R v Moore; Ex Parte

[1984] HCA 45

HIGH COURT OF AUSTRALIA

Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.

THE QUEEN v. MOORE; Ex Parte N.S.W. PUBLIC SERVICE PROFESSIONAL OFFICERS' ASSOCIATION

(1984) 154 CLR 1

31 July 1984

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Conciliation and Arbitration Commission—Power to restrain State Industrial authority from dealing with matter the subject of proceedings before Commission—Identification of matter before Commission—The Constitution (63 &64 Vict. c. 12), s. 51(xxxv)—Conciliation and Arbitration Act 1904 (Cth), s. 66(1).

Decisions

1984, July 31.
The following written judgments were delivered: -
GIBBS C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Deane and those prepared by my brother Dawson and am able to state very shortly the reasons why I agree with their conclusion that prohibition should issue to the Australian Conciliation and Arbitration Commission ("the Commission") in the present case. (at p6)

2. The order made by the Commission will be valid if three conditions are satisfied: (1) s. 66 of the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Act"), is a valid enactment; (2) the Industrial Commission of New South Wales was dealing or about to deal with a matter which is the subject of proceedings under Pt III of the Act: it appears clearly from the words of s. 66 that the section does not apply unless the matter with which the State industrial authority is dealing or about to deal is the same as that which is the subject of proceedings under Pt III; and (3) the subject of the restraint effected by the order is specifically defined, i.e., the order identifies, with substantial precision, what is the "matter" with which the Industrial Commission may not deal: see Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association (1929) 43 CLR 185, at pp 200-201 and Australian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association (1935) 53 CLR 665, at pp 674-675 . (at p7)

3. As at present advised I see no reason to doubt the validity of s. 66, when that section is properly construed, but I need not express any final opinion on that point, because it seems to me clear that the other two conditions of the validity of the order are not satisfied. (at p7)

4. The matter the subject of proceedings under Pt III of the Act - the subject-matter for determination in those proceedings - in the present case was, speaking broadly, whether there was an industrial dispute within the meaning of the Act and, once that question was answered in the affirmative, how that dispute should be settled, including whether any and if so what award should be made in respect of the matters in dispute. The first aspect of the matter - in short, whether there was an interstate industrial dispute - was obviously not a matter with which the State Industrial Commission was dealing or was about to deal. However this aspect of the matter was disposed of in the Commission by a finding that there was a dispute, and it is unnecessary to consider whether that finding was made before or after the order now in question, since it would be enough to attract s. 66 if the Industrial Commission of New South Wales was dealing or about to deal with the matter that remained the subject of proceedings under Pt III. Once a dispute was found, the substantial matter for determination that remained was what (if any) provision should be made, by way of award in settlement of the dispute, as to the salaries and working conditions of professional engineers employed by the New South Wales Public Service Board, and as to whether preference should be given to members of the Association of Professional Engineers Australia ("A.P.E.A."). The parties to that dispute were the employer (the New South Wales Public Service Board) on the one hand and the A.P.E.A., on behalf of its present and future members, on the other. The matter with which the Industrial Commission of New South Wales was dealing or about to deal was whether an award should be made on the applications of the prosecutors, the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales, in respect of certain professional engineers employed in the Public Service of New South Wales. In each application the prosecutor sought an award dealing with the salaries payable to the professional engineers and providing that preference in employment should be given to members of the union making the application. It is apparent that the matters the subject of the applications before the Industrial Commission of New South Wales are similar to, and in a practical sense related to, those the subject of the proceedings in the Commission. They are not however the same. As was pointed out in Australian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association (1935) 53 CLR, at p 674 , the expression "a matter . . . the subject of proceedings" connotes parties as well as a subject for decision; see also Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association (1929) 43 CLR, at p 202 . Although it may be accepted that one party (the Public Service Board of New South Wales) was common to the matters the subject of the proceedings in both Commissions, neither of the prosecutors was a party in the Commission (although they intervened in those proceedings), and the A.P.E.A. was not a party in the Industrial Commission of New South Wales. Some professional engineers employed in the New South Wales Public Service are not members of the A.P.E.A., and it is by no means clear that all such professional engineers are eligible for membership of that organization.7 Although the Metal Trades Case (1935) 54 CLR 387 established that a dispute between employers and a union may be settled by an award binding the employers as to the terms on which they might employ anyone whether a unionist or a non-unionist, it is clear that such an award can create rights and duties only as between the employers and those employees who are members of the union; it does not confer rights or impose duties on employees who are not members of the relevant union and therefore not parties to the dispute: see also R. v. Kelly; Ex parte Victoria (1950) 81 CLR 64, at p 82 and cases there cited. In the present case, the parties to the matters in the respective Commissions are not the same, and any award made by the Commission would not confer rights or obligations on professional engineers who are not members of A.P.E.A. but who might be affected by an award made by the Industrial Commission of New South Wales. (at p8)

