City 5 5 v Padley Rie ye Fe

City 5 5 v Padley Rie ye Fe - [1944] HCA 42 - HCA 1944 case summary — Zoe

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Kitto K.C. (with him Ashburner), for the prosecutors. Regulations 16 and 17 of the National Security (Economic Organization) Regulations, although earlier in point of time, do limit and affect the powers, capacities and functions of Industrial Authorities acting under the Coal Production (War-time) Act 1944, There is not any intention shown in the scheme of legislation that that Act should establish - a tribunal immune from the limitations of jurisdiction which applied _ to the tribunal which preceded it, and particularly the limitations - which apply to the Commonwealth Court of Conciliation and Arbitration, because the jurisdiction conferred wpon the Central - Industrial Authority and a Local Industrial Authority is con- ferred by reference to the jurisdiction of the Court and the Court : is itself subject to the limitations imposed by the Economic Organization Regulations. These Regulations, having the effect - which is prescribed by s. 18 of the National Security Act 1939-1943 - notwithstanding inconsistency with any other Act of the Common- - wealth Parliament, should be regarded as paramount unless the Parliament has clearly shown the intention that a subsequent Act shall not be construed as limited by an existing regulation. Parlia- - ment has not evinced an intention under the Coal Production (War- _ time) Act 1944 to establish tribunals which, although given powers almost in precise terms identical with those which had belonged to - their predecessors, would have a jurisdiction unfettered by a provision which was a fundamental provision under the Economic Organiza- tion Regulations for the economy of the people for war-time purposes. - Regulation 16 of those Regulations obviously was passed for the purpose of ensuring that there should be no undue increase in the remuneration of employees during the war and care was taken that no subsequent regulation should limit precisely the cases in which increases might be given. That regulation imposes a general limita- tion, and unless it plainly appears that Parliament intended to abrogate that legislation in regard to a particular field in that one

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Weston K.C. (with him Conybeare), for the respondent Australasian Coal and Shale Employees' Federation. The Parliament intended by the Coal Production (War-time) Act 1944 to place the matters dealt with by it in a special category for every purpose. It is signifi- cant that this was done by statute and not by regulation. This method was chosen, doubtless, in order that the statute might repeal, so far as there was any inconsistency, not only regulations previously promulgated, but any provision of the National Security Act itself. It was desired, within the limits of the defence power, to ensure that there would be no competitive legislation of any kind, earlier in time, in relation to that statute. The scheme of the Coal Production (War-time) Act 1944 is that it should, as shown by the first step to that end made in statutory rule No. 295 of 1943, place the coal-mining industry outside the provisions of the ordinary industrial law. Reg. 16 of the Economic Organization Regulations is an express provision relating only to the " pegging " of the rate of remuneration in force on the specified date. The absence from the Coal Production (War-time) Act of a similar express provision shows that Parliament intended that the Industrial Authorities established under the Act should have power, inter alia, to deal with remuneration, that is, rates of pay, in the coal-mining industry. Section 3 shows that the paramount object of the Act is to secure the production of coal and that any impediment under existing law against achieving that objective was to cease in relation to the coal-mining industry, even if it meant the paying of a higher wage than the worker in the industry was entitled to. Prices fixed by the Commonwealth Coal Commissioner under the powers conferred upon him by s. 17 (2) (b) of the Act would override any fixation of prices by the Prices Commissioner under the National Security (Prices) Regulations. The Economie Organization Regulations and the Prices Regulations are pro tanto repealed by s. 17 (2) (b). Similarly, the Contracts Adjustment Regulations are pro tanto repealed by s. 17 (2) (g). A Local Industrial Authority under the

