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High Court of Australia |
THE KING v. CENTRAL REFERENCE BOARD; Ex parte THIESS (REPAIRS) PTY. LTD.
[1948] HCA 9; (1948) 77 CLR 123
National Security
High Court of Australia
Latham C.J.(1), Rich(2), Starke(3), Dixon(4) and McTiernan(5) JJ.
CATCHWORDS
National Security - Regulations - Coal-mining industry - Central Reference Board - Prohibition - Two companies in same control - One engaged in open-cut coalmining - Other an engineering company whose principal business was repair of machinery of coal-mining company - Employee of engineering company - Whether engaged in coal-mining industry - The Constitution (63 & 64 Vict. c. 12), s. 75 (v.) - National Security (Coal Mining Industry Employment) Regulations (S.R. 1941 No. 25 - S.R. 1943 No. 295), regs. 7, 17.
HEARING
Melbourne, 1948, June 1-3;DECISION
August 16.2. The Central Reference Board was established under the National Security (Coal Mining Industry Employment) Regulations. Regulation 5 provides that: "The Governor-General may appoint a Central Reference Board for the prevention or settlement of any industrial dispute in the Coal Mining Industry." Regulation 7 provides that the Central Reference Board shall have cognizance of certain disputes and other matters - all relating to the coal-mining industry. No point is taken as to the Board not properly having cognizance of the matter of controversy, if that matter falls within the jurisdiction of the Board as an industrial dispute or other matter in the coal-mining industry. It is contended for the prosecutor that, though it is not disputed that the procedural requirements of the regulations have been satisfied, the matter in respect of which the order has been made is not within the jurisdiction of the Board. The grounds upon which the order nisi was granted are (1) that the prosecutor was not at any relevant time engaged in the coal-mining industry; and (2) that the employee Belmar was not at any time employed by the prosecutor in the coal-mining industry. Another ground, based upon a contention that a Local Reference Board had referred to the Central Reference Board only a question as to whether the Local Reference Board had jurisdiction, and not the question as to whether Belmar should be reinstated, was not argued. (at p129)
3. It has been decided that the Chairman and other members of the Central Reference Board are "officers of the Commonwealth" within the meaning of s. 75 (v.) of the Commonwealth Constitution, and that therefore the Court, when absence of jurisdiction in the Board is shown, may direct a writ of prohibition against the Chairman and members: R. v. Drake-Brockman; Ex parte National Oil Pty. Ltd. [1943] HCA 35; (1943) 68 CLR 51 ; R. v. Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598 . (at p129)
4. Regulation 17 is as follows: - "An award, order or determination of the Central Coal Authority or the Central Reference Board or a decision of a Local Reference Board shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever." It was argued for the respondent, the Amalgamated Engineering Union Australian Section, that the effect of this regulation was to give jurisdiction to the Board in any matter which it bona fide believed to be within its jurisdiction unless that belief was plainly and obviously unreasonable. This question has been argued again and again in relation to the Commonwealth Court of Conciliation and Arbitration: see the cases which are collected in Caledonian Colleries Ltd. v. Australasian Coal and Shale Employees' Federation [1930] HCA 1; (1930) 42 CLR 527, at pp 556, 557 . In relation to the Central Reference Board itself it was held in R. v. Drake-Brockman (1943) 68 CLR 51 that reg. 17 did not give effect to an invalid order &c. made by the Board. In R. v. Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598 particular attention was given to this matter, and it was held that the Central Reference Board did not have authority to determine by a decision binding upon the parties the meaning of the expression "coal mining industry" or the extent of the jurisdiction of the Board as governed by that expression: see the report (1945) 70 CLR, at p 618 . The effect of a provision such as reg. 17 was considered in the recent case of R. v. Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd. [1947] HCA 32; (1947) 75 CLR 361 . I quote the following: - "If a legislature gives certain powers and certain powers only to an authority which it creates, a provision taking away prohibition cannot reasonably be construed to mean that the authority is intended to have unlimited powers in respect of all persons, and in respect of all subject matters, and without observance of any conditions which the legislature has attached to the exercise of the powers. Such a provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which power is conferred upon it. But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s. 75 (v.) of the Constitution in a case of the latter description: see R. v. Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598, at pp 614-617 " (1947) 75 CLR, at p 369 . If the question of jurisdiction were in doubt the Court would decline to interfere with a decision of the tribunal whose authority was in question: see cases cited in Caledonian Collieries' Case (1930) 42 CLR, at p 556 . But it is the duty of this Court in proper proceedings to determine whether a matter with which the Board is dealing or has dealt is within the jurisdiction created by the regulations. (at p130)
