Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29

The Unions are organizations of employees registered under the Conciliation and Arbitration Act 1904 Cth. Members of the Unions are employed by the prosecutor, The Newcastle Wallsend Coal Co. Pty. Ltd., in accordance with the Coal Mining Industry (Miners) Award 1982 (N.S.W.) and the Coal Mining Industry (Mechanics) Award 1982 (N.S.W.). These Awards were made by the Coal Industry Tribunal ("the Tribunal") pursuant to the Coal Industry Act 1946 Cth ("the Commonwealth Act") and the Coal Industry Act 1946 N.S.W. ("the State Act">).

In the early part of 1986 there was industrial disruption in the coal mining industry in support of a log of claims served on employers in the coal mining industry. Members of the Unions employed by the prosecutor participated in work stoppages at collieries. When members of the Unions attempted to resume work at the collieries on 15, 16 and 17 April 1986 the prosecutor informed them that they had disentitled themselves to the provision of work and wages until each of them signed a proposed agreement setting out the terms of employment which included a "no strike" provision. On the employees refusing to sign the form of agreement, the prosecutor prevented them from working. On 17 April the Tribunal directed the prosecutor to withdraw its requirement that the agreement be signed and the prosecutor complied with this direction.

Each of the Unions then notified the Authority of the existence of a dispute and applied for a hearing. Application No. 25 made by the A.M.W.U. on 16 April sought a hearing "to deal with a dispute involving members of this Union who are being incorrectly "stood down" by the Management as and from 16.4.86". The application continued:

Our members are being unfairly and harshly treated by management in that management are demanding signatures on an "Agreement of Service" before allowing our members to report for work. There being no such requirement within the Mechanics' Award management were approached and have refused payment of wages. Application No. 28 was made by the F.M.M.A.A. on 23 April. It described the dispute as one that "concerns management's refus[al] to accept our labour". Application No. 30 was made by the A.C.S.E.F. on 28 April. In substance, this notification was similar to that of the A.M.W.U., though it made no express reference to a refusal to pay wages. Although the notifications did not expressly demand payment of wages for the days on which work was refused, it seems evident that is what the applications claimed, the prosecutor's compliance with the Tribunal's direction having resulted in the provision of work and a return to work.

The Authority heard the applications on 1 May 1986. The prosecutor's representative objected to the jurisdiction of the Authority on the footing that the claim was a claim for two days' payment for some employees and one day's payment for others. The objection was overruled and the Authority then heard argument on the merits. By its decision on 13 May the Authority found:

that the employer was wrong in refusing to allow employees to commence work on Tuesday 15th, Wednesday 16th and Thursday 17th April. It therefore follows that employees who attended for work at their normal starting times on the hereinbefore mentioned days who were ready and willing to resume their normal duties are entitled to payment of wages for shifts lost on those days, and I so decide. The prosecutor then applied to the Tribunal, pursuant to s. 41 of the Commonwealth Act (s. 47 of the State Act), for a review and stay of the decision.

The prosecutor seeks prohibition on the basic ground that the Authority had no jurisdiction to hear and determine an application for the interpretation and enforcement of the two Awards and that the hearing and determination of such an application involved an exercise of the judicial power of the Commonwealth.

A claim for the payment of wages due and payable by an employer to an employee is a claim for the enforcement of an existing legal right. Likewise, a claim for the enforcement of a provision in an award for the payment of wages to an employee is also a claim for the enforcement of an existing legal right. Claims for the enforcement of existing legal rights necessarily invoke the exercise of judicial power. As the judicial power of the Commonwealth is reposed by s. 71 of the Constitution in Ch. III courts, an Authority is necessarily without jurisdiction to hear and determine claims of the kind already mentioned to the extent to which the right sought to be enforced arises under federal law. In conformity with the dispositions made by the Constitution governing the exercise of federal judicial power, s. 38 of the Commonwealth Act, which deals with the jurisdiction of Local Coal Authorities, makes no endeavour to arm them with judicial power. Likewise, the corresponding provision of the State Act, s. 44, makes no attempt to do so: Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [1] .

