R v Coldham; Ex parte Australian Workers' Union

R v Coldham; Ex parte Australian Workers' Union - [1983] HCA 35 - HCA 1983 case summary — Zoe

[50]

The Commission may, on the application of an organization, an employer or the Minister or the Bureau, if it thinks it in the public interest to do so, make an order providing that an organization of employees shall have the right to represent, in respect of all or some industrial interests under this Act, a class or group of employees who are eligible for membership of the organization, either generally or subject to such limitations as it may specify, to the exclusion of another organization or organizations and may make such orders as it thinks necessary in consequence of such an order. The Commission's power to make an order, under s. 142A(1), that an organization of employees shall have the right to represent, in respect of all or some industrial interests under the Act, a class or group of employees is dependent upon the existence of a jurisdictional fact, namely, that the employees of the particular class or group are eligible for membership of the relevant organization. The section does not make the Commission's satisfaction as to the existence of that fact, as distinct from its actual existence, the prerequisite of the power to make an order in respect of the particular class or group of employees. Nor does the Act purport to entrust to the Commission the power authoritatively to determine the eligibility of an individual employee or a group or class of employees for membership of the relevant organization. In a context where eligibility and entitlement to become or to remain a member of a registered organization of employees to no small extent correspond (see s. 144(1) and (2) of the Act), the question of eligibility can be of fundamental importance in determining the rights and defining the legitimate aspirations of the individual employee or of a group or class of employees. The power authoritatively to decide that question is assigned by the Act to the Federal Court to be exercised as part of the judicial power of the Commonwealth (see s. 144(5), (5A) and (6) of the Act).

[54]

It follows that a purported order by the Commission involving representation by an organization of a class or group of employees who are not eligible for membership of that organization is beyond the powers of the Commission and liable to be corrected by this Court by writ of prohibition. Likewise, a refusal by the Commission to make an order under s. 142A(1) in favour of an applicant organization on the ground that it lacks jurisdiction to make the order sought for the reason that the relevant employees are not eligible for membership of that organization when, in truth, they are, constitutes a failure by the Commission to perform its functions in accordance with law and is liable to be corrected by this Court by writ of mandamus. The Commission must, of course, in dealing with an application for an order under s. 142A(1), make up its mind on the preliminary question whether the class or group of employees in respect of whose representation an order is sought are eligible for membership of the particular organization. Particularly where questions of industrial practice and the usage of words in industrial circles are involved, it is permissible and proper for this Court to give weight to the opinion of the Commission on that preliminary question of jurisdictional fact. It is not however, in the case of a tribunal such as the Commission which is not and cannot be invested with the judicial power of the Commonwealth, open to the Court to abrogate both its own jurisdiction and the constitutional rights of the citizen by treating the Commission's own decision on jurisdictional fact as being prima facie conclusive. It is, of course, undesirable that, in ordinary circumstances, this Court should be required to deal as a court of first instance with applications such as the present. That is not however something for which the present applicant can be blamed. It is the result of a failure by the Parliament to provide an alternative by, for example, making provision enabling a party to proceedings before the Commission to institute proceedings in an intermediate court.

[64]

In the Poon Bros. Case, the workers involved were not performing work which constituted, of its nature, part of the industry of metalliferous mining. If they had been actually employed by the mining companies it may nonetheless have been the case that they were workers employed in connexion with that industry. The sub-contractors which employed them were not, however, themselves engaged in the metalliferous mining industry. They were engaged in supplying the particular services which they supplied. In those circumstances, the relevant employees in the Poon Bros. Case were plainly employed in supplying those services and not in the mining industry. On the other hand, once it is accepted, as the Uranium Mining Case establishes, that the words metalliferous mining industry as used in the A.W.U.'s eligibility clause encompass not only the extraction and treatment of the mineral but the preliminary construction of mine, refinery and associated facilities, it is plain that the workers in the present case are themselves performing work in or in connexion with that industry and that they are employed by sub-contractors who are, in so far as the work of those workers is concerned, themselves engaged in that industry. The application of the considered comments of Jacobs and Aickin JJ., set out above, to the circumstances of the present case leads, in our view, to the conclusion that all of the relevant workers are eligible to become members of the A.W.U. in that they are, for the purposes of the A.W.U.'s eligibility provisions, workers "engaged in manual or mental labour in or in connection with" the metalliferous mining industry. For the reasons to which we have already referred, we are of the view that those considered comments of Jacobs and Aickin JJ. should be followed and applied in the present case. It follows that the Commission was in error in its conclusion that it lacked power to make an order for representation pursuant to s. 142A(1) in the A.W.U.'s favour in respect of the relevant workers.

At a glance

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Before

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Judgment (73 paragraphs)

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