693:, applied for the award to be declared a common rule for the boot, shoe and slipper industry within New South Wales, Victoria, South Australia, Queensland and Tasmania. No employer in Tasmania had been served with the log of claims. 35 employers, represented by Starke, objected to the award being made a common rule on the ground that the provisions were unconstitutional. The President again stated a case for the High Court to decide the question of law. Beeby, having previously represented the union, now represented some employers who were respondents to the award, including Whybrow & Co. The respondent employers argued that the common rule was necessary for the effective settlement and prevention of dispute, This argument reflected the employer's economic interest in competition from boot manufacturers paying lower wages. The Commonwealth, represented by
681:. The log of claims demanded wages for apprentices that were fixed upon the basis of experience. Griffith CJ held that the Arbitration Court had no jurisdiction to go beyond the demand made. The award could not stand until the error was corrected in that otherwise apprentices would have to be paid the full adult wage. O'Connor J similarly held that the Arbitration Court had exceeded its jurisdiction when it was never in controversy between the parties that experience combined with age was the basis on which the pay of apprentices should be regulated. Likewise Isaacs J held that that "as to some apprentices more awarded than was asked for and refused, and therefore more than was in dispute. It is the dispute that has to be regarded and adjudicated upon."
715:
current arrangements such that there was no dispute to be prevented and that the making of a common rule award was the exercise of legislative power. Barton J reiterated that arbitration for the settlement of a dispute confines the award to the ambit of the dispute and to binding only the disputants. Barton J similarly rejected the notion that there could be arbitration to prevent a dispute and that arbitration connotes the settlement of a dispute between parties. O'Connor J held that arbitration involved "a judicial settlement of matters in difference between parties to a dispute" and that the effect of a common rule "is to confer a law making power, and not an arbitral power". There could be no arbitration in the absence of disputing parties.
405:. The proposal was soundly defeated at the 1891, and 1897 conventions, but narrowly succeeded in 1898. All five High Court judges in 1910 had been leading participants in the Constitutional Conventions and all are properly seen as among the framers of the Constitution. The three inaugural 'federalist' judges, Griffith CJ, Barton & O'Connor JJ had all opposed the industrial dispute power while the two 'nationalist' judges, Isaacs & Higgins JJ had supported the power. Thus the clash between them is a continuation of the debate from the conventions concerning not only the capacity of the Australian parliament but also the nature of the Federal system.
31:
470:
union which gave the employers an ultimatum, either the employer agreed to the union's demands or the union would approach the
Arbitration Court. Higgins J held that this was a valid means of establishing an industrial dispute and that there was discontent among employees that would have broken out in strikes but for the hope of relief from the Arbitration Court. The process of a establishing a dispute by way of serving a "log of claims", referred to as a paper dispute, was controversial at the time. The demands primarily concerned wages, unskilled labour, apprentices and boy labourers. In the Arbitration Court
644:
time been declared to be a common rule award and (2) The boot manufacturers who applied to the High Court were all parties to the dispute and thus would be bound by the Award regardless. As
Higgins had noted, the High Court will not answer a constitutional question unless it is necessary. The State of Victoria had intervened in the case to protect the public of that State from the operation of what it said was an invalid federal law. The argument was that the common rule provisions were invalid and could not be severed from the balance of the Act, such that the entire Act was invalid.
250:
152:
669:. Griffiths CJ, with whom Barton J relevantly agreed, held that the evidence established a dispute extending over the four States in relation to wages and that the service of the log of claims crystallised this dispute into a claim for a definite sum. Isaacs J held that a clear demand from the union, coupled with the absence of any response from the employers was sufficient, that a "a dispute raised in a formal and complete way is to be taken prima facie as genuine and real".
730:, Higgins J argues from the premise that the fundamental basis of the Australian legal system was that power was conferred on the Federal Parliament, not by the people of Australia but by the British parliament. Higgins J rejected the premise that the parties to the dispute needed to have taken a definite stand or made definite claims, but that an order or award could not be made except as against identified or identifiable parties.
516:, the High Court had been divided 2:2 and thus the decision of the Chief Justice prevailed, in what is sometimes described as a statutory majority. Griffith CJ, O'Connor J agreeing, held that the Arbitration Court could not make an award that was inconsistent with the minimum wages fixed by a Wages Board under a State law. Higgins J stated two questions of law to be determined by the full court of the High Court:
867:, on the basis that unions have an interest in protecting their members' working conditions and consequently, ensuring that these conditions are not undermined by employers employing non-union members at lower rates of pay or on lower conditions. The emphasis on the need for a dispute has been said to have resulted in the prevention limb of the Federal parliaments power going largely unused.
552:, did not apply because the Arbitration Court was required to declare and administer the law, not make it, thus an award made by the Arbitration Court was not a federal law that would prevail over a State law. Discontent with a State law was not an industrial dispute between employees and their employer. On the question of inconsistency the majority held the question was whether it was
504:
apprentices in the boot trade, community concerns, the implications for employers as well as the availability of technical schools as part of that apprenticeship. While the decision states that the scale of wages should be higher towards the end of the apprenticeship, the proposed award set wages for apprentices and other boys according to their age.
656:, could not be conferred on the Arbitration Court. Griffith CJ emphasised the settlement of disputes between parties, with no apparent consideration as to the constitutional power in relation to the prevention of disputes. Griffith CJ held that the common rule provisions being unconstitutional did not invalidate the entire Act.
2024:
798:
854:. The 1913 referendum would have given the Federal parliament the power to directly regulate the terms and conditions of employment, however this too was defeated, albeit narrowly, obtaining the support of 49.3% of voters and a majority in only three States, Queensland, South Australia and Western Australia.
