R v Gallagher; Ex parte Australian Coal and Shale Employees' Federation

The prosecutor seeks to make absolute a rule nisi for prohibition to restrain the Coal Industry Tribunal constituted under the Coal Industry Act 1946-1965 Cth and Australian Iron and Steel Pty. Ltd. (the company) from proceeding further upon an order made by the Tribunal on 7th July 1966 by which the Tribunal further varied the Coal Mining Industry Miners' Award 1963, New South Wales, (the award) by inserting a ban, limitations and restrictions clause in a form which has now become familiar, but limited to any ban, limitation or restriction upon the performance of work at Kemira Colliery - a colliery operated upon the South Coast of New South Wales by the company.

It seems that in June 1965 a machine known as an A. B. Ranger Drum Shearer was introduced into the colliery by the company for operation on pillars of coal by a method known as the long wall method. Men working on the return air side of this machine claimed that the air in which they were required to work contained such an undue proportion of dust, including both coal and stone dust, as to be dangerous to their health. These claims led to proceedings before a local coal tribunal which, upon evidence placed before it, decided that the dust counts of the air in question were at that time within the limits allowed by law and directed that the men should work as required on the return side of the machine. However, individually they refused to obey the requirement of the company to work as required. For that they were suspended by the company from its employment. Thereupon a stoppage by all the 300 employees of the mine took place. The company then made application to the Tribunal for the variation of the award, which was a federal award, by the insertion of a bans clause with respect to the performance of work in accordance with the award at its Kemira Colliery. The Tribunal referred to the local coal authority the "matter", meaning as we take it, the application before the Tribunal, for investigation and report. After consideration of the evidence given upon this investigation by that authority and its report, the Tribunal made the order in respect of which prohibition is sought.

The prosecutor first submits that the order made by the Tribunal was an order made in settlement of the dispute at the Kemira Colliery to which reference has been made. It says that this dispute did not extend beyond that colliery and that for that reason the Tribunal was not competent to make an order in its settlement.

The prosecutor also submits that a bans clause may not be inserted into an award by an order varying the award unless such a clause is appropriate to the settlement of some inter-State dispute which has supervened since the making of the award.

Lastly, the submission is made that a dispute as to a matter of health or safety of mine employees cannot be an industrial dispute within the meaning of the Coal Industry Act, and thus cannot give rise to an industrial dispute within the competence of the Tribunal. The reason suggested for this conclusion is that the Coal Industry Act by s. 14 (2) (h) gives to the Joint Coal Board created by that Act power to make provision for or in respect to such health or safety.

But it is a misconception to regard the Tribunal's order as in settlement of any dispute supervening since the making of the award. Indeed, counsel for the prosecutor realized this and that the order did not determine anything in relation to the matters which had been or were in dispute at the Kemira Colliery. The Tribunal understandably informed itself as to the facts of the matters in difference at that colliery and was no doubt influenced by its view of them when considering whether or not it should exercise its discretion to vary the award by the insertion of the bans clause. But the variation was not made in settlement of that dispute.

A bans clause in the usual form is essentially a clause designed to make the award effective by binding the organization as a party to the award not to hamper observance of the award by conduct of the kind described in the clause. Thus, for example, it may be inserted in an award made in settlement of a dispute arising out of the service of a log of claims which did not contain a request for its making. Nor is it necessary that, if it be not inserted in the award when made, there should be any subsequent dispute before it can be inserted by way of variation of the award. It is enough that it relates to the observance of the terms of an award which has been validly made. It may be limited to relate to the observance of all or some of the terms of the award in whatever place the award operates or to such observance only at some specified place or places. The Tribunal derives these powers from s. 34 (1) (a), as incidental to the power effectively to determine an inter-State industrial dispute in the coal mining industry.

The order of the Tribunal not having been made either in terms or in substance in settlement of any new dispute and the power of the Tribunal to vary the award by inserting a bans clause not being dependent on the existence of a new dispute of an inter-State character, the prosecutor's submissions fail entirely, including its submission as to the effect of s. 14 of the Coal Industry Act upon the power of the Tribunal to settle an industrial dispute which has its origins in or for its subject matter, aspects of the health and safety of mine employees. But, in any case, a dispute about working conditions in the coal mining industry does not cease to be an industrial dispute because the working conditions as to which the difference exists involve matters of health or safety. Consequently, the power of the Tribunal to resolve a dispute as to working conditions is neither withdrawn nor diminished by the fact that the health and safety of the mine employees may be involved in the working conditions and by the provision in the Coal Industry Act giving the Board power to deal with matters of safety and health. We would therefore in any case reject the submission made by the prosecutor in this respect.