R v Commonwealth Industrial Court; Australian Coal & Shale Employees' Federation, Ex p

High Court of Australia|1960-07-01|Before: Windeyer JJ

High Court of Australia Dixon C.J. Fullagar, Kitto, Menzies and Windeyer JJ. R v Commonwealth Industrial Court; Australian Coal & Shale Employees' Federation, Ex p [1960] HCA 71

ORDER Order absolute. Costs including costs of the order nisi to be paid by the respondent Association.

The Court delivered the following written judgment: -

To decide this case it is not necessary to go beyond the submission of the prosecutor for prohibition that the Commonwealth Industrial Court had no jurisdiction to interpret The Coal Mining Industry (Miners') Award 1954 N.S.W. because it is not an award within the meaning of s. 110 of the Conciliation and Arbitration Act 1904 to 1959 Cth which empowers the Court to interpret awards judicially (Seamen's Union of Australia v. Matthews [2] ) but not to make an interpretative determination of the character described in Pickard v. John Heine & Son Ltd. [3] .

(1957) 96 C.L.R. 529. 2. (1924) 35 C.L.R. 1. at pp. 6, 7.

The Miners' Award was made by the Coal Industry Tribunal under the Coal Industry Act Cth and so it is not an award as defined by the Conciliation and Arbitration Act itself; it is not by force of that Act an award which the court is given power to interpret. It is, however, provided by s. 36 of the Coal Industry Act that an award made thereunder "has effect in all respects as if it were an award of the Commission" (i.e., the Commonwealth Conciliation and Arbitration Commission), and further, that "the provisions of the Conciliation and Arbitration Act 1904-1956 under which awards of the Commission may be enforced apply in relation to such an award or order made by the Tribunal as if it were an award of the Commission". These are the provisions upon which the respondent relied to bring the award of the Coal Industry Tribunal within the interpretative jurisdiction of the Commonwealth Industrial Court conferred by s. 110, but they have not the operation claimed for them.

The provision that an award of the Coal Industry Tribunal has effect as if it were an award of the Commission does not make it an award of the Commission, which would be necessary if "award" within s. 110 were to be treated as covering an award of the Tribunal. This part of s. 36 means no more than that those provisions of the Conciliation and Arbitration Act Cth that relate to the operation of awards (e.g., ss. 57, 58 and 61) are made to apply to an award of the Tribunal. Section 36 (1) could then bring the award of the Tribunal within the jurisdiction of the Court conferred by s. 110 only if s. 110 were itself a provision "under which awards of the Commission may be enforced", but it is not of that character. There is no justification for regarding the interpretation of an award simpliciter as its enforcement, notwithstanding that to enforce it under some other section of the Act might involve its interpretation.

For these reasons the order nisi should be made absolute.

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