1617:
means 'on the application of' rather than its other use as a case heard in the absence of a party. Thus the case name means the King (R) v the defendants (The
Commonwealth Court of Conciliation and Arbitration etc); on the application of (Ex parte) Whybrow & Co and others. The order to show cause
714:
With the question of the common rule directly raised, Griffith CJ considered the constitutional power for the prevention of disputes, maintaining his view that both dispute and arbitration connotes the existence of parties taking opposite sides. Both the employer and employees may be happy with their
503:
1906 which gave rise to the
Harvester decision was constitutionally invalid. Higgins J attributed criticism of the living wage as "the natural discontent of defeated parties and their partisans". In considering the claims in relation to apprentices, the Arbitration Court looked at the conditions for
651:
Griffith CJ expressed stronger views in relation to the constitutionality of the common rule provisions, stating that the function of an arbitrator was a judicial function that could only be exercised between parties to the dispute and after hearing them. The power to make a common rule award was a
559:
Isaacs & Higgins JJ maintained their rejection of the reserved powers doctrine, and their dissent from the
Sawmillers case. Isaacs J held that arbitration that imposes new obligations was not the exercise of judicial power, but rather legislation. The binding nature of an award arose because of
643:
provided at s 38(f) that the
Arbitration Court could declare an award to be a common rule of any industry. The other constitutional argument was that the Australian parliament had no power to provide for common rule awards. There were two impediments to this argument (1) the award had not at that
617:
was not effective to deny the High Court's jurisdiction to order prohibition. Isaacs J dissented on this point, holding that prohibition was an exercise of the High Court's appellate jurisdiction. The High Court was required to consider the operation of the power to grant prohibition, rather than
469:
with boot manufacturers that extended beyond the limits of any one State. While
Whybrow & Co is named in each of the three judgements, it was one of a wide range of boot manufacturers in four States, New South Wales, Queensland, South Australia and Victoria, who had received a letter from the
718:
Isaacs J put it slightly differently, rejecting a level of precision about the scope of the differences, but holding that arbitration, whether for settlement or prevention of a dispute, could only occur "where some difference can be perceived, and expressed in terms, however/general, between the
580:
After the High Court gave the answers to the stated case, the
Arbitration Court made an award in accordance with the proposed minutes. The boot manufacturing employers applied to the High Court for a writ of prohibition compelling the Arbitration Court, the President who was a judge of the High
375:
the High Court established the doctrine of ambit, with the emphasis on the precise claim made and refused, and the practice with respect to "paper disputes" being treated "prima facie as genuine and real", with the majority holding that the High Court had power to order prohibition to correct
647:
Barton O'Connor and Isaacs JJ declined to express a view on whether the common rule provisions were invalid, holding that on the assumption that the common rule provisions were unconstitutional, they were severable from the Act. That is the Award was valid, even if the common rule aspect was
664:
The
President found that of the 23 matters in the log of claims, only two matters were really in dispute, wages and the use of boy labour. The boot manufacturers argued that this finding meant that there was no industrial dispute necessary for the Arbitration Court to have jurisdiction. The
539:
The High Court answered both questions in the negative. The majority, Griffith CJ, Barton & O'Connor JJ, in separate decisions, applied the decision in the
Sawmillers case, holding that the Arbitration Court could not make an award that was inconsistent with a State law. There were two
2164:
776:
was much more long lived. It was the foundation of the doctrine of ambit, with the emphasis on the precise claim made and refused, and the practice with respect to "paper disputes" as being treated "prima facie as genuine and real" had been followed by the High Court ever since.
863:
521:
Whether under the Constitution it is competent for the Commonwealth Court or Conciliation and Arbitration to make any award which is inconsistent with certain awards or determinations of State Wages Board in the States of New South Wales, Queensland, South Australia, and
581:
Court, and the union to appear before the High Court to show cause why they should not be prohibited from further proceeding on the award. Because Higgins J was a defendant to the application he did not hear the case. The grounds for the application concerned
906:
established common rule awards called "Modern Awards" that are of general application and set out minimum terms and conditions for particular industries and occupations. As of May 2016 there were 122 modern awards of general application.
530:
Higgins J did not refer a question in relation to making the award a common rule as the respondent employers would be bound by the award and the High Court would not decide the point without hearing from employers who were not respondents.
604:, and not its original jurisdiction. The significance of the objection was that the Constitution permits the Australian Parliament to limit appeals to the High Court, but not to limit the exercise of its original jurisdiction. The
608:
provided at s 31 that "No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever", an issue that had not been considered by the High Court in
789:
was one of a series in which the High Court asserted its power to correct jurisdictional error and in doing so expanded the scope of prohibition beyond the reach it had in English courts. The Parliament subsequently amended the
837:
to give the Federal parliament the power to directly regulate the wages and conditions of labour, however this was soundly defeated, obtaining the support of 39.4% of voters and a majority in only one State, Western Australia.
626:
The boot manufacturers argued that arbitration required the voluntary submission to the tribunal and a choice by the disputants as to how the tribunal was constituted and that the compulsory arbitration provided for by the
618:
whether prohibition was the appropriate remedy. In this way the High Court granted prohibition where certiorari would have been an appropriate remedy and extended the scope of prohibition beyond generally accepted limits.
742:
did not survive long. The notion that making an award, as opposed to its enforcement, was the exercise of the judicial power of the Commonwealth was challenged by Isaacs, Rich & Powers JJ in their judgments in
1479:
Given the divisions in the High Court, it seems unlikely that Higgins J expected Barton J to disagree with Griffith CJ & O'Connor J or that Higgins J or any of the other judges would change their mind.