5. No question arises in the proceedings in this Court as to the merits of the question which arose between the parties, that is, as to whether Belmar should be reinstated or not. The only question which this Court has to consider is whether the order made by the Central Reference Board is an order with respect to an industrial dispute or matter in the coal-mining industry. (at p130)
6. "Coal mining industry" is not a technical term: see R. v. Drake-Brockman; Ex parte National Oil Pty. Ltd. [1943] HCA 35; (1943) 68 CLR 51 ; R. v. Hickman; Ex parte Clinton and Fox [1945] HCA 53; (1945) 70 CLR 598 . It is a question of fact depending upon all the circumstances of the case whether a particular employer or employee is engaged in the coal-mining industry, with the result that an industrial question arising between the employer and the employee or an organization consisting of employees is a dispute or other matter in that industry. The line between industries is in many cases not clear. One industry may be entirely concerned with the service of another industry, and yet may not be part of that other industry. A laundry company may do work for hotels and restaurants but, to take a case at one end of the line, if the laundry business were conducted by a laundry company completely separate from any of the hotels and restaurants for which it did work (as for other customers) upon ordinary commercial terms, it would not be possible to say that the laundry was part of the hotel industry. A case at the other end of the line would be found where a hotel employed some laundresses on the hotel premises who did work exclusively for the hotel and were completely under the control of their employer. In such a case the laundresses might well be held to be working in the hotel industry. (at p131)
7. In the present case the evidence shows that the Muswellbrook Coal Company is a coal-mining company which owns a mining lease upon which an open cut is situated. Heavy earth-moving machinery is used for the purpose of removing the over-burden and getting out the coal. In November 1945 a partnership firm known as Thiess Bros. contracted with the coal company to remove the over-burden and to take out coal. In April 1946 the partnership assigned its agreement to a company incorporated in New South Wales known as Thiess Bros. Pty. Ltd. Since the date mentioned that company has been engaged in removing the over-burden and coal from the open cut. It has not been argued that that company is not engaged in the coal-mining industry. The machinery which the company uses requires constant maintenance and running repairs and also, when it breaks down, major repairs. The running repairs are done at a workshop established by Thiess Bros. Pty. Ltd. alongside the open cut. The men employed in that workshop are part of the labour force actually employed at the open cut, and it appears to be clear that the company and its employees working on the open cut and in that workshop (which is entirely under the control of the company and which is used only for the purpose of running repairs to the machinery used in the mining operations) are all engaged in the coal-mining industry. The employees at the workshop are working under industrial awards made with respect to that industry. (at p131)
8. Major repairs and overhaul of equipment were, until May 1947, done by engineering firms or companies in Sydney, Muswellbrook or elsewhere. The prosecutor company, Thiess (Repairs) Pty. Ltd. which was formed in Queensland, was registered in New South Wales as a foreign company on 25th February 1947. This company since May 1947 has, under an arrangement with Thiess Bros. Pty. Ltd., undertaken all the major repair and overhaul of the mechanical equipment used by Thiess Bros. Pty. Ltd. The establishment of the Repairs company is about three-quarters of a mile from the mine. The employees are employed by the Repairs company, and not by Thiess Bros. Pty. Ltd. The Repairs company does not work exclusively for Thiess Bros. Pty. Ltd., but does such other work as it can obtain. But over ninety per cent of its work in fact is provided by Thiess Bros. Pty. Ltd. Belmar is employed by the Repairs company. He did not work for Thiess Bros. Pty. Ltd. or for the coal company or on the mine property. (at p132)
9. Leslie Charles Thiess is the governing director of both Thiess Bros. Pty. Ltd. and the Repairs company. In each case he has full power of control. The Repairs company has four directors, all members of the Thiess family. Thiess Bros. Pty. Ltd. has five directors, four of them being the same members of the Thiess family as are directors of the Repairs company. The Repairs company is a substantial shareholder in Thiess Bros. Pty. Ltd. (at p132)