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H.C. or A. regarding the prohibition contained in reg. 16 of the Beono is Organization Regulations as applying to the Industrial Autho 'Tan Kino S¢t up under the later statute. They can discharge their functi e. subject to the prohibition, in the same way as other Industri Come Authorities discharge their functions, subject to the same prohibiti Tae Section 29 of the Act provides for the appointment of a Central Hertox Tpdustrial Authority and s. 30 provides that that Authority y eres have cognizance of industrial disputes between the Australasian Coal and Shale Employees' Federation and employers or associations of Latium CJ. employers referred to him by the Federation or the employers or ich J. ri 5 Pa Williams J. associations parties thereto or by the Commissioner, " Industrial dispute " is defined in s. 5 as meaning any dispute as to industrial matters in relation to, inter alia, wages or rates of pay. The Central Industrial Authority also has cognizance of other industrial matters. mentioned in s, 30, including any matter affecting industrial relations in the coal-mining industry which the Commissioner declares is, in the public interest, proper to be dealt with under the Act. Section 31 provides that the Central Industrial Authority shall have power to consider and determine any industrial dispute or any matter of which he has cognizance, and for that purpose shall have (in addition to any other powers conferred on him by the Act) all powers which are given to the Court or the Chief Judge of the Court - as regards an industrial dispute of which the Commonwealth Court of Conciliation and Arbitration has cognizance. Section 32 provides" that the award or order made by the Central Industrial Authority shall be binding on the parties, shall be filed in the Court and shall thereupon have effect as if it were an award or order of the Court. Section 33 provides for the appointment of persons to be Local Industrial Authorities. Mr. James Connell, one of the respondents to these proceedings, has been appointed as a Local Industrial Authority. Section 34 (1) provides that, subject to the Act, a Local Industrial Authority may - ' (a) settle disputes as to any local industrial matters likely to affect the amicable relations of employers in the Coal Mining Industry and their employees who are members - of the Federation (other than those employees who are excepted by - the Commissioner by order); (b) investigate and report upon any industrial dispute or matter or part thereof referred to him by the - Central Industrial Authority ; (c) settle any local industrial dispute or matter or part thereof referred to him by the Central Industrial Authority for settlement; and (d) inquire into and report to the Central Industrial Authority on industrial matters not covered by any award of the Court or award or order of the Central Industrial

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its constitutional power to grant a prohibition, it should be in a position to see very readily where the particular Authority has kept within the limits prescribed and where it has not. The award should show on its face not only that the rates of remuneration are anomalous but also what constitutes the anomaly (Day v. King (1) ; Christie v. Unwin (2); Taylor v. Clemson (3)). This principle has been laid down for the purpose of enabling the superior courts to exercise their prohibition jurisdiction. It does not appear from his stated reasons, assuming they may be looked at, that Mr. Connell was satisfied as to any anomaly. On the other hand a strong inference arises therefrom that at the time the reasons were written Mr. Connell did not regard himself as concerned with whether he had to find an anomaly or not. The letter referred to above does not overcome the difficulty. It does not suggest the existence of an anomaly in respect of shiftmen, or, if it does so suggest, the nature of the alleged anomaly. The only alleged anomaly defined in the letter is limited to coal-loaders and pillar extraction, and has no relation to the matters now under consideration. The matter of jurisdiction is left to the discretion of the tribunal or person exercising it, and, on challenge, the question is whether that tribunal or person has acted arbitrarily (Australasian Scale Co. Ltd. v. Commissioner of Taxes (Q.) (4); Metropolitan Gas Co. v. Federal Commissioner of Taxation (5); Sharp v. Wakefield (6) ). The fact of the satisfaction of the Local Industrial Authority is a jurisdictional fact. Regulation 16 of the Economie Organization Regulations carves a portion out of his jurisdiction and reg. 17 restores it conditionally upon something happening and of his being satisfied. Regulation 17 (1) (6) is a con- dition of jurisdiction. The proper inference from all the documents is that the Local Industrial Authority did not have any proper apprecia- tion of what was an anomaly and did not really approach that ques- tion. An anomaly involves a departure from a standard, or, in other words, an anomaly is an irregularity of some kind and there can only be an irregularity if there is a regulated course with which the alleged anomaly or anomalous condition can be compared. The evidence shows that the subject work was part of the ordinary normal work of shiftmen. The rates of remuneration as at 10th February 1942 fully covered that work and there is nothing anomalous about those tates because there is nothing exceptional about the work ; it was

