R v Tonkin; Ex parte - [1954] HCA 38

THE QUEEN

TONKIN AND ANOTHER; Ex PARTE FEDERATED SHIP PAINTERS' AND DOCKERS'

UNION OF AUSTRALIA. Industrial Arbitration-Conciliation and arbitration-Award-TermsVariation

New provision-Conciliation Commissioner-Powers-Conciliation and Arbi- tration Act 1904-1952, S. 49. SYDNEY,

To change the terms of an award in part, whether by addition, excision, Aug. 20.

modification, substitution or qualification or otherwise, is " to vary the terms of an award" within the meaning of S. 49 of the Conciliation and Arbi- tration Act 1904-1952.

A conciliation commissioner made an order inserting in an award a new clause forbidding bans or limitations on work.

Held, that the order was within the power conferred by S. 49 to " vary any terms of an award ". PROHIBITION.

Upon the application of the Metal Trades Employers' Association E. W. Tonkin, Esquire, Conciliation Commissioner appointed under the Conciliation and Arbitration Act 1904-1952, on 20th January 1954, made an order inserting in the Ship Painters' and Dockers' Award 1940, as consolidated and varied, a new clause, cl. 7A, headed "Prohibition of Bans, Limitations or Restrictions ", the terms of which are sufficiently set out in the judgment hereunder. The Federated Ship Painters' and Dockers' Union of Australia was granted by the High Court an order nisi for a writ of prohibition to restrain the conciliation commissioner from acting further in respect of the order made by him.

Upon the return of the order nisi it was contended, inter alia,

92 CLR 527

cl. 7A to the said award, and 2 that the insertion of an entirely new clause in the said award was not a variation of any term or terms of that award within the meaning of S. 49 of the Conciliation and Arbitration Act 1904-1952.

L. C. Badham Q.C. and F. W. Paterson, for the applicant- prosecutor.

R. M. Eggleston Q.C. and A. P. Aird, for the respondents. Counsel made reference to :-R. v. Commonwealth Court of AUSTRALIA. Conciliation and Arbitration Ex parte Victorian Railways Com- missioners 1; Australian Railways Union v. Victorian Railways Commissioners (2) Australian Commonwealth Shipping Board V. Federated Seamen's Union of Australasia 3; Federated Gas Employees' Industrial Union v. Metropolitan Gas Co. Ltd. 4 and Reg. v. Kelly; Ex parte Australian Railways Union 5.

The following judgment of the Court was delivered by :-

DIXON C.J. This is an order nisi for a writ of prohibition directed to a conciliation commissioner to restrain him from acting further in respect of an order or purported order by which he varied an award. The award is that which is called the Ship Painters' and Dockers' Award of 1940. It came into force in that year and had a fixed term of three years commencing from the first pay day after 1st April 1940. The award therefore expired in April 1943.

The order made by the conciliation commissioner inserted a new clause which was numbered " '7A" in the award. It is headed

Prohibitions, Bans, Limitations or Restrictions and is divided into two paragraphs. The first…

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 Tonkin; Ex parte

Details

AGLC: R v Tonkin; Ex parte [1954] HCA 38
Case: [1954] HCA 38
Decision Date: 20 August 1954

CaseChat Overview and Summary

The applicant, the Federated Ship Painters' and Dockers' Union of Australia, sought a writ of prohibition from the High Court of Australia to restrain a Conciliation Commissioner from further action regarding an order he had made. The Commissioner had inserted a new clause, clause 7A, into the Ship Painters' and Dockers' Award 1940, which prohibited the Union from being involved in bans or limitations on work. The Union contended that this insertion was not a valid variation of the award under section 49 of the Conciliation and Arbitration Act 1904-1952.

The central legal issue before the Court was whether the insertion of an entirely new clause into an existing award constituted a "variation" of the terms of that award within the meaning of section 49 of the Conciliation and Arbitration Act 1904-1952. The Union argued that a variation implied a modification or alteration of existing terms, not the addition of a new, distinct provision.

The High Court held that the order of the Conciliation Commissioner was within his powers. The Court reasoned that the phrase "vary any terms of an award" should be interpreted broadly. It determined that to "vary" the terms of an award encompassed changing them in part, whether by addition, excision, modification, substitution, qualification, or otherwise. The Court found that inserting a new clause that directly impacted the operation of the award and the obligations of the parties was a legitimate variation under the statutory power. Consequently, the order nisi for a writ of prohibition was discharged with costs.

Orders