5. Further, the order of the Commission, which restrains the Industrial Commission of New South Wales from dealing with the two matters which are defined only by reference to the numbers of the applications before it, does not satisfy the third condition to which I have referred. The terms of the order, restraining the State Commission from dealing with the applications before it, extend beyond matters which are the subject of proceedings before the Commonwealth Commission, and do not identify the subject of proceedings under Pt III with which the State Commission may not deal. The authority of the two cases which I have cited shows that the order is a nullity. We were referred to the privative provisions of s. 60. If those provisions applied, they would not prevent the Court from declaring that the order is invalid, but since the order now impeached shows on its face that it is not within power s. 60 does not prevent the issue of prohibition: see R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at p 617 ; Reg. v. Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313, at p325 . (at p9)

6. I need only add that the Metal Trades Case, whose effect I have briefly stated, does not detract from the authority of Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association or Australian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association, and that the present decision, which confines s. 66 within its proper limits, will create no difficulty if the Commission in fact makes an award which is inconsistent with an award made by the State Industrial Commission - for other reasons, the former will to the extent of the inconsistency, prevail. (at p9)

7. For these reasons the order nisi for a writ of prohibition should be made absolute. (at p9)

MURPHY J. I agree that prohibition should issue. The Australian Conciliation and Arbitration Commission's order did not properly or sufficiently identify the "matter" which it was attempting to restrain the Industrial Commission of New South Wales from dealing with. Its order referred to "matters" by their identification numbers in the two Commissions. Thus the order went beyond the matter (principally the rates to be paid for certain work) which was the subject of the proceedings in the Arbitration Commission as well as in the Industrial Commission, and extended to all other matters which were comprehended by the proceedings in the Industrial Commission. The respondents did not contend that prohibition should issue only in a limited form, i.e., that this Court should prohibit the Arbitration Commission only in so far as its order exceeded what it could properly restrain. (at p10)

2. The Conciliation and Arbitration Act 1904, s.66(1), provides:
"If it appears to a Full Bench that a State Industrial Authority is dealing or is about to deal with an industrial dispute or with a matter which is provided for in an award or is the subject of proceedings under this Part, the Commission may make such order restraining the State Industrial Authority from dealing with that industrial dispute or matter as the Commission thinks fit, and thereupon the Authority shall, in accordance with the order, cease to proceed in that industrial dispute or matter." (at p10)

3. The purpose of s. 66 is to avoid the making of inconsistent federal and State awards, and to avoid the embarrassment to the Arbitration Commission of having a State industrial authority trespass upon its processes of conciliation and arbitration by dealing with any dispute or part of a dispute which has been or is being dealt with by the Arbitration Commission, or by dealing with the imposition or award of rights, privileges or obligations, in respect of work when the Arbitration Commission has dealt or is dealing with a dispute about rights, privileges or obligations in respect of the same work. (at p10)

4. If the Arbitration Commission is dealing with a claim it is highly undesirable, and destructive of its work, if some part of the claim is pre-empted by an award (or agreement) in a State tribunal, arrived at by giving effect to principles of wage fixation different to those which are applied by the Commission. This tends to create industrial disharmony and to inhibit a considered and balanced resolution of a claim by the Arbitration Commission. In this case, both Commissions were (among other things) dealing with claims about the rate of pay for certain work when done by professional engineers employed by certain employers. The embarrassment to the Arbitration Commission was expressed by the President of the Arbitration Commission who said:

"The Industrial Commission of New South Wales has awarded an amount of 4 per cent to public servants generally, an amount which this commission was not prepared to award to engineers in New South Wales government instrumentalities and therefore, according to the historical pattern would not go to engineers employed by the Crown. It is that 4 per cent which is at the core of these proceedings and which appears to be the issue which the New South Wales unions wish to litigate before the Industrial Commission of New South Wales.

