Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28

High Court of Australia|1987-07-01|Before: Dawson JJ, Gaudron JJ

High Court of Australia Mason, Wilson, Brennan, Deane and Dawson JJ. Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] HCA 28

ORDER Order nisi for a writ of prohibition discharged with costs.

The Court delivered the following written judgment: -

The Coal Industry Act 1946 Cth ("the Commonwealth Act") and the Coal Industry Act 1946 N.S.W. ("the State Act") were enacted following an agreement made between the Governments of the Commonwealth and of New South Wales as recorded in the preamble to the Commonwealth Act, that they should " jointly establish authorities vested with power to take action designed to attain [certain] objectives". The objectives recorded in the preamble include:

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

The authorities jointly established by the Commonwealth and State Acts are the Joint Coal Board (s. 5 of the Commonwealth Act; s. 5 of the State Act), the 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.

The present proceedings concern the Tribunal, constituted by David Anthony Duncan, the second respondent, and the Local Coal Authority, Northern District ("the Authority") constituted by Robert Matthew Cram, the first respondent. The prosecutors seek to have made absolute an order nisi prohibiting each of Mr. Cram, Mr. Duncan and the Federated Engine Drivers & Firemen's Association of Australasia ("the Union") from proceeding further in matter N.D. No. 99 of 1985 which was the subject of a hearing and decision by the Authority and in matter N.D. No. 267 of 1985 which was a review of that decision by the Tribunal. It will be necessary to return to those proceedings and the orders made therein. The first question for determination is whether Mr. Cram and Mr. Duncan are "officer[s] of the Commonwealth" against whom writs of mandamus and prohibition may issue from this Court pursuant to s. 75(v) of the Constitution.

By s. 30(1) of the Commonwealth Act and by s. 36(1) of the State Act, the Governor-General and the Governor of New South Wales respectively were authorized to enter into an arrangement for the constitution of " a Coal Industry Tribunal and for the appointment of a person to constitute that Tribunal". By s. 37(1) of the Commonwealth Act and by s. 43(1) of the State Act, the Tribunal is empowered to appoint persons to be Local Coal Authorities in the State.

Section 32(1) of the Commonwealth Act and s. 38(1) of the State Act each provides that any authority constituted under the relevant part of each Act is to have all the powers and functions specified in those parts in relation to that authority. The powers are then vested by s. 32(2) of the Commonwealth Act and by s. 38(2) of the State Act to the full extent of the legislative powers of the Commonwealth and the State of New South Wales. The Tribunal and the Local Coal Authorities are constituted under the relevant part of each Act and, although the powers of the Tribunal and Local Coal Authorities are not co-extensive, the powers are in each case conferred by the Commonwealth and State Acts.

The Tribunal and the Local Coal Authorities derive their existence from the Commonwealth Act and from the State Act. They are, in short, joint Commonwealth and State authorities. Although they exercise powers conferred by Commonwealth and State laws, they stand outside the category of State officers exercising particular Commonwealth functions, as, e.g., judges of State courts exercising invested federal jurisdiction, who have been held not to be officers of the Commonwealth in relation to the exercise of Commonwealth powers: see R. v. Murray and Cormie; Ex parte The Commonwealth [1] ; In re Anderson; Ex parte Bateman [2] ; R. v. Governor of South Australia [3] ; and R. v. Bevan; Ex parte Elias and Gordon [4] .

(1916) 22 C.L.R. 437. 2. (1978) 53 A.L.J.R. 165; 21 A.L.R. 56. 3. (1907) 4 C.L.R. 1497. 4. (1942) 66 C.L.R. 452.

State officers perform State functions pursuant to State law, and may additionally, if so authorized and empowered, perform Commonwealth functions. The Tribunal and the Local Coal Authorities only exercise State powers because they are so authorized by the Commonwealth Act, albeit that such authority is a matter of necessary inference rather than express legislative provision. That authority is necessarily implicit in the declaration in s. 32(1) of the Commonwealth Act that the authorities constituted under Pt V of that Act are to have all the powers specified in that Part in relation to that Authority, and in the words of s. 34(1A) of the Commonwealth Act which expressly recognize that the Tribunal is to have power conferred upon it by the State Act. The provisions of s. 34(1A) are applied to Local Coal Authorities by s. 39 of the Commonwealth Act.