10. The two companies (Thiess Bros. and Repairs) have the same manager, one O. F. Anderson. Occasionally tools belonging to one company are lent to the other company. The employees, however, are employed by one company only, and all the work done by the Repairs company for Thiess Bros. Pty. Ltd. is charged against the latter company. The directors of the company who are common to both companies work in the workshop of the Repairs company, and also at the open cut. (at p132)
11. The respondent union, the Amalgamated Engineering Union, relied not only upon the facts which I have stated, but upon certain further evidence with respect to the practice at other open-cut coal mines. Open-cut coal-mining has developed only within very recent years, and apparently it hardly existed at the time when the Coal Mining Industry Regulations were first promulgated. At some open cuts the union has succeeded in having employees of repair establishments associated with the cuts recognized as being within the coal-mining industry. At another open cut some repairs are done on the mine premises and other repairs are sent away to be done in Sydney by engineering firms. The union further relies upon a resolution passed by the Mining Unions' Council as showing that the applicant company's workshop, where Belmar worked, is within the coal-mining industry. This resolution was expressly relied upon by the Chairman of the Board in giving the decision of the Board that Belmar was engaged in the coal-mining industry. The resolution was in the following terms: - "Re Muswellbrook disputes - Under instructions from the Coalmining Unions' Council, a meeting of which was held in Sydney yesterday (15th March) I am directed to forward on to you the following resolution adopted by Council - That this Coalmining Unions' Council supports any action taken by the Local Combined Mining Unions' Committee in Muswellbrook . . . and in respect to the dismissal of employees employed in Thiess Bros. Repairs Shop that this Council determine that such repair shops as established are directly connected with the coal-mining industry and in the maintenance of the Open Cut workings at Muswellbrook." (at p133)
12. This resolution expresses the policy of the unions. But the desire of a party to proceedings and of its industrial associates that a particular view should be adopted and put into operation cannot in itself be regarded as evidence upon which the controversy should be decided in favour of that party. But when the terms of the resolution are closely examined, it will be seen that it does no more than state the opinion of the council that the repair shops as established "are directly connected with the coal-mining industry and in the maintenance of the Open Cut workings at Muswellbrook." Plainly the workshops are connected with the coal-mining industry in so far as they execute repairs to machinery used in that industry, and plainly the execution of such repairs by the company or some other engineering service is essential to the maintenance of the open-cut workings. But a full admission of the truth of these propositions does not show that the prosecutor company itself is engaged in the coal-mining industry. (at p133)
13. In giving the decision of the Board the Chairman stated the grounds of the decision in a number of definite propositions, some of which are not open to question, e.g., that open-cut mining operations are carried on at Muswellbrook by Thiess Bros. Pty. Ltd., and that the Repairs company carries on operations on land owned by the coal company. There is, too, some degree of common management of the two companies, Thiess Bros. and Thiess Repairs. Thiess Repairs does work for Thiess Bros. and, accordingly, in this sense it is accurate to say, as the Chairman states, that the activities of the two companies are "closely connected." Another proposition stated by the Chairman is also established by the evidence: "That, predominantly, and very substantially, the business of Thiess (Repairs) Pty. Ltd. is confined to the repair or overhaul of machinery used exclusively by Thiess Bros. Pty. Ltd. for the purpose of the coal-mining industry, that is, in the production of coal, at the open-cut mine." A further statement that "workmen employed by Thiess Bros. Pty. Ltd. and Thiess (Repairs) Pty. Ltd. are closely associated" is rather vague in its terms. They have different employers. Their places of work are separated by a distance of three-quarters of a mile; but the men employed by the Repairs company spend most of their time in doing work upon machines belonging to the other company. In that sense there is an association between the workmen, but only in that sense. The two sets of workmen do not work together in any sense. The Chairman further stated that the mining operations could not be carried on without the employment of men on the repair and overhaul of machinery and referred to Mr. Anderson's position in managing both companies. (at p134)
