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R v Commonwealth Conciliation & Arbitration Commission; Ex parte Metal Trades Employers' Association [1966] HCA 8; (1966) 114 CLR 648 (2 March 1966)

CATCHWORDS

HEARING

DECISION

2. This log is expressed in the alternative. The first alternative seeks the removal from the award of the reference to a basic wage and the awarding of a money sum as the total wage payable in respect of each classification of the award, this money sum to be computed by taking the figures presently appearing in the award for the basic wage and for margins and increasing their respective totals by a stated percentage. The alternative asks that in lieu of the obligation to pay a basic wage and a margin, there should be imposed an obligation to pay a total sum which is to be made up of the basic wage as presently fixed in the award, plus 3/-, of the margins as presently set out increased by 1% and of a figure equal to 0.5% of the total of the basic wage and of the margins as thus respectively increased. (at p653)

3. Upon the prosecutor and the respondent unions coming into dispute about these matters, the parties requested a Commissioner, the unions in respect of their application to vary the margins and the prosecutor in respect of so much of its log as did not involve an alteration of the basic wage, to consult the President of the Commission with a view to action being taken by him under s. 34 of the Act. The President, having been consulted by the Commissioner as a result of these requests, directed that the respondent unions' application in respect of margins and so much of the prosecutor's log as did not involve a variation of the basic wage be heard by a full bench of the Commission. Subsequently, the President nominated the three senior Deputy Presidents of the Commission to consitute a presidential session to hear the respondent unions' application for a variation of the basic wage and so much of the prosecutor's log as involved an alteration of the basic wage, he nominated the same three Deputy Presidents together with the Commissioner concerned to constitute a full bench of the Commission to hear the respondent unions' application for a variation of the margins and so much of the prosecutor's log as did not involve a variation of the basic wage. (at p653)

4. The prosecutor's principal submissions in support of its application for prohibition are that, because its log of claims required that the Commission should first consider what total sum ought to be paid in each classification of the award by way of a weekly wage, it is impossible to "sever" its claim; that therefore the whole of its log must be heard by the same bench of the Commission; and that as its claims if successful, on either alternative, would involve an alteration of the basic wage, that bench must necessarily be composed of presidential members only. (at p654)

5. An alternative submission was put by the prosecutor that the President in exercise of his powers under s. 34 (1) and (3) of the Act, could not include the Commissioner as a member of the bench of the Commission to hear any part of the prosecutor's claim because of its inseverable quality and the inclusion in it of a request for a variation of the basic wage. Lastly, it was said that the application of the respondent unions and the prosecutor's log in reality gave rise to one dispute with the same subject matter and that therefore the applications and the log must be dealt with by the same bench. (at p654)

6. This Court in this application is concerned only with questions of jurisdiction, that is to say, with the President's power to take the course he did and with the authority of the respondent Deputy Presidents and Commissioner to deal with the matters mentioned in the President's nomination. We are not concerned to consider or to pass upon the reasons of the President for taking that course. Having heard counsel for the prosecutor, the Court does not find it necessary to call upon counsel for the respondents. No substantial ground has been put forward, in the Court's opinion, for doubting the power of the President to include a Commissioner in a bench to hear so much of the prosecutor's log as does not involve an alteration of the basic wage and the application of the respondent unions for a variation of margins. In the Court's opinion, the proposition that the prosecutor's claim is inseverable so as to deny jurisdiction to any bench of the Commission which cannot accede to the whole of it to hear and determine any part of it (and that really is the prosecutor's claim) is without substance. It finds no warrant or support in the statute from which the Commission derives jurisdiction. (at p654)

7. In the Court's opinion, so much of the prosecutor's application as did not involve an alteration of the basic wage fell within the provisions of s. 33 (2). Therefore, upon the President being satisfied as to the public interest, and giving the necessary direction under s. 34 (3), a bench of three or more members of the Commission, of whom one is a presidential member, and a Commissioner, had jurisdiction to hear and determine that part of the prosecutor's application. (at p655)

8. The rule nisi will be discharge with costs. (at p655)

ORDER