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Weston K.C. (with him Downing), for the respondent Australasian Coal and Shale Employees' Federation. References to anomaly - sometimes eo nomine and sometimes merely by stating the fact - occur frequently throughout the evidence and, in the main, that evidence is uncontradicted. The evidence disclosed four types of anomaly, namely, (a) an anomaly as between rates of remuneration received by employees in the different mines; (b) an anomaly between working in a high place where there has been a fall and where in some instances the employees receive extra pay, and working in equally dangerous places for which they do not receive extra pay ; (c) an anomaly of the same rate of pay for work in low places as for work in high places although the skill and the risk required for the low and the high work differ ; and (d) an anomaly of equal pay for erecting long and short props. It is anomalous if an employee should be kept in a position where his rate of pay is less than the degree of skill required for the work he performs. Rates of remunera- tion are anomalous if work utterly diverse in skill, risk and arduousness is recompensed by exactly the same quantum of pay. The anomalies are twofold ; a difference between rates for similar work and equal pay for work which differs. On the state of the evidence this Court is not in a position to determine what is the normal practice or the abnormal practice. There is not any evidence that the normal practice was not to pay extra money for work in high places after falls, but there is ample evidence that work equally dangerous is paid for at different rates of pay. The cases referred to on behalf of the prosecutors, in support of the proposition that it had to appear on the face of the record that the particular matter was within juris- diction, have no application to this case because there is not in the relevant sense a proceeding in this case and, in addition, under the Act the Local Industrial Authority may inform his mind as to the differences in any way he thinks fit. The discretion vested in the Local Industrial Authority was properly exercised. The Parliament

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determine a question upon the answer to which its jurisdiction _ depended. Prohibition may be directed to persons, bodies or tribunals other than courts if they perform quasi-judicial functions. Upon this basis it has long been the practice of the High Court to grant a writ of prohibition against the Commonwealth Court of Conciliation and Arbitration in relation to its awards, if they are beyond its _ jurisdiction, though the awards are not made in the performance of judicial functions in the strict sense of the term: See Waterside _ Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. (1), and particularly the reference to the history of this subject in the judgment of Starke J. (2) - See also R. v. Electricity Commis- sioners (3), where Atkin L.J. said: " Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of _ their legal authority they are subject to the controlling jurisdiction _ of the King's Bench Division exercised in these writs." Upon an application for a writ of prohibition the Court does not consider the merits of the case. It does not ask whether the order made was right or wrong. Where the application is founded on _ alleged want of jurisdiction it considers only whether the challenged _ order (or in this case the award) exceeds the powers conferred upon the authority which made it. In the present case the powers of the Industrial Authority are _ derived from the Coal Production (War-time) Act as limited by the _ Economic Organization Regulations. Regulation 16 provides in general _ terms that an Industrial Authority shall not alter the rate of remunera- _ tion applicable to any employment on 10th February 1942. If that provision stood by itself it would operate to limit the powers of the authority by preventing any alteration whatever of rates applicable _ onthe date mentioned. But reg. 17 limits the prohibition contained in reg. 16 by permitting an authority to alter such rates with the _ Spproval of the Minister "if the Industrial Authority is satisfied
that the rates of remuneration in respect of which the alteration is ; sought are anomalous." The subject matter with which the Indus- trial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remunera- tion which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act - it is a condition of s

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Taxation (1) Gavan Duffy C.J. and Starke J., referring to a pro- vision in the Income Tax Assessment Act which provided that a certain deduction from assessable income could not be made unless the Commissioner was satisfied of particular facts, said: "It is the Commissioner that must be satisfied, not this Court ; but he must act 'according to the rules of reason and justice, not according to private opinion . . .; according to law, and not humour': he must not act in a vague or fanciful manner, but legally and regularly (Sharp v. Wakefield (2) )" (3). Reference was made to the same principle in Australasian Scale Co. Ltd. v. Commissioner of Taaes (Q.) (4). In that case the Court considered a statutory provision which provided that the taxable income of a company should be assessed upon a certain basis by the Commissioner if the profits of the company could not, in the opinion of the Commissioner, be otherwise satis- factorily determined. It was there said by Rich and Dizon JJ. that, though the correctness of the opinion of the Commissioner was not examinable, the validity of the exercise of his discretion was examinable, and that if, for example, he exercised his discretion "upon irrelevant or inadmissible grounds " it might be set aside (5). _ See also Commissioner of Tawes (Q.) v. Ford Motor Co. of Australia Ply, Ltd. (6). ___ A recent illustration of the application of this principle in pro- hibition proceedings is to be found in the case mentioned by my brother Williams in his reasons for judgment (Estate and Trust Agencies.(1927) Lid. v. Singapore Improvement Trust (7) ). In that case the Privy Council considered a section in the following terms : - "Whenever it appears to the Board that within its administrative area any building which is used or is intended or is likely to be _ used as a dwelling place is of such a construction or is in such a _ condition as to be unfit for human habitation, the Board may by _ resolution declare such building to be insanitary" (8). The Board was of opinion that particular buildings were unfit for human habita- tion. But the Privy Council held that the evidence showed that the Board had adopted a completely wrong test of unfitness for human habitation, and had therefore misinterpreted the ordinance under which they acted. It was accordingly held that the Board had adopted "a wrong and inadmissible test " in making a declara- tion of unfitness, that they were acting beyond their powers and