The result is that the Authority had no jurisdiction to determine or enforce a legal right to payment of wages on the part of employees in respect of a past period during which they had been stood down or refused work or to enforce the provisions of an award regulating the right to payment of wages of employees for such a period: Reg. v. Gallagher; Ex parte Aberdare Collieries Pty. Ltd. [2] ; Reg. v. Gough; Ex parte Cairns Meat Export Co. Pty. Ltd. [3] ; Reg. v. Austin; Ex parte Farmers & Graziers Co-operative Co. Ltd. [4] ; Reg. v. Gough; Ex parte Key Meats Pty. Ltd. [5] ; Re Amalgamated Metal Workers' Union; Ex parte Horwood Bagshaw Ltd. [6] .

1. (1963) 37 A.L.J.R. 40, at pp. 41-42, 43, 46. 2. (1962) 108 C.L.R. 343. 3. (1964) 112 C.L.R. 619, at p. 629. 4. (1982) 148 C.L.R. 582, at p. 587. 5. (1986) 60 A.L.J.R. 696, at p. 697; 67 A.L.R. 532, at p. 533.

What this principle relevantly denies to the Authority is the power of judicial determination which includes, to use the words of Kitto J. in Aberdare Collieries [7] : "the giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct." The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power: Cessnock Collieries [8] ; Reg. v. Commonwealth Industrial Court; Ex parte Australian Coal & Shale Employees' Federation [9] ; Key Meats [10] . Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties: Aberdare Collieries [11] . Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.

1. (1963) 37 A.L.J.R., at p. 43. 2. (1960) 103 C.L.R., at p. 22. 3. (1960) 103 C.L.R. 171, at p. 174. 4. (1982) 148 C.L.R., at pp. 596-597. 5. (1963) 37 A.L.J.R., at p. 44.

Despite the reference by Kitto J. in Aberdare Collieries [12] , to "the distinction between a power of arbitral decision in respect of the future and a power of judicial determination of existing rights and obligations", the arbitral function includes the determination of a dispute relating to past transactions, events and conduct. Commercial arbitration often involves the determination of such a dispute. And so does industrial arbitration. In Cessnock Collieries the Court held that the Authority's determination was arbitral, not judicial, even though the Court acknowledged that "the dispute was about the applicability to past and future work of the conception of attendance money" [13] .

1. (1963) 37 A.L.J.R., at p. 43. 2. (1960) 103 C.L.R., at p. 23.

In the context of the Conciliation and Arbitration Act the arbitral functions of the Conciliation and Arbitration Commission ("the Commission") generally take the form of making an award, or varying an award pursuant to the power conferred by s. 59(2) of that Act. Because the Commonwealth Act and the State Act effect a division of functions between the Tribunal on the one hand and an Authority on the other, we need to establish what powers are conferred on an Authority and whether they include the power to determine a dispute by arbitration.

Section 38(1) of the Commonwealth Act (s. 44(1) of the State Act) provides:

Subject to this Act and to the State Act, a Local Coal Authority is to have, in pursuance of the powers conferred by those Acts, power to -

(a) 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.

By s. 39 of the Commonwealth Act (s. 45 of the State Act) the provisions of ss. 33, 34 and 36 of the Commonwealth Act, so far as they are applicable, apply, subject to such alterations as are necessary, to matters before an Authority under s. 38(1). How much of the provisions of s. 34 is thereby made applicable to an Authority is far from clear. Section 34 deals with the jurisdiction and powers of the Tribunal, giving the Tribunal power to consider and determine - (a) an industrial dispute extending beyond the limits of any one State; (b) an industrial dispute in the State; and (c) an industrial matter arising under an award or order of the Commission or of the Tribunal relating to the coal mining industry in the State. Section 39 certainly attracts to an Authority the provisions of s. 34(1A), (1B), (1C) and (2). Whether it attracts the jurisdiction conferred by s. 34(1) is open to question, but this question is of no moment in the present case. Section 39 makes s. 36 applicable to an Authority. So, in terms of s. 36(1), if an Authority makes an award or order, it has effect as if it were an award of the Commission, it is binding on the parties and on the persons on whom it is expressed to be binding, and the provisions of the Conciliation and Arbitration Act under which awards may be enforced apply in relation to any such award or order made by an Authority.

