Re Australian Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1977] HCA 72

Re Australian Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1977] HCA 72

The majority (Barwick CJ, Aickin J) held that the employer’s demand, on its construction, required all relevant work to be performed exclusively by members of the MWU and of no other organization, thus seeking a monopoly rather than demarcation, and so could not give rise to a relevant industrial dispute within the meaning of the Act. Accordingly, the Commission lacked jurisdiction, and the order nisi for prohibition should be made absolute. Minority (Stephen, Jacobs, Murphy JJ) construed the demand as relating only to union members, not to compulsory unionism or exclusion of non-unionists, holding it fell within demarcation and thus within the Commission's jurisdiction.

Jurisdiction
Australia
Procedural Posture
Application for Prohibition / Judgment After Hearing on Order Nisi for Prohibition in the High Court of Australia
Outcome
By majority, order nisi for prohibition made absolute; Commission prohibited from proceeding.
Legal Topics
['industrial Disputes' 'demarcation Disputes' 'monopoly of Employment for Unionists' 'compulsory Unionism' 'preference to Unionists' 'jurisdiction of Arbitration Commission' 'interpretation of Conciliation and Arbitration Act']
['industrial Law'] ['industrial Disputes' 'demarcation Disputes' 'monopoly of Employment for Unionists' 'compulsory Unionism' 'preference to Unionists' 'jurisdiction of Arbitration Commission' 'interpretation of Conciliation and Arbitration Act']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Prohibition / Judgment After Hearing on Order Nisi for Prohibition in the High Court of Australia

Legal Issues

  1. 1 ['Does a demand for exclusive performance of work by members of a particular union amount to compulsory unionism or a demarcation dispute within the meaning of the Conciliation and Arbitration Act?' "Can such a demand give rise to an 'industrial dispute' for the purposes of the Act?" 'Is the Australian Conciliation and Arbitration Commission empowered to make an award in terms sought by the log of claims delivered by the respondent companies?']

Ratio Decidendi

The majority (Barwick CJ, Aickin J) held that the employer’s demand, on its construction, required all relevant work to be performed exclusively by members of the MWU and of no other organization, thus seeking a monopoly rather than demarcation, and so could not give rise to a relevant industrial dispute within the meaning of the Act. Accordingly, the Commission lacked jurisdiction, and the order nisi for prohibition should be made absolute. Minority (Stephen, Jacobs, Murphy JJ) construed the demand as relating only to union members, not to compulsory unionism or exclusion of non-unionists, holding it fell within demarcation and thus within the Commission's jurisdiction.

Court Disposition

By majority, order nisi for prohibition made absolute; Commission prohibited from proceeding.

Orders

  • ['Order nisi for prohibition made absolute against the Australian Conciliation and Arbitration Commission and Mr J.H. Portus.']