R v Portus; Ex parte ANZ Banking Group Ltd

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Walsh and Stephen JJ.

REG. v. PORTUS; Ex parte A.N.Z. BANKING GROUP LTD.

(1972) 127 CLR 353

10 November 1972

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Industrial arbitration—Industrial dispute—Demand that employer make deductions from employees' salaries—Whether industrial matter—Relations of employers and employees—Prohibition—Conciliation and Arbitration Act 1904-1968 (Cth), s. 4.

Decisions

November 10.
The following written judgements were delivered : -
BARWICK C.J. In this matter I have had the advantage of reading the judgment prepared by my brother Menzies. I agree with him for the reasons he expresses that no industrial dispute existed between the respondent union and the prosecutors and that consequently the Commissioner lacked jurisdiction to make any award in relation to the matter in dispute between them. Although the argument on behalf of the respondent union ranged widely over what were claimed to be practices and procedures commonly followed in Australia and elsewhere, in the long run the question turns on whether the demand made by the respondent union upon the prosecutors gave rise upon its refusal to an industrial dispute within the meaning of that concept as it has been developed in Australia. The argument that consensual practices can expand the jurisdiction of the Conciliation and Arbitration Commission under the Commonwealth Conciliation and Arbitration Act is in my opinion, unacceptable. No doubt there may be occasions on which knowledge of what is done in industry will be of assistance in determining whether what is in dispute really affects the relations of employers and employees, but I find no assistance myself in this case from the knowledge that some employers, whether in Australia or abroad, are prepared with or without remuneration to agree to act as bankers or financial agents for their employees in a wide variety of circumstances. In my opinion, the demand that the employer should pay out of earned wages some amounts to persons nominated by the employee is not a matter affecting the relations of employer and employee. It does not seem to me to advance the matter that the intended payee is the organization registered under the Act of which the employee is a member. (at p357)

2. I agree that the rule nisi for prohibition should be made absolute. (at p357)

MCTIERNAN J. I agree in the judgment of Menzies J. (at p357)

MENZIES J. This is the return of an order nisi for prohibition. The Australia and New Zealand Banking Group Ltd. and five other banks have instituted proceedings against John Hereford Portus, a member of the Commonwealth Conciliation and Arbitration Commission, and the Australian Bank Officials' Association seeking to prohibit further proceedings in what the Commissioner has decided is an industrial dispute between the association and the banks. The ground for prohibition is that the dispute is not an industrial dispute. (at p357)

2. The dispute arises from the banks not accepting a demand made upon them by the association that each bank should, at each pay period, progressively…