We think, given the past history of the industrial regulation of professional engineers and the current difficult situation, that the proper course for us to take is to maintain the status quo." (at p10)

5. In s. 66 the meaning of the expression "matter" is not a dispute, a proceeding, an application or a claim; it is the subject-matter, for example, the pay or conditions to be applicable in respect of certain work when done by any employee (or if the award or proceedings were so restricted, the pay or conditions applicable to work when done by persons of a particular class, such as unionists). The qualification "which is provided for in an award or is the subject of proceedings under this Part", demonstrates that "matter" is the subject-matter. (at p11)

6. It is not necessary for the application of s. 66 that the parties in each Commission be identical. If it were, s. 66 would be virtually a dead letter, at least in relation to the Industrial Commission of New South Wales. The need for registration at the State and federal levels means that only rarely would the same union be a party before both Commissions. Because Commonwealth registered organizations of employees cannot be party disputants or claimants in the Industrial Commission, the parties to disputes in that Commission and the Arbitration Commission can never be the same. Since Moore v. Doyle (1969) 15 FLR 59 , a number of commentators and official inquiries have considered the problems caused by due registration: see Report of the Committee of Inquiry on Co-ordinated Industrial Organizations (1974); K. D. Hilton, "Dual Registration of Trade Unions Under Commonwealth and State Acts" in the Journal of Industrial Relations, vol. 13 (1971), p. 297ff.; Macken, Australian Industrial Laws, 2nd ed. (1980), Ch. 17; Report on the Requirements for Legislative Change to meet Current and Likely Future Developments in Industrial Relations (S.A.) (1982). The problems have not been resolved. One result is leap-frogging in wages and conditions which has been responsible for many crippling industrial disputes in recent years. (at p11)

7. The respondent federal union's log of claims covered not only the professional engineers who were its members, but also persons eligible to be members. The rates of pay of such professional engineers employed by the New South Wales Public Service Board was a "matter . . . the subject of proceedings" before the Arbitration Commission, and it could have validly restrained the Industrial Commission from dealing with that matter. However, the Arbitration Commission's order did not identify any such matter. If the proceedings in the Arbitration Commission were restricted to a dispute about pay and conditions applicable to the work when done by members of the federal union, then of course the matter would also be so restricted, and any restraint order under s. 66 would need to be similarly restricted. (at p11)

8. Suppose no restraint order were issued by the Arbitration Commission. The Industrial Commission could then make an award (among other things) obliging the Public Service Board to pay certain rates to all professional engineers employed by it to do certain work. The Arbitration Commission could make an award obliging the Public Service Board to pay a different set of rates to the same professional engineers, or at least all professional engineers who are members of or eligible for membership of the federal union, for the same work. The awards would be inconsistent. By force of s. 109 of the Constitution, the State award would be invalid to the extent of the inconsistency. Section 66 is intended to avoid this consequence with the industrial disharmony which would result, and the preceding and subsequent embarrassment to the tribunals involved. (at p12)

9. If s. 66 is interpreted so as not to operate unless the parties are the same in both the Arbitration Commission and the State industrial authority it will be useless in practice. If the Arbitration Commission is to have the power "to clear the ring" as Higgins J. called it (see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Engineers etc. (State) Conciliation Committee (1926) 38 CLR 563, at p 573 ) then legislative intervention will be necessary to ensure that, when the Arbitration Commission has dealt or is dealing with any dispute about rights, privileges or obligations in respect of particular work of certain employers when done by anyone or when done by any particular class of person such as members of a union, a State industrial authority shall not deal with the award or imposition of any rights, privileges or obligations in respect of the same work when done by anyone or by the members of that class of persons, as the case may be. (at p12)

WILSON J. This matter may be disposed of without consideration of the validity of s. 66 of the Conciliation an Arbitration Act 1904 (Cth), as amended. The order which the Conciliation and Arbitration Commission purported to make by virtue of that section is ineffective in any event because it fails to specify with sufficient precision the industrial dispute or matter with which the State industrial authority is to be restrained from dealing and to state whether the restraint extends to the whole or part of that dispute or matter. It is essential that the dispute or matter to which the restraining order relates be "an industrial dispute or . . . a matter which is provided for in an award or is the subject of proceedings under" Pt III of the Act. I agree generally with the reasons for judgment of Deane J. and of Dawson J. and do not wish to add to them. (at p13)

