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

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CORM:	EIIIPELDJ.
m:	23 m y 1981

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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.
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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 section 5l(xxxv); and

th8t this Court cannot therefore entertain any aection 119

applic8tion b88.d on an anrd not Coling vithin the deacriptlon

contained in 1;

3.	Alternatively to 2, that section 119 is ultra vires the
Constitution and therefore does not endow this Court with
jurisdiction to entertain this case.

The legal iaaue raiad by the applicant is:

That by reason of aectlon 60 of the Act this Court has no

jurisdiction to entertain any of the questions of the respondent

employer in this case.

At the request of the parties, I first heard the respondent employer

undertake h i s attack on the validity or availability of these

proceedings, with the applicant then advancing his section 60 argument.

The reapondent amployer then made mitten auhmissions in reply to the

section 60 argrunt. Whatever the merit8 of this procedure, its

consequenae n m that the respondent employer became primarily

responsible to place the relevant facta before the Court for the

deterrinatlon of thmso legal queations.

By the end of o n 1 arg-Iamnt, nothvithstanding that I had raised the

matter mmnl t i u s during the hearing, no evidence had been placed

before the Court. Although it uaa said that relevant factual matters

in dispute, I vas unable to elicit or glean uhat facts came within that description. The file doea contain affidavits and	some
were	not
exhibits thereto but none	uere read, despite my urgings, because it was
said not	to ba necesmary. I therefore directed that a atatement of
agreed facts ba filed after the close of	the hearing. A document

baarinq that name n m filed, signed by counsel for the respondent

employer alonm, and n s explained in an accompanying letter from his

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Instructing solicitors as lacking the signature of or on behalf of the applicant because of the unavailability of the solicitor for the

applicant. The applicant's solicitors then wrote to the Court that this

was not the reason at all and that some of these "facts" were not agreed

and were disputed.

Having waited in vain to hear more since, I have been forced to ignore

the statement filed by the respondent employer and am now left in the

difficult position of not knowing what matters are and what are not

agreed. This is most unsatisfactory. In my view, there must, for	the
definitiw resolution of this matter, either be proved	or agreed facts.
It is true that the points of defence do not in substance deny	the

point. of claim, and make a number of assertionr of fact which are not

denied by the reply, but I was told that these pleadings were ordered	at
a directions hoaring for the purpose of stating the	legal questions for

preliminary deterrination. In those circumstances, I am not at all sure that they settle the factual position. In addition, it should not be

necessary for Y to go through each pleading	to find the status of every
minute fact involwd in the case.

I thereforo propose to approach these reasons on the basis that the

facts upon which I rely are agreed, and then before making final orders,

to list the rtter for further argument to give the parties the

opportunity of agreeing on the correctness	of	these	premises	or
othervisa.
Section 119(3) of the Act provides:

W~ere, in any proceedings against an eaployer before a

Court qecified in subsection (11, it appears to the Court

that an erplop of that employer has not been paid an ammt to whlch he is entitled under an order o r amrd, that
Court m y order that the anployer shall pay to the employee

the amunt of the underpayment but no order shall be made i n
respect of so m c h of the underpayment as relates to any

period rmre than 6 years prior to the ccmnencement of the

proceedings. "

Other parts of section 119 speak	of the	availability and imposition of
penalties	for	non-compliance with awarda. Eowever, no penalties are

being sought here; this is merely a claim for unpaid wages. In order to address the legal issues raised, it is necessary to examine the award history which is said to found the claim.