14. The conclusion that the Repairs company, and therefore Belmar, were engaged in the coal-mining industry was apparently principally founded upon the finding of the Chairman expressed in the following words: - "That it is the custom or usage in the coal-mining industry to regard the 'whole business,' that is the production of the coal at the open cut and the repair or overhaul of the machinery used in the cut, as 'one section of industry.' (See Mr. Herron's evidence quoted within)." Mr. Herron's evidence on this point, as distinct from argument submitted by him, consisted principally of the resolution the terms of which have already been examined. (at p134)
15. The fact that the operations of one enterprise are carried on in proximity to another enterprise cannot in itself show that the enterprises are part of the same industry. The two companies, Thiess Bros. and Thiess Repairs, are separate juristic persons. But it needs no argument to show that nevertheless they may both be engaged in the same industry. On the other hand, a single employer may conduct two or more separate enterprises in two or more distinct industries - R. v. Drake-Brockman; Ex parte National Oil Pty. Ltd. [1943] HCA 35; (1943) 68 CLR 51 . The two Thiess companies have four directors and a manager in common, but this fact has no relevance to the question here to be determined, the answer to which depends upon the character of the industry carried on by the Repairs company and its place in the general industrial set-up. Is it in substance an engineering enterprise or a coal-mining enterprise? The answer to this question does not depend upon whether the two companies are regarded as separate persons or as only one person. The two companies are, it is true, "closely associated" in general control, management, and a common dependence upon the continuance of work at the open cut. But the fact that enterprise A is "closely associated" with enterprise B does not in itself establish either that enterprise A is engaged in the same industry as B or that enterprise B is engaged in the same industry as A. (at p134)
16. Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company's work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry. (at p135)
17. In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty. Ltd. That employer is not engaged in coalmining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contracting party (Thiess Bros. Pty. Ltd.), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry. In my opinion the evidence in this case shows that Thiess (Repairs) Pty. Ltd. did not employ Belmar in the coal-mining industry. As already stated, the Central Reference Board can make an order only in relation to certain matters in or in connection with that industry, and therefore the Board had no jurisdiction to make the order for the reinstatement of Belmar. (at p135)
18. In my opinion, therefore, the order nisi should be made absolute. (at p135)
RICH J. The Central Reference Board has, under reg. 7 of the National Security (Coal Mining Industry Employment) Regulations, cognizance of matters relating to the coal-mining industry. And it is admitted that there is a dispute which may relate to an industrial matter, but it is contended that it is not a dispute or threatened dispute in the coal-mining industry. (at p135)
2. This Court derives from s. 75 (v.) of the Constitution its jurisdiction over the members of the Board as officers of the Commonwealth. And reg. 17 does not preclude the exercise of this jurisdiction where it appears that an award is invalid. (at p136)
3. In a previous case which involved the ambit of the coal-mining industry, it was said that the expression was not a technical expression but a popular description without any definite or clear limits: R. v. Drake-Brockman; Ex parte National Oil Pty. Ltd. [1943] HCA 35; (1943) 68 CLR 51, at p 59 . It is a well known industry but no evidence is forthcoming to designate the aggregate of objects that may be included under this industry: R. v. Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598, at pp 610, 612 . It thus becomes a question of fact and of degree. And necessarily differences of opinion may occur in arriving at a decision. The facts have been fully set out in other judgments and I do not propose to detail them. In cases of this kind one is called upon to decide whether a particular function, which may be said to be on the borders of the coal-mining industry, falls within the conception. The evidence in the case leads me to the conclusion that the work carried on by the Repairs company falls outside the coal-mining industry. (at p136)
4. The rule nisi should be made absolute. (at p136)
STARKE J. Order nisi for prohibition issued pursuant to the Constitution s. 75 (v.) and directed to the Central Reference Board established under the National Security (Coal Mining Industry Employment) Regulations, its Chairman, members and others calling upon them to show cause why a writ of prohibition should not issue prohibiting them and each of them from further proceeding upon an order of the Board and its Chairman dated 8th April 1948 directing that one Belmar be reinstated in his employment as a fitter in the employ of Thiess (Repairs) Pty. Ltd. as from 26th February 1948 without loss of pay. (at p136)