The necessity for authorization under the Commonwealth Act for the Tribunal's exercise of powers conferred by the State Act was explained by Brennan J. in Reg. v. Duncan; Ex parte Australian Iron & Steel Pty. Ltd. [5] :

If the [Commonwealth] Act had merely constituted or authorized the constitution of a tribunal and had vested federal powers of conciliation and arbitration in it without reference to State powers, an attempt by a State Act to vest similar State powers in the same tribunal would fail - not because of a constitutional incapacity in a Commonwealth tribunal to have and to exercise State power, but because the Commonwealth Act would be construed as requiring the tribunal to have and to exercise only such powers as the Commonwealth Parliament had chosen to vest in it. 1. (1983) 158 C.L.R. 535, at p. 579.

While it is unnecessary to investigate the matter here, it may well be, of course, that precisely the same comments could be made, mutatis mutandis, in relation to an attempt by a Commonwealth Act to confer federal duties upon a State-constituted non-judicial tribunal, which was not expressly or impliedly authorized to exercise them by State law.

Given then that the authorities derive their existence from the Commonwealth Act, although not exclusively so, and that the Commonwealth Act either confers or authorizes the conferral on the authorities of all or any of their powers and functions, the persons constituting the authorities are necessarily officers of the Commonwealth and remain so in respect of the exercise of all their powers unless, perhaps, the Commonwealth Act evinces an intention that in the exercise of powers derived from the State Act the authorities function in some different capacity. The Commonwealth Act has no provision similar to s. 5 of the National Companies and Securities Commission Act 1979 Cth which provides that in the performance of a function or the exercise of a power under an Act the Commission represents the Crown in right of the Commonwealth, but that nothing is to prevent a State Act providing that, in the performance of a function or the exercise of a power under a State Act, the Commission is to represent the Crown in right of the State. This provision was considered, but its effect was not determined, by Dawson J. in Broken Hill Proprietary Co. Ltd. v. National Companies & Securities Commission [6] . It is unnecessary to consider the effect of such a provision or like implication from a Commonwealth Act in this case for we are satisfied that no like implication can be drawn from the Coal Industry Act Cth. Such an implication, it seems to us, could only be drawn if, either, the Commonwealth Act evinces an intention that the powers conferred by the State Act are to be exercised in isolation from the powers conferred by the Commonwealth Act, or there are separate Commonwealth and State Tribunals and Local Coal Authorities, rather than a joint Tribunal and unified joint authorities.

(1986) 61 A.L.J.R. 124, at p. 126; 67 A.L.R. 545, at p. 548.

The dual sources of existence and power of the Tribunal and a Local Coal Authority were most recently considered by this Court in Reg. v. Duncan. In that case, although Gibbs C.J. and Mason J. expressly refrained from deciding the question, no member of the Court considered that the powers conferred by the State Act were required to be exercised in isolation from the powers conferred by the Commonwealth Act. Gibbs C.J. [7] , with whom Murphy J. stated his general agreement, expressed the view that:

the Tribunal, once constituted, can exercise any of the powers validly conferred on it either by the Commonwealth or by the State Act. In other words, it can exercise both Commonwealth and State powers in the one case. Mason J. [8] stated: Section 34(1A) lends weight to the submission that the Tribunal was intended to have the capacity to exercise all or any of its powers, irrespective of the source from which they are derived, in the determination of a dispute which comes before it. On the other hand, s. 36(1) provides that an award or order made by the Tribunal by virtue of the powers and functions vested by s. 36(2) has effect as if it were an award of the Commission and is binding on the parties and other persons on whom it is expressed to be binding so that the provisions of the Conciliation and Arbitration Act 1904 Cth, as amended, in relation to enforcement apply to it. This may suggest that powers conferred on the Tribunal by State legislation were not intended to be exercised so as to vary an award made in the exercise of powers conferred by s. 36(2), although I am not inclined to think that there is much force in this argument. Wilson and Dawson JJ. [9] held: in the Coal Industry Tribunal Acts, both Commonwealth and State, there is a clear expression of intention that the Tribunal should be able to exercise the powers which it derives from the Commonwealth legislation and the powers which it derives from the State legislation, not so that the exercise of the one set of powers excludes the exercise of the other, but so that its powers from both sources should remain available to it to be exercised from time to time and notwithstanding that the exercise of the powers given under the Commonwealth Act might supersede an earlier exercise of the powers under the State Act or vice versa. Later [10] : What at least is apparent from the Commonwealth Act is an intention that the powers derived from both the Commonwealth and State legislation should be exercisable by the Tribunal in a single hearing or successively so as to produce different results. 1. (1983) 158 C.L.R., at p. 553. 2. (1983) 158 C.L.R., at p. 562. 3. (1983) 158 C.L.R., at pp. 571-572. 4. (1983) 158 C.L.R., at p. 572.