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from the ordinary rule. It is beyond doubt on the evidence in the present case that the rate of remuneration for shiftmen on the northern coal-fields of New South Wales covered working in " high places," as they are called. But special rates were fixed in certain exceptional cases in respect of "falls in high places," to use the industrial phrase. It may be that these special cases departed from the ordinary rule and were anomalous, but the ordinary rule was as stated. Thus in 1942 the Central Reference Board (Coal Mining Industry) stated that it had come to the conclusion that there was no justification for fixing special rates for high places generally but that there was justification for extra payments in relation to certain high falls and that it could find no justification for interfering with existing customs and decisions in this regard. Notwithstanding this pronouncement, the miners' union neverthe- less put forward the following claim before Mr. James Connell, the Local Industrial Authority appointed under the Act already men- tioned: " Shiftmen working or timbering in high places shall be paid an additional allowance as follows when called upon to work in places of certain heights." (A schedule of heights and rates followed.) The meaning of the claim was thus explained by the union representative to Mr. Connell: " Mr. Chairman, the position so far as this matter is concerned is simply this: that we have now quite a lot of high work at the mines and we have nothing set down on a graduated scale in regard to method of payment ; further than that, we have . . . decisions of this Board . . . that payment should be made at certain heights where falls take place. Now, we are submitting that a graduated scale of payment should be set down as claimed: that it should cover shiftmen timbering at those heights irrespective of whether the heights are created by fall or by any other means. We have never been able to understand why a man working in a fall say at twenty feet in height should be paid a certain amount of money and another man working in the same height where the coal is shot down for some reason is receiving no consideration above his ordinary rate. It has caused quite a lot of disputes in the district and we think it is time that something of a uniform character was set down covering the whole thing on a district basis." It is plain from the claim and this statement that the union was desirous of altering the ordinary rate of remuneration on the northern coal-fields of New South Wales in respect of work in high places to another, a higher, uniform and graduated rate of remuneration. It was not claiming that different rates of remunera- tion were being paid for the like work, but that uniform rates should

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Industrial Authority shall be binding on the parties: and that shall be filed in the Commonwealth Court of Conciliation Arbitration, and that it shall thereupon have effect in all respects and be enforceable as if it were an award of that Court. Bef this application was made the award which is now in question filed in the Court of Conciliation and Arbitration in conformity w these provisions. It is clear that a Local Industrial Authority is not vested witl any power to enforce its awards and there is no suggestion that Mr Connell has attempted to usurp any power to enforce this award, Section 35 and s. 32 (1) do not invest a Local Industrial Authority with power which is of a judicial nature: See Rola Co. (Aus Pty. Ltd. vy. Lhe Commonwealth (1). This application for the writ of prohibition is founded on s, 75 (v.)_ of the Constitution of the Commonwealth. The substantial gro upon which the application is made is that the rates of pay to which clauses 1, 2 and 3 apply were not anomalous within the meaning of reg. 17 of the National Security (Economic Organization) Reg tions and that clauses 1, 2 and 3 are therefore beyond Mr. Connell's - jurisdiction. ' In R. vy. Hibble ; Ex parte Broken Hill Pty. Co. Ltd. (2), an applicé tion for a writ of prohibition against the chairman of a special tribun appointed for the coal-mining industry was made, as in the pri case, after the tribunal had made its award. There the tribun was constituted under the Industrial Peace Act 1920: and s, 17 that Act provided that any award of the tribunal should be bin on the parties and enforced as an award of the Court of Conciliati and Arbitration. There was a sharp difference of opinion ai the Justices who heard the application, whether the writ of prohibition would go to prohibit the tribunal after it had completed its award. The Commonwealth and the Miners' Federation in that case opposed the application of the company upon the ground that in as much the award had been made when the application for the writ wa launched, it was then too late for the High Court to interfere by grant ing a writ of prohibition against the tribunal's further proceeding on the award, the tribunal being then functus officio. Know 0.J., Gavan Duffy J. and Starke J. were of opinion that it was not too late to" grant a writ of prohibition after the special tribunal had comple its award and that the writ should go. a Knox ©.J. and Gavan Duffy J. said: "So long, at any rate, as a judgment or order made without jurisdiction remains in force so to impose liabilities upon an individual, prohibition will lie (1) Ante, at p. 185. (2) (1920) 28 C.L.R. 456.