2. The regulations provide that the Governor-General may appoint a Central Reference Board for the prevention or settlement of any industrial dispute in the coal-mining industry and gives it cognizance inter alia of any industrial dispute between an organization of employees on the one hand and employers or associations of employers on the other hand referred to it by the persons or organizations or associations parties thereto . . . and any other matter affecting industrial relations in that industry which the Chairman of the Board declares is, in the public interest, proper to be dealt with under these regulations. The jurisdiction and authority of the Boards under these regulations, this Court has already held, is limited to the coal-mining industry (R. v. Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598 ). (at p137)
3. Despite this decision an argument was addressed to the Court that the order of the Board was a reasonable and bona-fide attempt on the part of the Central Reference Board to exercise the authority conferred upon it by the National Security (Coal Mining Industry Employment) Regulations and therefore within jurisdiction. It was said that reg. 17, which provides that an award or order of the Central Reference Board should not be challenged or be subject to prohibition &c., operated so to extend the jurisdiction and authority of the Board. But I am unable to accede to the view that a regulation which takes away jurisdiction from superior tribunals confers jurisdiction upon inferior tribunals. It is nevertheless true that privative provisions such as reg. 17, though absolute in form, do not deprive competent superior tribunals of jurisdiction to grant prohibition if it be established that the jurisdiction and authority of the inferior court was not exercised in good faith and for the purpose for which that jurisdiction was granted. The fact that the tribunal made a bona-fide attempt to act within the course of its authority is no reason for departing from the express words of provisions such as reg. 17 nor for construing the provision as an extention of the jurisdiction of inferior tribunals (see Colonial Bank of Australasia v. Willan (1874) LR 5 PC 417, at p 442 ; Baxter v. N.S.W. Clickers' Association [1909] HCA 90; (1909) 10 CLR 114, at p 162 ; Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. [1924] HCA 61; (1924) 34 CLR 482, at pp 525-527 ). (at p137)
4. The authority given by the Constitution to grant prohibition is, in this view, unaffected by reg. 17. (at p137)
5. The questions argued on the return of the order nisi were in truth questions of fact, namely, whether the prosecutor, Thiess (Repairs) Pty. Ltd., was at any relevant time engaged in the coal-mining industry and whether its employee, Belmar, referred to in the order was at any relevant time employed by the prosecutor in the coal-mining industry. (at p137)
6. It appears that a partnership of Thiess Bros. had, since 1938, been engaged in Queensland and New South Wales in road-making, land-clearing and levelling, agricultural dam excavating, water-supply and drainage excavating, open-cut coal-mining and other excavating work and had for these purposes operated various types of earth-moving and excavating equipment including tractors, bulldozers, scoops, carry-alls, rollers and tip trucks. (at p137)
7. In 1945 an agreement was entered into by the partnership of Thiess Bros. with the Muswellbrook Coal Co. Ltd. whereby Thiess Bros. undertook to break up and remove by excavation the overburden of soil from the land used by the coal company as an open cut and to break up and remove by similar means the coal beneath the overburden in accordance with the directions of the coal company. (at p138)
8. In May 1946 Thiess Bros. Pty. Ltd. was incorporated in New South Wales. Four of its directors were members of the Thiess family. The objects of this company were inter alia to undertake the work of excavators, road-builders and mining and general earth-moving contractors and for these purposes operated earth-moving and excavating equipment of the types mentioned. (at p138)
9. The agreement between Thiess Bros. and the coal company was assigned to Thiess Bros. Pty. Ltd. which, since the assignment, has continuously removed overburden and coal from the open cut at Muswellbrook. (at p138)
10. In December 1946 a company called Thiess (Repairs) Pty. Ltd. was incorporated in the State of Queensland and was registered as a foreign corporation in New South Wales in February 1947. Its four directors were members of the Thiess family. It effected engineering repairs and maintained a shop for the major repair and overhaul of diesel engines, motor trucks and mobile earth-moving and excavating equipment. It held in 1948 a considerable parcel of shares in Thiess Bros. Pty. Ltd. At first Thiess Bros. Pty. Ltd. itself did what are described as running and minor repairs to its equipment and plant on its open-cut works at Muswellbrook and sent the major or heavy repairs to its equipment and plant to outside engineering firms. But this arrangement proved to be unsatisfactory so it effected a re-arrangement of repair work whereby Thiess Bros. Pty. Ltd. did the minor or running repairs on the works and Thiess (Repairs) Pty. Ltd. did the major or heavy repairs. (at p138)
