Re Construction Forestry, Mining and Energy Union;

[1993] HCA 72

HIGH COURT OF AUSTRALIA

DEANE, TOOHEY, AND McHUGH JJ

RE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND ANOTHER;

(1993) 118 ALR 228

22 December 1993

Industrial Law

Industrial Law—Coal Industry Tribunal—Powers—Registered organization of employees—Order that organization have exclusive right to represent particular employees—Whether power to exclude State-registered organization in favour of Commonwealth-registered organization—Coal Industry Act 1946 (Cth), s. 34(1), (1A) Industrial Relations Act 1988 (Cth), s. 118A—Coal Industry Act 1946 (N.S.W), s. 40(1), (1A)—Industrial Relations Act 1991 (N.S.W), s. 221(1)(a).

Orders

Order nisi for a writ of prohibition and a writ of certiorari discharged.

Decision

DEANE, TOOHEY AND McHUGH JJ This is an application to make absolute an order nisi for a writ of prohibition and a writ of certiorari. The prosecutor is the Colliery Officials' Association of New South Wales ("the COA") which is registered as an industrial organisation of employees under the Industrial Relations Act 1991 (N.S.W.) ("the State Industrial Act"). The first respondent is Mr David Anthony Duncan who constitutes the Coal Industry Tribunal ("the Tribunal") established by arrangement between the Governor-General of the Commonwealth and the Governor of New South Wales pursuant to the provisions of the Coal Industry Act 1946 (Cth) ((1) s.30(1).) ("the Commonwealth Act") and the Coal Industry Act 1946 (N.S.W.) ((2) s.36(1).) ("the State Act"). The second respondent is the Construction, Forestry, Mining and Energy Union which is an organisation of employees registered under the Australian Industrial Relations Act 1988 (Cth) ("the Commonwealth Industrial Act"). The section of the second respondent concerned with representing the industrial interests of members in the coal mining industry is known as "the United Mine Workers Division" and it is convenient to refer to the second respondent as "the UMW". The third respondent is Australian Iron and Steel Pty. Limited ("AIS") which has in the past operated three collieries in the Wollongong area of New South Wales. Those three collieries are being rationalized into one colliery known as the "Elouera Colliery".

2. On 21 December 1992, the Tribunal made a number of orders the first of which was as follows:

"1. That the Construction, Forestry, Mining and Energy Union (UMW Division) shall have the right to the exclusion of the Metals and Engineering Workers Union, the Electrical Trades Union of Australia and the Colliery Officials' Association of New South Wales to represent under the Coal Industry Acts of Australia and New South Wales, the industrial interests of persons employed by Australian Iron and Steel Pty. Ltd., at the Elouera mine under the Production and Engineering Interim Consent Award and in addition those employed to use deputies' certificates of competency under the Coal Mines Regulation Act 1982."

The other orders made by the Tribunal were consequential and related to steps to be taken, and the approach to be adopted, by the UMW in its representation of the employees designated in the above order ("the Order").

3. In the present proceedings, the COA attacks the validity of the Order to the extent that it purports to exclude the COA from the right (under the Acts) to represent the industrial interests of the designated employees at the Elouera Colliery. It is not argued on behalf of the COA that the Order was beyond the powers of the Tribunal to the extent that it provided that the UMW "shall have the right" to represent the industrial interests of those employees "to the exclusion of" the Metals and Engineering Workers Union ("the MEWU") and the Electrical Trades Union of Australia ("the ETU") which are both registered organisations of employees under the Commonwealth Industrial Act. The COA's argument is that the Tribunal lacked power to order that an organisation of employees registered under the Commonwealth Industrial Act (i.e. the UMW) should have the right to represent the relevant employees to the exclusion of an organisation
registered under the State Industrial Act (i.e. the COA). To understand the COA's argument, it is necessary to refer to a number of the legislative provisions which, directly or referentially, confer jurisdiction upon the Tribunal.

4. The concurrent operation of the Commonwealth Act and the State Act to enable the constitution of the Tribunal and to confer jurisdiction upon it have been examined in detail in a series of earlier cases in the Court ((3) See, in particular, Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. (1960) 103 CLR 15; Reg. v. Duncan; Ex parte Australian Iron and Steel Pty. Ltd. (1983) 158 CLR 535; Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd. (1987)
163 CLR 117.). It is unnecessary to repeat what has been established by those cases about the nature and powers of the Tribunal. It suffices, at this stage, to mention three propositions which those cases establish. The first is that the Tribunal is a single entity rather than separate Commonwealth and State instrumentalities ((4) See Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd. (1987) 163 CLR, at pp.130-131.). The second is that the two sets of powers derived by the Tribunal from the Commonwealth and State Acts are not required to be exercised in isolation from one another; they may be exercised concurrently or in combination ((5) See ibid.). The third is that the person who constitutes the Tribunal is an officer of the Commonwealth and is, as such, and notwithstanding the privative provisions of the Acts ((6) Commonwealth Act, s.44; State Act, s.50.), subject to the jurisdiction conferred upon this Court by s.75(v) of the Constitution in all matters in which a writ of prohibition or mandamus or an injunction is sought against an officer of the Commonwealth ((7) See Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd. (1987) 163 CLR, at p.131.). That jurisdiction extends to the Tribunal regardless of whether it is exercising powers which, wholly or partly, have their legislative basis in the State Act ((8) ibid.).