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this view Knox C.J. and Gavan Duffy J. used these words: " Now, assuming this so-called award to remain in force, it imposes on every person engaged in the coke industry in New South Wales who employs therein a member of the respondent Federation the obliga- tion of complying with the terms of the award, and this obligation is to continue until the award is rescinded or varied by the Special Tribunal" (2). They discounted the consideration that the tribunal had no power to enforce the award, but attached importance to the provision of the Act making an award binding on the parties and enforceable as an award of the Arbitration Court in other courts. Their Honours added : " On principle, it appears to us quite irrele- vant whether the enforcement of the order made without jurisdiction is left in the hands of the court which made that order or is committed to some other tribunal. No doubt the test usually applied in cases decided in England for the purposes of determining whether the operation of the order complained of has been exhausted is to inquire whether the court which made the order can proceed to enforce its performance, but probably the reason for this is that in those cases the order, if enforceable at all, would be enforceable in the court which made the order. So far as we can ascertain, no _ case has been brought before the courts in England in which the _ tribunal which made the order had thereby completely performed its function, the enforcement of the order, when made, being taken out of the hands of that tribunal and committed to another tribunal of a judicial or quasi-judicial character " (2). Starke J., who reached the same conclusion as Knox C.J. and Gavan Duffy J., said: "In the present case the award of Mr. Hibble has not been executed. _ It is, to use the words of Lush J. in Serjeant v. Dale (3), 'still in _ operation,' and if not stayed it may lead to further proceedings, if _ not before the Special Tribunal, at all events before other tribunals. : 'The provisions of the award itself purport to reserve power to the _ usurping authority to vary and rescind it" (4). Isaacs, Higgins _ and Rich JJ. were of the opinion that the application for the writ _ of prohibition - it was a writ to prohibit the tribunal from further pro- ceeding upon its award - should be refused. Isaacs and Rich JJ. relied upon Chabot v. Morpeth (5), which their Honours go into (6), and Higgins J. referred to Re Poe (7). These cases are not else- _ where referred to in the report of the case except in argument. Higgins J, said: "I concur with my brother Zsaacs in his opinion

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that prohibition will not lie against a court or tribunal unless some- thing remains for it to do. Prohibition is against future acts ; an¢ the claim here is, actually and appropriately, for a prohibition agai 'further proceeding upon the award.' What further proceeding contemplated here by the tribunal? What proceeding is eve possible ? In the case of courts which can execute their judgments a writ of prohibition may be claimed at any time before the executio is complete, but not afterwards" (1). ; Mr. Connell was, at the time he made the award the subject 0 the present case, an Industrial Authority for the purposes of regs. If and 17, by reason of his appointment as a Local Industrial Authorit under the Coal Production (War-time) Act 1944: and his power t make an award altering any rate of pay to which the regulation applied was governed by them. An award altering any such rat does not by its own force impose a liability on the employers to pa according to its terms. The Minister's approval of the award is necessary to make it binding. F In Hibble's Case (2) the award, if within jurisdiction, would hay imposed liability upon the employers. But in the present case, th question whether the employers should be bound according to t tenor of Mr. Connell's award to the extent to which it purports ti alter pegged rates of pay, is one of high policy to be settled by pure executive decision and action. Another distinction between the present award and that i Hibble's Case (2) is that the Connell award does not reserve any powé to the Local Industrial Authority to vary or rescind it : See Hibb Case (3). The present application is for a writ of prohibition prohibitin, Mr. Connell from further proceeding on his award. It seems to. that there is a question whether the considerations upon which | was held in Hibble's Case (2) that prohibition should go, apply to the present case for the reason that political and executive action necessary to make Mr. Connell's award binding on anybody: an there is a further question whether the decision of the present o should be affected by the considerations that Mr. Connell has com pleted the award, that its enforcement is not in his hands, and tha no further proceedings on it by him are possible or contemplated it does not seem that Mr. Connell has any power in respect of award, after making it, similar to the power which the tribun Hibble's Case (2) could exercise in relation to its award after making In the case of Re Clifford and O'Sullivan (4) some stateme of principle were made which afford guidance in the consideratio

