WALLIS AND ANOTHER; Ex PARTE EMPLOYERS ASSOCIATION OF WOOL SELLING
BROKERS AND OTHERS.
WALLIS AND ANOTHER Ex PARTE H. v. McKAY MASSEY HARRIS PROPRIETARY
LIMITED AND OTHERS. Industrial Arbitration (Cth.)-" Industrial matters " -Preference to unionists-
Monopoly of employment to members of a particular union-Power to award- Commonwealth Conciliation and Arbitration Act 1904-1948 (No. 13 of 1904 No. 77 of 1948), 88. 4, 14, 38, 40, 49, 56.
The Commonwealth Conciliation and Arbitration Act 1904-1948 does not authorize an award giving a monopoly of employment in an industry to the members of an organization of employees. Section 56, in particular, does not confer such a power, being limited to the granting of preference in employ- ment, and its terms are inconsistent with the existence of the power under any other provisions of the Act.
ORDERS NISI for prohibition.
Two orders nisi obtained in the High Court by employers bound by awards made under the Commonwealth Conciliation and Arbitra- tion Act were heard together. In each case the prosecutors sought
OF to prohibit proceedings before Mr. A. R. Wallis, Conciliation Com-
missioner, by the Federated Clerks Union of Australia (hereinafter called the respondent union) for variation of an award. In one case the award was that called the Clerks (Wool Stores) Award in the other, the Shipping Clerks Award. The proceedings in relation to the former are hereinafter referred to as the Wool Stores Case, and those in relation to the latter as the Shipping Clerks Case,
Wool Stores Case.-In this case the respondent union claimed that "the following conditions of employment and continued employment shall apply in respect to each person now or hereafter employed by the employers bound by the award :- (1) No such person shall be continued in employment beyond a period of 28 days from the date hereof or the date upon which such person is engaged for employment (whichever be the later) unless such person -(a) is a member of the Federated Clerks Union of Australia or (b) within such period of 28 days makes application and otherwise complies with the requirements for admission to membership of the said union in accordance with the rules thereof. (2) No such person shall be continued in employment for a period beyond 28 days after ceasing to be a member of the Federated Clerks Union of Australia."
The prosecutors in this case were the Employers Association of Wool Selling Brokers and the following Victorian companies which carried on business as wool-selling brokers: Australian Estates Co. Ltd. Dennys Lascelles Ltd.; Goldsbrough Mort &Co. Ltd. New Zealand Loan and Mercantile Agency Co. Ltd.; Strachan &Co. Ltd.; Victorian Producers Co-operative Co. Ltd.; Young- husband Ltd. Certain New South Wales wool-selling brokers were also represented at the hearing, pursuant to leave granted them by the court to intervene in this case.
Shipping Clerks Case.-In this case the respondent union applied for the insertion of the following clause in the award :-
Register of Employees. (a) A…
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.
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AGLC
R v Wallis [1949] HCA 30
Case
[1949] HCA 30
Decision Date
CaseChat Overview and Summary
Two orders nisi for prohibition were heard together in the High Court of Australia. The prosecutors, employers bound by awards made under the Commonwealth Conciliation and Arbitration Act 1904-1948, sought to prohibit proceedings before Conciliation Commissioner A. R. Wallis. These proceedings, initiated by the Federated Clerks Union of Australia, aimed to vary existing awards, specifically the Clerks (Wool Stores) Award and the Shipping Clerks Award, by introducing clauses that would effectively grant the union a monopoly of employment.
The central legal issue before the court was whether the Commonwealth Conciliation and Arbitration Act 1904-1948 empowered a Conciliation Commissioner to make an award that granted a monopoly of employment in an industry to the members of a particular employee organisation. This involved determining whether such a claim constituted an "industrial matter" within the meaning of the Act, and if so, whether the Act's provisions, particularly section 56, limited or precluded the granting of such a monopoly, as opposed to mere preference.
The High Court, in allowing the orders nisi, reasoned that the Act does not authorise an award that grants a monopoly of employment to the members of a specific union. While the definition of "industrial matters" in section 4 is broad, encompassing preferential employment and non-employment, the court found that the specific provisions of section 56, which deals with preference, limit the Commissioner's power in this regard. Section 56 authorises preference to organisations or their members, but not a complete exclusion of non-unionists or members of other unions. The court held that a monopoly of employment goes beyond the scope of preference and that the legislative history of section 56 indicated a deliberate intention to circumscribe the power to grant preference, making it inconsistent with a broader power to create a monopoly. Furthermore, the court considered that provisions such as section 55, which prevent employers from being required to differentiate between unionists and non-unionists, supported the interpretation that a monopoly was not intended.
Consequently, the High Court made absolute the orders nisi for prohibition, preventing the Conciliation Commissioner from proceeding with the applications to vary the awards in the manner sought by the Federated Clerks Union of Australia. The court concluded that the Commissioner lacked the jurisdiction to make awards that would grant a monopoly of employment to the union's members.