5. The primary grants of jurisdiction to the Tribunal are to be found in s.34(1) of the Commonwealth Act and s.40(1) of the State Act. Those sub-sections confer on the Tribunal "power to consider and determine", amongst other things, "an industrial dispute extending beyond the limits of any one State", "an industrial dispute in" New South Wales, and "an industrial matter arising under an award or order ... of the Tribunal relating to the coal mining industry" in New South Wales. The phrase "industrial dispute" is defined by s.4 of each Act as meaning:

"(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters; and (b) a situation which is likely to give rise to a dispute as to industrial matters".

The phrase "industrial matters" is defined as meaning:

"all matters pertaining to the relations of employers and employees in the coal mining industry, and, without limiting the generality of the foregoing, includes, in respect of that industry:

... (n) a question arising between 2 or more organisations or

within an organisation as to the rights, status or functions of the members of those organisations or of that organisation or otherwise, in relation to the employment of those members;

...

and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole".

6. Sub-section (1A) of s.34 of the Commonwealth Act ("the Commonwealth sub-s.(1A)") confers upon the Tribunal "all powers which are given to" the Australian Industrial Relations Commission ("the Commonwealth Commission") in relation to industrial disputes before it under the Commonwealth Industrial Act. Sub-section (1A) of s.40 of the State Act ("the State sub-s.(1A)") contains a corresponding provision conferring on the Tribunal the powers of the Industrial Relations Commission of New South Wales ("the State Commission") and the Industrial Court of New South Wales in relation to an industrial dispute of which that Commission or Court has jurisdiction. It will be necessary subsequently to refer in greater detail to the effect of those sub-sections.

7. Section 33 of the Commonwealth Act and s.39 of the State Act provide for the exercise of the jurisdiction of the Tribunal. It suffices for present purposes to set out par.(a) and par.(b)(i) and (ii) of the two sections which are in identical terms and which read:

"The Tribunal is to have authority to exercise any of its powers, duties and functions: (a) of its own motion; (b) on the application of: (i) a party to an industrial dispute; (ii) an organisation or person affected by an industrial matter".

Section 4 of each Act defines "organisation" as meaning:

"an association or body, whether corporate or unincorporate, the objects of which include the protection of the interests of its members in industrial matters, whether in the coal mining industry only or in that industry and other industries (and in particular their representation before industrial tribunals and authorities) and which, in the case of an association or body of employees, is registered under a law of the Commonwealth or of a State or Territory".

Each of the unions affected by the Order in the present case - i.e. the UMW, the COA, the MEWU and the ETU - is such an "organisation".

8. The COA's argument that the Order was ultra vires focused on the grants of power to the Tribunal contained in the Commonwealth sub-s.(1A) and the State sub-s.(1A). As has been mentioned, those two sub-sections are in generally corresponding terms and respectively confer upon the Commission "all powers ... given to" the Commonwealth Commission or the State Commission or Industrial Court in relation to industrial disputes falling within their respective jurisdictions. Under s.118A(1) of the Commonwealth Industrial Act, the Commonwealth Commission may, "on the application of an organisation, an employer or the Minister", make an order that "an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation". The references to "organisation" and "organisation of employees" in that provision are confined, by the definition of "organisation" in s.4 of the Commonwealth Industrial Act, to an organisation "registered under" that Act. The COA conceded
that the conferral upon the Tribunal of "the powers" of the Commonwealth Commission sufficed to invest the Tribunal with power to make the Order which it made to the extent that that Order conferred the right to represent the industrial interests of the relevant employees upon the UMW to the exclusion of the MEWU and the ETU since those three organisations are all registered organisations under the Commonwealth Industrial Act and, accordingly, subject to the powers conferred upon the Commonwealth Commission by s.118A(1). It argued, however, that the conferral by the Commonwealth sub-s.(1A) of the powers of the Commonwealth Commission did not empower the Tribunal to go further and order that the COA be excluded from the right of representation since the COA was registered under the State, and not the Commonwealth, Industrial Act and the Commonwealth Commission's powers under s.118A(1) of the Commonwealth Industrial Act do not extend to the making of an order excluding an organisation which is not registered under that Act from the right to represent employees. If the Tribunal possesses the power to make such an order excluding a State-registered organisation, it must, so the argument went, be found in the powers of the State Commission conferred upon the Tribunal by s.40(1A) of the State Act.

