of current state awards and will not change existing rates and conditions. We are also of the view that the public interest will be served if we accede to the other part of the employers request and call a conference of all those concerned, which will take place before Mr. Commissioner Neil at 10 a.m. in the morning. We are disturbed that previous attempts at conciliation have not resolved this matter and we hope what we have done will help conciliation. Draft awards to give effect to this decision will be prepared by the employers and settled by the registrar with recourse to a member of the Commission." (at p170)

13. The awards made included the "Oil Refinery Employees (Total Refineries Australia Limited) Interim Award 1976" and "Oil Refinery Employees (Australian Oil Refining Pty. Limited and Australian Lubricating Oil Refinery Limited (sic)) Interim Award 1976". The first-mentioned award contained the following provision:

"This award shall be binding upon the Australian Workers Union and its members and Total Refineries Australia Limited in respect of its employees in the classifications prescribed in clause 4 of this award".

The second award contained a similar provision which of course referred to the other two respondent companies. (at p170)

14. On 29th September 1976 the solicitors for the companies wrote to the respondent union a letter which included the following:

"In reply to your letter of 27th September 1976 we notify you that the companies which are parties to the abovementioned disputes claim that the wages and conditions of all their employees in the Oil Refining and Hydrocarbons and Gas Industry who are members or are eligible to be members of the Australian Workers' Union should be in accordance with clauses 2 to 19 inclusive of the employees' (sic) log of claims of 16th August 1976 (C No. 3489 of 1976)."

The letter obviously intended to refer to "the employers'" log of claims, and went on to indicate an appropriate amendment to the companies' log of claims. (at p170)

15. On the morning of 30th September 1976 proceedings in relation to the dispute were brought on in the Industrial Commission of New South Wales where apparently doubts were expressed as to whether or not the interim awards made on 27th September 1976 applied to employees who were not members of the respondent union. In consequence the parties brought the two matters before the Full Bench of the Commission that afternoon. The Full Bench granted an application, in which the respondent union and the respondent companies joined, to vary the record of finding in matter C No. 1723 and in matter C No. 3489 "to accord with the contents of the letter from the AWU to Moule, Hamilton and Derham and the reply to that letter". The letters referred to are of course those of 27th September 1976 and 29th September 1976. A further application was then made on behalf of the respondent companies to vary the two interim awards by providing that they should be binding upon the respondent union and all persons employed by the respondent companies in the classifications prescribed in cl. 4 of the interim awards, whether members of the respondent union or not. The respondent union supported this application. The New South Wales Government was granted leave to intervene and opposed the making of the variation on the ground that it would be against the public interest. The Full Bench reserved its decision and, on the following day, ordered that the interim awards be varied in the terms sought. (at p171)

16. Most of the operators employed by the three respondent companies have purported to resign from the respondent union and there have been purported acceptances of their resignations. It is unnecessary to express any view as to the efficacy of the purported resignations. If, however, they were effective, no more than 29 of the 411 members of the respondent union formerly employed as operators by the three respondent companies in New South Wales still remained as members of the respondent union. (at p171)

17. The prosecutors are delegates of the employees of the three respondent companies who are members of the State registered union. They seek, in effect, to set aside the interim awards made on 27th September 1976 and varied on 1st October 1976 and the record of findings so far as they were varied on 30th September 1976. (at p171)

18. It is incontestable that the proceedings before the Commission related to an industrial dispute as defined in the Act, i.e. a dispute as to industrial matters which extended beyond the limits of any one State. The dispute was a serious and complicated one. There could be no doubt that the Commission had jurisdiction to entertain the proceedings in both matters. Moreover, the Commission had the clearest power to make an interim award. Section 41 (1) of the Act provides, inter alia, as follows:

"The Commission may, in relation to an industrial dispute - ... (b) make an award (including a provisional or interim award relating to any or all of the matters in dispute) or give a direction in pursuance of the hearing or determination."