The relevant award arose from a log of clalms served by the A m in about

Auguat 1964 (the 1964 log) upon, I am told, a number of organisations of graziers ud lndlvldnal pstoralist8 in several States, including New South Wales. There l 8 no evidence of who they were - or even if they included tho respondent employer. The 1964 log included demands €or a ninlmum rate for wolpre8smr members of the AWU of the then currency equivalent of $112 per ueek. A dispute vas found, the matter was arbitrated, and in July 1965, the Cornismion made the relevant award

consequent upon the 1964 log.
There w r e a numbor of increases	in the wage rates of the relevant award
in the ensuing years, folloulng successive applioationa	for variation,

until Ilovmmbar 1981, uhen a further variation of the relevant award's wage rates m8 sought. One year later, in the 1982 variation, the uoolpre8ser rate was set by the Coxmlssion at $325.80. It is this wage

upon which the applicant's clalm 1s calculated and I am informed that

this far exceeds the maxlmm sum sought in the 1964 log. There was no

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appeal by the respondent employer or anyone else against, or application

of any kind concerning, the 1982 variation. There have been various

increases in the woolpresmr rate since that time.

Section 61 of the Act provides:

"An award determining an industrial dispute is binding on -

(a1 a l l parties to the industrial dispute who appeared

or -re represented before the Carmission;

(b) all parties to the industrial dispute who were

s u m D M d or notified, either personally or a3

prescribed, to a	-	as parties to the dispute,
whether	they	or not;

(C) all parties who, havirq been notified, either

peramally or as prescrW, of the industrial

dispute and of the fact that they -re alleged to be

partiea to the dispute, did not, within the time

pmscrlimd, satisfy the ccnmission that they were

not parties to th. dispute;

(d) in tha can of atployerr, any successor to, or assignee or franmrittae of, the business of a party to the dispute or of a pmrty bourd by the awazd, includiryl any corporstion which has acquired or

talcan owr the buninass of such a party;

(0)	all oryanizationa Md prsons on whan the award is
hiniing as a corm~n rule; and
(f)	all dra of organizations bourd by the award. It

There 18 no evidance of uhether the relevant award, by reason of this

section, bound the raspondant employer. If so, I do not know by the

operation of which 8ub8ection	he became bound.
Section	59 (2) and ( 3 ) provide:
"(2) ! C b Ccllmiarion my, If for any reason it considers it dorirabla to do so, and shall if it considere it

cbsirshl. for the purpoae of ramving mbigulty or

mcertainty, vary any of the tenre of an award

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( 3 )	The pmvisions of this Act, so far as they are capable of aFplication, apply in relation to appllcations for the variation or setting aside of
-aand pmceedlngs in respect of such applications In like manner as they apply in
relation to industrial disputes and proceedings in
respect of such disputes, and for that purpose such
an application shall be treated as if it were
notification of an industrial dispute. 'I

The respondent employer saya that	the application for the 1982 variation
had a different matter or cause nmber to the relevant award	in the
Corission's filing system, that it uas	served on some of the same and
aome	different respondents than in 1965, and that it was subatantially

defended by a relatively new registered organisation of employers, the Livestock and Grain Producera' (Industrial) Association of New South Wales (IliPIA). Thm USPIA was, I am told, regiatered after the relevant award follouing thm m a l g m t i o n of two previously registered employer

organisations, who or whosm predecessors, I aaaume, had been respondents to the r m l w m t anrd. Thm respondent employer vaa a member of the

IGPIA.

Section 5 9 ( 3 ) appmars, at lmast procedurally, to equate applications to

vary vith applications relating to industrial diaputea. Section 61 would

aeem to p. to be included amng what aection 5 9 ( 3 ) calls 'the provisions

of (the) Act (th8t) apply in relation to industrial disputes and
proceadlngs in respect of such disputes.. If so, it means that
variations, of anrds callad *variations', are only binding on parties
identified in section 61. In this case, I asmume that the facts enable
the provisions of smction 61 to apply to make the 1982 variation binding
on the IGPIA and its members, including the respondent employer.

The rmspond.nt employer contend. that the 1982 variation did not vary the relmvant a n r d because that award was limited by the ambit of the

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dispute found on the 1964 log. In other words, the Comission's power	to

vary as provided for in section 59 of the Act vas limited to the

subject matter of the 1964 dispute. The respondent employer says that by the tlme of the 1982 variation, nothing was left unsettled folloving that dlsputo, and that the 1982 variation vas not made folloving the

finding of any nev industrial dispute between the "new" parties.