11. Thiess Bros. Pty. Ltd. had a small workshop at the open cut where it did minor or running repairs. And Thiess (Repairs) Pty. Ltd. erected a workshop three-quarters of a mile or so from the small workshop of Thiess Bros. Pty. Ltd. but adjacent to the open cut and upon land leased from the coal company where it did major repairs to equipment and plant used in connection with the open-cut works, Tools appear to have been taken from one workshop to the other, spare parts required for the repair of all equipment and plant were stored at the workshop of Thiess (Repairs) Pty. Ltd. and persons exercising authority in connection with work on the open cut spent portion of their time at the workshop of Thiess (Repairs) Pty. Ltd. directing or supervising, I take it, the repair work there being effected. (at p139)
12. It thus appears that the activities and operations of the Thiess Bros. are conducted by companies which they formed. But the companies are distinct legal entities. And, so far as the evidence goes, the one company is not an instrumentality or an agent of the other. Each company has its own sphere of activity, though the fruits of their endeavours may ultimately reach Thiess Bros. The one company is a coal-excavating company and the other an engineering repair company. (at p139)
13. If Thiess Bros. Pty. Ltd. had set up a workshop at the open cut wherein its workmen effected major and minor repairs to equipment and plant used in connection with the company's mining operations then a finding that the company and its workmen were engaged in the coal-mining industry might have a basis of fact to support it. The work might then be regarded as ancillary to and part of the mining operations. (at p139)
14. But if the repair work was sent to and effected by persons or bodies carrying on an independent engineering business then the fact that the work was upon equipment and plant used in connection with mining operations would not support a finding that those persons or bodies or their workmen were engaged in the coal-mining industry. They would be engaged in the engineering business or industry. (at p139)
15. So here the fact that the Thiess Bros. divided their activities between two independent companies, one a mining company and the other a repair company, does not support a finding that the Repairs company is engaged in the coal-mining industry because it repairs coal-mining equipment and plant. (at p139)
16. In my opinion, the Repairs company was not as a matter of fact - and the question is really one of fact - engaged nor were its workmen engaged in the coal-mining industry but in an industry which effected repairs to coal-mining and other equipment and plant. (at p139)
17. The result is that the order nisi should be made absolute. (at p139)
DIXON J. This case is very much upon the border line but on the whole I am not satisfied that the dispute with which the Central Reference Board dealt was not a dispute as to industrial matters in relation to the coal-mining industry or a threatened or impending or probable industrial dispute in that industry, within the meaning of reg. 4 of the National Security (Coal Mining Industry Employment) Regulations. No point has been made as to the existence of a dispute or as to the subject of the dispute amounting to an industrial matter. I therefore assume those elements. What the prosecutor denies is that the dispute is as to matters in relation to the coal-mining industry or is a threatened dispute in the industry. The burden of establishing this negative proposition lies upon the prosecutor. But upon discharging the onus, I do not doubt that he would be entitled to the writ. It is, I think, true that the presence in the regulations of reg. 17 means that the awards, orders and determinations of the Board are not to be invalid if the only ground is that there has not been a strict adherence to the directions given by the regulations as to the mode in which the Board shall proceed or the manner in which it shall exercise its powers or even that it has exceeded the limits imposed upon its powers or authority. Such a provision is taken to mean that it is enough if the award order or determination deals with a subject matter placed within the province of the tribunal and represents a bona-fide attempt to exercise its powers and authorities or some of them. In those conditions a failure to observe the requirements of the regulations does not spell invalidity and a valid award or order is not prohibited. But in R. v. Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598 we decided, without, I think, derogating from these principles, which were there discussed, that the Coal Mining Industry Employment Regulations do not mean to give the Board any authority at all beyond what is within the true application of the expression "coal-mining industry." We decided that the expression forms a final and definitive limitation upon the powers, duties and functions of the Board. Once it steps outside the ambit described by that expression it is not dealing with a subject placed within its province and, upon the proper interpretation of the regulations, the conditions upon which the curative effect of reg. 17 depends cannot be fulfilled. (at p140)