Although the language of s. 38, when compared with that of s. 34 relating to the powers of the Tribunal, might possibly suggest that an Authority's powers are confined to conciliation, the better view is that they extend to arbitration as well. Sub-sections (4) and (5) of s. 38 each refers to a "decision" by an Authority and there are similar references in ss. 37A(4), 44 and 47. These references are scarcely consistent with a lack of power in the Authority to arbitrate. And, given the general role assigned to an Authority in the settlement of local disputes, it would be curious if the Authority were restricted to conciliation as a means of settling disputes. Moreover, the refusal of prohibition by this Court in Cessnock Collieries proceeded on the assumption that the Authority had power to arbitrate, when it made an order granting an application that certain employees engaged in preparatory work at a colliery should be paid an attendance allowance.

Whether an Authority has power to make an award or to vary an award made by the Tribunal is another question. Nowhere does the Act refer to the making of an award by an Authority. Instead the Act creates a division of functions by entrusting the Tribunal with the making of awards having a general application in the industry and by entrusting an Authority with the making of decisions resolving local industrial disputes or disputes as to local industrial matters. And, in the light of the relationship between the Tribunal and an Authority, including the incapacity of an Authority to deal with a dispute pending before the Tribunal (s. 38(1)(a)), it is difficult to suppose that an Authority could vary an award made by the Tribunal. No doubt s. 39, operating through the medium of s. 34(1A), attracts to an Authority the power of variation conferred by s. 59(2) of the Conciliation and Arbitration Act. This power would enable an Authority to vary its own decision. But, for the reason already given, we doubt whether it could vary an award made by the Tribunal. Of course an Authority can, in conformity with ss. 34(1)(e) and 38(4) refer an industrial matter or dispute to the Tribunal. This power of reference may enable an Authority to refer a matter or dispute to the Tribunal with a view to the Tribunal itself exercising a power to vary its existing award.

The other possibility is that the Authority was exercising its power to arbitrate a dispute as to a local industrial matter. The expression "industrial matters" is defined by s. 4 of the Commonwealth and State Acts as:

all matters pertaining to the relations of employers and employees in the coal mining industry, and, without limiting the generality of the foregoing, includes, in respect of that industry -

(c) the wages, allowances and remuneration of persons employed or to be employed;

(k) the right to dismiss or refuse to employ, or the duty to reinstate in employment, a particular person or class of persons;

and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole.

The entitlement of the members of the Unions, who had been "stood down" on the three days, to payment of wages was governed by cll. 5, 6 and 7 and the rates set out in Sched. "A" to the two Awards. In the ultimate analysis the issue for determination in the present case is whether the Authority was deciding a claim for payment of wages made as a matter of legal right or a claim for payment of wages made not as a matter of legal right but as a matter of what was "right and fair". If the former, then the decision constituted an attempted exercise of judicial power and was not the resolution of a dispute as to an "industrial matter". If the latter, then the decision resolved a dispute as to such a matter.

As we have indicated, the notifications of dispute were not explicit. To the extent that they referred to a refusal to pay wages, it is not entirely clear that they were seeking an order for the payment of wages in accordance with the provisions of the two Awards, though that is the natural interpretation that one would place on them. That certainly is how Mr. Cram understood the applications for, at the beginning of his decision, he described them as:

seeking a determination that members of the respective organisations employed at Gretley, Pelton and Ellalong Collieries, who were prevented by the employer from working on 15th, 16th and 17th April, are entitled to be paid wages in accordance with their respective awards for shifts lost on those days And, in the light of the submissions made to him, as recorded in the transcript of proceedings, that was a correct description.