Therefore, he argues, the 1982 variation vas beyond the pover	of the
CaPlliasion to make.

It ia clear enough that section 119 of the Act can only be

constitutionally sopportable if It is a lav vlth respect to the

prevention or settlement of an industrial dispute extending beyond the

limits of one state (S. 51(xxxv) or is incidental to such a lav (S. 5 1

(xxxix)). The respondent employer aays therefore that section 119

cannot, conslatent with the Constitution, authorise a recovery of moneys

under an auard which oxceoded	the auard mking pouers of the	Comssion.
Alternatively, he argues for the	radical proposition that section	119
is ultra Vires the Constitution.	As I understand the argument, it is

that Puli.mt cannot confer on this Court the pover to enforce an

avard containing a de facto term vhich is invalid because the	enactment
uhich	purport8 to provide the pover is not	a lav for the settlement or
prevention of interstate industrial disputes	or incidental	thereto.
This a r m a t is for the total invalidity of	the	section, not merely

that the Constitution prohibits attempts to enforce avards	or parts of
awards beyond pornr.	MO authority vas cited In support of any of these
propositions.
The applicant replies that the application for	the 1982 variation raised

a dispute when it uaa opposed and arbitrated, and that the 1982

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variation vas an attempt to settle that dispute. Alternatively, he puts

that the 1982 variation war an attempt to prevent a possible future

dispute. For present purposes I again assume the correctness of the

facts alleged in these submissions.

In R v Bain L Others; ex parte Cadbury Schweppes Australia Limited and

Another (1984-85) 159 CLR 163, the Eigh Court entertained a	dispute in
relation to aectlon 28 of the Act which provides	the machinery for

certi2ication of the terms for settlement of Industrial disputes. An

avard had been made by the C o m s s l o n In 1980 in settlement of an

intmr8tate dispute and the Colmision reserved for future consideration provision for the redundancy of employees. In 1983, an association of employees served a claim on an employer (both had been parties to the 1980 award) relating to the redundancy of workers at a plant in one

State. Agreommnt n 8 roach4 and certification requested. Another

employer vbo was a180 party to the 1980 award sought prohibition	of
certiiication on thm ground that	it was outside the ambit of the
original industrial dispute.
A t 167, Hurphy J raid:

clearly the abscmcca of juridction in the ccmhission. The	" In prohibition the onus is on the prosecutor to prove
validity 02 the hard 18 pre8umd. It is p r e s d therefore
that there m s an industrial dispute within the msaning of
s.4 02 the Act, i.e., M actual or potential dispute
ex ted iq m OM State uhich justified the ccnmission in remming the natter of raimhcy. . . . .me view has been
talcan that the process of arbitration requires a
&teIKd.Mtion -Ch 18 within the -it Of the dispute. But
th is doctrim is mt to lm appUed rigidly; an award is
authorized if it relates to the matters in dispute or is
reasombly incidnntal to than or calculated to settle the
dispute. . ."

Brennan and mane JJ, agroeing rith hlurphy J, raid at 175:

"The case was presented and argued on the basis that the only issue involved is whether it appears f r m the evidence that the tern of the agreement are outside the &it of any interstate industrial dispute to which the Association and the respondent ccmpnles were parties .(T)he prosecutors haw failed to establish that the resenmtlon as to the

redurhncy In c1.44 (of the relevant award) was outside the

mbit of the interstate industrial dispute."

In R v Turbot L Others; ex parte The Australian Building Construction Employees' and Builders' Labourers' Federation (1980) 144 CLR 335 (the

Loy Yang case), the employer vaa engaged in the erection of steel structures for a power station in Victoria. It was proposed to employ four labourers to make the steel in Sydney. and then to transport it by

rail to Victoria where it would be loaded on to semi-trailers and

delivered.	Two	unions had	the policy that they should	do	such work
excluaively.

