R v Kelly; Ex parte - [1952] HCA 25

THE QUEEN

KELLY AND OTHERS Ex PARTE WATERSIDE WORKERS' FEDERATION

OF AUSTRALIA. Industrial Arbitration-Stevedoring industry-Award of Commonwealth Court

of Conciliation and Arbitration-Termination of power of court to make awards in stevedoring industry-Power transferred to another authority-Continuance of award-Statute-Repeal of provision conferring power-Effect of repeal on things done and continuing under the power-Writ of prohibition-Order enforcing obligation-Validity of order-Error as to source of obligation-The Constitution (63 &64 Vict. C. 12), 88. 51 (i.), (xxxv.), 75 (v.)-Conciliation and Arbitration Act 1904-1951 (No. 13 of 1904-No. 58 of 1951), ss. 29, 48, 49-Stevedoring Industry Act 1947 (No. 2 of 1947)-Stevedoring Industry Act 1948 (No. 70 of 1948)-Stevedoring Industry Act 1949 (No. 39 of 1949).

The Waterside Workers' Award, made by the Commonwealth Court of Conciliation and Arbitration, which prescribed rates of wages, hours and other conditions of employment in the stevedoring industry and bound an organiza- tion of employees, and employers and organizations of employers, named in it, came into operation on 27th April 1936. It was expressed to continue in force for five years.

On 8th September 1947 (on the basis that the award remained in force by virtue of the provision-then in S. 28 (2) of the Act-which, in the Con- ciliation and Arbitration Act 1904-1951, appears in S. 48 (2) ) the court made an order varying the award. The variations reduced the standard hours of work and inserted in clause 4 of the award a sub-clause (j) to the effect that (i) an employer might require any employee to work reasonable over- time and such employee should work overtime in accordance with such requirement. ' (ii) The organization party to this award shall not in any

85 CLR 602

way whether directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of this sub-clause

THE QUEEN

On 22nd December 1947 the Stevedoring Industry Act 1947 came into operation. It constituted a Stevedoring Industry Commission (s. 6) and declared that its functions should be (a) to prevent or settle, by conciliation or arbitration, industrial disputes, extending beyond the limits of any one State, in connection with stevedoring operations; and (b) to regulate industrial matters in connection with stevedoring operations, and to regulate and control the performance of stevedoring operations, in SO far as those operations related to trade and commerce with other countries or among the States or were performed in a Territory of the Commonwealth (s. 12 (1) ) For the purpose of hearing the parties to, and of inquiring into and investi- gating, an industrial dispute, the commission should have the same powers disputes (s. 13 (3) ). For the purpose of exercising its functions the com- mission should have power to make such awards and orders, give such directions and do all such other things as it thought fit (s. 14 (a); and such awards and orders should have the force of law (s. 16…

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.

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Details

Case: [1952] HCA 25
Decision Date: 26 May 1952

CaseChat Overview and Summary

The case of *R v Kelly; Ex parte Waterside Workers' Federation of Australia* concerned an application for a writ of prohibition brought by the Waterside Workers' Federation of Australia against orders made by the Commonwealth Court of Conciliation and Arbitration. The dispute centred on the validity of these orders, which sought to enforce a clause in the Waterside Workers' Award requiring the Federation to cease being a party to or concerned in any ban, limitation, or restriction on the working of overtime. The Federation argued that the award, and consequently the enforcement orders, were no longer valid due to subsequent legislative changes in the regulation of the stevedoring industry. The matter was heard in the High Court of Australia.

The primary legal issues before the court were whether the Waterside Workers' Award, originally made under the *Conciliation and Arbitration Act 1904-1951*, continued to have legal force and effect after the enactment of the *Stevedoring Industry Act 1947* and the *Stevedoring Industry Act 1949*. Specifically, the court had to determine if the legislative transfer of powers from the Commonwealth Court of Conciliation and Arbitration to the Stevedoring Industry Commission and later to the Australian Stevedoring Industry Board, and the subsequent repeal and re-enactment of legislation, had extinguished the award and the court's power to enforce it. A related issue was whether the orders made by the Commonwealth Court of Conciliation and Arbitration on 8 May 1952, purporting to enforce clause 4(j)(ii) of the award, were validly made, or if they were based on an erroneous understanding of the source of the obligation being enforced.

The High Court held that the Stevedoring Industry Act 1947 did not terminate the operation of the Waterside Workers' Award. While section 19 of that Act removed the power of the Arbitration Court to make future awards concerning waterside workers, it did not invalidate existing awards. The court reasoned that the Stevedoring Industry Commission's order of 22 December 1947, which continued existing awards and orders in force as if made by the Commission, did not alter the character of the award or cause a merger. Similarly, the Stevedoring Industry Act 1949 and the subsequent order made by Kirby J. did not invalidate the award. Crucially, the court found that even if the orders of 8 May 1952 were mistaken as to the precise source of the obligation being enforced, the *Conciliation and Arbitration Act 1904-1951*, particularly section 29, provided a valid power to enforce such obligations. Therefore, the orders were not invalidated on that ground, and there was no basis for issuing a writ of prohibition.

The High Court discharged the order nisi for prohibition. The court concluded that the orders of 8 May 1952, made by the Commonwealth Court of Conciliation and Arbitration, were validly made and enforceable, and thus the Waterside Workers' Federation of Australia was not entitled to a writ of prohibition to prevent further proceedings on those orders.

Orders