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of these questions. Viscount Cave said: "A further difficulty is H- ©. or A. caused to the appellants by the fact that the officers constituting the 14. so-called military court have long since completed their investigation yy Kiyq and reported to the commanding officer, so that nothing remains v to be done by them, and a writ of prohibition directed to them would [0% ell be of no avail" (1). Chabot v. Lord Morpeth (2) and Re Poe (3), Tar which are cited by Isaacs, Higgins and Rich JJ. to support their j2¥*0% opinions in Hibble's Case (4), were cited by Viscount Cave as authorita- Cortrerres tive decisions. In the same case Lord Sumner said : "' My Lords, I Tap. think there is another difficulty in the appellants' way, which ought MeTiernan J. to be mentioned. So far as the evidence shows the officers who constituted the military court are now completely functi officio and, as a tribunal, are definitely dispersed, so far as this case is concerned. There is no material to support the surmise that they might be called upon to reconsider either their decision or their sentence. True, judgment, though given, is not yet executed, but the execution is not in the hands of these officers or of any one acting under their directions or authority " (5). In the case of Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. (6) (the Shipping Labour Bureau _ Case) an application was made for prohibition against the Common- wealth Court of Conciliation and Arbitration after award. The Waterside Workers' Federation founded their opposition to the application on the principles contained in the above statements of Viscount Cave and Lord Sumner. The majority, Knox C.J., Gavan Duffy and Starke JJ., held that the distinctions between the powers of the Court of Arbitration and the military tribunal were such that the case of Re Clifford and O'Sullivan (7) was not in conflict with the cases in which the High Court had issued prohibition to the Court of Arbitration after award. Isaacs and Rich JJ., who were the only other members of the Court, dissented. They observed that the cases before Alexander's Case (8) rested upon the supposition that the Court of Arbitration was in the position of any other court having jurisdiction to enforce its orders. Their Honours declared that Alexander's Case (8) had dissipated the view that "the one tribunal was both arbitral and judicial in the strict sense." Knox OJ. and Gavan Duffy J. drew a distinction between the Commonwealth Court of Conciliation and Arbitration which made the award there in question and the military tribunal against which

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the power, which is vested in the Commonwealth Court of Concilia- tion and Arbitration by s. 38 (0) of its own statute, to vary its awards and reopen any question, it is not a power which the Local Industrial Authority is free to exercise according to its own judgment in the same way as the Court of Arbitration is free to exercise its powers under s. 38 (0). The Local Industrial Authority is not master in his own household as he is an officer of the Commonwealth Coal Commis- sioner and subject to his authority. In so far as the reason for the conclusion that prohibition lies after an award, if it is beyond juris- diction, prohibiting the Court from further proceeding on the award, depends upon the power of the Court to vary its awards and to reopen any question (the effect of this power being that the matter remains pending in the Court after the award is made, and the Court is not then functus officio), this reason is not, in my opinion, available here. A Local Industrial Authority is, by the present Act, subordinate to the Coal Commissioner, and it is not entirely a matter for the Local Industrial Authority to determine whether any matter should be reopened. But even if a Local Industrial Authority has jurisdiction to reopen an award made upon a matter, beyond the scope of reg. 17, referred to him, as the present matter was, by the Central Industrial Authority, I think that he could not exercise that power in relation to any matter covered by an award to which the Minister gave his approval under reg. 17 unless the Local Industrial Authority obtained a fresh cognizance of the matter. It is not in my judgment a tenable view that such a matter remains pending before a Local Industrial Authority after the Minister has approved or disapproved of his award. It seems to me that on these grounds the award in the present case can be dis- tinguished from the award in Hibble's Case (1) and that in the Waterside Workers' Case (2). The grant of a writ of prohibition after award in the present case cannot in my opinion be supported by any reasons involving the view that at the time the application for the writ was made, Mr. Connell had power to vary his award under teg. 17 or to re-open the matter of the award.