2045:
1306:
1201:
811:
487:
appeared for some employers and various other employers were separately represented. In fixing the minimum wages, Higgins J adopted the requirement of a "living wage" he had established in the
438:
677:
On the question of apprentices or boy labour, Griffith CJ held that prior to the service of the log of claims the only dispute common to the States related to their number as a proportion of
761:, after changes in the composition of the Court. The proposition that the Arbitration Court could not make an award that was inconsistent with a State law was reversed in the 1926 case of
1173:
432:
371:
that the Arbitration Court could not make an award that was inconsistent with a State law, but that different minimum wages were not inconsistent as it was possible to obey both laws. In
861:
to the parties to the dispute was to exclude the possibility of an award being binding on employers who did not employ union members. This emphasis was overturned by the High Court in
1877:
745:
2066:
817:
426:
1149:
1923:
757:
2398:
553:
1902:
814:(1945): the High Court again considered the nature of prohibition and held that prohibition lies under s 75(v) of the constitution in relation to jurisdictional error.
751:
1755:
565:
544:
that power to regulate the domestic trade and commerce was reserved to the State and that the Australian parliament could not invade that sphere and (2) that
2143:
2116:
726:
for the federal government the power to make laws relating to the conciliation and arbitration of industrial disputes. As with the judgement of Isaacs J in
613:. The majority, Griffith CJ, Barton & O'Connor JJ held that prohibition was an exercise of the High Court's original jurisdiction. and that s 31 of the
416:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
1079:
1061:
1043:
556:. Because an employer could agree to pay more than the State minimum wage, the Arbitration Court could order the employer to pay more than the minimum.
359:
in preventing and settling industrial disputes. In doing so the High Court considered the constitutional power of the Federal Parliament to provide for
461:
356:
174:
871:
2276:
977:
886:
808:
R v Hibble; Ex parte BHP (1921): the High Court held that prohibition lies under s 75(v) of the constitution in relation to jurisdictional error.
409:
820:(2010): the High Court held that State Parliaments cannot prevent State Supreme Courts from issuing prerogative relief for jurisdictional error.
548:
was the exercise of judicial power and that the Arbitration Court was required to determine the matter according to law, including State law.
549:
420:(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;
76:
755:. The reserved powers doctrine on which the decision of the majority was based was unambiguously rejected by the High Court in the 1920
2232:
875:
722:
While all five judges are properly seen as among the framers of the Constitution, it was Higgins J who had taken a leading role in the
560:
the federal law, thus if there was inconsistency, the federal law prevailed. The judgment of Isaacs J argues from the premise that the
452:
52:
568:. Higgins J similarly held that a rule of conduct prescribed by the Arbitration Court was given the character of a law by the federal
2294:
572:. On the question of inconsistency, Higgins J adopted the same test as the majority, whether it was impossible to obey both laws.
525:
Whether in the draft award annexed to the special case there are any provisions inconsistent with such awards or determinations.
2373:
2368:
1066:
H Higgins at p. 782, vote at p. 793, 12 in favour, including Higgins & Isaacs, 22 opposed, including Barton & O'Connor.
703:
885:, which did not rely on the Australian parliament's conciliation and arbitration power instead being primarily founded on the
805:
and held that the amendments to s 31 were not effective to remove the constitutional availability of prohibition and mandamus.
2393:
1099:
723:
398:
384:
the High Court unanimously held that the Federal Parliament had no constitutional power to provide for common rule awards.
2388:
690:
600:
The union objected to the application for prohibition, arguing that the order sought was an exercise of the High Court's
564:
was as an enactment of the Imperial Parliament. On the question of inconsistency, Isaacs J set out what would become the
898:, which was similarly founded on the corporations power and not the conciliation and arbitration power. In addition the
601:
2120:
2025:
R v Commonwealth Court of Conciliation & Arbitration Ex parte The Brisbane Tramways Company Limited (Tramways case)
1958:
762:
377:
2349:
2298:
2280:
585:
the constitutional power of the Australian parliament to provide for compulsory arbitration and common rule awards;
318:
224:
122:
2383:
665:
establishment of a dispute by way of a log of claims had been rejected by the majority of the High Court in the
2139:
1610:
843:
850:, as cutting down the Commonwealth's powers until they were futile and justifying the changes proposed in the
881:
The constitutional basis for the regulation of terms and conditions of employment changed as a result of the
1114:
1745:
at pp. 23–24 per Griffith CJ, pp.36–38 per Barton J, pp. 43–44 per O'Connor J & pp. 49–53 per Isaacs J.
1084:
vote at p. 212, 22 in favour, including Higgins & Isaacs, 19 opposed, including Barton & O'Connor.
765:, with the majority adopting the "cover the field" test for inconsistency first propounded by Isaacs J in
177:
and the President thereof and the Boot Trade Employees Federation. Ex parte Whybrow & Co and others.
2225:
575:
1864:
1593:
1528:
1512:
1425:
1407:
1389:
1290:
1272:
801:, (1914): in which the High Court considered the effect of the amendment. The Court refused to overrule
2249:
2212:
1666:
1650:
1467:
1254:
1136:
851:
830:
425:
The scope of this constitutional power had previously been considered by the High Court in 1908 in the
310:
216:
114:
1332:
2378:
2093:
1848:
at p. 312 per Starke, p. 313 per Irvine KC, p. 313 per Arthur, p. 314 per Beeby, p. 314 per Duffy KC.
1785:
at pp. 24–27 per Griffith CJ, pp. 37–39 per Barton J, at p. 45 per O'Connor J and p. 55 per Isaacs J.
2312:
1939:
1350:
2335:
2075:
1987:
1460:
1108:
1080:"Official Record of the Debates of the Australasian Federal Convention, Melbourne, 27 January 1898"
960:
541:
475:
1048:
Mr Kingston at p. 780-1 vote at p. 785, 12 in favour, 25 opposed, including Barton & Griffith.