Brennan J. [11] held that subject to s. 34(7) of the Commonwealth Act which restricts the exercise of powers conferred by the Commonwealth Act to conciliation and arbitration, the Tribunal may "exercise the two sets of powers concurrently", and Deane J. [12] held that:

It would be contrary to the intended operation of the concurrent legislation to import any requirement that the powers conferred upon the Tribunal by the [Commonwealth] Act and by the State Act must be exercised in isolation, one from the other. 1. (1983)158 C.L.R., at pp. 582-583. 2. (1983) 158 C.L.R., at pp. 588-589.

The case is clear authority for the proposition that the Tribunal is not required to exercise powers conferred by the State Act in isolation from the powers conferred by the Commonwealth Act. Are the Local Coal Authorities in any different position? The only relevant distinction between the Local Coal Authorities and the Tribunal is that the Tribunal may specify "limits as to locality or otherwise" within which a Local Coal Authority is to exercise its power in the State: s. 37(3) of the Commonwealth Act; s. 43(3) of the State Act. However, a limitation as to locality or otherwise within the State, does not have the consequence that all matters within the limitation necessarily lack an interstate element sufficient to attract powers referable to s. 51(xxxv) of the Constitution, or, even if they do, that Commonwealth powers may not be exercised in relation thereto, for as was pointed out by Murphy J. in Reg. v. Duncan [13] , the Commonwealth Act does not depend for its validity solely upon s. 51(xxxv) of the Constitution. Accordingly, in our view, Local Coal Authorities, like the Tribunal, are not required to exercise powers derived from the State Act in isolation from powers derived from the Commonwealth Act.

In Reg. v. Duncan [14] Gibbs C.J., with whose reasons Murphy J. stated his general agreement and Wilson and Dawson JJ. stated their substantial agreement, Mason J. [15] , Brennan J. [16] and Deane J. [17] expressed the view that the joint operation of the Commonwealth and State Acts created a single tribunal rather than separate Commonwealth and State tribunals, although Gibbs C.J. expressly refrained from so deciding. In our view that conclusion is inescapable. Section 30(1) of the Commonwealth Act and s. 36(1) of the State Act, each speak of the constitution of " a Coal Industry Tribunal" and of "appointment of a person to constitute that Tribunal" (emphasis added). Subsequent references within the Acts are to the Tribunal.

(1983) 158 C.L.R., at p. 553. 2. (1983) 158 C.L.R., at p. 561. 3. (1983) 158 C.L.R., at p. 577. 4. (1983) 158 C.L.R., at pp. 586-587.

More importantly, once it is accepted that the powers derived from the Commonwealth and State Acts are not required to be exercised in isolation from each other, but may be exercised concurrently or in combination in the one matter, then the concept of separate Commonwealth and State tribunals exercising separate powers becomes untenable. As there is no relevant distinction between the Tribunal and the Local Coal Authorities, there is no basis on which it can be held that they lack the same single nature possessed by the Tribunal.

In our view the persons who constitute the Tribunal and the Local Coal Authorities are officers of the Commonwealth and remain so notwithstanding that they exercise or purport to exercise power conferred by the State Act, even if the power being or purportedly being exercised is identifiable as power conferred by the State Act. As such they are subject to the jurisdiction conferred by s. 75(V) of the Constitution on this Court in all matters in which a writ of prohibition or mandamus is sought against an officer of the Commonwealth. This position is not and cannot be altered in relation to the exercise of powers conferred by the State Act by the privative provision contained in s. 44 of the Commonwealth Act and s. 50 of the State Act. It is beyond argument that such a provision cannot operate to preclude this Court from exercising the powers directly conferred upon it by s. 75(V) of the Constitution (R. v. Hickman; Ex parte Fox and Clinton [18] ), although as explained in Reg. v. Coldham; Ex parte Australian Workers' Union [19] by Mason A.C.J. and Brennan and Murphy JJ. [20] , such a clause may in certain cases validate an award, order or determination which travels beyond the powers conferred.

