R v Graziers' Association of NSW; Ex parte Australian Workers' Union

The High Court of Australia considered an application for a writ of prohibition brought by the Australian Workers' Union (the prosecutor) against a conciliation commissioner and several employer organisations in the pastoral industry. The dispute arose from cross-demands concerning minimum rates of pay and conditions of employment. Specifically, the employer organisations had served a log of claims on the union seeking to be bound by terms regarding non-unionist employees, and the union had also served a log of claims. The prosecutor sought to prohibit further proceedings and an interim award made by the commissioner, insofar as they related to employees who were not members of the union.

The central legal issue before the Court was whether an industrial dispute, within the meaning of the *Conciliation and Arbitration Act 1904-1955* and Section 51(xxxv) of the Constitution, had arisen concerning the terms and conditions of employment for non-unionist employees. The prosecutor argued that a demand by employers that they be bound by certain terms in respect of non-unionists, to which the union could neither assent nor dissent in a meaningful way, could not create a dispute giving the commissioner jurisdiction. The respondents contended that a dispute could arise from such a demand and refusal, and that the commissioner had the authority to make an award covering non-unionists.

A majority of the High Court (Dixon C.J., McTiernan, Webb, Fullagar, and Kitto JJ.) held that the order nisi for prohibition should be made absolute. The Court reasoned that for an industrial dispute to exist, there must be a disagreement about something that one party to the dispute, or the class it represents, can do or refrain from doing. A demand by employers that they be bound by certain terms regarding non-unionist employees, to which the union's assent or dissent was irrelevant as the union could not affect the matter, did not constitute a genuine industrial dispute. The union, as a registered organisation, represents its members, not non-members. Therefore, the employers' demand concerning non-unionists was a matter over which the union had no control or interest, and its refusal to accede to this demand could not found the jurisdiction of the conciliation commissioner to make an award in relation to those non-unionist employees. The Court distinguished this situation from cases where a union demands terms for its members, or even for all employees, as in those scenarios, the union has a positive role to play.