2262:
1443:
provided that if the High Court was equally divided, the decision of the Chief Justice prevailed.
794:
in an attempt to prevent the High Court from granting prohibition against the Arbitration Court.
352:
260:
162:
41:
1062:"Official Record of the Debates of the Australasian Federal Convention, Adelaide, 17 April 1897"
30:
1684:
at p. 21 per Griffith CJ, p. 33 per Barton J, p. 41-42 per O'Connor J & p. 48 per Isaacs J.
1698:
2010:
of the Court shall be challenged, appealed against, reviewed, quashed, or called in question
2316:
2187:
2050:
2029:
1983:
1929:
1907:
1882:
1760:
1368:
1311:
1206:
1178:
1154:
1104:
1027:
936:
288:
194:
2169:
2071:
1963:
1456:
1007:
956:
459:
sought the assistance of the Commonwealth Court of Conciliation and Arbitration under the
72:
8:
2054:
2033:
1933:
1911:
1886:
1845:
1827:
1812:
1797:
1782:
1764:
1742:
1681:
1634:
1545:
1372:
1315:
1210:
1182:
1158:
1031:
985:
940:
364:
292:
198:
2173:
1967:
1575:
1560:
1491:
1024:
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (No 2)
1011:
145:
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (No 2)
1727:
1718:
894:
466:
402:
360:
1044:"Official Record of the Debates of the National Australasian Convention, 6 April 1891"
684:
576:
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow and Co (No 2)
2345:
2001:
1722:
1440:
1232:
707:
698:
694:
540:
fundamental propositions that were central to the judgments of the majority, (1) the
534:
479:
1710:
1606:
1464:
1328:
2339:
307:
213:
111:
401:
of the 1890s was the power of the Australian parliament to make laws concerning
2165:
Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association
2094:"Beyond Power: State Supreme Courts, the Constitution and Privative Provisions"
2089:
1714:
1346:
1249:
An interstate dispute was a requirement of the Commonwealth legislative power:
489:
864:
Burwood Cinema Ltd v Australian Theatrical and Amusement Employees Association
2362:
1614:
702:
intervened to support the validity of the Act while Victoria, represented by
484:
326:
314:
220:
130:
118:
95:
1613:
and the person who must show cause is named as the defendant. In this usage
953:
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd
249:
151:
2135:
847:
471:
322:
271:
Australian Boot Trade Employees' Federation v Whybrow & Co and others
228:
126:
2152:. Commonwealth of Australia: House of Representatives. pp. 5607–5609.
1830:
at pp. 30–31 per Griffith CJ, p. 46 per O'Connor J and p. 61 per Isaacs J.
631:, was unconstitutional. This argument was rejected by each of the judges.
1619:
882:
545:
456:
1307:
Federated Sawmill Employees Association v James Moore & Sons Pty Ltd
1202:
Federated Sawmill Employees Association v James Moore & Sons Pty Ltd
588:
whether the "paper dispute" established an interstate industrial dispute
1541:
1363:
678:
561:
495:
355:
in 1910 concerning the boot manufacturing industry and the role of the
243:
Australian Boot Trade Employees' Federation v Whybrow & Co (No 3)
1699:"The High Court's Power to Grant Certiorari – The Unsolved Question"
1174:
R v Commonwealth Court of Conciliation and Arbitration; Ex parte BHP
1004:
Australian Boot Trade Employees Federation v Whybrow & Co (No 1)
933:
Australian Boot Trade Employees Federation v Whybrow & Co (No 3)
611:
R v Commonwealth Court of Conciliation and Arbitration; Ex parte BHP
24:
Australian Boot Trade Employees Federation v Whybrow & Co (No 1)
685:
Australian Boot Trade Employees' Federation v Whybrow and Co (No 3)
330:
232:
134:
535:
Australian Boot Trade Employees Federation v Whybrow and Co (No 1)
2148:
1857:
see for example the discussion by the President, Higgins J, in
1333:"The Constitution and the National Industrial Relations System"
2295:"17. Employment—The Fair Work Act 2009 (Cth) Continued—Awards"
1878:
Waterside Workers' Federation of Australia v J W Alexander Ltd
746:
Waterside Workers' Federation of Australia v J W Alexander Ltd
412:
is in subsection 51(xxxv) of the Constitution which provides:
1860:
Australian Boot Trade Employees Federation v Whybrow & Co
1756:
A-G (NSW) v Brewery Employees Union of NSW (Union Label case)
1589:
Australian Boot Trade Employees Federation v Whybrow & Co
1508:
Australian Boot Trade Employees Federation v Whybrow & Co
1421:
Australian Boot Trade Employees Federation v Whybrow & Co
1403:
Australian Boot Trade Employees Federation v Whybrow & Co
1385:
Australian Boot Trade Employees Federation v Whybrow & Co
1286:
Australian Boot Trade Employees Federation v Whybrow & Co
1268:
Australian Boot Trade Employees Federation v Whybrow & Co
842:
was one of 11 decisions of the High Court referred to by the
340:
Australian Boot Trade Employees Federation v Whybrow & Co
92:
Australian Boot Trade Employees Federation v Whybrow & Co
2098:
Bar News: The Journal of the New South Wales Bar Association
1924:
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
652:
legislative function which, consistent with the decision in
2117:"Part 5 – Referendums and Plebiscites – Referendum results"
1622:, and if prohibition is granted, the rule is made absolute.
1318:
at pp. 490–1 per Griffiths CJ & p. 505. per O'Connor J.
1301:
1299:
883:
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
1800:
at pp. 29–30 per Griffith CJ & pp. 39–40 per Barton J.
