R v Tonkin; Ex parte

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.