2. I would make absolute the order nisi for a writ of prohibition. (at p13)

DEANE J. This is an application for writs of prohibition and certiorari. The applicants are the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales ("the N.S.W. unions"). The respondents are the members of a Full Bench of the Australian Conciliation and Arbitration Commission ("the Commonwealth Commission") and the Association of Professional Engineers Australia ("the federal union"). In issue is the validity of an order which the Commonwealth Commission purported to make under s. 66 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act") on 6 May 1983. In terms, that order restrained the Industrial Commission of New South Wales ("the N.S.W. Commission") "from dealing with its matters Nos. 145 and 203 of 1983. . .". (at p13)

2. Each of the N.S.W. unions is an industrial union of employees registered under the Industrial Arbitration Act 1940 (N.S.W.). Each is the applicant in one of the above-mentioned two matters before the N.S.W. Commission (i.e. "its matters Nos. 145 and 203 of 1983"). Those matters had been instituted on 24 February 1983 and 10 March 1983 respectively by the filing in the N.S.W. Commission of a notice of motion for an award fixing, amongst other things, rates of salary and terms of preference of employment in respect of professional engineers employed under the provisions of the Public Service Act 1979 (N.S.W.). By 6 May 1983, when the Commonwealth Commission purported to make the impugned order, orders and directions had been made and given by the N.S.W. Commission in relation to procedural aspects of the two matters including an order that they be joined to be heard together. The actual hearing on the merits had not, however, commenced. (at p13)

3. On 10 March 1983, the federal union, which is an organization registered pursuant to the Act, had notified the Commonwealth Commission of the alleged existence of an industrial dispute in respect of matters raised in a letter of demand and log of claims which had been served by it upon the Public Service Board of New South Wales. Subsequently, in April 1983, the federal union had notified the Commonwealth Commission of the alleged existence of an industrial dispute in respect of matters raised in a letter of demand and log of claims which had been served upon "Her Majesty the Queen in right of the State of New South Wales". The proceedings instituted by those notifications (see Act,s.25(4)) were numbered respectively C. No. 213 and C. No. 406 of 1983 in the Commonwealth Commission and were joined to be heard together. The respective logs of claim were, apparently, in identical form and related to the salaries and conditions of employment of professional engineers. Included in each log of claims was a claim in respect of preference of employment. By 6 May 1983, argument had been heard by a Deputy President of the Commonwealth Commission (Cohen J.) on the existence and scope of any industrial dispute but her Honour had reserved her decision on those matters. (at p14)

4. The federal union is not a party to the proceedings in the N.S.W. Commission. The N.S.W. unions have intervened in the proceedings in the Commonwealth Commission but are not parties either to the proceedings in the Commonwealth Commission or to any industrial dispute which is the subject of those proceedings. Only a minority of the professional engineers employed in the New South Wales Public Service are members of both a State union and the federal union. As a broad generalization, it would seem that approximately half of such professional engineers are members of a State union alone and are not, on any approach, parties to the proceedings in the Commonwealth Commission: if the federal union succeeds in obtaining an award from the Commonwealth Commission, it will neither bind them nor confer rights which they are capable of directly enforcing: see Metal Trades Employers' Association v. Amalgamated Engineering Union (1935) 54 CLR 387, at pp 403,437 ; Blackley v. Devondale Cream (Vict.) Pty. Ltd. (1968) 117 CLR 253, at p 264ff . Moreover, the proceedings in the Commonwealth Commission, in so far as they are presently relevant, took place before the decision of this Court had been published in Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 and it appears to have been common ground in the Commonwealth Commission that that Commission lacked jurisdiction to make an award in respect of professional engineers performing administrative functions in the New South Wales Public Service. Examination of the transcript of those proceedings also discloses that discussion had centred almost exclusively on a claimed increase in salaries. (at p14)

5. The impugned order of 6 May 1983 was made by the Commonwealth Commission on the application of the federal union. It is in the following terms:

"A. The Industrial Commission of New South Wales is hereby restrained from dealing with its matters Nos 145 and 203 of 1983 being applications by the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales respectively, those being matters which are the subject of proceedings under Part III of the Conciliation and Arbitration Act 1904 in matters C. No. 213 of 1983 and C. No. 406 of 1983. B. This order shall come into effect on 6 May 1983 and shall remain in force until further order of the Commission."