Mr. Cram summarized the case presented by the Unions in this way:

The action of the company was provocative and inconsistent with traditional procedures. In the circumstances of this case, the employer was not entitled to stand down employees without pay. There is no common law right to stand down employees. The right to stand down employees pursuant to sub-clause (c) of the contract of employment clause of the awards is restricted to such matters as refusal of duty, neglect of duty or misconduct. The fact that employees were ready and willing to work on the days in question precluded the employer from relying on refusal of duty or neglect of duty as grounds for their action. He outlined the prosecutor's answer in these terms: it was not the intention at any time to stand employees down, rather the participation of the employees in strike action was an act of misconduct in breach of their contractual obligations, in which case the employer required agreement to terms of the resumption satisfactory for continued operations prior to the striking employees recommencing work. In the event that the employees failed to give the required undertaking, the company took the view that this disentitled them to work and payment in which event they remained on strike.

Mr. Cram noted that the Unions relied on an earlier decision of the Tribunal in support of a submission that a strike will only be considered to be misconduct justifying stand downs if a reasonable person could consider the strike amounted to a repudiation of the contracts of employment or of an essential condition of those contracts. The Unions argued that the return to work by the employees was strong evidence that their industrial action did not amount to a repudiation and that the refusal to promise not to take further industrial action was likewise not a repudiation.

Mr. Cram proceeded to apply the earlier decision of the Tribunal. It decided that the award provision relating to the standing down of an employee for misconduct pursuant to the contract of employment clause cannot as a general rule have application to strikes and if in a particular case the employer stands down employees because of a strike the onus is on him to establish that the strike is misconduct of a kind entitling him to take action. Mr. Cram went on to find that the action of the employees in the present case did not evince an intention no longer to be bound by their contracts.

In my opinion the questions requiring answers are: Did the employees' refusal to sign the company's proposed employment Agreement justify the company's refusal to provide work, and pay wages, and if not did the employees by their industrial behaviour disentitle themselves to the payment of wages on the days in question? He dealt with these issues as follows: There is no award requirement that such undertakings be given, and as far as I can ascertain, there is no requirement at common law.

Having considered the respective submissions on this point, I do not consider the employees' refusal to sign the proposed Agreement was sufficient reason to refuse to allow them to work. As to the reasonableness of the employer's actions in all the circumstances of this case. It was said by the employer, that the action it took was in the clear knowledge that the employees intended to resume work for two (2) days, then partake in a further seven (7) days' stoppage. If I was satisfied that this was the case there would be as a matter of equity and reasonableness, exist grounds for the exercise of discretion in the employer's favour. However, the conclusion is possible that the actions of the Newcastle Wallsend Company in demanding their employees sign a "no strike" Agreement as a precondition to starting work, was the reason for the extended industry wide stoppage that commenced on the 18th April.

Mr. Cram then concluded with the finding and decision quoted in the early part of this judgment.

The finding and decision that the employees "are entitled to payment of wages for shifts lost on those days" is plainly a finding that they are entitled to the payment of wages for the days in question under the award and the relevant contracts of employment. As such the finding corresponds precisely to the determination sought by the Unions, as stated by Mr. Cram at the commencement of his decision. In these circumstances the applications sought determination of the employees' legal rights and the decision provided such a determination.

Confirmation that this was the character of the application and of the decision is provided by the arguments presented by the Unions and the reasoning of Mr. Cram. Justification for the prosecutor's refusal to provide work and its insistence on the signing of the promise not to engage in further industrial action was a central issue and this in turn excited the issue whether the employees' industrial action amounted to a contractual repudiation. This issue was determined, in conformity with common law principle, in favour of the submission made by the Unions.

On the other hand the Unions submit that there are references in the arguments presented to Mr. Cram and in his decision to matters that suggest that he was engaged in an arbitral function. It seems that the Unions contended that the "stand downs" were "harsh and unjust", but this was in the context that the prosecutor could or should have applied to the Tribunal for relief of that kind. There was also a statement in the decision that, had Mr. Cram been satisfied that the employees, on resuming work for two days, intended to engage in a stoppage for seven days, there would have existed grounds for exercising a discretion in the prosecutor's favour as a matter of equity and reasonableness. This statement evidently echoes s. 34(2) of the Commonwealth Act (s. 40(2) of the State Act) which, in its application to an Authority, requires it to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms. But even if Mr. Cram contemplated that in a given situation he might depart from the application of legal principle, that situation did not arise.

