R v Kelly; Ex parte State of Victoria

The State of Victoria sought a writ of prohibition against the Industrial Relations Commission of Victoria (the Commission) and Mr. Kelly, a member of the Commission, to prevent the Commission from proceeding with an inquiry into the trading hours of certain shops. The dispute concerned whether the Commission had the power to fix trading hours for shops under the relevant industrial relations legislation.

The central legal issue before the Full Court of the Supreme Court of Victoria was whether the fixing of trading hours for shops constituted an "industrial dispute" or an "industrial matter" within the meaning of the *Industrial Relations Act 1979* (Vic). Specifically, the Court had to determine if such a matter "pertain[ed] to the relations of employers and employees" or "affect[ed] or relat[ed] to work done or to be done."

The Court reasoned that the power to fix trading hours for shops was not an industrial matter as defined by the Act. It held that while trading hours might indirectly affect employees, the primary purpose and effect of regulating them was to control commercial activity and competition, not to regulate the relationship between employers and employees in the way contemplated by the legislation. The Court distinguished between matters that directly concerned the terms and conditions of employment and those that were essentially commercial in nature, even if they had consequences for employment.

The Court made absolute the order nisi for prohibition, restraining the Commission from further proceeding with the inquiry into the trading hours of the shops.