I turn to the consideration of its validity. (at p15)

6. Section 66 is in Pt III of the Act. It provides:

"(1) If it appears to a Full Bench that a State Industrial Authority is dealing or is about to deal with an industrial dispute or with a matter which is provided for in an award or is the subject of proceedings under this Part, the Commission may make such order restraining the State Industrial Authority from dealing with that industrial dispute or matter as the Commission thinks fit, and thereupon the Authority shall, in accordance with the order, cease to proceed in that industrial dispute or matter. (2) An order, award, decision or determination of a State Industrial Authority made in contravention of an order made under this section is, to the extent of the contravention, void."

It is common ground that the above order cannot be justified unless it comes within the power which the section, in terms, confers upon the Commonwealth Commission to restrain a State Industrial Authority from dealing with "a matter which . . . is the subject of proceedings" under Pt III of the Act. (at p15)

7. Much of the argument before the Court was concerned with the identification and scope of any legislative power of the Parliament of the Commonwealth to invest the Commonwealth Commission with jurisdiction to make an order restraining a State Industrial Authority, such as the N.S.W. Commission, from performing its ordinary functions. As at present advised, I am not persuaded that there exists any proper ground for questioning the correctness of the decisions in this Court to the effect that the provisions of the predecessor of s. 66 (the former s. 20 of the Act) and of s. 66 itself are within the constitutional competence of the Commonwealth Parliament in that they represent a valid exercise of the legislative powers conferred by s. 51(xxxv) and (xxxix) of the Constitution: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Engineers etc. (State) Conciliation Committee (1926) 38 CLR 563 ;Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association (1929) 43 CLR 185 ; Australian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association (1935) 53 CLR 665 . It is, however, unnecessary to form any concluded view on that question. Nor is it necessary to attempt to charter the outer limits of the powers conferred upon the Commonwealth Commission by s. 66. Even if it be assumed that the provisions of s. 66 are completely valid and should be given full operation in accordance with their terms, it is apparent that those provisions did not authorize the purported order of 6 May 1983. (at p16)

8. In a case where it appears to the Commonwealth Commission that a State industrial authority "is dealing or is about to deal with . . . a matter which . . . is the subject of proceedings" under Pt III of the Act, the power which s. 66 purportedly confers upon the Commonwealth Commission is a power to "make such order restraining the State industrial authority from dealing with that . . . matter as the Commission thinks fit . . . " (emphasis added). It is a condition of the existence of the relevant power that the Commonwealth Commission identify a particular matter which is the subject of the proceedings before it under Pt III and with which, as it appears to the Commonwealth Commission, the State industrial authority is dealing or is about to deal. Once such a matter is identified, the Commission has a discretion which "goes not only to the question whether an order should be made at all, but also to the extent of the restraint and to terms and conditions limiting the restraint": Australian Timber Workers' Union Case (1935) 53 CLR, AT P 674 . If the Commonwealth Commission decides to make a restraining order, the scope of any order must be limited to restraining the State industrial authority from dealing with the whole or part of the particular identified matter which is the subject of proceedings before the Commonwealth Commission under Pt III. A specific description of the thing with which the State industrial authority is restrained from dealing, being the whole or part of the matter the subject of proceedings under Pt III, must be contained in the order so that the section may operate upon it by directing that the authority "cease to proceed in that . . . matter" (1935) 53 CLR, at p 675 . A State industrial authority and the parties to proceedings before it are entitled to be told "with substantial precision", in any order under s. 66, "just what 'matter'" is removed from the jurisdiction of the State industrial authority: see, per Isaacs J., Western Australian Timber Workers' Industrial Union Case (1929) 43 CLR, at p201 . (at p16)

9. As has been seen, the purported order in the present case refers to the N.S.W. Commission's "matters Nos. 145 and 203 of 1983 being applications by" the N.S.W. unions and asserts that those matters are "matters which are the subject of proceedings under Pt III . . . in matters C. No. 213 of 1983 and C. No. 406 of 1983". That assertion is plainly wrong. The applications of the N.S.W. unions which comprise matters Nos. 145 and 203 of 1983 before the N.S.W. Commission are not matters which are the subject of proceedings under Pt III of the Act before the Commonwealth Commission. Quite apart from the differences, indeed contrasts, between the parties to the applications before the respective Commissions, there is an obvious absence of correspondence between the two sets of "matters". The "matters" before the N.S.W. Commission are applications by the N.S.W. unions for an award in respect of all professional engineers employed under the provisions of the Public Service Act. Those "matters" need not involve any industrial dispute at all; it has not been suggested that they involve an actual or threatened interstate industrial dispute. They are not - and indeed could not be - the subject of proceedings under Pt III. In contrast, the "matters" before the Commonwealth Commission are proceedings instituted under Pt III of the Act by the notification of the existence of an interstate industrial dispute; the objective to be pursued in each of those proceedings is the settlement of the relevant dispute. Moreover, to the extent that the subject of the proceedings in the Commonwealth Commission involves the terms and conditions of employment of professional engineers under the Public Service Act, it was, as has been said, common ground, at the time when the purported order was made, that the Commonwealth Commission lacked jurisdiction to make an award in respect of those professional engineers performing administrative functions in the N.S.W. Public Service. (at p17)

