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…

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 Graham; ex parte Moore

Details

AGLC: R v Graham; ex parte Moore [1977] HCA 20
Case: [1977] HCA 20
Decision Date: 21 April 1977

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition in *R v Graham; ex parte Moore*. The applicant, Moore, sought to prohibit the respondent, Graham, a stipendiary magistrate, from proceeding with a committal hearing against him on charges of conspiracy to defraud. The dispute centred on whether the evidence presented by the prosecution was sufficient to establish a prima facie case for the charges.

The primary legal issue before the High Court was whether the magistrate had erred in law by finding that there was sufficient evidence to commit the applicant for trial. This involved determining the standard of proof required at a committal hearing and whether the evidence, when viewed in its most favourable light to the prosecution, could reasonably support a conviction.

The Court, in a joint judgment, held that the standard for committal is whether there is a prima facie case, meaning evidence which, if uncontradicted and unexplained, could lead a reasonable jury to convict. The Court found that the evidence presented by the prosecution, particularly concerning the applicant's knowledge and participation in the alleged conspiracy, was capable of supporting such a finding. Therefore, the magistrate had not erred in law by committing the applicant for trial.

The application for the writ of prohibition was dismissed.

Orders