Harper v. The State of Victoria1
| Author | J. L. Merity |
| DOI | 10.1177/0067205X6700200209 |
| Published date | 01 June 1967 |
| Date | 01 June 1967 |
| Subject Matter | Case Notes |
288
Federal Law Review [VOLUME 2
The majority view would, therefore, seem to conflict with the accepted
principles for determining whether adispute
is
asingle one
or
in fact
comprises several separate and distinct disputes. The one difficulty with
the 'industrial relationship' test
is
that as it refers to aclass the class
itself could be defined as narrow
or
broad, e.g. 'the oil refining
industry'
as opposed to the 'oil industry'. This was, in fact, the main question
the Commissioner had sought to decide. As indicated by McTiernan J
.22
the decision whether to take the broad
or
the narrow class in this case
was itself aquestion
of
fact, an inference drawn from the known facts
concerning the oil industry depending on whether it would be regarded
in that industry as appropriate to distinguish refining from distributing
of
oil products and class the two functions as separate industries. The
assessment
of
the Commissioner with which McTiernan J. agreed, was
that
at
the then stage
of
development
of
the oil industry the two functions
of
refining and distributing were
not
so disparate and independent as
to
constitute separate
'industries'.
The test adopted by McTiernan J.
is not then an inflexible one but would yield adifferent result according
to
developments within industries.
TJte
majority view, on the other hand, while imprecise and unspecified
does appear, from the result in this case, to have the effect
of
gravely
circumscribing the jurisdiction
of
the Commonwealth Conciliation and
Arbitration Commission. The local economic
or
industrial policies
of
the States will,
at
least potentially, be elevated above the national interest,
and
many awards already made may well find they lack jurisdictional
basis for either continuance
or
renewal.
It
is to be hoped that the High
Court will, in future, regard this instant case as adecision only as
to
whether, on its particular facts, any dispute really existed with the refinery
company and the distributors and rebut any inferences that may be
drawn from the majority judgment concerning the degree
of
association
of
interest between employers in an industry necessary to join them as
parties to asingle industrial dispute.
T.
J.
HIGGINS
HARPER
v.
THE
STATE
OF
VICTORIA'
Constitutional Law-Legislation fixing standards for goods sold
in
State-
What constitutes interference with freedom
of
interstate
trade-Whether
fee payable
to
marketing board for grading
is
duty
of
excise.
The Marketing
of
Primary Products Act
1958
(Vic.) as amended
by the Marketing
of
Primary Products (Egg Marketing) Act
1965
(Vic.)
provides that no one may sell by retail in Victoria, eggs which have not
been graded, tested, marked and stamped by the Egg Board
or
by some
person (including aproducer) authorized by the Board. Acompulsory
22
(1966) 40 A.L.J.R. 43, 46.
1(1966) 40 A.L.J.R. 49. High Court
of
Australia; Barwick C.J., McTiernan, Taylor,
Menzies and Owen JJ.
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