10. It is both permissible and desirable that, in any order under s. 66 of the Act, the Commonwealth Commission identifies the proceedings before the State industrial authority in which, as it appears to the Commonwealth Commission, the State authority is dealing or is about to deal with the proscribed matter. As has been said however, the relevant power of the Commonwealth Commission under s. 66 is limited to the making of an order restraining the State authority from dealing with the whole or part of an identified matter which is before the Commonwealth Commission in proceedings under Pt III of the Act. It is conceivable that circumstances might arise in which there is complete correspondence of parties and subject between a matter before the State authority and the whole or part of a matter before the Commonwealth Commission under Pt III: see the discussion in the Australian Timber Workers' Union Case (1935) 53 CLR, at pp 673-674 . If such correspondence be present, an unqualified order restraining the State authority from dealing with the proceedings before it in their then form might arguably be made under s. 66. I say "in their then form" for the reason that any such order would need to be framed in a manner which did not restrain the State authority from dealing with a different "matter" which might subsequently arise, whether by amendment or otherwise, in the proceedings before it. Such correspondence of parties and subject-matter will however be found, if ever, but rarely. Where, as in the present case, it does not exist, an order which in terms restrains a State authority from dealing with particular proceedings before it will not be within the relevant power conferred by s. 66 unless it be so restricted that it restrains the State authority only to the extent that dealing with its proceedings would involve dealing with the whole or a specified part of the identified matter which is the subject of the proceedings before the Commonwealth Commission. This, as has been seen, the order which the Commonwealth Commission purported to make in the present case signally failed to do. Indeed, neither the transcript of the proceedings before the Commonwealth Commission nor Commission's published reasons disclose what order the Commission would have made if it had directed its attention to the precise identification of what should be removed from the jurisdiction of the N.S.W. Commission for so long as it remained the subject of proceedings before the Commonwealth Commission. (at p18)

11. The purported order of the Commonwealth Commission was a nullity. That being so, the appropriate order is that a writ of prohibition issue directed to the respondents prohibiting them and each of them from acting or proceeding on the basis that the order purportedly made on 6 May 1983 was an order validly made pursuant to s. 66 of the Act. (at p18)

DAWSON J. On 24 February 1983 and 10 March 1983 respectively, the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales each lodged with the Industrial Commission of New South Wales an application for an award. The applications were in the same terms and sought in each case an increase of some 4 per cent in the salaries of professional engineers employed in the New South Wales Public Service. Each application also sought, amongst other things, preference in employment for members of the relevant Association. The matters were given the numbers 145 of 1983 and 203 of 1983 respectively and were listed for hearing before Bauer J. in the Industrial Commission on 17 May 1983. (at p18)

2. During March 1983, the Association of Professional Engineers Australia ("A.P.E.A.") served a letter of demand and a log of claims upon the Public Service Board of New South Wales demanding an increase in salary of 50 per cent for "all professional engineers who occupy positions the adequate discharge of any portion of the duties of which employment required qualifications of the employee as (or at least equal to those of) a Member of the Institution of Engineers, Australia". There were other demands which included a claim for preference in employment for members of the A.P.E.A. On 10 March 1983, the A.P.E.A. notified the Australian Conciliation and Arbitration Commission of the existence of a dispute in relation to the matters raised in the letter of demand and log of claims. Later the A.P.E.A. went through the same procedure with the Queen in right of the State of New South Wales. The two matters, C. No. 213 of 1983 and C. No. 406 of 1983, came on for hearing before Cohen J. who ordered that they be joined and granted leave to both the Public Service Association of New South Wales and the New South Wales Public Service Professional Officers' Association to appear as interveners. On 5 May 1983, she reserved her decision whether or not an industrial dispute existed within the meaning of the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"). Subsequently the A.P.E.A. made application to a Full Bench of the Conciliation and Arbitration Commission for an order pursuant to s.66 of the Act restraining the Industrial Commission of New South Wales from dealing with the matters before it, namely, matters Nos. 145 and 203 of 1983. Section 66 provides:
"(1) If it appears to a Full Bench that a State Industrial Authority is dealing or is about to deal with an industrial dispute or with a matter which is provided for in an award or is the subject of proceedings under this Part, the Commission may make such order restraining the State Industrial Authority from dealing with that industrial dispute or matter as the Commission thinks fit, and thereupon the Authority shall, in accordance with the order, cease to proceed in that industrial dispute or matter." (at p19)