The Coorission had found an induatrial diapute in relation to the allocation of labour to effect the transportation and unloading of ateel from the employer's plant in Sydney to the power station site in Victoria, but detemlned that there was no interstate dispute relating

to the interstate tranaportation of the steel.
On the return of an order nisi for prohibition at the suit of one of	the
unions, Stephen J aaid at 340 to 342:

"Had matters ramlned in this position the return of the

order nisi for prohibition there would have been a clear case for the order nisi to have been msde absolute: the

CamUssion would have lackd jurisdiction in what the
evidence shousd to be a purely intrastate

diapute ........ ........ . (340)

The evidence now before the Court establishes that there had indsed beon a prsvioua history of dlsputes between the two

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Unions . . . . . . . . . . . . . . (341)

(xle question ramins: should prohibition go, having regard to the erroneous deaoription given by the Ccnmissioner to the diapute which m s before him. Rm the material now before the Court I think it is clear that both the

Ccmnissioner and the parties . . wre intimately aware	of
the long-standing dispute of which Loy Yang	marked the m s t

recent eruption ........ (342)

I do not think it approriate that prohibition should go to the Cumission. It is open to the Ccnmissioner to vary his findlngs so as accurately to describe the dispute. men so

described it will be a dispute over which the Ccmhission has

jurisdiction. " (342-3)

Maron J, as he then wa5, said at 348:

"Central to the trsditional conception of an industrial diapute extending beyond the Llmits of one State is a 'disagmmmnt between pople or groups of people who stand in scam industrial relation upon sane matter which affects or arises out of the relationship. Such a disagreerent m y cause a strike, a lock-out, and disturbance and dislocation

of -try; but thaw are the consequences of the

irduatrlal dispute, and not the industrial dispute itself,

which lies in the disagreamnt.' Caledonian Collieries

IAdtd v Austrslarian Coal	d	Shale Rployees' Federation
(N0.l) (1930) 42	CZR 527, per Gavan Duffy, Rlch, Starke	and

Mxon JJ at 552: see also

Association v hulgenntai

387 at 129."

On the basis of these views, the respondent employer's	first argument
entirely fails. I believe it to b	.	clear that the 1982 variation was

the settlemmnt of a new industrial dispute in 1981, or the prevention of

what	would alao5t certainly have led to another dispute If it had	not
been mndo. It	has long been held that there can be no	permissible

variation of any award which results in a wage rate above that claimed at the time of the award sought to be varied. In other words, no variation can add a condition of employment that had not been part of the log of c l a m preceding, or of the application for. the award sought

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to be varied: The Queen v Kelly L Others; ex parte Australian	Railways'
Union (1953) 89 CLR 461 at 413-4 (per Dixon C J ) .

Bowever, the facts available or assumed here, including the asserted

different filing numbers of the Conmission and the apparent differences

between the parties to the relevant award and to the 1982 variation, suggest that a new industrial dispute existed or was found prior to hat

variation.	Even if the relevant words were not spoken or minutes of
order made, there is	no doubt in my mind that the parties were in fact

in dispute if, as I am informed, the claim was resisted and opposed, and then arbitrated. Service or notification of the claim was no doubt dealt

with at the time, as is customary, but in any event the respondent

employer vas a h e r of a registered organisation which opposed the application to vary (the IGPIA). It is difficult to imagine that this could ham occurred if the application to vary had not named and been served on the LGPIA. Its opposition to the claim indicates to me "the

disagreement' of which	Ihson J was speaking in the Loy Yang case
(above).
Although these are not reasons to deny efficacy to	the respondent

employer's	snhlssions, there would of course be widespread effects	on
the industrial auard situation	in this country if section 119	of the

Act was construed as suggested by him here. Presumably thousands	of
workers between	(and probably before) 1982 and the present date will

have been paid under invalid variations brought about merely by the

effect of the passage of time on old awards and alterations to the

constellations of registered organisations and individual employers.

This mlght therefore explain the development of authority gradually

broadening the dispute finding, aurrd-Paking	and award-varying powers of
the Comssion since it first came into existence,	and the inability of
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the respondent employer to cite authority in support of his argument,

notwithstanding	that	theae	matters	have	often	been	examined	and
conaidered.

