R v Portus; Ex parte

The case of *R v Portus; Ex parte Australian Iron and Steel Pty Ltd* concerned an application for a writ of prohibition brought by the applicant, Australian Iron and Steel Pty Ltd, against the respondent, Mr Portus, a Conciliation Commissioner. The dispute arose from proceedings before the Commissioner concerning claims for long service leave made by employees of the applicant. The applicant sought to prohibit the Commissioner from continuing to hear and determine these claims.

The central legal issue before the High Court of Australia was whether the Conciliation and Arbitration Commission, and by extension its Commissioners, had the constitutional power to make an award for long service leave in the absence of a specific provision for it in the relevant industrial award. The applicant contended that the power to make such an award was not conferred by the Conciliation and Arbitration Act 1904 (Cth) and therefore fell outside the constitutional ambit of the Commission's jurisdiction.

The Court, by majority, held that the power to make an award for long service leave was not an implied power of the Commission. Barwick C.J. and Taylor J. found that the Act did not grant the Commission the authority to create new industrial conditions, such as long service leave, where they were not already contemplated by the award or the Act itself. Menzies and Windeyer JJ. dissented, arguing that the power to make awards encompassed the ability to grant long service leave as a reasonable incident of employment. Owen J. agreed with the majority.

Consequently, the High Court made absolute the order nisi for prohibition, restraining the respondent Commissioner from further proceeding with the claims for long service leave.