3. An order was made restraining the Industrial Commission of New South Wales "from dealing with its matters Nos. 145 and 203 of 1983 being applications from the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales respectively, those being matters which are the subject of proceedings under Pt III of the Conciliation and Arbitration Act 1904 in matters C. No. 213 of 1983 and C. No. 406 of 1983." (at p19)

4. In delivering the judgment of the Full Bench, Sir John Moore said:
"This is a complex situation, particularly as it has emerged that there appear to be two standards at the moment between the two tribunals. The Industrial Commission of New South Wales has awarded an amount of 4 per cent to public servants generally, an amount that this commission was not prepared to award to engineers in New South Wales goverment instrumentalities and therefore, according to the historical pattern would not go to engineers employed by the Crown.
It is that 4 per cent which is at the core of these proceedings and which appears to be the issue which the New South Wales unions wish to litigate before the Industrial Commission of New South Wales." (at p20)

5. The two New South Wales Public Service Associations sought to challenge in this Court the order made by the Conciliation and Arbitration Commission and on 6 June 1983 Deane J. granted an order nisi for writs of prohibition and certiorari upon the ground that the order was made without jurisdiction and was invalid. (at p20)

6. Section 66 deals with three situations: where a State industrial authority is dealing with or about to deal with (a) an industrial dispute, (b) a matter which is provided for in an award or (c) a matter which is the subject of proceedings under Pt III of the Conciliation and Arbitration Act, an order can be made restraining the authority from dealing with that industrial dispute or matter. It is only the third of these situations which is relevant in this case. (at p20)

7. Originally, the Conciliation and Arbitration Court was, under what was then s. 20 of the Act, able only to give directions to a State industrial authority where it was dealing or about to deal with a dispute (being, as in the present section, by definition a dispute extending beyond the limits of any one State) and was able only to direct that the authority not deal with the dispute. Moreover, the section then provided that the Court should deal with the dispute. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Engineers etc. (State) Conciliation Committee (1926) 38 CLR 563 the validity of the section in that form was upheld. In 1928 the section was repealed and re-enacted in substantially its present form, although it was the Court which was empowered to give the direction and not, as at present, the Commission. (at p20)

8. The section was next considered in Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association (1929) 43 CLR 185 . The general validity of the provision was not questioned. Nevertheless, Isaacs J. dealt with the question whether it purports to confer judicial power and concluded that it does not because it creates no rights and, apart from its legislative operation on the factum of a restraining order, it creates no duties. In other words, the force and effect of any order under the section derives from the section and not from the order itself. The result is, of course, that unless the order is made within the limits of the section it is ineffective, not so much because it is made beyond jurisdiction but because the section does not operate to give it effect. The section confers executive authority to which parliament attaches its direct legislative consequences. That analysis provoked Isaacs J. (1929) 43 CLR, at pp 200-201 to say of the section as it was then worded:
"The important words for the present purpose are: 'Order restraining the State Industrial Authority from dealing with that dispute or any part thereof, or with that matter.' That is to say, the order must identify the thing which it appears to the Court the State Authority is dealing with, or is about to deal with, and with which it is to be told not to deal. It is not to be an order restraining the State Authority from dealing with Federal disputes generally, or with the matter of a Federal award generally, leaving the State Authority to conjecture what it is that is forbidden and will be valueless." (at p21)

9. In the same case, Dixon J. pointed to a limitation upon the extent of the section which arose because it was to be found then (although not now) in a division of the Act which was headed "Cognizance of disputes and ordinary procedure". A number of provisions led Dixon J. to the conclusion that the Court's power to deal with a dispute depended upon whether that dispute had come within its cognizance and that the making of an order under s.20 was consequential upon the Court having taken cognizance of the dispute in relation to which the order was made. Although cognizance has disappeared as a condition of the exercise of power by the Commission in dealing with disputes, the significance of the observations of Dixon J. lies in the fact that its disappearance may have widened considerably the application of the section, now s. 66, so as to bring into question the relationship between the section and the constitutional power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. (at p21)

