HIGH COURT OF AUSTRALIA
Barwick C.J., McTiernan, Menzies, Walsh and Stephen JJ.
REG. v. PORTUS; Ex parte A.N.Z. BANKING GROUP LTD.
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…
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- Case
- [1972] HCA 57
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court of Australia was whether the Conciliation Commissioner had the power to make an order for the discovery of documents in relation to an application for an interim award under section 33 of the *Conciliation and Arbitration Act 1904* (Cth). The applicant argued that the Commissioner's purported exercise of such power was an excess of jurisdiction, as the Act did not expressly grant such a power for interim award proceedings.
The High Court, in a majority decision, held that the Conciliation Commissioner did not have the power to order discovery in the circumstances. The Court reasoned that the powers of a Conciliation Commissioner under the Act were limited to those expressly conferred or necessarily incidental to the performance of their statutory functions. While the Commissioner had broad powers in relation to conciliation and arbitration, the power to order discovery was not considered to be an inherent or implied power in the context of an application for an interim award, particularly given the limited nature of such proceedings. The Court emphasised that the absence of express statutory authority meant such a power could not be assumed.
The Court made absolute the order nisi for a writ of prohibition, restraining the Conciliation Commissioner from proceeding further with the discovery order.
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Background
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Evidence
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Decision
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