The queation to be considered, however, is	whether the Act should be so
construed and limited. An award does not necessarily settle	a dispute

finally. The power to vary deniea to It any sense of res judicata, even

if such a doctrine could extend to arbitral decisions	of the Comission.
Regardless of any difference in file numbers of the	Comission and

parties to the original award, there can still be, in certain circumatances, dispute revival or re-initiation until the original log

of Claim8 is exhausted, with the need for	a new dispute arising at that
time. Any oppoacd application for variation raises	a dispute in fact if

not in lau. In the context of laws fixing the wages of potentially millions of Wrkmt8, it is difficult to dwell on draving a distinction between the tro. Even in the facta of thia caae, if Australia's woolclip

was not able to ba Mrketed because of a refusal by omployers to pay wages sought by AlUl members in tho pastoral induatry, it is difficult to

say that therm is no dispute morely becauae no one has in terms found or

declared accordlngly. Even if the ram file number was used and the

same parties erisfed, and what was called a 'variation' was sought

beyond the ambit of the original log of claims and was resisted, there

would prima facie appear to be	an induatrial dispute within the meaning
of the Act. It will in these circumatances be	a new dispute, but it may

also be tho rmsurrection or rebirth of the old one if the original ambit

ia not being exceeded. Where there are new file numbers and some new

partiea, the matter is almost certainly a new dispute. I	read section
5 9 ( 3 ) of the Act to have these results.
Because of the lack of evidence, this matter could be determined on	the
basis of the reapondent employer's failure to discharge his onus	of
proof. It is certainly aggravating that he facts have to	be guessed at

when they must be known and should have been presented or agreed, but

in view of the lmportance of the matter, and because it is historically

common for industrial matters to be argued on evidence supplied somewhat

informally and litigated oddly, I will provide a further	opportunity to
set thin situation right. Pending that	further opportunity, and making
the ansumptiona earlier detailed, I determine that the 1982 variation followed the finding of a new 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 assmm included the respondent employer at least

by virtue of his wmber8hip of the I&PIA.

The 1982 variation is, in my view, therefore, a valid exercise of the C ~ s s i o n ' n statutory and conatitutlonal powers. It follows that

whether aectlon 119 of the Act is authorised by section 5l(xxxv) or

(.rrix) of the Constitution - and it is not necessary to allocate one or

the other for the purposes of this case - the claim in this case is

available and open to the applicant under ita terms.

It is therefore strictly not necesaary to go to the legal question

raised by the applicant that section 60 of the Act prevents this Court

from entertaining them questions at all. Bowever, as the matter has been fully argued, as I am not sure that this argument should not have been presented firat, and ao that the matter can be comprehensively

dealt uith on appeal If desired, I shall briefly deal vith this

suhlaaion as -11. For this purpose, I must aaaume that my view on

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validity is urong and that the 1982 variation is,	or may be, invalid for
the reasons alleged.
Section 60 provides:

"1. Subject to this Act, an award including an

a&	made on appeal -
(a)	is final and conclusive;
(b)	shall not be challenged, appealed against,
reviewed, quashed or called in question in

any court; ard

(C)	is not subject to prohibition, mandams or
injunction in any court on any account.

2. A detenninatlon or finiing of the CamLission upon a

question as to the cudstence of an industrial dispute is, in all courts and for all purposes, conclusin and binling on all persons affected by that question.

3 . An a& shall not bo called in question in any way

on the gm- that it was umde by the CamLission

constituted otherwise than as provided by this Act "

The substantive issues raised by	the respondent employer on this subject
are that:

1.       the onus is on the applicant to prove that the 1982 variation is valid;

2.       he has not discharged the onus;

3. in any event, section 60 cannot protect an award which is ultra

vires the Constitution.