9. For the purposes of the State Industrial Act, an "industrial organisation" and an "industrial organisation of employees" are defined ((9) by the combined operation of the definition in s.4 and of the provisions of ch.5 (see, in particular, ss.405(a), 406(1),
423(1), 615, 616).) as an organisation or an organisation of employees registered under that Act or, in the cases of certain "recognised" organisations, under earlier New South Wales legislation ((10) See State Industrial Act, ss.405(a), 615, 616.). Section 220 of the State Industrial Act provides:

"(1) The Commission may, by its order, determine any question as to the demarcation of the industrial interests of industrial organisations of employees. (2) Application for an order under this section may be made by the Minister, an industrial organisation or an employer."

Section 221(1) provides:

"The orders that the Commission may make when determining any such question include (but are not limited to) any one or more of the following orders:

(a) an order that an industrial organisation of employees

is to have the right, to the exclusion of another such organisation or other such organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;

(b) an order that an industrial organisation of employees

that does not have the right to represent under this Act the industrial interests of a particular class or group of employees is to have that right;

(c) an order that an industrial organisation of employees

is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation."

The COA argued that there were two reasons why the conferral upon the Tribunal of those powers of the State Commission did not encompass the making of the Order excluding it from the right to represent the relevant employees. The first was that those powers of the State Commission could only be exercised on an application by an organisation of employees if the organisation was an "industrial organisation" for the purposes of the State Industrial Act whereas the application to the Tribunal had been made by the UMW which was not such an industrial organisation since it was not registered (or "recognised") under that Act. The other suggested reason was that, in a case such as the present involving an order that one organisation represent the industrial interests of employees to the exclusion of another organisation or other organisations, the applicable paragraph of s.221(1) is par.(a) and, under that paragraph, the State Commission
could only make an order that "an industrial organisation of employees" for the purposes of the State Industrial Act have the right to represent the employees whereas, as has been said, the UMW was not such an industrial organisation of employees.

10. It should be apparent from the foregoing that underlying the whole of the COA's argument is the proposition that the Tribunal's power to make the order which it made must be found, if at all, in the combined effect of the grants of "powers" contained in the Commonwealth sub-s.(1A) and the State sub-s.(1A). In our view, however, that underlying proposition is mistaken.

11. The powers conferred by the Commonwealth and State sub-ss.(1A) are of an auxiliary and supplementary character. They are, in terms, conferred "(f)or the purpose of the exercise" of the primary grants of "power" which are contained in sub-s.(1) of the relevant sections. They are expressly stated to be "in addition to all other powers conferred" upon the Tribunal by the two Acts. That being so, the first question to be addressed in considering the validity of the Tribunal's Order is whether the Order was, in all the circumstances of the case, within the unaided ambit of the primary grants of power (i.e. the "power to consider and determine" the designated classes of industrial disputes and matters) which are contained in sub-s.(1) of the two sections. It is only if the answer to that question is in the negative that it is necessary to have recourse to the auxiliary and supplementary powers conferred by the two sub-ss.(1A).

12. The challenged Order was expressly confined to "the right ... to represent under the Coal Industry Acts of Australia and New South Wales" (emphasis added) the industrial interests of the relevant employees at the Elouera Colliery. As a practical matter, that right of representation under the two Acts directly involved the right to represent the industrial interests of those employees before the Tribunal, before or on the Local Coal Authorities ((11) Commonwealth Act, s.37; State Act, s.43.), and in dealings with the administrative authorities constituted for the purposes of the two Acts. It is common ground between the parties that a dispute existed about that right of representation and that that dispute was, for the purpose of both Acts, an "industrial dispute" in that it was a dispute about a matter of the kind mentioned in the definition of "industrial matters" contained in the relevant s.4 ((12) See, in particular, par.(n) of that definition which is set out above.). The Tribunal's Order was made on the application of the UMW which was, for the purposes of s.33 of the Commonwealth Act and s.39 of the State Act, "a party" to that
industrial dispute and "an organisation ... affected by" the "industrial matter" the subject of that industrial dispute. In accordance with the provisions of those last-mentioned sections, that application by the UMW enlivened the Tribunal's jurisdiction under s.34(1) of the Commonwealth Act and s.40(1) of the State Act to "consider and determine" an "industrial dispute" within, or extending to and beyond, New South Wales. The provision in the two Acts ((13) Commonwealth Act, s.32(2); State Act, s.38(2).) to the effect that the powers and functions conferred upon the Tribunal are vested in it "to the extent to which they are not in excess of the legislative power" of the Commonwealth or State makes plain the legislative intent of both Parliaments that the powers conferred upon the Tribunal should be given, in the words of the Court in Reg. v. Lydon; Ex parte Cessnock
Collieries Ltd. ((14) (1960) 103 CLR, at p.20.), "a combined operation so that they will operate according to the constitutional validity which each respective Parliament was able to give them". Clearly enough, the making of the Order which the Tribunal made was within the "power" conferred upon the Tribunal, by that combined operation of Commonwealth and State laws, "to consider and determine" the industrial dispute about which organisation or organisations should and which organisation or organisations should not have the right (under the Acts) to represent the industrial interests of the relevant employees at the Elouera Colliery. Indeed, the Tribunal's Order fell squarely within the direct and unaided scope of that power in that it involved no more than a determination that one organisation should have that right of representation and that other organisations should be excluded from it.