However, a number of arguments were advanced on behalf of the prosecutors in support of the view that the Commission did not have jurisdiction to make or vary the interim award in the circumstances of the present case. (at p172)

19. In the first place, it is submitted that the Commission did not purport to act under s. 41, but intended to exercise the power given by s. 28 of the Act, and that s. 28 did not permit the Commission to make an interim consent award. It appears that during the course of argument on 27th September 1976 the President referred to s. 28 in terms which suggested that he thought that the provisions of that section required the Commission to make the consent order unless it was not in the public interest to do so. Again, on 30th September 1976, it appeared from what was said in argument that the parties were in agreement that the matter came within s. 28. However, when the President announced the decision of the Full Bench on 27th September 1976, he did not refer to s. 28, and his remarks suggest that the awards were made, not because the Full Bench felt constrained to make them, but because it was in the public interest to do so. Any statement made when the Commission gave its further decision on 1st October 1976 is not recorded in the material before us. The interim awards when made are not, at least so far as the copies contained in the appeal book show, expressed to be made by consent, although s. 28 (5) requires that an order made in accordance with that section shall be so expressed. I am not satisfied, on the material before us, that in making and varying the interim awards the Commission intended to exercise the power given by s. 28, but I am prepared to assume that it did so intend, and will consider the matter on that assumption. The provisions of s. 28 apply:

"If, before an industrial dispute has been referred to arbitration in accordance with this Act, the parties to the dispute or any of them reach agreement on terms for the settlement of all or any of the matters in dispute..."

If such an agreement is reached during arbitration proceedings, the provisions of s. 28 are made applicable by s. 30 (3) . It appears that ss. 28 and 30 (3) deal with the situation that arises Where the parties have resolved some or all of their differences, rather than with the case where the parties remain at arm's length in their contentions as to all the issues in dispute but nevertheless agree that an interim award should be made for reasons of convenience. (at p173)

20. On behalf of the prosecutors, it was argued that it was impossible to say that the awards were made in settlement of the disputes which had previously been found to exist between the parties; they were made, it was said, so that the Commission could acquire jurisdiction over the dispute. However, assuming all these things, it does not follow that the awards were invalid. Prohibition will not lie to the Commission if, acting within jurisdiction, it makes awards which it had power to make, simply because it thought that its power was conferred by one section whereas in truth it was given by another. Even without the privative provisions of s. 60 of the Act, prohibition would not lie in such a case. I have already mentioned that the Commission acted not simply because it felt constrained by s. 28 but because it considered that it was in the public interest to do so, and in these circumstances it is not possible to argue that there was no real exercise of power. Moreover, if on 30th September and 1st October 1976 the Commission acted for the purpose of making it clear that the matter was within the jurisdiction of the Commission, that would be no objection to the validity of the awards nor, if it matters, any ground for critizing the exercise by the Commission of its discretion. On the assumption that the Commission had jurisdiction, it was perfectly proper for the Commission to make an interim award for the purpose of avoiding conflicting action by a State Industrial Tribunal. (at p173)

21. In support of the argument based on s. 28, it was submitted that the Commission should have formed the opinion that cl. 41 of the "Oil Refinery Employees (Total Refineries Australia Limited) Interim Award 1976" was a term which the Commission did not have power to include in an award and should for that reason have refused to make the award - see s. 28 (2) (b). Clause 41 of that award provides as follows:

"41. UNION PREFERENCE (a) Absolute preference of employment shall be given to financial members of the Union.

(b) Any employee not a member of the Union shall undertake

to become and remain a financial member of the Union, upon accepting employment with the company".

No similar clause appears in the other award in question. The argument is that in so far as cl. 41 amounts to a direction that preference be given to members of the union, it does not comply with s. 47 (1) of the Act and that in any case the clause goes further than s. 47 permits and attempts to confer a monopoly of employment upon unionists, contrary to such cases as R. v. Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 ; R. v. Findlay; Ex parte Victorian Chamber of Manufactures (1950 81 CLR 537), (9), and Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. (1972) 126 CLR 529 . However, no ground raising the validity of cl. 41 appears in the order nisi. The question whether cl. 41 is valid is only on the fringes of the present dispute and does not touch the real matters in controversy. For that reason, the question of its validity was not fully argued before us. The award is an interim one and in any award finally made cl. 41 may appear in a different form or not at all. For all these reasons, I would decline permission to add a ground to the order nisi to enable this question to be raised at this stage of the proceedings. Nothing in my judgment is intended to indicate any opinion upon the questions whether cl. 41 is valid and whether, if it were invalid, its invalidity would infect the award as a whole. Those questions can be decided in other proceedings if the parties are so advised. (at p174)