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My earlier findings and observations deal with arguments 1 and 2 . If the respondent employer CM chooae to argue first and then produce no

evidence to support or found his case, he will have fallen on the onus

question long before the applicant is even called on. Eowever, I have already aaid that I will not resolve this matter at this time on this

basis. I therefore	turn to argument 3.
It is obvioua that Parliament cannot pass	a law which permits or
protecta a conatitutionally ultra vires	act (R v Bickman h Others; ex

parte Fox C Another (1945) 70 CLR 598). It has also been held more than

once that only	the Bigh Court can give prerogative relief under section
75(v) of the Constitution where an officer of the Cornonwealth	has

exceeded prladiction (see The Australian Coal and Shale Employees

Federation v Almrfield Coal Mining Company Limited h Others	(1942) 66
CIdl 161).	Thore has been no application for such relief in this case.
By a combination of sectiona 76 and 77 of the Constitution, sections	33
and 39B of the Jaciary Act 1903, and section 19 of	the Federal Court
Act 1976, the Federal Court gaina puisdiction to	deal with all matters
within the original luriadiction of the Bigh Court, except	the power to
prohibit a member of the Conmission. Thus the Federal Court clearly has

power to detexmlne whether it has juriadiction to entertain and decide

this arwent.

The applicant aaya that a m11 Court of this Court has definitively

ruled on this argument in Roundstreet Pty. Ltd. v John Brown	(1987) 14
FCR 50.
At 51, Evatt L Worthtop JJ aaid:

"In the present case, the learned trial judge held that he

need not decide the third matter because he had gone b hind the 1978 I\lard 8nd fornd that Pacific Tours was properly

mud as a party to the 1978 Award. In doing that, he did

the very thing whlch, in our opinion, sub-section	60 (1) of
the Act prev8nts him fran doing."

At 55-56, Keely J said:

"In the present' appeal, the	award provision that the
appellant is bollrd by the tern of the award	is plainly not
such a pmvisian ........ ........ ........ ..	-
In my opinion s.60 (1) of the Act provides that in those
circuwtunces auch a pmvision cannot be challenged, nor can its vaYdity be called in question in this court . . . Because of the or ig ina l jurisdiction conferred upon the High Court
by a.75 (v) of the Conntitution to grant a writ of
prohibition, the appsllant is not left without a remedy; the
burden of pmof muld fall u p n the appellant	if it brought
such a proceedlng. In	opinion S. 60(1) of the Act intends
that subject t o auch a p r o c ~	in the High Court, or an

appeal or an appllcation for variation lnder the Act, the
awud shall not be challsnged or called in question in this

court or in any other court. "

The applicant say. that there views are determinative of this case.

The reapondent esqbloyer, however, attacks Roundstreet, and especial

Keely J's	observations at pp 54-6. Be aays that an award cannot on i
face appeu to be vithin the statutory power	of the Comission if it
truth exceeds the law making powers of Parliament. Be argues	that Kee
J misread and misinterpreted the High Court's	views in several cases.
In	Clothing and Allied Trades Union of Australia v Cocks and Othe
(1961)) l2 PIdl 13E, a Et111 Court of the Conmonvealth Industrial	Court W
c o n c e m d with an attack on tho validity of	an award during enforceme
procmdlngs sml8r to these. Although the Court did not decide	t

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validity of the award, in considering section 60, Dunphy and Smithers JJ

said at 154 - 155:

Wa think this Court m u t have regard to 9.60 of the Act,

which states that subject to the Act an award shall not be

challenged, appaled against, reviewed, quashed or called in

question in any court . . . It does not appear possible to

treat these wrds as referring only to awards lawfully made

within the jurisdlction	of the Canronwealth.	To do so would
ignore the clear intent	of the Act to exempt	an award made

in fact, even if beyond jurisdiction, from being called in

question In t h i s Court . . . In this state of authority we

think m nu t regard ourselves as bound by what appears to

us to be the natural meaning of the wrds of the section."

On the other hand, Joake J at 162 said

"But an auard can be challengd in the Cmmnwealth

Cummmalth -a1 Court la created by statute and the	lldurtrlal Court, having regard to s.60 of the (Act) ... The
rule, as I haw almys rndarstood it, is that a court
created by statute is bound by the term of its statute and is subject to the 1Mtations of jurisdiction -sed upon
it by the statute. If as a result of 9.60 of the Act, the
CO- is required to treat as valid an a d which is not valid, the situation probably is not without rgnedy."