1150:
Jumbunna Coal Mine NL v Victorian Coal Miners' Association
507:
2341:
The High Court, the Constitution and Australian Politics
1296:
870:
There were no federal common rule awards until Victoria
446:
2333:
1945:
1120:
1609:, which are traditionally brought in the name of the
591:
whether the award went beyond the matters in dispute.
2002:"Commonwealth Conciliation and Arbitration Act 1911"
1870:
902:
relied on a referral of power from most States. The
367:
against the Arbitration Court. The majority held in
2144:"Constitution Alteration (Trade and Commerce) Bill"
2087:
1775:
1773:
982:
Waltzing Matilda and the Sunshine Harvester Factory
2399:Inconsistency in the Australian Constitution cases
1339:
1227:
1225:
1223:
1221:
1219:
1094:
1092:
1090:
462:Commonwealth Conciliation and Arbitration Act 1904
357:Commonwealth Court of Conciliation and Arbitration
175:Commonwealth Court of Conciliation and Arbitration
719:parties who are to be affected by the decision."
2360:
1838:
1836:
1770:
1748:
562:fundamental basis of the Australian legal system
363:and the jurisdiction of the High Court to grant
351:, was the third of a series of decisions of the
2128:
1548:at p. 84 per Isaacs J and p. 113 per Higgins J.
1502:
1500:
1216:
1087:
2157:
1534:
1321:
2277:"16. Employment—The Fair Work Act 2009 (Cth)"
1897:
1895:
1833:
1278:
1235:Commonwealth Conciliation and Arbitration Act
1196:
1194:
1192:
1190:
1123:, Ch 5 The Griffith Court by John M Williams.
1056:
1054:
2239:
2134:
2014:in any other Court on any account whatever."
1581:
1497:
1413:
1395:
1377:
975:
659:
465:, in relation to what the union said was an
2226:"Common Rule Awards in Victoria fact sheet"
2204:
2202:
2185:
2110:
2108:
1599:
1260:
1168:
1166:
1074:
1072:
1892:
1356:
1187:
1051:
971:
969:
876:Australian Industrial Relations Commission
453:Australian Boot Trade Employees Federation
248:
150:
53:Australian Boot Trade Employees Federation
29:
2255:
1696:
1692:
1690:
1327:
1100:NSW v Commonwealth (the WorkChoices case)
878:to make common rule awards for Victoria.
711:intervened to argue the Act was invalid.
621:
2199:
2105:
2012:or be subject to prohibition or mandamus
1453:Milne v Federal Commissioner of Taxation
1243:
1163:
1069:
16:Judgement of the High Court of Australia
2188:"What is a genuine industrial dispute?"
2114:Handbook of the 44th Parliament (2014)
1951:
1036:
966:
2361:
1687:
999:
997:
995:
928:
926:
924:
922:
920:
508:The question of law for the High Court
94:(Boot Trades Case) (1909) 4 CAR 1 per
2046:R v Hickman; Ex parte Fox and Clinton
2006:amended section 31 to read "No award
1948:, Ch 6 the Knox Court by Anne Twomey.
824:
812:R v Hickman; Ex parte Fox and Clinton
447:Court of Conciliation and Arbitration
397:One of the contentious issues in the
2154:, incorrectly citing Whybrow (No 2).
1605:A writ of prohibition is one of the
1518:
1347:Ex parte H.V. McKay (Harvester case)
634:
376:jurisdictional error as part of its
1916:
1656:
1640:
1126:
1017:
992:
917:
872:referred powers to the Commonwealth
392:
13:
2327:
2121:Parliamentary Library of Australia
1959:Clyde Engineering Co Ltd v Cowburn
833:sought to address the decision in
763:Clyde Engineering Co Ltd v Cowburn
493:despite the High Court holding in
410:conciliation and arbitration power
14:
2410:
2299:Australian Law Reform Commission
2281:Australian Law Reform Commission
2174:(1925) 35 CLR 528
2055:(1945) 70 CLR 598
1980:Attorney-General (Qld) v Riordan
1968:(1926) 37 CLR 466
1934:(1920) 28 CLR 129
1912:(1921) 29 CLR 290
1887:(1918) 25 CLR 434
1846:(1910) 11 CLR 311
1576:(1910) 10 CLR 266
1561:(1910) 10 CLR 266
1492:(1910) 10 CLR 266
1183:(1909) 8 CLR 419.
1159:(1908) 6 CLR 309.
1012:(1910) 10 CLR 266
941:(1910) 11 CLR 311
892:WorkChoices was replaced by the
792:Conciliation and Arbitration Act
785:On the question of prohibition,
780:
641:Conciliation and Arbitration Act
629:Conciliation and Arbitration Act
615:Conciliation and Arbitration Act
606:Conciliation and Arbitration Act
570:Conciliation and Arbitration Act
293:(1910) 11 CLR 311
77:(1910) 10 CLR 266
2305:
2287:
2269:
2218:
2179:
2149:Parliamentary Debates (Hansard)
2081:
2059:
2038:
2034:(1914) 18 CLR 54
2017:
1993:
1973:
1851:
1818:
1803:
1788:
1765:(1908) 6 CLR 469
1733:
1672:
1625:
1566:
1551:
1482:
1473:
1446:
1431:
1373:(1908) 6 CLR 41.
1316:(1909) 8 CLR 465
1211:(1909) 8 CLR 465
1142:
550:Section 109 of the Constitution
55:v Whybrow & Co and others
2344:. Cambridge University Press.
2067:Kirk v Industrial Court of NSW
1990:1 per Gaudron & Gummow JJ.
