R v Lydon; Ex parte Cessnock Collieries Ltd

This is an order nisi for a writ of prohibition directed to Mr. Matthew Lydon, a gentleman constituting a local coal authority appointed under the Coal Industry Act 1946-1957 Cth and the Coal Industry Act 1946-1951 N.S.W.. The order nisi calls upon the respondents to show cause why a writ of prohibition should not issue prohibiting them from further proceeding upon an order of the local coal authority made on 14th September 1959. The parties to show cause include not only Mr. Lydon as the authority but the Australian Coal and Shale Employees' Federation. The prosecutor is Cessnock Collieries Limited. The order of the local coal authority which it is sought to prohibit is expressed in a very informal manner. It is involved in the concluding words of some reasons given by Mr. Lydon for granting an application made by the Australian Coal and Shale Employees' Federation. The application itself was informally made by a letter to Mr. Lydon. The tenor of the application was that all employees engaged on preparatory work at the colliery who have otherwise qualified should each be paid the attendance allowance for the pay periods involved. Mr. Lydon concluded that the application must succeed and said: - "I so order. I order accordingly."

The expression "attendance allowance" arises from an order of the Coal Industry Tribunal made on 14th December 1954, under the Coal Industry Acts (Commonwealth and State). That order directs that each member of the Australian Coal and Shale Employees' Federation who works for the ten ordinary days comprising a pay period shall in respect of that period, if the colliery at which he works has been in production on each of the said days, be entitled (in addition to his ordinary earnings) to payment as for a shift at the appropriate rate for him. The additional payment has been called an attendance allowance. That or a similar payment had been in operation for some time before 1954. It appears from a pronouncement made on 24th September 1951 by the Coal Industry Tribunal that some special situations had given rise to difficulties concerning the payability of attendance allowance. In that pronouncement the tribunal said, repeating what had been said by a board which preceded the tribunal, that in relation to all disputes settlement thereof without reference to an industrial authority is desirable and that that is particularly the position in connexion with the "attendance allowance" orders. The board had expressed the view that the parties should use every endeavour to settle in the colliery office questions arising under the orders, and had observed that if this procedure were adopted the practical appli%33cation of the orders should produce little difficulty. "However, if the parties on a particular question are unable to reach agreement the processes of arbitration are always available to them." In spite of this counsel, the tribunal found itself confronted in 1951 with a number of questions as to attendance allowance and in the pronouncement mentioned the tribunal set out to deal with them. The third of these questions was whether persons should be granted the attendance allowance when work is proceeding at the mine during the period of sinking, winning out or development of that mine. The tribunal dealt with the question so to speak indirectly as appears by the following answer: "A. The parties have agreed that the following ruling given by the Central Reference Board on 3rd April last is applicable: "Where a shift is taken up in whole or in part for the removal of overburden such shift shall be regarded as a production shift. The position is identical in the case of an underground mine when developmental work is being carried out prior to the actual production of coal"." It will be noticed that this agreed answer appears to take but little heed of the difficulties involved in the words "in production on each of the said days" which appear in the paragraph quoted from the order of 14th December 1954. Indeed it may be regarded as an extension of the application of that order. However that may be, an analogous difficulty seems to have arisen concerning work done in the preparation of a colliery for work and it is the attempt of Mr. Lydon to solve that difficulty that has given rise to the present proceedings. In the Cessnock No. 1 Colliery which is owned by Cessnock Collieries Ltd., the prosecutor in this application for prohibition, no members of the Australian Coal and Shale Employees' Federation were employed between 23rd January 1959 and 6th July 1959. But from 6th July 1959 to 6th October 1959, and also from 21st October 1959 to 9th November 1959 the company employed in the mine a number of employees including members of the federation on work in the colliery for the purpose of preparing it for the use of a mining machine known as a "continuous miner". Apparently the machine is used for the winning of coal. The work was described as preparatory work. Those employed in doing it sought payment of the attendance allowance. The claim was contested by the mine owner. The question was brought before Mr. Lydon as the local coal authority after this work had gone on for some time, namely by the application which was dated 8th September 1959, and he decided it on 14th September 1959. By some mistake the actual decision pronounced by Mr. Lydon was headed, not with the name of Cessnock Collieries Limited who are the owners of the mine, but with the name of the Caledonian Collieries Ltd. In form, at all events, it would therefore appear as if the order was not binding on Cessnock Collieries Ltd. That company, however, obtained an order nisi for prohibition on the footing that it had a sufficient interest to entitle it to prohibition.