2. The meaning of "Coal Mining Industry" is unfortunately indefinite and flexible. It affords no clear and certain guide either to the Board or to the courts of law as to the exact ambit of the Board's authority. In the present case the coal-mining that affects the question for decision is done by an open cut, and we are told that, owing to the short period over which that method has been seriously practised in New South Wales, no usages or common understandings have been established which would assist us in determining what marginal functions and activities fall within an accepted conception of that branch of the coal-mining industry. (at p140)
3. The function or activity with which we are concerned is the major repair and overhaul of the earth-moving and excavating equipment used in removing the over-burden and in winning the coal from the open cut. As a matter of reason, it seems to me that such repairs and overhauls may be carried out as an integral part of the operations of open-cut mining so as to form an indivisible element in the undertaking or may be relegated to separate and independent engineering operations outside the undertaking. In the one case I should have thought that they might quite well be considered part of the industry. In the other case I do not think they ought to be so considered. The difference must depend upon circumstances, the chief of which must be separateness of establishments in point of control, organization, place, interest, personnel and equipment. It must in the end come down to a matter of degree. It is not like the cases of Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 where the distinction rested upon the character of the operations, upon function. There we thought that the transport of coal in distribution was to be distinguished from coal-mining as an industry. (at p141)
4. In the present case the prosecutor has not satisfied me that the major repair and overhaul of the machines is conducted otherwise than as an integral part of the mining undertaking, because of the following factors. The operations, although carried on by a distinct company, are under one control and management with the mining operations. The distinct company is a subsidiary. The works are situated close to the open cut, about three-quarters of a mile away, and the site was obviously chosen for that reason. The site is variously described as "upon" the open cut, as adjacent to but outside the area of the open cut and as upon the mine-owner's land but outside the fence. Although some other work has been done, the repair and overhaul of the mining machinery was the purpose of setting up the engineering shop and substantially, it has no other present purpose. It was set up because of the inconvenience, and I would assume cost, of having the work done by outside engineering establishments. Another workshop for minor repairs and adjustments is in the open cut. Though that belongs to the mining or excavating company there is an interchange of tools and spare parts. The major repair and overhaul of the machines doing the mining is of course essential to the mining operation and to do it as part of the same undertaking may be considered to give all the advantages of expedition, co-ordination and reduction of cost that are supposed to arise from unity of control and proximity. The fact that the operations of mining and of major mechanical repair are divided between distinct legal entities ought not, where the question is whether they form a main and an incidental part of the same undertaking, to weigh against the facts that they are under one control and management and conducted in the same interest. (at p142)
5. Because of these factors I am unable to subscribe to the view that the work carried on by Thiess (Repairs) Pty. Ltd. has been shown to fall outside the coal-mining industry. (at p142)
6. I think that the order nisi should be discharged. (at p142)
McTIERNAN J. I think that the order nisi should be discharged. (at p142)
2. Having regard to the material which was before the Central Reference Board and before us, I am not satisfied that the former tribunal arrived at an erroneous conclusion in finding that the major repair and overhaul of the excavating machinery was incident to the mining operations. (at p142)
ORDER
Order absolute: costs of prosecutor to be paid by the respondents, the Amalgamated Engineering Union Australian Section.
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