1828:(1910) 11 CLR 1
1813:(1910) 11 CLR 1
1798:(1910) 11 CLR 1
1783:(1910) 11 CLR 1
1743:(1910) 11 CLR 1
1682:(1910) 11 CLR 1
1635:(1910) 11 CLR 1
1032:(1910) 11 CLR 1
946:
857:One effect of the emphasis in
818:Kirk v Industrial Court of NSW
595:
199:(1910) 11 CLR 1
1:
2374:High Court of Australia cases
2369:Australian constitutional law
910:
874:, in 2003 to provide for the
387:
2394:Labour disputes in Australia
2102:NSW Bar Association News 14.
733:
554:impossible to obey both laws
408:The Australian parliament's
7:
10:
2415:
2389:Australian labour case law
1946:Dixon & Williams (eds)
1715:10.1177/0067205X8601600403
1121:Dixon & Williams (eds)
976:Hamilton, RS, ed. (2011).
724:Constitutional Conventions
689:The union, represented by
399:Constitutional Conventions
660:Paper dispute as to wages
303:
298:
284:
276:
266:
256:
247:
242:
209:
204:
190:
182:
168:
158:
149:
144:
107:
102:
87:
82:
68:
60:
47:
37:
28:
23:
2004:. Cth. 15 December 1904.
1903:R v Hibble; Ex parte BHP
1239:. Cth. 15 December 1904.
752:R v Hibble; Ex parte BHP
672:
542:reserved powers doctrine
474:appeared for the union,
353:High Court of Australia
261:High Court of Australia
163:High Court of Australia
42:High Court of Australia
2384:1910 in Australian law
2051:[1945] HCA 53
2030:[1914] HCA 15
1984:[1997] HCA 32
1930:[1920] HCA 54
1908:[1921] HCA 15
1883:[1918] HCA 56
1865:(1909) 4 CAR 1
1815:at p. 57 per Isaacs J.
1761:[1908] HCA 94
1594:(1909) 4 CAR 1
1513:(1909) 4 CAR 1
1426:(1909) 4 CAR 1
1408:(1909) 4 CAR 1
1390:(1909) 4 CAR 1
1369:[1908] HCA 43
1312:[1909] HCA 43
1291:(1909) 4 CAR 1
1273:(1909) 4 CAR 1
1207:[1909] HCA 43
1179:[1909] HCA 20
1155:[1908] HCA 95
1105:[2006] HCA 52
1028:[1910] HCA 33
937:[1910] HCA 53
622:Compulsory arbitration
602:appellate jurisdiction
528:
423:
289:[1910] HCA 53
195:[1910] HCA 33
2196:High Court Review 11.
2170:[1925] HCA 7
2072:[2010] HCA 1
1964:[1926] HCA 6
1457:[1976] HCA 2
1008:[1910] HCA 8
957:[2005] HCA 9
518:
431:, and in 1909 in the
414:
378:original jurisdiction
73:[1910] HCA 8
2317:Fair Work Commission
2186:Coulthard A (1996).
2142:(19 November 1912).
2092:; Y Shariff (2010).
738:The propositions in
566:cover the field test
343:, commonly known as
986:Fair Work Australia
403:industrial disputes
2263:Fair Work Act 2009
1728:Federal Law Review
1703:Federal Law Review
1697:Aitken, L (1986).
1463:526 at p. 533 per
1438:Judiciary Act 1903
978:"Boot Trades case"
895:Fair Work Act 2009
887:corporations power
825:Common rule awards
648:unconstitutional.
467:industrial dispute
361:common rule awards
2301:. 18 August 2011.
2283:. 18 August 2011.
2192:High Court Review
1926:(Engineers' Case)
1607:prerogative writs
1331:(15 March 2007).
635:Common rule award
336:
335:
238:
237:
140:
139:
2406:
2379:1910 in case law
2355:
2321:
2320:
2309:
2303:
2302:
2291:
2285:
2284:
2273:
2267:
2259:
2253:
2243:
2237:
2236:
2230:
2222:
2216:
2206:
2197:
2195:
2183:
2177:
2161:
2155:
2153:
2140:Attorney-General
2132:
2126:
2124:
2112:
2103:
2101:
2085:
2079:
2063:
2057:
2042:
2036:
2021:
2015:
2005:
1997:
1991:
1977:
1971:
1955:
1949:
1943:
1937:
1920:
1914:
1899:
1890:
1874:
1868:
1862:
1855:
1849:
1840:
1831:
1822:
1816:
1807:
1801:
1792:
1786:
1777:
1768:
1752:
1746:
1737:
1731:
1726:
1694:
1685:
1676:
1670:
1660:
1654:
1644:
1638:
1629:
1623:
1603:
1597:
1591:
1585:
1579:
1570:
1564:
1555:
1549:
1538:
1532:
1522:
1516:
1510:
1504:
1495:
1486:
1480:
1477:
1471:
1450:
1444:
1435:
1429:
1423:
1417:
1411:
1405:
1399:
1393:
1387:
1381:
1375:
1360:
1354:
1343:
1337:
1336:
1325:
1319:
1303:
1294:
1288:
1282:
1276:
1270:
1264:
1258:
1247:
1241:
1240:
1229:
1214:
1198:
1185:
1170:
1161:
1146:
1140:
1130:
1124:
1118:
1112:
1096:
1085:
1083:
1076:
1067:
1065:
1058:
1049:
1047:
1040:
1034:
1021:
1015:
1001:
990:
989:
973:
964:
950:
944:
930:
844:Attorney-General
710:
701:
514:Sawmillers' case
482:
440:Sawmiller's case
434:Broken Hill case
393:The constitution
349:Boot Trades case
299:Court membership
252:
240:
239:
205:Court membership
154:
142:
141:
103:Court membership
98: President.