In the result Mr. Cram's decision was an exercise in determining the rights of the parties in accordance with legal principle. Neither the applications made by the Unions, nor the submissions made on their behalf, nor the decision, lends any support to the view that Mr. Cram was engaged in settling a claim for remuneration as a matter of what was right and fair rather than as a matter of legal entitlement. And there is certainly nothing to suggest that Mr. Cram was asked to vary the awards or that he was engaged in making such a variation.

What the Unions sought from Mr. Cram was very different from the dispute determined by Mr. Lydon in Cessnock Collieries. There the dispute was about the applicability to past and future work of the conception of attendance money. In that case the Court pointed out [14] that Mr. Lydon's jurisdiction or power depended on the existence of a dispute about a local industrial matter, not on arguments used to support the claim or the source from which the claim grew or upon the reasoning by which Mr. Lydon reached or justified his conclusion. Here, the dispute notified by the Unions involved no element of future conduct. Moreover, it asserted claims to payment of wages, without indicating that the claims were made on any basis other than that arising from the contracts of employment and the Awards. The way in which the applications were presented and dealt with confirms, as we have already said, that the dispute concerned the prosecutor's failure to pay wages in accordance with the employees' legal entitlement. Neither the presentation of the applications nor the decision suggests that the claim for payment was based on matters of industrial policy as distinct from matters of legal entitlement: cf. Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [15] .

1. (1960) 103 C.L.R., at p. 23. 2. (1957) 100 C.L.R. 277, at p. 306.

I have had the opportunity of reading the joint judgment of the Chief Justice, Brennan, Deane, Dawson and Toohey JJ. and the separate judgment of Gaudron J. Those two judgments, while united on the relevant principles of law, differ when they come to apply those principles to the facts of the case. In my opinion, much of the material on which the prosecutor relies is equivocal, being open to interpretation in either of two ways. If interpreted in the manner preferred in the joint judgment, it leads to the conclusion that the Authority engaged in an exercise of judicial power. On the other hand, the interpretation preferred by Gaudron J. leads to the conclusion that in reality the Authority was seized of an industrial matter the determination of which did not result in an enforcement of the award or the declaration of a legal right. The case is finely poised upon a matter of fact.

I agree generally with the reasoning and conclusion of Gaudron J. Although the Authority's decision contains expressions of opinion on the legal rights and entitlements of the parties, those expressions of opinion are relevant to the reasoning which leads the Authority to its conclusion as to the industrial merits of the dispute. The view that the employer was not legally entitled to require written undertakings from the employees and that the employees did not repudiate their contracts of employment serves to buttress the ultimate finding that, in terms of industrial fairness, the disputed wages should be paid. The formation of such a view does not of itself amount to a usurpation of judicial power by the Authority.

Any uncertainty that I may have felt with respect to the correctness of this interpretation of the facts is allayed by the established principle that the onus rests upon the prosecutor to establish a clear case for prohibition: Holyman's Case [16] ; Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [17] ; Reg. v. Alley; Ex parte N.S.W. Plumbers & Gasfitters Employees' Union [18] ; Reg. v. Cohen; Ex parte Attorney-General (Q.) [19] ; Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. [20] . In my opinion, the prosecutor has failed to discharge the onus resting upon it.

1. (1914) 18 C.L.R. 273, at pp. 284-285. 2. (1952) 85 C.L.R. 138, at p. 153. 3. (1981) 153 C.L.R. 376. 4. (1981) 157 C.L.R. 331. 5. (1984) 159 C.L.R. 163, at p. 167.