22. Next it was argued that the awards went beyond the ambit of the dispute between the parties. This argument went as follows: The demand by the respondent union was not addressed to the respondent companies and therefore raised no dispute with them. The dispute between the respondent companies and the respondent union was raised by the demand made by the companies on 16th August 1976. But the interim awards allowed the employees wages greater than were mentioned in that demand. They also granted certain allowances, although the companies' log stated that no such allowances should be granted. Therefore, it was said, the awards were not made in respect of matters in dispute between the parties. In other words, it was submitted that in a dispute constituted by the making of demands in a log of claims delivered by an employer, and the failure to accede to those demands, the Commission could not award wages or conditions more favourable than those specified in the log. (at p174)

23. With all respect, this argument is untenable. The employees were already receiving, under State agreements and awards, wages and allowances virtually the same as those awarded by the interim awards. The companies' claim was to reduce those wages and abolish the allowances. The Commission could have resolved the dispute in favour of the respondent companies by changing the existing conditions. It could have finally resolved it in favour of the respondent union by refusing to make any change. In fact, as an interim measure it did refuse to make any change. But when the Commission took that course, it was not obliged simply to refrain from making an award. It had already refused to dismiss the matters under s. 41 (1) (d). It was entitled to take the view that it was in the public interest to take cognizance of the dispute and make interim awards, and this is what it did. The awards so made were within the ambit of the existing dispute. (at p175)

24. Further, the ambit of the dispute had been extended by the union's letter of 27th September which made it clear that the claims made by the union's log were now made against the three respondent companies as well as against the companies originally named. In truth, the cross-demands of 3rd August 1976 and 16th August 1976 and the letter of 27th September (and later the letter of 29th September) together gave rise to one dispute, within whose ambit the interim awards fell. (at p175)

25. Finally, it was submitted that the variation of the findings made on 30th September 1976 was beyond power and that the variation of the interim awards on 1st October 1976 was correspondingly invalid. The Commission of course had power to vary its finding as to who were the parties to an industrial dispute: s. 24 (1) of the Act. However, it was submitted that the Commission had no jurisdiction to make or vary an award in relation to the terms and conditions of employment of persons other than members of the respondent union, as no industrial dispute existed between the respondent companies and the respondent union as to the wages and conditions of employment of persons not members of the respondent union. The argument on behalf of the prosecutors was based on the decision in Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union (1956) 96 CLR 317 . The principle upon which that case was decided was "that an organization of employees is not representative of non-union members so that a log served by employers upon an organization of employees claiming conditions of employment for non-union members is incapable of initiating an industrial dispute": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Boot Trade Employees' Federation (1966) 114 CLR 548, at p 553 . However, it is well established that a demand made by a union of employees upon an employer as to the rates payable to employees not members of the union can give rise to an industrial dispute between the employer and the union. This was decided in Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 CLR 387 . The principle of that decision was stated by Dixon J. in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch (1938) 60 CLR 507, at pp 537-538 in a passage adopted by the Court in R. v. Kelly; Ex parte Victoria (1950) 81 CLR 64, at p 82 :

"The principle upon which the decision rests is that the interest which an organization of employees possesses in the establishment or maintenance of industrial conditions for its members gives a foundation for an attempt on its part to prevent employers employing anyone on less favourable terms. As a result an industrial dispute may be raised by it with employers employing none of its members and an award may be made binding such employers and regulating the terms and conditions upon which they may employ unionists or non-unionists."

