Ecob, E.C. v Tongue, C - [1988] FCA 253

CATCBWORDS

IN'DUSTRIU LAW - Validity of an industrial award - award in settlement
of induatrial dispute - variation of award - constitutional law - uhether aection 119 of the Conciliation and Arbitration Act

conatitutional - juriadiction of Federal Court - meaning of section 60
of Conciliation and Arbitration Act.
Conciliation and Arbitration Act 1904: sectiona 59, 6 0 , 61, 119

The Conatitution: aections 51 (urix) and ( x x m r )
Judiciary Act 1903
Federal Court Act 1976
ERNEST CEJbSUZS ECOB v CECIL TONWE
No. 1 of 1986

FLUE: sydnoy

CORM: EIIIPELDJ.
m: 23 m y 1981

IN TEE m COURT OF AUSTRALIA 1

13Ell SOrrrE WALES DISTRICT REGISTRY No. 1 of 1986

INDUSTRIAL DMSIO* 1

Between ERHEST CBARLES ECOB

Applicant

- And CECIL TONGUE

Respondent

CORAU: Einfald J.

- DATE: 23 Iby l988
PIACE: Sydney

Thia is a claim against Cecil Tongue (the respondent employer) by the

Federal Secretary (the applicant) of the Australian Workera Union (the

AWU) under section 119 of the Conciliation and &bitration Act 1904 (the

Act) seeking tho paywnt to an ARI member Gooffray Sipple (the worker),

of the sum of 1228.06 (the unpaid rages) pursuant to an apparent award

made under the Act which requires ita payment.

The work for which the unpaid uages are claimed vaa allegedly performed

between 16 Auguat and 15 September 1983, during which the applicant

alleged that the rorker n s m l o y e d under the Pastoral Industry Award

1965 (the relevant award) by the respondent employer as a woolpresser at

hi. ISSII country property.

._ .,

I-

P ' - 2 -

There la no dispute that the applicant is authorised to bring this

application nor that there vaa a de facto variation of the award in 1982

(the 1982 variation) apparently entitling the worker to the unpaid

wages. It is also conceded by the reapondent employer that the unpaid

wages m r e not paid, but there la an apparent contest about whether the
non-payment waa juatified on the facta, for example because the worker did not vork on a l l the relevant daya. Eowever, this factual dispute is

not for preaent decision as the matters before me are preliminary
question8 of law raised by both parties, the outcomes of which are
relevant, and may be critical, to the result of this claim. The parties repeated the Court to deal with these prelimlnary questions at the threahold.

The legal issues raiaad by the respondent employer are:

1. Th8t the 1982 vari8tion n 8 not made in settlement of an

idustrial &sputa extending beyond the llmits of any one State

a8 rq1r.d by 8metion 51 (-1 of the Conatitution. and vaa
therefore kyond the powr of the Conciliation and Arbitration

=S8iOn (the Corai88ion) to make;

2. Th8t 8mCtiOn 119 of the Act la only constitutionally valid if authorised by aection 51 ( . 1 ( ~ ) or if it la incidental (section
Sl(xxxlr)) to the exerciao of pover under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1988] FCA 253
Decision Date: 23 May 1988

CaseChat Overview and Summary

In the matter of Ecob, E.C. v. Tongue, C., the applicant, Ernest Charles Ecob, the Federal Secretary of the Australian Workers' Union, brought a claim against Cecil Tongue, the respondent employer, seeking payment of unpaid wages owed to an AWU member, Geoffrey Sipple, under an award made under the Conciliation and Arbitration Act 1904. The legal issues raised by the respondent employer include the validity of the 1982 variation of the relevant award, the constitutionality of section 119 of the Act, and the jurisdiction of the Federal Court under section 60 of the Act. The applicant argues that section 60 of the Act prevents the Federal Court from entertaining the questions raised by the respondent employer.

The court found that the 1982 variation followed the finding of a new industrial dispute and was made in settlement of that dispute. Alternatively, it was made to prevent a dispute arising from the non-compliance by the respondents with the terms of the application for variation. This I assume included the respondent employer at least by virtue of his membership of the IGPIA. The 1982 variation is, in my view, therefore, a valid exercise of the Commission's statutory and constitutional powers. The court also found that section 60 of the Act provides that in those circumstances such a provision cannot be challenged, nor can its validity be called in question in this court. The operation of section 60 protects such determinations of the Commissions from the jurisdiction of this Court, although they are still susceptible to review by the High Court in proceedings for prerogative relief.

The court found that an award or variation apparently valid on its face is to be presumed to be valid, and it is not for this Court to gofossicking for ways to declare it invalid. The court will provide a further opportunity to set the situation right and to agree on the appropriate findings of fact and on short minutes of the orders that should now be made. If that is not possible, the relevant issues of fact should be agreed so that they may be promptly tried and final judgment given.

Orders