The dispute & appeals

Updated time

Last updated

21 March 2017

Mort's Dock NSW 1957

In February 1955, workers at Mort’s Dock in Sydney began strike action in relation to a demand that ironworkers employed in rigging gangs be paid riggers’ wages. The Boilermakers’ Society, having maintained strong ties with the Federated Ironworkers’ Association, imposed work bans at Mort’s Dock in their support.

In May 1955, the Metal Trades Employers’ Association, representing the Mort’s Dock & Engineering Company, commenced proceedings against both unions in the Commonwealth Conciliation and Arbitration Court on the basis that the work bans at Mort’s Dock were in contravention of the Metal Trades Award.

Justices Kirby, Dunphy and Ashburner heard the dispute between the Boilermakers' Society and the Metal Trades Employers’ Association, and on 31 May 1955 ordered the Boilermakers’ Society to cease work bans. The bans were not lifted and on 18 June 1955 Justice Kirby fined the Boilermakers' Society 500 pounds for contempt of court.

The second judgment was subsequently appealed and heard in the High Court. This resulted in an analysis of the notion of separation of powers, and the decision that the exercise of both judicial and non-judicial power by the Conciliation and Arbitration Court was an improper use of Constitutional power.

The Conciliation and Arbitration Court justices were not pleased with the idea that they would no longer be considered judges. For this reason they began discussions with the Government about the High Court case. They were keen to appeal the case to the Privy Council in the hope that the decision would be overturned.

The High Court’s decision was upheld by the Privy Council, and the Conciliation and Arbitration Act 1904 was amended to reflect the new approach. Two separate bodies were established: the Commonwealth Conciliation and Arbitration Commission (now Fair Work Australia) and the Commonwealth Industrial Court (later absorbed by the Federal Court of Australia). These bodies exercised non-judicial and judicial power, respectively.