33:
21:
20:
2414:
2413:
2409:
2408:
2407:
2405:
2404:
2403:
2359:
2358:
2352:
2338:, eds. (2015).
2330:
2328:Further reading
2325:
2324:
2313:"Modern awards"
2311:
2310:
2306:
2293:
2292:
2288:
2275:
2274:
2270:
2260:
2256:
2244:
2240:
2228:
2224:
2223:
2219:
2207:
2200:
2184:
2180:
2162:
2158:
2133:
2129:
2115:
2113:
2106:
2086:
2082:
2064:
2060:
2043:
2039:
2022:
2018:
2000:
1998:
1994:
1978:
1974:
1956:
1952:
1944:
1940:
1921:
1917:
1900:
1893:
1875:
1871:
1858:
1856:
1852:
1841:
1834:
1823:
1819:
1808:
1804:
1793:
1789:
1778:
1771:
1753:
1749:
1738:
1734:
1695:
1688:
1677:
1673:
1661:
1657:
1645:
1641:
1630:
1626:
1604:
1600:
1587:
1586:
1582:
1571:
1567:
1556:
1552:
1546:(1908) 6 CLR 41
1539:
1535:
1523:
1519:
1506:
1505:
1498:
1487:
1483:
1478:
1474:
1451:
1447:
1436:
1432:
1419:
1418:
1414:
1401:
1400:
1396:
1383:
1382:
1378:
1361:
1357:
1344:
1340:
1326:
1322:
1304:
1297:
1284:
1283:
1279:
1266:
1265:
1261:
1248:
1244:
1231:
1230:
1217:
1199:
1188:
1171:
1164:
1147:
1143:
1131:
1127:
1119:
1115:
1097:
1088:
1078:
1077:
1070:
1060:
1059:
1052:
1042:
1041:
1037:
1022:
1018:
1002:
993:
974:
967:
951:
947:
931:
918:
913:
852:1913 referendum
831:1911 referendum
827:
783:
758:Engineers' Case
736:
706:
697:
687:
675:
667:Sawmillers case
662:
637:
624:
598:
578:
537:
510:
478:
455:, a registered
449:
395:
390:
280:10 October 1910
173:The King v the
17:
12:
11:
5:
2412:
2402:
2401:
2396:
2391:
2386:
2381:
2376:
2371:
2357:
2356:
2350:
2329:
2326:
2323:
2322:
2319:. 10 May 2016.
2304:
2286:
2268:
2254:
2238:
2217:
2198:
2178:
2156:
2127:
2104:
2080:
2058:
2037:
2016:
1992:
1972:
1950:
1938:
1915:
1891:
1869:
1850:
1843:Whybrow (No 3)
1832:
1825:Whybrow (No 2)
1817:
1810:Whybrow (No 2)
1802:
1795:Whybrow (No 2)
1787:
1780:Whybrow (No 2)
1769:
1747:
1740:Whybrow (No 2)
1732:
1709:(4): 370–385.
1686:
1679:Whybrow (No 2)
1671:
1655:
1639:
1632:Whybrow (No 2)
1624:
1598:
1580:
1578:per Higgins J.
1573:Whybrow (No 1)
1565:
1558:Whybrow (No 1)
1550:
1533:
1517:
1496:
1489:Whybrow (No 1)
1481:
1472:
1445:
1430:
1412:
1394:
1376:
1355:
1351:(1907) 2 CAR 1
1338:
1320:
1295:
1277:
1259:
1242:
1215:
1186:
1162:
1141:
1125:
1113:
1086:
1068:
1050:
1035:
1016:
991:
965:
945:
915:
914:
912:
909:
859:Whybrow (No 3)
840:Whybrow (No 3)
835:Whybrow (No 3)
826:
823:
822:
821:
815:
809:
806:
803:Whybrow (No 2)
787:Whybrow (No 2)
782:
779:
774:Whybrow (No 2)
772:The effect of
767:Whybrow (No 1)
740:Whybrow (No 1)
735:
732:
728:Whybrow (No 1)
686:
683:
674:
671:
661:
658:
654:Whybrow (No 1)
636:
633:
623:
620:
597:
594:
593:
592:
589:
586:
577:
574:
536:
533:
527:
526:
523:
509:
506:
490:Harvester case
448:
445:
422:
421:
394:
391:
389:
386:
382:Whybrow (No 3)
373:Whybrow (No 2)
369:Whybrow (No 1)
345:Whybrow's case
334:
333:
305:
304:Judges sitting
301:
300:
296:
295:
286:
282:
281:
278:
274:
273:
268:
267:Full case name
264:
263:
258:
254:
253:
245:
244:
236:
235:
211:
210:Judges sitting
207:
206:
202:
201:
192:
188:
187:
184:
180:
179:
170:
169:Full case name
166:
165:
160:
156:
155:
147:
146:
138:
137:
109:
108:Judges sitting
105:
104:
100:
99:
89:
85:
84:
80:
79:
70:
66:
65:
62:
58:
57:
49:
48:Full case name
45:
44:
39:
35:
34:
26:
25:
15:
9:
6:
4:
3:
2:
2411:
2400:
2397:
2395:
2392:
2390:
2387:
2385:
2382:
2380:
2377:
2375:
2372:
2370:
2367:
2366:
2364:
2353:
2351:9781107043664
2347:
2343:
2342:
2337:
2332:
2331:
2318:
2314:
2308:
2300:
2296:
2290:
2282:
2278:
2272:
2265:
2264:
2258:
2251:
2247:
2242:
2234:
2227:
2221:
2214:
2210:
2205:
2203:
2193:
2189:
2182:
2175:
2171:
2167:
2166:
2160:
2151:
2150:
2145:
2141:
2137:
2131:
2122:
2118:
2111:
2109:
2099:
2095:
2091:
2084:
2077:
2074:, (2010) 239
2073:
2069:
2068:
2062:
2056:
2052:
2048:
2047:
2041:
2035:
2031:
2027:
2026:
2020:
2013:
2009:
2003:
1996:
1989:
1986:, (1997) 192
1985:
1981:
1976:
1969:
1965:
1961:
1960:
1954:
1947:
1942:
1935:
1931:
1927:
1925:
1919:
1913:
1909:
1905:
1904:
1898:
1896:
1888:
1884:
1880:
1879:
1873:
1867:, at p. 9-10.