The Coal Industry Act 1946 Cth ("the Commonwealth Act") and the Coal Industry Act 1946 N.S.W. ("the State Act") provide for the regulation of the coal industry in New South Wales. The Acts provide for the establishment of a Coal Industry Tribunal ("the Tribunal") (s. 30 of the Commonwealth Act, s. 36 of the State Act) and Local Coal Authorities (s. 37 of the Commonwealth Act, s. 43 of the State Act). By s. 38(1)(a) of the Commonwealth Act and s. 44(1)(a) of the State Act, a Local Coal Authority is empowered 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 term "industrial matters" is defined in s. 4 of the Commonwealth and State Acts as:

all matters pertaining to the relations of employers and employees in the coal mining industry, and, without limiting the generality of the foregoing, includes, in respect of that industry -

(c) the wages, allowances and remuneration of persons employed or to be employed;

(k) the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons;

and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole.

In the early months of 1986, a log of claims was served on various employers in the coal mining industry in New South Wales. The dispute created by the log of claims came on for hearing before the Tribunal. There was a stoppage of work in connexion with the claims contained in the log. During the stoppage, the prosecutor, The Newcastle Wallsend Coal Co. Pty. Ltd., wrote to its striking employees informing them of its requirement that employees sign a "no strike" agreement before work resumed. This requirement was referred to the Tribunal. Following a direction by the Tribunal, the prosecutor withdrew this requirement. In the meantime, some employees, not having signed the "no strike" agreement, nevertheless, over two days, presented themselves for work. Work was refused. Thereafter the Federated Mining Mechanics' Association of Australasia, the Australasian Coal & Shale Employees' Federation and The Amalgamated Metal Workers' Union ("the Unions") each notified the Local Coal Authority ("the Authority"), constituted by Mr. Cram, of a dispute.

The notification by the Federated Mining Mechanics' Association of Australasia expressed the issue as management's refusal to "accept our labour at various dates during the week commencing 14 April 1986". The Australasian Coal & Shale Employees' Federation and The Amalgamated Metal Workers' Union each notified that their members were being "incorrectly "stood down" by the Management", and that they were being "unfairly and harshly treated by management in that management are demanding signatures on an "Agreement of Service" before allowing our members to report for work". Additionally, The Amalgamated Metal Workers' Union noted that "management were approached and have refused payment of wages". The notifications did not in terms raise any demand against the employer. However, a demand for payment for the days on which work was refused was implicit in the notifications. They were so understood by the employer's representatives who stated at the hearing:

I understand the situation is really a claim for the two (2) days' payment of some people and one (1) day's payment for some

Similarly, in the course of the hearing, Mr. Cram, constituting the Authority, expressed his understanding that the notifications gave rise to a claim for wages for the days on which work was refused by the employer.

The Authority proceeded to a hearing of the claims, notwith-standing an objection by the prosecutor to its power so to do, and gave a decision thereon. The prosecutor seeks to have made absolute an order nisi for prohibition in respect of those proceedings and the decision. In Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd. [21] the Court held that the person constituting an Authority under the Commonwealth and State Acts is an "officer of the Commonwealth" for the purposes of s. 75(v) of the Constitution and, accordingly, is a person against whom prohibition may be sought in this Court.

The basis of the prosecutor's objection to the jurisdiction of the Authority to determine this matter, and the primary argument advanced before this Court, was that the claims made by the notifying Unions were claims for the enforcement of the Awards regulating the employment of the employees who were refused work on the two days in question, or alternatively, that they were claims for the enforcement of the rights of the employees under those Awards. It was argued that claims of that nature could be made only before courts having jurisdiction to enforce the Awards or to enforce the rights of employees under the Awards. It was further argued in this Court that the decision of the Authority involved a determination of rights under the Awards and as such constituted an attempted exercise of judicial power. If these arguments are correct, questions arise as to whether the State Act purports to authorize the Authority to determine disputes of that nature, and, if so, whether the State Act may validly confer such authority.