10. In Australian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association (1935) 53 CLR 665 , the Court accepted Isaacs J.'S analysis of the section and the power which it confers and reiterated that if an order is to be made there must be in the order a specific description of the thing with which the State industrial authority is restrained from dealing so that the section may operate on the order. If the dispute or matter is not defined with sufficient precision, the section cannot operate because its operation depends upon the identification in the order of those things within its scope. The Court went on to say (1935) 53 CLR, at p 675 :
"At the root of the decision of this Court in the Western Australian Timber Workers' Case (1929) 43 CLR 185 lies the principle that under sec. 20 the State industrial authority cannot be restrained from performing its functions in relation to persons who are not parties to the industrial dispute of which the Commonwealth Court of Conciliation and Arbitration has cognizance and are not bound or liable to be bound by an award made or to be made in that dispute." (at p22)

11. It is, I think, apparent that the order which the Conciliation and Arbitration Commission made in this case cannot, upon these principles, have a valid operation. That is enough to dispose of the matter without dealing with the validity of s.66. Although its validity is not beyond question having regard to the changes made to the structure of the Act since the decisions which I have cited above, it is undesirable to deal with that question where it is unnecessary to do so and where, as a consequence, there is no factual situation against which the relevant limits of the constitutional power can be brought into focus. (at p22)

12. The reason why the order in this case cannot have a valid operation is because the only identification of the disputes to which it purports to apply is by reference to the matters before the Industrial Commission of New South Wales. The powers and functions of that Commission have a wider scope than those of the Conciliation and Arbitration Commission which reflect constitutional limitations on the legislative power of the Commonwealth. The Industrial Commission is not limited to dealing with an industrial dispute and it does not appear, nor could it be expected to appear, whether it was dealing, or was about to deal, with the matters before it in the context of a dispute. But even assuming that it was, the parties in the proceedings before it were different from the parties before the Conciliation and Arbitration Commission. The applicants before the Industrial Commission were industrial unions of employees registered under the State legislation and the party seeking an award in the Conciliation and Arbitration Commission was a union registered as an organization under the Commonwealth Act. The membership of the State unions on the one hand and the federal union on the other was not co-extensive. The capacity which the Industrial Commission had to confer rights upon non-unionist employees was a capacity which the Conciliation and Arbitration Commission did not possess, notwithstanding that it might impose duties upon employers in relation to them: see Blackley v. Devondale Cream (Vict.) Pty. Ltd. (1968) 117 CLR 253, at p 263 , per Kitto J. (at p23)

13. Moreover, there may have been professional engineers employed by the State who were engaged in the provision of administrative services and who, upon the application of the principles referred to in Ex parte Professional Engineers' Association (1959) 107 CLR 208 , may not have been within the constitutional reach of the Conciliation and Arbitration Commission but may have had rights conferred upon them by an award of the Industrial Commission. At the time that the Conciliation and Arbitration Commission made its order this Court had not given its decision in Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 . Notwithstanding the widened interpretation given in that decision to the words "industrial disputes" in s. 51(XXXV) of the Constitution, the character of disputes between a State or a State authority and employees engaged in the administrative services was reserved for further consideration and it was observed that there may be limits upon the power of the Commonwealth to affect the terms of employment of State public servants. Certainly at the time the Conciliation and Arbitration Commission made its order there was a question whether some of the persons subject to the powers of the Industrial Commission could be directly affected by any award which the Conciliation and Arbitration Commission might make. (at p23)

14. For these reasons, the order made by the Conciliation and Arbitration Commission is not authorized by s. 66 of the Act and is ineffective. The order nisi for a writ of prohibition should be made absolute. (at p23)

Orders

Order nisi for a writ of prohibition directed to the Honourable Sir John Cochrane Moore, President of the Australian Conciliation and Arbitration Commission, the Honourable Justice Judith Jacqueline Cohen, Deputy President of the Australian Conciliation and Arbitration Commission and Edward Bennett, Commissioner of the Australian Conciliation and Arbitration Commission prohibiting them and each of them from proceeding further in relation to the order of the Australian Conciliation and Arbitration Commission made on 6 May 1983 in Matter C. No. 2874 of 1983, made absolute.

Order nisi otherwise discharged.