In such a case there is a dispute between the employer and the organization, although the subject matter includes rates payable to non-unionists: Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union, per Fullagar J. (1956) 96 CLR, at p 332 See also at pp 326, 333-334, 336, 338 . (at p176)

26. In the present case the draft award served by the respondent union with its letter of 3rd August 1976 contained a provision that the award should be binding upon all persons employed by the companies mentioned in the draft award, whether those persons were members of the respondent union or not. On the other hand, the demand made by the companies on 16th August 1976 was that the claims should apply only to members of the respondent union. The letter of 27th September 1976 sent on behalf of the respondent union extended the union's claims to employees of all the companies, whether or not those employees were members of the respondent union. The companies, by their letter of 29th September 1976, did not accede to the claims of the respondent union. It is true that the companies were prepared to extend their log of claims to persons eligible to be members of the respondent union, but they offered conditions of employment less favourable than those which the union sought. At this stage there was clearly an industrial dispute between the respondent companies and the respondent union, although its subject matter included the conditions of employment of persons not members of the union. The case is within the line of authorities commencing with the Metal Trades' Case (1935) 54 CLR 387 . Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union (1956) 96 CLR 317 is distinguishable. This argument also fails. (at p177)

27. The order nisi should be discharged. (at p177)

STEPHEN J. I agree both with the order proposed by my brother Gibbs and with his reasons. Accordingly, I would discharge the order nisi. (at p177)

MASON J. I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs and agree with them. (at p177)

JACOBS J. A number of grounds have been argued in support of the application to make absolute the order nisi. They fall into two classifications. First, there are grounds which claim that there was no industrial dispute extending beyond the limits of one State in that the interim award made by the Commission went outside the ambit of any such dispute which did exist. Secondly, there is the ground that the interim award was irregularly made because the Commission purported to exercise the power in s. 28 to make a consent award and that power does not extend to the making of a consent interim award; in addition, it was sought to add a ground that cl. 41 of the interim award was invalid because it purported to give a monopoly of employment to the members of the organization, the Australian Workers' Union and therefore a consent award could not be made under s. 28. (at p177)

2. The first classification may be the subject of application to this Court for mandamus or prohibition unaffected by the so-called privative provision in s. 60 of the Act. It raised questions of Commonwealth power. (at p177)

3. The second classification raises no question of Commonwealth power. Section 60 would apply in the manner described by Fullagar J. in R. v. Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54, at pp 88-89 unless it appears from the Act read as a whole that some particular limitation on jurisdiction was intended by Parliament to be imposed and that the operation of s. 60 was intented to be subject to that limitation. The limitation must be found in the Act read as a whole with the aid of the rules of construction developed by the courts whereby privative sections are strictly construed. There can be no doubt that the Commission had power to make an interim award. Section 41. Even if s. 28 (1) does not extend to the making of an interim award by consent (and I should not be taken to say that it does not), such an interim consent award is an award and by virtue of s. 60 (1) cannot be subject to prohibition unless the Act read as a whole shows an intention that such an award should be excepted from the terms of s. 60 (1). I can see no such intention. This ground for prohibition therefore fails. (at p178)

4. The additional ground sought to be argued falls within the second classification. However, the grant of monopoly of employment in favour of members of a registered organization has been held to be, on a true construction of the Act, outside the jurisdiction of the Commission and it has further been held that the Act, read as a whole, shows a legislative intention that an award incorporating such a grant should be able to be challenged (R. v. Wallis; Ex parte McKay Massey Harris Pty. Ltd. (1949) 78 CLR 529 . It has therefore been decided that s. 60 does not apply to a challenge to a monopoly of employment provision. The Act, although it has since that decision been amended, is not relevantly different at the present time. This ground of prohibition could therefore be properly taken but, as it was not a ground stated in the order nisi, it ought not now be allowed to be added. I agree with the reasons expressed by Gibbs J. for that conclusion. (at p178)

5. There remain the grounds which fall within my first classification, the grounds based on lack of constitutional power. The first is based on a claim that the awards made by the Commission were outside the ambit of any dispute between the registered organization and the three New South Wales companies, Total Refineries Australia Ltd., Australian Lubricating Oil Refinery Pty. Ltd. and Australian Oil Refining Pty. Ltd. Whether or not the awards were within the ambit of any such dispute at the date of the making of the awards on 27th September 1976, I do not find it necessary to determine. Between 27th September 1976 and the variation of the award on 1st October 1976 a fresh dispute was created by the respondent organization's letter of 27th September 1976 demanding that the wages and conditions of employment of all employees of all the companies (including the three New South Wales companies) should be in accordance with the demands in the organization's original log of 3rd August 1976 delivered to all the companies except the three New South Wales companies. This demand was rejected on 29th September 1976 and a counter demand was made. Thereupon a fresh dispute arose. On 30th September 1976 the Commission varied the finding of dispute. On the following day the awards were varied in a way which was within the ambit of the fresh dispute. When a dispute in fact existed a challenge based on the absence of a dispute cannot succeed, however the matter may be expressed in the course of proceedings before the Commission. The constitutional requirement has been satisfied. (at p179)