A claim for wages due constitutes a claim as to the existing legal rights of the employees on whose behalf such claim is made. As such it gives rise to a dispute the determination of which depends upon powers not possessed by bodies empowered only to conciliate and arbitrate: Reg. v. Gough; Ex parte Meat & Allied Trades Federation of Australia [22] ; Re Amalgamated Metal Workers' Union; Ex parte Horwood Bagshaw Ltd. [23] . Such a dispute is not a dispute as to "industrial matters" as that term is defined in s. 4 of the Conciliation and Arbitration Act 1904 Cth for the term takes its meaning from the context of that Act, which makes provision for the settlement of disputes by conciliation and arbitration.

1. (1969) 122 C.L.R. 237. 2. (1986) 60 A.L.J.R. 696; 67 A.L.R. 532.

The term "industrial matters" in the Commonwealth Act must also take its meaning from the context of the Act in which it appears. By s. 34(7) of the Act, the powers vested by that Act are exercisable by the Tribunal only by way of conciliation and arbitration. Accordingly, the only disputes which the Tribunal and Local Coal Authorities are empowered by the Commonwealth Act to entertain are disputes capable of resolution by the exercise of the powers of conciliation and arbitration.

However, a claim for wages which is based upon the employers' non-compliance with the conventions regulating the employer-employee relationship in the particular industry, gives rise to a dispute of a different nature. Such a claim is made without regard either to the existing legal rights of employees, or to the existing legal liability of the employer, and gives rise to a dispute which is capable of resolution by the exercise of the powers of conciliation and arbitration. If necessary, (depending upon the actual provisions of the award in question) the grant or refusal of the claim may be effected by way of variation of the award: Reg. v. Gough; Ex parte Key Meats Pty. Ltd. [24] ; Horwood Bagshaw. The process of variation may, and usually will, involve the interpretation of the award in question. If a view is reached that the award in question makes proper provision in all the circumstances, then variation will be unnecessary.

In Reg. v. Commonwealth Industrial Court; Ex parte Australian Coal & Shale Employees' Federation [25] , this Court stated:

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. 1. (1960) 103 C.L.R. 171, at p. 174.

Similarly, interpretation of an award simpliciter does not necessarily involve an exercise of judicial power. It is a function which, as Mason J. (as he then was) observed in Reg. v. Hegarty; Ex parte City of Salisbury [26] "may be classified as either judicial or administrative, according to the way in which [it is] to be exercised", his Honour adding that a "function may take its character from that of the tribunal in which it is reposed": see also Federal Commissioner of Taxation v. Munro [27] , per Isaacs J.;Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [28] , per McTiernan J., and Kitto J. [29] .

1. (1981) 147 C.L.R. 617, at p. 628. 2. (1926) 38 C.L.R. 153, at p. 177. 3. (1957) 100 C.L.R. 277, at pp. 291-296. 4. (1957) 100 C.L.R., at p. 305.

In Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [30] , it was recognized that "[i]n 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".

If then, in the present case, the Authority was seized of a dispute as to an industrial matter, it cannot be objected that, in the process of settling that dispute, an interpretation was given as to provisions in the Awards which regulated the employment of the employees who reported for work on the days in question.

To determine whether the claim was a claim for payment of moneys due under the Awards, or for payment regardless of legal entitlement, it is necessary to analyze the arguments advanced in the proceedings by the claimant Unions. Mr. Murray, who appeared for The Amalgamated Metal Workers' Union, argued not that the members of his union had any legal right to payment for the days in question, but that payment should be made "because the actions of [the] Newcastle Wallsend Company prevented a normal resumption of work taking place". Those actions he earlier categorized as "inflammatory and outside of the requirements that mine workers have to give and outside the custom and practice of what mine workers have had to give at the Newcastle Wallsend Coal Company since it has been in operation". Mr. Murray did not in terms either admit or dispute the prosecutor's legal right to refuse employment on the days in question, which right may have been relevant to the question of the employees' legal entitlement to payment for those days, but, rather, expressed the point of contention as being the prosecutor's failure to comply with established custom and practice within the industry.