(1945) 70 C.L.R. 598. 2. (1983) 153 C.L.R. 415, at p. 418. 3. (1983) 153 C.L.R., at p. 422.

We turn now to the proceedings before the Authority and the Tribunal, and the orders made therein. The prosecutor's case for prohibition primarily depends on the submission that the order made by the Authority in settlement of the dispute was not authorized by the Commonwealth or the State Act. Section 38(1)(a) of the Commonwealth Act and s. 44(1)(a) of the State Act provide, inter alia:

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

The expression "industrial matters" is defined by s. 4 of both Acts, unless any contrary intention appears, as meaning:

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 . There follows in pars. (a) to (p) inclusive a list of particular matters of which pars. (g), (h), (i), (j), (k) and (l) should be mentioned. They are in these terms:

(g) the hours of employment, sex, age, qualifications and status of employees;

(i) the employment of young persons or of any persons or class of persons;

(j) the preferential employment or the non-employment of a particular person or class of persons being or not being members of an organization;

(k) the right to dismiss or to refuse to employ a particular person or class of persons;

(l) a custom or usage, whether general or in a particular locality.

The prosecutor argues that the dispute notified by the Union "concerning the manning and method of employment of labour at the Hunter Valley No. 1. Open Cut Mine" was not a dispute as to an industrial matter. This, so the argument runs, is because a dispute about manning and mode of recruitment of labour does not directly affect the relations of employers and employees. According to the prosecutor, the opening words of the definition of "industrial matters" refer to matters which pertain directly to such relations. This submission reflects the comments of O'Connor J. in Clancy v. Butchers' Shop Employés Union [21] . His Honour was considering a similar, but not identical, definition of industrial matters in s. 2 of the Industrial Arbitration Act 1901 N.S.W.. He made the point that if the definition included matters:

indirectly affecting work in the industry, it becomes very difficult to draw any line so as to prevent the power of the Arbitration Court from being extended to the regulation and control of businesses and industries in every part. 1. (1904) 1 C.L.R. 181, at p. 207.

In Federated Clerks' Union (Aust.) v. Victorian Employers' Federation [22] , Mason J. pointed out that, in order to constitute an "industrial matter" and become the subject of an "industrial dispute" what is demanded must have a relevant connexion with the relationship of employer and employee or, as it has been put more narrowly, "the relationship of employer and employee must be directly involved in the demand": see Reg. v. Commonwealth Conciliation & Arbitration Commission; Ex parte Melbourne & Metropolitan Tramways Board [23] . More recently in Re Manufacturing Grocers' Employees Federation [24] , the Court said:

For present purposes, it is sufficient to say that a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential for it to be an industrial matter capable of being the subject of an industrial dispute. 1. (1984) 154 C.L.R. 472, at p. 488. 2. (1966) 115 C.L.R. 443, at p. 450. 3. (1986) 160 C.L.R. 341, at p. 353.

Accepting the major premise of the prosecutor's argument, we are nevertheless unable to accept the minor premise, namely that a dispute about manning and recruitment, in particular a dispute about mode of recruitment, as that is the correct characterization of the dispute here, is not directly connected with the relationship between employer and employee and is merely consequential. The essence of the prosecutor's argument on this point is that a dispute about manning and recruitment does not directly affect the relationship of existing employer and employee as such; it is a dispute about the policy and procedure to be adopted by the employer in the management of his business enterprise and thus falls within the scope of managerial prerogatives. The subject-matter of the dispute is non-industrial, just as a dispute about the opening and closing hours of shops was held to be non-industrial in Clancy and R. v. Kelly; Ex parte Victoria [25] .

Before dealing with the various strands of thought embedded in this argument, we should mention some aspects of the general words of the definition of "industrial matters" as established in the context of s. 4 of the Conciliation and Arbitration Act 1904 Cth. The words "pertaining to" mean "belonging to" or "within the sphere of" and the expression "the relations of employers and employees" refers to the relation of an employer as employer with an employee as employee: Kelly [26] . And, as Dixon C.J. noted in Reg. v. Findlay; Ex parte Commonwealth Steamship Owners' Association [27] , although the possibility of an indirect and consequential effect is not enough, the conception of what arises out of or is connected with the relations of employers and employees includes much that is outside the contract of service, its incidents and the work done under it. The Chief Justice went on to say [28] :

Conditions affecting the employee as a man who is called upon to work in the industry and who depends on the industry for his livelihood are ordinarily taken into account. 1. (1950)81 C.L.R., at p. 84. 2. (1953) 90 C.L.R. 621, at pp. 629-630. 3. (1950) 81 C.L.R., at p. 630.