1866:
1861:
1854:
1847:
1844:
1839:
1837:
1829:
1826:
1821:
1814:
1811:
1806:
1799:
1796:
1791:
1784:
1781:
1776:
1774:
1766:
1762:
1758:
1757:
1751:
1744:
1741:
1736:
1729:
1724:
1720:
1716:
1712:
1708:
1704:
1700:
1693:
1691:
1683:
1680:
1675:
1668:
1664:
1659:
1652:
1648:
1643:
1636:
1633:
1628:
1621:
1616:
1612:
1608:
1602:
1595:
1590:
1584:
1577:
1574:
1569:
1563:per Isaacs J.
1562:
1559:
1554:
1547:
1544:
1543:
1537:
1530:
1526:
1521:
1514:
1509:
1503:
1501:
1493:
1490:
1485:
1476:
1469:
1466:
1462:
1459:, (1976) 133
1458:
1454:
1449:
1442:
1439:
1434:
1427:
1422:
1416:
1409:
1404:
1398:
1391:
1386:
1380:
1374:
1370:
1366:
1365:
1359:
1352:
1349:
1348:
1342:
1334:
1330:
1324:
1317:
1313:
1309:
1308:
1302:
1300:
1293:, at pp. 4–6.
1292:
1287:
1281:
1274:
1269:
1263:
1256:
1252:
1246:
1238:
1236:
1228:
1226:
1224:
1222:
1220:
1212:
1208:
1204:
1203:
1197:
1195:
1193:
1191:
1184:
1180:
1176:
1175:
1169:
1167:
1160:
1156:
1152:
1151:
1145:
1138:
1134:
1129:
1122:
1117:
1110:
1107:, (2006) 229
1106:
1102:
1101:
1095:
1093:
1091:
1081:
1075:
1073:
1063:
1057:
1055:
1045:
1039:
1033:
1029:
1025:
1020:
1013:
1009:
1005:
1000:
998:
996:
987:
983:
979:
972:
970:
962:
959:, (2005) 222
958:
954:
949:
942:
938:
934:
929:
927:
925:
923:
921:
916:
908:
905:
904:Fair Work Act
901:
900:Fair Work Act
897:
896:
890:
888:
884:
879:
877:
873:
868:
866:
865:
860:
855:
853:
849:
845:
841:
836:
832:
819:
816:
813:
810:
807:
804:
800:
799:Tramways case
797:
796:
795:
793:
788:
778:
775:
770:
768:
764:
760:
759:
754:
753:
748:
747:
741:
731:
729:
725:
720:
716:
712:
709:
705:
700:
696:
692:
682:
680:
670:
668:
657:
655:
649:
645:
642:
632:
630:
619:
616:
612:
607:
603:
590:
587:
584:
583:
582:
573:
571:
567:
563:
557:
555:
551:
547:
543:
532:
524:
520:
519:
517:
515:
505:
502:
498:
497:
492:
491:
486:
481:
477:
473:
468:
464:
463:
458:
454:
444:
442:
441:
436:
435:
430:
429:
428:Jumbunna case
419:
418:
417:
413:
411:
406:
404:
400:
385:
383:
380:. Finally in
379:
374:
370:
366:
362:
358:
354:
350:
346:
342:
341:
332:
328:
324:
320:
316:
312:
309:
306:
302:
297:
294:
290:
287:
283:
279:
275:
272:
269:
265:
262:
259:
255:
251:
246:
241:
234:
230:
226:
222:
218:
215:
212:
208:
203:
200:
196:
193:
189:
185:
181:
178:
176:
171:
167:
164:
161:
157:
153:
148:
143:
136:
132:
128:
124:
120:
116:
113:
110:
106:
101:
97:
93:
90:
86:
81:
78:
74:
71:
67:
64:30 March 1910
63:
59:
56:
54:
50:
46:
43:
40:
36:
32:
27:
22:
19:
2340:
2307:
2289:
2271:
2261:
2257:
2246:Constitution
2245:
2241:
2220:
2209:Constitution
2208:
2191:
2181:
2163:
2159:
2147:
2136:Billy Hughes
2130:
2097:
2083:
2065:
2061:
2044:
2040:
2023:
2019:
2011:
2007:
1995:
1979:
1975:
1957:
1953:
1941:
1922:
1918:
1901:
1876:
1872:
1859:
1853:
1842:
1824:
1820:
1809:
1805:
1794:
1790:
1779:
1754:
1750:
1739:
1735:
1706:
1702:
1678:
1674:
1663:Constitution
1662:
1658:
1647:Constitution
1646:
1642:
1631:
1627:
1601:
1588:
1583:
1572:
1568:
1557:
1553:
1540:
1536:
1525:Constitution
1524:
1520:
1507:
1488:
1484:
1475:
1452:
1448:
1437:
1433:
1420:
1415:
1402:
1397:
1384:
1379:
1362:
1358:
1345:
1341:
1323:
1305:
1285:
1280:
1267:
1262:
1251:Constitution
1250:
1245:
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596:Prohibition
546:arbitration
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