[4] In Whybrow (No 2) 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 jurisdictional error as part of its original jurisdiction.

[5] Finally in Whybrow (No 3) the High Court unanimously held that the Federal Parliament had no constitutional power to provide for common rule awards.

[1] One of the contentious issues in the Constitutional Conventions of the 1890s was the power of the Australian parliament to make laws concerning industrial disputes.

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.

[10] The Australian parliament's conciliation and arbitration power is in subsection 51(xxxv) of the Constitution which provides: 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: The scope of this constitutional power had previously been considered by the High Court in 1908 in the Jumbunna case,[12] and in 1909 in the Broken Hill case,[13] and the Sawmiller's case,[14] The Australian Boot Trade Employees Federation, a registered union sought the assistance of the Commonwealth Court of Conciliation and Arbitration under the Commonwealth Conciliation and Arbitration Act 1904,[15] in relation to what the union said was an industrial dispute with boot manufacturers that extended beyond the limits of any one State.

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.

In the Sawmillers' case,[14] the High Court had been divided 2:2 and thus the decision of the Chief Justice prevailed,[26] in what is sometimes described as a statutory majority.

[4] Isaacs & Higgins JJ maintained their rejection of the reserved powers doctrine,[32] and their dissent from the Sawmillers case.

The judgment of Isaacs J argues from the premise that the fundamental basis of the Australian legal system was as an enactment of the Imperial Parliament.

[13] The majority, Griffith CJ, Barton & O'Connor JJ held that prohibition was an exercise of the High Court's original jurisdiction.

Isaacs J dissented on this point, holding that prohibition was an exercise of the High Court's appellate jurisdiction.

The power to make a common rule award was a legislative function which, consistent with the decision in Whybrow (No 1),[4] could not be conferred on the Arbitration Court.

[45] 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".

[46] 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 journeymen.

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.

35 employers, represented by Starke, objected to the award being made a common rule on the ground that the provisions were unconstitutional.

Both the employer and employees may be happy with their 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.

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.

[56] The 1911 referendum sought to address the decision in Whybrow (No 3) 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.

[61] Whybrow (No 3) was one of 11 decisions of the High Court referred to by the Attorney-General, Billy Hughes, as cutting down the Commonwealth's powers until they were futile and justifying the changes proposed in the 1913 referendum.

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.

[66] The constitutional basis for the regulation of terms and conditions of employment changed as a result of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which did not rely on the Australian parliament's conciliation and arbitration power instead being primarily founded on the corporations power.