On appeal to the High Court aa R v The Judges of the Commonwealth

Induatrial Court and Othera; ex parte Cocks and Others (1968)	121 cm
313, section 60 waa not argued.	Eouever. at 321, Banrick CJ, Taylor and
Oven JJ said:

"(T)he Industrial Court did not decide	that the clause was
valld; it as-	that it waa debarrsd by S . 60 of the Act
fran pronouncirx~ upon the question.	mether this was or was

not a correct assurption was not argued before us but, as at

present advlsed, m are inclined to the view that it was

not. "

Eouever, in apparent contradiction of	those observations, their Bonours
proceeded at 322:

" . . . if the Industrial Court had pronounced in favour of the

sub-clause WB would ham no doubt that it would be incmbent

on	this Court, if It considered the provision to	be beyond
the authority	of the Ccmnission, to hold that the	Industrial

Court had acted without jurisdiction."

At 323, UcTiernan J, uho diaaented on the result of the case, said:

"Although the Ccmmmwealth Industrial Court was not

c q t e m t by reason of s.60 of the Conciliation and

Arbitration Act 1904 - 1966 to glve a binding decision on	the question of the validity of cl. 30, ard their Honours
recognized this position, it is interesting to note their
obaervationa as to the object of the clause and its
application to and in relation to indeprxbnt contractors. It

Kitto J aaid at 324-325:

"In this cormexion it is necessary to bear in mind 9.60 of
the Act, praviding that 'subject to the Act'	an award is
final and conclusive and shall not	be called in question in
any court, ad that a detenninatlon	or finding of the

camnission upon a question as to the exlstence of an

industrial dispute is conclusive all courts in

........ ........ The rmde of reconciliation ..... is to

interpret s.60 as validating, so far as it can validate it

constitutionally, any award provision which is outside the

muer of the CClmLisslon if on its face it amears to be

kth- psqmr ad 1s in fact a txma fide a t t e t to act in

the course of the relevant authority" ( m y Inderlining).

At 326, Kitto J continued:

11 ... S. 60 could not constitutionally have an operation

khich would validate la clause of an award1 in its

application in respect of non-employees, even if on its true

construction it affected to do so. Qually S. 119

considered by itself, being construed so as to be constitutionally valid, cannot be interpreted to man that a penalty m y k -sed for a breach of smthing which,

though appearing as a tern of an award, is not one that in

its nature is capable of being included as part of the settlement of an industrial dispute in the constitutional

sense of the	qression.
I	am therefore of opinion that the learned judges of the
Cummntmalth	Industrial Court ware not precllded by the
provisions of	S. 60 or by any other consideration from

immstigatirq the question whether the application they were

being asked to give [the clause of the award in question1

was one which carrid it beyond the authority of the

Ccmnission under the Act ard beyond the power of the

Parlianent to authorise. "

The Fedaral Court now has the same relevant powers, and restrictions on

power, aa the Commonwealth Industrial Court had at that time.

In R v Co1db.a (I Others; ex parte The Auatralian Workers' Union (1982)

153 CLR 415 at 410, Ilason ACJ and Brennan J said:

"The jurisdiction of the Court conferred by section 75 (v)

of the Constitution to grant nwdarnrs and prohibition

dlrected to an off icer of the Cummnwsalth m o t be ousted by a privativa c l a w . &mover, it has b e n established by a

long c o m e of judicial decisions in this Court that a

privatim clause in the fonnto be found in 9.60 of the Act

will validate the award or order of the Carmission, so far

~ ~~ ~ ~~~

- -

la a ~ O M f- attmpt to emrCise the power, it relates to

the subject natter of the legislation, and it is reasonably

c a m e of being referred to the powar (i.e. does not on its

face p0 beyond the powsr) to use the words of Kltto J in R v Comnxwlth Conciliation And Arbitration Cumission; ex

parte	A m l m t e d Engineering Union (Australia Section) and
Others (1967) 118 U R 219 at 252-53"	( m y undsrlining).

