R v Wallis

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.