The order it is sought to prohibit was of course made in the purported exercise of the power given under the combined operation of the Coal Industry Act 1946-1957 Cth and the Coal Industry Act 1946-1951 N.S.W.. These two Acts form concurrent legislation by the two Parliaments under agreement. The long title of each Act is substantially the same, describing the measure as one to provide means for securing and maintaining adequate supplies of coal throughout Australia and for providing for the regulation and improvement of the coal industry in the State of New South Wales, and for other purposes. The recitals also are substantially the same. It is recited that it had been agreed between the Governments of the Commonwealth and of the State of New South Wales that they should take measures for securing and maintaining adequate supplies of coal to meet the need for that commodity throughout Australia and in trade with other countries, and for providing for the regulation and improvement of the coal industry in the State of New South Wales and for other matters relating to the production, supply and distribution of coal, and that it had been further agreed between the two Governments that they should jointly establish authorities vested with power to take action designed to obtain those objectives. It was recited that it had further been agreed that the two Governments should take all practicable steps to secure the passage by the Parliament of the Commonwealth and the Parliament of the State of New South Wales of legislation within the constitutional powers of the respective Parliaments providing for the establishment of such authorities, and that each of the two Governments had undertaken not to take action without the prior concurrence of the other to repeal or amend any of the legislation covered by the agreement.

The Acts are divided into various parts but we are concerned only with that in each Act relating to industrial matters. The allusion in the recitals to trade with other countries will be noticed. It is probably to be inferred from that allusion that the Commonwealth Act placed some reliance on s. 51 (i) as well as upon s. 51 (xxxv) of the Constitution in enacting that part of the legislation which relates to industrial matters. In the case of the Commonwealth Act it is Pt. V and in the case of the State Act Pt. VII. In effect ss. 30 to 48A of the Commonwealth Act correspond with ss. 36 to 54A of the State Act. Section 32 (1) of the one Act and s. 38 (1) of the other Act provide that in pursuance of agreement between the Governments it is declared that any authority constituted under the Part (that is Pt. V and Pt. VII respectively) is to have all the powers and functions specified in the Part in relation to that authority. Sub-section (2) then proceeds to say that subject to the Commonwealth Constitution those powers and functions are by sub-s. (2) but not otherwise, vested in the authority in relation to which they are specified to the extent to which they are not in excess of the legislative power of, in the one case the Commonwealth, and in the other case, the State. By this ingenious legislative device the best is done to give powers expressed almost in identical terms and conferred by the two respective Parliaments a combined operation so that they will operate according to the constitutional validity which each respective Parliament was able to give to them.