I take the underlined vorda "a0 far as it can (validate it/do so)

constitutionally" to m a n	.ao far aa the constitutional reach of section
60 permlta". Eence these expressions mean that an award which is bona fide, atatutorily and industrially relevant, and on	its face referable
to	the prevention or settlement of interstate industrial disputes, is

protected by section 60.

Taking up the reconciliation efforta of Kitto	J in Cocks, Mason ACJ and
Brennan J continue at	418-9:

I, ... it l a a matter of reconciling the prima facie

inconsistency batmen one statutory provision which seem to limit the pmrs of the TribuMl ard another provision, the privatim clawe, whlch se- to conteaplate that the

hitn~~l's ozder shall operate free fran any restriction.
The inC0MiStOrq is resolvd by m x h g the two provisions

together and givlrq effect to each. The privatim clause IS

takm lnto aummt In asceltaining uhat the apparsnt
r e a t r i d i o n or mstralnt actually signifies in order to

detemlne vhether the	situation is one in which prohibition
liea .

The objact of a proviaion of this kind is generally to

protect the a& or o h r frcm challenge. Consequently, the

rmlrirrg of the aoard or order la the occasion for taking the

prlvatlve clawe lnto account in interpreting the Tribunal's

authority or ptar mm llberally . -fore the award or order

ia madr the TribuMl will b held to a strict construction

of its poonra unlnflusnced by the clause, thereby enabling

the grant of prohibition, notwlthstardlng that had the

pmceedlngs reached the stage when an award or order was

maQ prohlbltlon could not have been obtained.

But a claws likr, S. 60 cannot affect the operation of	a
pmviaion ach	iopoaea inviolable limitations or restraints

upon the jurisdiction or pomra of the Trlbunal. In the face

of auch a pmvlaion, a claws like S. 60 is ineffectivs to

prwmt prohlbitlon going when the Trlbunal transgresses

those lllaitationa or restraints ..."

Theao vieum do not aeem to have definitively reaolved the problem here. Bowever, they a e m to m to amy that an award or variation apparently

valid	on it1 face - and in thia case the 1982 variation so qualifies	-
is to be presumed to be valid, and it	is not for this Court	to go

fossicking for ways to declare it invalid. The operation of section 60

protects such determinations of the Coumissions from the jurisdiction of

this Court, although they are still susceptible to review by	the Eigh
Court in proceedings for prerogative rellef.

I should add a final note about the course of these proceedings.	After
oral argument on both sides and what I was told was the major part	of
the respondeat employer's	reply, I directed that any addltional argument

should be addressed in writing. This brought a further 20 foolscap pages of argument from the respondent employer, two pages of reply from the applicant and a further 30 pages from the respondent employer in

further reply. The respondent employer also filed the so-called Agreed

Statement of Fact8 and a nine page affidavit with four exhiblts thereto

capprising 18 pages in all. There were also two pages	of written
8ubplSsiOn8 on the neu affidavit.	The applicant protested this barrage
as wll a8 tho '4reod Statement of Facts'.	I am inclined to agree with
the applicant'.	objection. To say the very least, if the respondent

employat felt that despite the 8pirit o f the directions at the end of

the hearing, he needed to make such lengthy further submissions and

profier additional evidence, he should first have secured	of the applicant to the factual patters needed for the resolution of the agreement	these questions of law. If necessary, these matters, as well as the appropriate findings of fact and orders, will be debated at a hearing
after the delivery of these expreasions of opinion.
It is desirable that the parties reach agreement on the appropriate
findings of fact and on short minutes of the orders that should now be
made. If that is not p088ibl0, the relevant issues of fact should be
agreed so that they MY be promptly tried and final judgment glven.

Counsel and solicitors	Mr. G. Maldment
for the applicant	instructed by
Carroll and O'Dea
Solicitors
Counsel and solicitors	Mr. M. cockburn
for the reapondent	instructed by Manion McCosker
Date of judgment	23 May 1988