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Industrial Authority jurisdiction to decide whether any pegged rate is anomalous, and, subject to the Minister's approval, to alter the rate if it is satisfied that the rate is anomalous. This construction is in accordance with the language used. Further, it was within the ordinary course of these tribunals coming within the definition of Industrial Authority in the Regulations to satisfy themselves whether anomalies existed in workers' rates of pay and to eliminate them if they thought fit to do so: and it can be presumed that the Executive would consider that an Industrial Authority is a more appropriate authority than a superior court of general jurisdiction to decide whether any rate of pay pegged by reg. 16 is anomalous. However, it is in accordance with the presumption which ought to be applied to the construction of such a regulation that the Executive intended by the words it has used that the Industrial Authority should be satisfied according to law. Accordingly, if it appears to the Court that this standard has not been observed it would be the duty of the Court to find that any satisfaction expressed by the Industrial Authority was insufficient in law and that a condition precedent to its jurisdiction had not been fulfilled. This standard involves that the Industrial Authority should direct itself in accordance with the proper meaning in the context of the word "anomalous": and the conclusion that an Industrial Authority was not satisfied according to law that the rates which it altered were anomalous, may be apparent from any expression of the considerations by which it was moved, or, if this is absent, the conclusion may be necessarily justified by the circumstances of the case and the finding made by the Industrial Authority. But where the Industrial Authority is duly satisfied that a rate of remuneration is anomalous it is not for this Court in prohibition proceedings to hold that the condition necessary to jurisdiction was not fulfilled, even if the Court thought there was no anomaly, but the Industrial Authority was satisfied that there was, The ordinary meaning of anomalous is irregular or deviating from a rule and it has this meaning in reg. 17. The question then is: Was Mr. Connell duly satisfied according to law that the rate of remuneration payable on 10th February 1942 to shiftmen who were called upon to do the work described in clauses 1 and 2 of the award was anomalous? The work described in the first clause is the erection of cross timbers at a height of sixteen feet or more to make such place safe for working: and the work described in the second - clause is the erection of props of lengths beginning at seventeen feet and going upwards. It is apparent from Mr. Connell's letter to the Minister, seeking approval to these clauses of the award, that

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the work involved extra danger, exertion, and wear and tear on the nervous system. But this evidence is not, in my opinion, evidence of an anomaly within the proper meaning to be attributed to that word in reg. 17 (1) (6). The dictionaries give as meanings of "anomaly" unevenness and inequality of condition, exceptional conditions or circumstances, a deviation from the common rule. The purpose of reg. 16 was plainly, subject to certain express and limited exceptions, to "' peg" wages at the rates existing on 10th February 1942. One exception, embodied in reg. 17 (1) (), was that an Industrial Authority might alter any rate of remuneration, with the approval of the Minister, if satisfied that the rate of remuneration in respect of which the alteration was sought was anomalous. On 10th February 1942 it was a recognized condition of employment that shiftmen did not receive extra pay, with one exception, for working in high places. There would only have been an anomaly, therefore, if, in the case of the collieries owned by the prosecutors, shiftmen were not receiving extra remuneration for working where there had been a high fall, so that to award extra rates to shiftmen in these collieries for doing work that had always been included in the work to be rewarded at ordinary rates would be not to cure an anomaly but to create one. This does not mean, of course, that the anomalies included in reg. 17 (1) (b) are necessarily confined to those which existed on 10th February 1942. An anomaly could be created by change of circumstances after that date, as, for instance, by the introduction of new methods of working a mine creating extra hazards, or because workmen who were working in an area that had become dangerous through enemy action were _ still receiving the same remuneration as workmen who were doing the same work in a safe area, but the evidence in the present case given in support of clauses 1 and 2 of the award does not disclose any circumstances which have altered the general conditions with respect to shiftmen which existed in the coal-mining industry in the Maitland and North-West districts on 10th February 1942. The evidence, therefore, did not, in my opinion, justify a conclusion by Connell that the rate of remuneration in respect of which the alteration was sought was anomalous.

At a glance

Court

Decision date

Before

Source

Judgment (301 paragraphs)

1944,

Parties