His Honour referred to the remarks of Isaacs and Rich JJ. in Australian Tramways Employes Association v. Prahran and Malvern Tramway Trust [29] . Their Honours, with reference to the equivalent of par. (h) of the definition of "industrial matters" in the Commonwealth and State Acts, said:

The "conditions" of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.

And the words "employers" and "employés" are used in the Act not with reference to any given contract between specific individuals, but as indicating two distinct classes of persons cooperating in industry, proceeding harmoniously in time of peace, and contending with each other in time of dispute.

Then they referred to the extended definition of employé in s. 4 of the Conciliation and Arbitration Act which includes "any person whose usual occupation is that of employé in any industry", asserting that it makes manifest the last point made in the passage already quoted. Although neither the Commonwealth nor the State Act contains any corresponding definition of "employee" or "employer", the point sufficiently emerges from the opening words of the definition of "industrial matters", reinforced by the particular paragraphs which follow. And the comments of Isaacs and Rich JJ. also apply to the opening words of the definition, notwithstanding that they were directed at par. (h). Dixon C.J. obviously read them as relating to the general conception of relations between employers and employees. 1. (1913) 17 C.L.R. 680, at pp. 693-694.

In the context of the issue which arises in the present case it makes no difference whether the comments apply to the general words of the definition, to par. (h) or even to pars. (g), (i), (j) or (k). The comments apply with varying force to each of these paragraphs. And they apply with even greater force now than at the time when they were made. To make this point, we return to the statement already quoted by O'Connor J. in Clancy [30] . That statement probably echoes in some respects what was received doctrine at an earlier time - that it was the prerogative of management to decide how a business enterprise should operate and whom it should employ, without the workforce having any stake in the making of such decisions. In that climate of opinion, disputes about the making of such decisions, despite their impact on working conditions and work to be done, might not necessarily be regarded as industrial matters susceptible of resolution by industrial arbitration. Over the years that climate of opinion has changed quite radically, perhaps partly as a result of the extended definition of industrial matters in s. 4 of the Conciliation and Arbitration Act and partly a result of a change in community attitudes to the relationship between employer and employee. The judgment of Isaacs and Rich JJ. in Tramways Employes reflects the first of these factors. No doubt our traditional system of industrial conciliation and arbitration has itself contributed to a growing recognition that management and labour have a mutual interest in many aspects of the operation of a business enterprise. Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial matter".

A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both these matters.

Why then is not the proposed employment of non-union labour or the refusal to abide by a system of recruitment which gives preference to union labour a matter directly affecting the relations of employer and employee? The decision in Reg. v. Gaudron; Ex parte Uniroyal Pty. Ltd. [31] shows that it is. There the Court held that a dispute about preference in employment for a particular class of members of a union was a dispute as to an "industrial matter" as defined by s. 4 of the Conciliation and Arbitration Act: see also Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. [32] ; Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. [33] . It is simply not to the point that the industrial matter related to prospective employment: see Uniroyal [34] . There was an actual dispute between existing employees and employers about that industrial matter.

(1978) 141 C.L.R. 204. 2. (1924) 34 C.L.R. 482. 3. (1972) 126 C.L.R. 529. 4. (1978) 141 C.L.R., at p. 211.

The order made by the Authority in settlement of the dispute did not exceed the ambit of the dispute that arose from the employer's refusal to abide by the pre-existing arrangement for recruitment of labour from a register maintained by the Union, so long as there were sufficient or suitable persons on the register. The dispute was, accordingly, a dispute about a mode of recruitment of labour which involved a claim for preference for members of the Union enshrined in the pre-existing arrangement for recruitment. And the order made by the Authority required compliance with a detailed procedure embodied in the order which gave effect to that claim for preference. The order was valid on the ground that it was made in settlement of a dispute as to "industrial matters" as defined, the relevant matter falling within the opening words of the definition as well as pars. (h), (i) and (j). We have no need to decide whether the matter also fell within pars. (g), (k) and (l).

