R v Portus; Ex parte

The case involved an order nisi for a writ of prohibition sought by the Australian Air Pilots' Association against Mr. J. H. Portus, a conciliation commissioner, and Qantas Empire Airways Ltd. The dispute arose from a log of claims served by Qantas on thirteen other airline companies and the Australian Air Pilots' Association. Qantas sought to alter the wages and conditions of aircraft pilots generally in the airline operating industry, with the log intended to govern the employment terms of all such employees, regardless of their membership in the Association. The Association argued that the log could not give rise to a valid industrial dispute within the meaning of section 51(xxxv) of the Constitution.

The central legal issue before the High Court was whether the log of claims, as served by one employer on other employers and an employee organization, could constitute an industrial dispute within the meaning of section 51(xxxv) of the Constitution, thereby conferring jurisdiction on a conciliation commissioner. Specifically, the Court had to determine if a demand by one employer upon another unconnected employer, concerning the latter's employee wages and conditions, could form the basis of an industrial dispute, and whether the log could be construed as making a distributive demand capable of giving rise to a dispute with the employee organization.

A majority of the High Court, comprising Dixon C.J., Fullagar and Taylor JJ., held that an industrial dispute cannot arise from a demand by one employer upon another employer, where the only connection is that their businesses are of the same description. They reasoned that such employers have no industrial relation to each other, and competition for business or labour does not establish such a relation. However, the majority also found that the log could be read as making a distributive demand upon each party served. Therefore, it was capable of giving rise to an industrial dispute between Qantas and the Australian Air Pilots' Association concerning the employees of Qantas.

The Court made the order nisi absolute, prohibiting the conciliation commissioner from further proceeding with the alleged industrial dispute, except in so far as it existed between Qantas Empire Airways Ltd. and the Australian Air Pilots' Association in relation to the employees of Qantas. Qantas was ordered to pay the costs of the Association.