6. The second ground of constitutional attack is that the variation of the awards on 1st October 1976 was invalid in that by the variation the Commission purported to regulate the terms and conditions of employment by the New South Wales companies of persons other than members of the respondent organization in circumstances where the claim for such a regulation came from the employers (Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union (1956) 96 CLR 317 ). However, the answer to this submission is that the claim for the regulation of the terms and conditions of employment by all the companies (including the three New South Wales companies) of persons other than members of the respondent organization came from the latter. It was originally made in the log of 3rd August 1976 and was extended to the three New South Wales companies in the letter of 27th September 1976. The original claim and the extension were in respect of the terms and conditions of employment demanded in the organization's log. The awards were made in settlement of the dispute created by that log, its extension on 27th September and the refusal to accede to it on 29th September. It is by the way that the interim award gave no more to the persons employed by the three New South Wales companies than they had under the previously applicable State award. It is also by the way that the employers did not oppose and in fact sought the making of the interim award and the variation of it. The dispute by that time was in existence. The challenge based on the lack of interstate industrial dispute in respect of the subject matter, or part of the subject matter, of the interim awards does not succeed. The order nisi should in my opinion be discharged. (at p179)

MURPHY J. Some of the grounds advanced for making absolute the order for prohibition are non-constitutional ones based on alleged departures by the Australian Conciliation and Arbitration Commission from the procedural or substantial provisions of the Conciliation and Arbitration Act 1904. I agree with Gibbs J.'s conclusions on these. In addition, s. 60 (1) of the Act purports to exclude the remedy of prohibition. The prosecutors did not explain satisfactorily how the operation of s. 60 might be avoided where prohibition is sought on these grounds. (at p180)

2. The prosecutors' arguments on constitutional grounds treat the legislative powers of the Parliament as if they were confined to making laws with respect to conciliation and arbitration for the settlement of industrial disputes extending beyond the limits of any one State, although s. 51 (XXXV.) of the Constitution refers to prevention as well as settlement of such disputes, and Parliament has legislated with respect to prevention (see the definition of "industrial dispute" in s. 4 of the Act). Other provisions of the Constitution should not be overlooked (e.g., ss. 51 (i) and (XX.)). (at p180)

3. Even on the prosecutors' narrow approach, the making of the award was within the scope of the constitutional power. If there is a dispute between employers (or an organization of employers) and a trade union over the wages and conditions of non-unionists who are or may be employed by the employers, authorization of the settlement of the dispute by arbitration and of an award dealing with the wages and conditions to be paid to the non-unionists is within the constitutional power (see R. v. Kelly; Ex parte Victoria (1950) 81 CLR 64, at p 82 ). (at p180)

4. The prosecutors relied on Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union (1956) 96 CLR 317 , but there the Australian Workers' Union carefully refrained from making any claim regarding rates of pay to non-members. The employers' attempt to initiate a dispute by making a demand that they be liable to pay certain rates to members and non-members was held incapable of giving rise to a dispute with the trade union (in relation to the rates to be paid to the non-members). This is not so here. The Australian Workers' Union has disputed with the employers what non-members should be paid and what conditions of employment should apply. (at p180)

5. I agree that the argument on ambit should be rejected. The employers' demand should not be isolated from the existing wage structures. The claim for rates was to reduce liability to pay higher existing rates which were required by the award of the Industrial Commission of New South Wales made under the Industrial Arbitration Act, 1940 (N.S.W.), as amended. The notions of ambit which apply to simple cross-claims on one subject such as wage rates are inappropriately applied to disputes involving multiple claims and counter-claims (about various rates allowances and conditions) made against a complicated background of existing rates, allowances and conditions. (at p181)

6. The order nisi should be discharged. (at p181)

AICKIN J. I have had the advantage of reading the reasons for judgment of Gibbs J. and agree with both the reasons and the conclusion. I agree that the order nisi should be discharged. (at p181)

Orders

Order nisi discharged.