In reaching this conclusion we reject the suggestion, based on the remarks of Barwick C.J. in Melbourne & Metropolitan Tramways Board [35] , that managerial decisions stand wholly outside the area of industrial disputes and industrial matters. There is no basis for making such an implication. It is an implication which is so imprecise as to be incapable of yielding any satisfactory criterion of jurisdiction: see Federated Clerks Union [36] . Indeed, the difficulty of making such an implication is accentuated by the fact that the extended definition of "industrial matters" proceeds on the footing that many management decisions are capable of generating an industrial dispute.

(1966) 115 C.L.R., at pp. 451-452. 2. (1984) 154 C.L.R., at pp. 490-491.

These considerations indicate that the objection voiced by O'Connor J. in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. The evident importance of arming such tribunals with power to settle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of "industrial matters" in the Commonwealth and State Acts by reference to any notion of managerial prerogatives as such.

This brings us back to the suggestion that the decisions in the trading hours cases are fatal to the proposition that manning and mode of recruitment are matters directly affecting the relationship between employer and employee. The suggestion is unsound. The problem there was quite different from the problem here. As the Court observed in Kelly [37] :

Trading hours of an employer are not the same subject as working hours of an employee, and a prescription of trading hours as distinct from working hours does not "affect or relate to work done or to be done". On the other hand, for reasons already stated, the impact on the employer-employee relationship of the level of manning and the mode of recruitment, is direct and not merely consequential. 1. (1950) 81 C.L.R., at p. 84.

We should also express a caveat at the suggestion made in argument that a dispute between an employer and employee about a matter which lies outside the concept of "industrial matters" as defined can never develop into an industrial dispute. If such a dispute escalates to the point that there is a threatened, impending or probable dispute involving the withdrawal of labour, it is possible that a dispute about an industrial matter may come into existence, notwithstanding its origins: but cf. Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association [38] .

The final question relates to the validity of the interim order made by the Tribunal when application was made to it to review the decision of the Authority. The Tribunal ordered that the current vacancies at Mt. Thorley be filled in accordance with the provisions laid down in the order of the Authority. The interim order was made on the footing that there was a dispute between the Union and the management of Mt. Thorley mine "over the filling of certain vacancies". The decision recorded that it was not disputed that eight additional employees in the Union classifications were currently required at the mine.

However, this is a misstatement of the position. The mine management, claiming that the order of the Authority was invalid, decided that the vacancies would not be filled, at least pending a determination of the validity of the order. Mr. Handley Q.C., for the Union, submits that this decision by the management acknowledged that there were vacancies when the matter came before the Tribunal. This submission does not capture the true import of the decision. The effect of the decision was that the management was going to make do with its existing workforce, at least until the controversy was resolved, on the footing that the eight vacancies previously declared would not be filled. A vacancy which is not to be filled is not for relevant purposes a vacancy at all.

The issue then is whether the management's refusal to employ eight persons in compliance with the Union's demand created a dispute about a matter within the meaning of par. (k) of the definition of "industrial matters". The management certainly refused to employ the eight persons. But the question is whether par. (k) contemplates a refusal to employ in circumstances where the employer has no job vacancy to fill. Mr. Handley relies on the decision of the Industrial Commission of New South Wales in Orange City Bowling Club Ltd. v. Federated Liquor & Allied Industries Employees' Union of Australia, New South Wales Branch [39] . There the Commission (Beattie P. and Cahill J.) said with reference to par. (c) of the definition of industrial matters in s. 5 of the Industrial Arbitration Act 1940 N.S.W., the equivalent of par. (k) in the Commonwealth and State Acts [40] :

we do not consider it necessary that the words in question should be interpreted so as to exclude jurisdiction where no job vacancy is immediately available in the employer's establishment We make the comment that it is difficult to visualize such a case, in practice, being brought. Be that as it may, to restrict the meaning of the words so as to exclude jurisdiction where no immediate job vacancy exists would remove from what we regard as a legitimate province of the Commission's interest and concern a class of case which might well be quite substantial in nature. We agree with this interpretation of the provision and conclude therefore that the interim order was valid. And, even if we did not agree with that interpretation, the dispute would fall within the opening words of the definition of "industrial matters" because it raised a question about the level of manning. 1. [1979] A.R. 90. 2. [1979] A.R., at pp. 96-97.

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