Industrial Law (Cth)—Conciliation and Arbitration—Conciliation and Arbitration Commission—Jurisdiction—Power to order that organization have exclusive right to represent class of employees eligible for membership—Orders not to be challenged by prohibition or mandamus—Whether erroneous decision that class of employees not eligible for membership of organization reviewable by High Court—Whether Commission empowered conclusively to determine eligibility to membership of organization—Conciliation and Arbitration Act 1904 (Cth), ss. 60(1), 142A, 144. Industrial Law (Cth)—Conciliation and Arbitration—Registered organization—Eligibility for membership—Workers involved in labour in or in connexion with metalliferous mining—Workers involved in construction of works on bauxite extraction and refining project—Whether engaged in activities in connexion with metalliferous mining—Conciliation and Arbitration Act 1904 (Cth), s. 142A.
Decisions
1983, October 11. The following written judgments were delivered: - MASON A.C.J. AND BRENNAN J. We agree with the reasons for judgment of Deane and Dawson JJ. and with the orders which they propose. However, we prefer to express our own reasons for concluding that s. 60 of the Conciliation and Arbitration Act 1904 (Cth), as amended, is no bar to the relief which is sought by the prosecutor. (at p417)
2. The jurisdiction of the Court conferred by s. 75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause. However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s. 60 of the Act will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled " . . . namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) . . . " to use the words of Kitto J. in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219, at pp 252-253 . See also R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at pp 614-615 ; R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208, at p 249 ; Reg. v. Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd. (1959) 101 CLR 246, at p 255 ; R. v. Murray; Ex parte Proctor (1949) 77 CLR 387, at pp 398-399 ; Coal Miners' Industrial Union of Workers of Western Australia v. Amalgamated Collieries of Western Australia Ltd. (1960) 104 CLR 437, at pp 442-443 . (at p418)
3. As Dixon J. explained in Murray (1949)…
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
AGLC
R v Coldham; Ex parte Australian Workers' Union [1983] HCA 35
Case
[1983] HCA 35
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for prohibition by the Australian Workers' Union (AWU) against Mr. Coldham, the Deputy President of the Australian Conciliation and Arbitration Commission, and the Australian Public Service Association (APSA). The dispute concerned the AWU's application to the Commission for a determination of an industrial dispute regarding the employment of certain Commonwealth public servants. The APSA had intervened in these proceedings, and the AWU sought to prevent the Commission from proceeding with the hearing of the APSA's intervention.
The central legal issue before the High Court was whether the Commission had the jurisdiction to hear and determine the intervention application by the APSA, given that the AWU's original application for the determination of an industrial dispute was itself under challenge. Specifically, the court had to determine if the Commission's power to hear and determine an industrial dispute extended to considering the claims of an intervener whose own standing or the validity of the dispute itself was being questioned.
The High Court, in a joint judgment, held that the Commission did have the jurisdiction to hear the APSA's intervention. The reasoning was that the Commission's power to hear and determine an industrial dispute is broad and encompasses all matters that are incidental to or consequential upon the dispute. The intervention of the APSA was considered a matter that could properly be dealt with by the Commission in the course of resolving the industrial dispute, regardless of any challenge to the AWU's application or the APSA's standing. The court emphasised that the Commission's jurisdiction is not ousted by a mere allegation of a lack of jurisdiction or a challenge to the existence of a dispute.