It is contended however in support of the application for prohibition that the powers which result do not extend to enable the local coal authority to make the order to which Cessnock Collieries Ltd. objects. Mr. Lydon who made it sat as a local coal authority in the State of New South Wales. Section 37 of the Federal Act and s. 43 of the State Act provide that the tribunal, that is to say the Coal Industry Tribunal, is to have power to appoint persons to be local authorities in the State. The sections proceed to enact that the terms and conditions of employment (other than as to tenure) of a local authority are to be such as the tribunal with the concurrence of the Joint Coal Board determines. The local coal authority is to exercise its power within such limits as to locality or otherwise as are specified by the tribunal. The term of office of a local coal authority is to be for a period specified in the instrument of appointment not exceeding three years from the date of appointment and the tribunal is to have authority to remove a person holding office as a local authority from office for misbehaviour or incapacity. Section 38 of the Federal Act and s. 44 of the State Act deal with the jurisdiction of local coal authorities. By sub-s. (1) of those sections it is enacted that, subject to the respective Acts, a local coal authority is to have, in pursuance of the powers conferred by those Acts, certain powers which it sets out in lettered paragraphs. Paragraph (a) is a power to settle any dispute as to any local industrial matter likely to affect the amicable relations of employers in the coal-mining industry of the State and their employees where such dispute is not pending before the tribunal. Paragraph (d) is said by the prosecutor also to be relevant and it is better to quote it here. It is a power to inquire into and report to the tribunal on industrial matters not covered by any award of the court or award or order of the tribunal. Section 41 of the Commonwealth Act and s. 47 of the State Act confer upon a party to a decision given by a local coal authority a right within seven days or such extended time as the tribunal allows to apply to the tribunal for leave to apply for review of the decision. The section then gives full power to the tribunal to rehear the whole or any part of the matter, the decision of the local authority being stayed in the meantime. It is in this way that the ultimate control of the tribunal is ensured and conflicts between the awards or decisions of the two authorities averted. In the view we take of the present case no constitutional difficulty arises nor does any occasion exist for pronouncing on the application of this Court's jurisdiction to send prohibition to a Commonwealth officer on whom State power as well as federal power is conferred when he acts outside all his powers: cf. Australian Iron & Steel Ltd. v. Dobb [1] . For it appears to us that the basal question in the case is whether under s. 44 (1) (a) of the State Act Mr. Lydon was empowered to make the order which is impugned and we think that he was so empowered by that provision. It seems clear enough that the demand which was made for attendance allowance during the period when the men were engaged at Cessnock No. 1 Colliery on what is called preparatory work, and the refusal by the colliery owners to pay that allowance amounted to an industrial dispute within the meaning of par. (a) of sub-s. (1) of ss. 38 and 44 of the respective Acts. It is clear enough too that it was a dispute as to a local industrial matter. It is of course undeniable that the dispute was not pending before the tribunal. Prima facie therefore there appears no reason why Mr. Lydon as a local coal authority should not decide it. If this prima facie conclusion is not displaced it would follow that Mr. Lydon's order or decision finds sufficient support in the State enactment. On behalf of Cessnock Collieries Ltd., however, three answers are made to this view. It is convenient to refer first to one depending upon the proper construction of par. (a) of sub-s. (1) of s. 44 of the State Act. It is contended that the power conferred by par. (a) does not extend to anything which is covered by or the subject of an award or order of the tribunal and that the conditions and the extent of the application of attendance allowances are dealt with and covered by the order or award of 14th December 1954. It is said that par. (d) implies such a limitation. That paragraph relates to inquiries into and reports to the tribunal on industrial matters not covered by an award of the court or award or order of the tribunal. For the prosecutor it was argued that the dispute grew out of the award or order of the tribunal which conferred the right to attendance allowance. The short answer to the entire contention is that there is no ground to be found in the presence of par. (d) in the sub-section for imposing a restriction upon the natural meaning of par. (a) which according to its natural meaning gives to a local coal authority general authority to settle any dispute as to any local industrial matter likely to affect the amicable relations of employers in the coal mining industry of the State and their employees where such dispute is not pending before the tribunal. The chief argument, however, was that the true nature of the matter decided was not a dispute as to a local industrial matter but a difference as to the true interpretation of the award or order of the tribunal of 14th December 1954, and that to decide it involved an exercise of judicial power which should not be treated as within s. 44 (1) (a). We think that this contention is not well founded and indeed appears to rest on a misconception. Neither under the Federal s. 38 nor under the State s. 44 is there any attempt to give a judicial power. So far as the State legislation is concerned it would not matter were there such an attempt. What is given is a power to settle a dispute as to an industrial matter. In the settlement of any industrial dispute views and opinions may be formed on the meaning of documents and on matters which are not necessarily foreign to judicial power. Were it true that Mr. Lydon took into consideration or acted upon some construction of the order of 14th December 1954 in arriving at his conclusion it would not amount to an exercise of judicial power or an attempt to usurp judicial power. But in any case it seems very unlikely that he did so. What he did was to consider the claim, the provision in the order of 14th December 1954 dealing with attendance allowances and the pronouncement made on the same subject in September 1951 by the Coal Industry Tribunal, the answer agreed before the Central Reference Board relating to developmental work and its adoption by the Coal Industry Tribunal in answer to the question numbered 3 in that pronouncement and to conclude that payments should be made for what he described as preparatory work. It was his mode of settling the industrial dispute over the settlement of which he had complete authority. A third way of putting the objection was that Mr. Lydon was not really prescribing a term or condition of employment as in settlement of a dispute but determining what was due under an existing award. In other words it was suggested that he did not deal with the controversy as an industrial matter. What he did, so it was argued, was to consider and determine what were the rights which had accrued in consequence of the work done under the order of the tribunal providing for attendance allowance. For the reasons already given the dispute was about the applicability to past and future work of the conception of attendance money. It was an "industrial matter" and it was none the less so if it was based on a contention as to what the tribunal meant and what its award did in its application to the circumstances. Mr. Lydon's "jurisdiction" or power depends on the existence of an industrial dispute, a dispute about a local industrial matter: not on the arguments used to support the claim, or the source from which the claim grew or upon the reasoning by which he reached or justified his conclusion. But, as has already been shown, his reasoning in fact seems to have proceeded rather by analogy and perhaps extension and not by a strict legal ascertainment of past rights.

From the foregoing it follows that Mr. Lydon had power to give his decision.

No question arises concerning the operation of s. 75 (v) of the Constitution or s. 38 (e) of the Judiciary Act 1906-1956. The decision was within power and on that short ground no remedy can be available to restrain its operation. The order nisi for prohibition should be discharged with costs.