13. It follows that the COA's argument that the Tribunal's Order was outside its powers breaks down at its threshold. The Tribunal's Order was within the power conferred upon it by the operation of sub-s.(1) of the Commonwealth s.34 and the State s.40. It was not necessary for recourse to be had to the powers conferred by the Commonwealth and State sub-ss.(1A). Even if it had been necessary for the Tribunal to rely on the auxiliary and supplementary powers conferred by the two sub-ss.(1A), however, the COA's argument would be unavailing for the reason that it mistakenly discounts the effect of the combined operation of those two sub-sections. We turn to explain why that is so.

14. As has been said, the earlier cases in this Court establish that, under the legislative scheme embodied in the two Acts, the Tribunal is a single entity entrusted with Commonwealth and State powers which may be exercised concurrently or in combination. In their application to the Tribunal by reason of the Commonwealth or State sub-s.(1A), the provisions of Commonwealth and State legislation conferring powers upon the Commonwealth Commission or the State Commission or Court must be adapted to conform with that legislative scheme. In particular, the provisions of s.118A of the Commonwealth Industrial Act and ss.220 and 221(1)(a) of the State Industrial Act must be adjusted to conform with the fact that it is an essential feature of that legislative scheme that it applies indifferently to both Commonwealth and State registered organisations of employees. An organisation of employees registered under a law of either the Commonwealth or a State is an "organisation" for the purposes of both the Commonwealth and State Acts if it otherwise satisfies the requirements of the definition of organisation contained in s.4 of those Acts (see above). In the context of that legislative scheme, the references to an organisation or a registered or "recognised" organisation in s.118A of the Commonwealth Industrial Act and ss.220 and 221(1)(a) of the State Industrial Act must, for the purposes of the indirect application of those provisions (through the two sub-ss.(1A)) to confer powers upon the Tribunal, be read as encompassing any organisation of employees which is an "organisation" for the purposes of the two Coal Industry

Acts. That is to say, they must be read as encompassing any Commonwealth or State registered organisation whose objects include the protection of the interests of members in industrial matters in the coal mining industry. When s.118A of the Commonwealth Industrial Act and ss.220 and 221(1)(a) of the State Industrial Act are, in their indirect application to the Tribunal, so read, the supplementary powers conferred by the two sub-ss.(1A) would, if it had been necessary to have recourse to them, have included power to make the Order which the Tribunal made since, as has been seen, all the organisations of employees affected by that Order were "organisations" for the purposes of both the Commonwealth and State Acts.

15. It should be mentioned that it was argued on behalf of the COA that the Tribunal had, in making the Order which it made, given undue weight to s.221(2) of the State Industrial Act which provides that the power to make an order under s.221(1) is to be used for the purposes of "rationalising coverage by industrial organisations of employees for employees of enterprise employers" and "allowing representation of employees by a single industrial organisation of employees at new places of employment". That argument was not, however, advanced as a basis for a finding that the Order was beyond the powers of the Tribunal. It was advanced for the narrow purpose of rebutting any argument to the effect that, even if the Order was ultra vires, the Court should, as a matter of discretion, decline to make absolute the order nisi for a writ of prohibition and a writ of certiorari. In view of our conclusion that the Tribunal possessed jurisdiction to make the Order, it is unnecessary to consider it. Nor is it necessary to consider whether the Tribunal's Order could in any event have been sustained, in so far as it excluded the COA from the right of representation under the Commonwealth and State Acts, on the ground that it came within the power conferred by the combined operation of the State sub-s.(1A) and s.221(1)(c) of the State Industrial Act.

16. The order nisi for a writ of prohibition and a writ of certiorari should be discharged.