Mr. Hayes, who appeared for the Australasian Coal & Shale Employees' Federation, put his argument in the alternative as follows:

1. That in all circumstances the employer was not entitled under the award to stand down the employees in question.

2. That although the employer was legally entitled to stand down the employees, the employees are entitled to wages because the stand downs were harsh and were unjust.

Implied in the first argument is an assertion that the employees had a legal entitlement to wages for the days in question. However, the second argument involves a claim that if there was no such entitlement, the rights as between employer and employees should be adjusted to give that entitlement, and to give it retrospectively.

Mr. Freeman, who represented the Federated Mining Mechanics' Association of Australasia, adopted the submissions put on behalf of the other two unions.

In my view, although there was an implied assertion by the Australasian Coal & Shale Employees' Federation (adopted by the Federated Mining Mechanics' Association of Australasia) of a legal entitlement on the part of employees to wages, there was also a claim advanced by each union that, on the industrial merits of the matter, there should properly be such an entitlement. That latter claim fell clearly within the ambit of an "industrial matter". It pertained directly to the relations between employer and employees, and raised an issue as to what was right and fair in relation to, respectively, claims for "wages of persons employed", and the right of the employer "to refuse to employ a particular person or class of persons": see pars. (c) and (k) of the definition of "industrial matters" in the Acts.

It remains to be considered whether the decision given by the Authority was directed to the industrial dispute above identified or, whether, as was submitted on behalf of the prosecutor, it constituted an attempt to determine the rights of the employees under the relevant Awards. The decision of the Authority, after recording the arguments advanced by the Unions and the prosecutor, proceeded to a finding that:

I do not consider the employees, by participating in the district wide stoppages, did, or intended to convey, a repudiation of their contracts. In my opinion, the employment contracts continued in force Whilst a finding on this issue may have been relevant to a determination of the rights of the employees under the Awards, the Authority did not proceed to such a determination. Instead the decision records that: the questions requiring answers are: Did the employees' refusal to sign the company's proposed employment Agreement justify the company's refusal to provide work, and pay wages, and if not did the employees by their industrial behaviour disentitle themselves to the payment of wages on the days in question? Although as framed, these questions were also capable of referring to the existing legal entitlements and liabilities of the parties, they were not expressed by reference thereto, and, significantly, the Authority did not base its answers to those questions upon an examination of the Award provisions, other than by noting that neither the Awards nor the common law acknowledged the right of the employer to require the employees to sign "an employment agreement of the type proposed as a precondition to allowing employees to commence work". This determination (although perhaps indirectly bearing on the issue of the employees' entitlement under the Awards) was of direct relevance to the question of whether or not the employer's actions were "right and fair" when considered in relation to the matter in dispute. It was this issue, described as "the reasonableness of the employer's actions in all the circumstances", which the Authority next considered, by examining the prosecutor's claim that "the employees intended to resume work for two (2) days, then partake in a further seven (7) days' stoppage". The Authority held that if that claim were sustained, there would, "as a matter of equity and reasonableness, exist grounds for the exercise of discretion in the employer's favour". Clearly, at this stage the Authority was not concerned with the legal entitlements of the employees; rather, it was addressing the industrial merits of the matter, and the question of what the respective rights of employer and employees should be if it were to be established that the actions of the employees were unreasonable.

In the result, the Authority decided that "the employer was wrong in refusing to allow employees to commence work" and the employees were "entitled to payment of wages for shifts lost on [the] days" on which work was refused. The terms of the decision do not refer to the rights of the employees under the Awards. When read in light of the Authority's consideration of the "reasonableness" of the actions of both employer and employees, the decision was a determination as to what their respective rights should be. It was thus not a decision concerning their existing legal rights under the Award. That conclusion is reinforced by the fact that the decision nowhere contains any reference to the actual provisions of the Awards entitling the employees to the payment of wages. Accordingly, the function exercised by the Authority was clearly effected "with a more elastic technique, and [with] more of an eye to consequences and industrial policy generally, than could properly be expected of a court": Reg. v. Spicer [31] , per Kitto J. The determination by the Authority was thus not an attempted exercise of judicial power.