Industrial Law (Cth)—Conciliation and arbitration—Registered organization—Rules—Eligibility for membership—Riggers erecting steel mast—Whether employed in building operations—Power for Commission to allow one organization to represent class of employees to exclusion of another—Whether judicial power of the Commonwealth—Natural justice—Application for order opposed on ground of inconsistency with agreement in previous proceedings before Commission—Consultation between Deputy President and Commissioner before whom agreement alleged to have been made—The Constitution (63 &64 Vict. c. 12), Ch. III—Conciliation and Arbitration Act 1904 (Cth), ss. 35, 142A (1).
Decisions
June 23. The following written judgments were delivered: - MASON J. This is an application by the applicant ("The B.L.F.") made pursuant to an order made by Aickin J. for a writ of prohibition directed to the first respondent, Marks J., a Deputy President of the Australian Conciliation and Arbitration Commission, and the second respondent ("the F.I.A."), prohibiting them from proceeding further with an application made by the F.I.A. under s. 142A of the Conciliation and Arbitration Act 1904 (Cth), as amended. (at p475)
2. The proceedings before Marks J. arose out of a demarcation dispute between the two unions concerning the right to represent employees of Electric Power Transmission Pty. Ltd. ("E.P.T.") at two construction sites in Victoria, one of which was the Omega Navigation Station at Darriman. The dispute at the second site, Mt Dandenong, is not presently relevant. The particular dispute in relation to the Omega Navigation Station is a manifestation of a long-standing and wide-ranging dispute between the two unions as to which of them should have the right to represent structural steel workers engaged in the construction of steel towers and other large projects. (at p476)
3. The F.I.A. made application to the Commission under s. 142A for an order giving it the right to represent the employees of E.P.T. at the two sites to the exclusion of the B.L.F. The B.L.F. opposed the application. Marks J. granted the application to the extent to which it related to the Omega site. The Full Bench of the Commission dismissed an appeal from this decision by the B.L.F., confirming the order made by Marks J. (at p476)
4. The applicant's omission to join the members of the Full Bench as respondents to its application to this Court for prohibition creates a preliminary complication. Mr. Ryan for the applicant sought to justify the course which had been adopted by submitting that if the challenge to the decision of Marks J. succeeded on the footing that it was void, the confirmation of that decision by the Full Bench would have no operative effect. This submission does not meet the point that the Full Bench decision is conclusive while it stands. In Wishart v. Fraser (1941) 64 CLR 470 , it was held that an appeal as of right to the High Court from…
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 Marks; Ex parte Australian Building Construction Employe...
Sign in free to access the full text
Details
AGLC
R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33
Case
[1981] HCA 33
Decision Date
CaseChat Overview and Summary
This case concerned an application for a writ of prohibition brought by the Australian Building Construction Employees and Builders Labourers' Federation (the Federation) against the Honourable Mr Justice Marks of the Supreme Court of New South Wales. The Federation sought to prohibit Justice Marks from continuing proceedings in a matter concerning alleged breaches of the *Industrial Arbitration Act 1940* (NSW) by the Federation and its officers. The dispute arose from an application made by the Minister for Industrial Relations to the Industrial Commission of New South Wales for an order that the Federation and its officers be restrained from continuing a ban on the construction of a particular building.
The High Court was required to determine whether the Industrial Commission had jurisdiction to entertain the Minister's application. Specifically, the Court considered whether the Minister's application constituted a "dispute" within the meaning of the *Industrial Arbitration Act 1940* (NSW), and whether the Commission had the power to grant the relief sought by the Minister in the absence of a dispute between employers and employees. The central question was whether the Commission's jurisdiction was invoked by the Minister's application, or if it required a more traditional employer-employee dispute.
The Court held that the Industrial Commission did not have jurisdiction to make the order sought by the Minister. Mason, Murphy, Wilson and Brennan JJ reasoned that the concept of a "dispute" under the *Industrial Arbitration Act 1940* (NSW) required a disagreement between an employer and employees, or their industrial organisations, concerning industrial matters. The Minister's application, which sought to restrain the Federation from engaging in a ban without reference to any employer or employee grievance, did not satisfy this requirement. Aickin J, dissenting, considered that the Minister's application did fall within the scope of the Act.
The application for a writ of prohibition was granted.