R v Hickman; Ex Parte Fox and Clinton
70 CLR 598(Judgment by: LATHAM CJ)
Between: Regina
And: HICKMAN
Ex Parte FOX AND CLINTON
Judges:
Latham CJRich J
Starke J
Dixon J
McTiernan J
Subject References:
Defence
National security
Coal mining industry
Ambit of jurisdiction of Local Reference Board
Legislative References:
Constitution (Cth) - s 75(v)
National Security (Coal Mining Industry Employment) Regulations 1941 SR No 25 - r 2; r 4; r 14(1)(a); r 17
Judgment date: 5 September 1945
SYDNEY
Judgment by:
LATHAM CJ
Ex parte Fox and Another
Return of order nisi for a writ of prohibition directed to the chairman and members of a Local Reference Board constituted under the National Security (Coal Mining Industry Employment) Regulations, Statutory Rules 1941 No. 25 as subsequently amended. The prosecutors are Stanley Fox and Millicent Daisy Fox, who carry on business under the firm name of S. & M. Fox at Chullora, New South Wales, as haulage contractors, automotive engineers, builders and joiners. The order made by the Local Reference Board was in the following form:"The ... Board ... doth hereby decide that S. and M. Fox are engaged in the Coal Mining Industry and that they are required subject to the awards to grant to their employees engaged and employed as lorry drivers the minimum rates of wage and the working conditions prescribed by awards known as the Mechanics (Coal Mining Industry) Awards in force from time to time." The Central Reference Board constituted under the same Regulations had ordered that an award known as the Consolidated Mechanics' Award should be a common rule for the coal mining industry in the State of New South Wales. The effect of the decision of the Local Reference Board was to declare that that award applied to the prosecutors in respect of lorry drivers employed by them. The effect of regs. 15 and 9 is to make this decision, if valid, "binding on the parties."
The order of the Local Reference Board was made upon an application made on behalf of the Federated Mining Mechanics' Association of Australasia, an industrial union of employees. The Board acted under reg. 14 (1) (a), which provides that, subject to the Regulations, a Local Reference Board shall have power to settle disputes as to any local matters likely to affect the amicable relations of employers and employees in the coal mining industry. Regulation 2 provides that the Regulations "shall apply to industrial matters in relation to the Coal Mining Industry." These provisions are, in my opinion, plainly provisions which prescribe, and, in prescribing, limit, the jurisdiction of the Board. An authority with a limited jurisdiction cannot give itself jurisdiction by a wrong determination as to the existence of a fact upon which its jurisdiction depends, or by placing a wrong construction upon a statute upon which its jurisdiction depends, unless by a valid provision the authority is given power to act upon its own opinion in relation to the existence of the fact or in relation to the construction of the statute. This principle has frequently been applied in the case of the Arbitration Court, and has also been applied in the case of other industrial authorities: See e.g. R. v Foster; Ex parte Crown Crystal Glass Co Pty Ltd [F1] and R. v Connell; Ex parte Hetton Bellbird Collieries Ltd, [F2] at pp. 438-440. The jurisdiction of this Court which is invoked by the prosecutors depends upon s. 75 (v ) of the Commonwealth Constitution, which provides that the Court shall have original jurisdiction in all matters, inter alia, in which a writ of prohibition is sought against an officer of the Commonwealth. The members of the Board appointed under the Regulations are officers of the Commonwealth. Prima facie, therefore, the Court has jurisdiction to grant a writ of prohibition against them if they exceed their jurisdiction. Regulation 17 provides, inter alia, that a decision of a Local Reference Board "shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever." Such a provision, it is settled, cannot exclude the jurisdiction conferred upon this Court by s. 75 (v ) of the Constitution: See R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [F3] That provision (s. 75 (v )) is not limited to the grant of prohibition upon constitutional grounds. It extends also to the grant of prohibition on grounds independent of the Constitution and relating only to the statutory powers of a Commonwealth officer. In my opinion, it should not be held that the effect of reg. 17 is to extend the jurisdiction of a Local Reference Board beyond the coal mining industry. Such a provision cannot, in my opinion, fairly be construed as declaring an intention of Parliament that a Board constituted under the Regulations should have jurisdiction to make decisions in matters which have no relation to the coal mining industry. Such a construction would give no effect to the provisions already quoted from reg. 14 (1) (a) and reg. 2. If reg. 17 were construed so as to give an unlimited jurisdiction to the Board to make any order whatever in relation to any person whatever in respect of any matter whatever (whether industrial or not industrial), the validity of the Regulations would obviously be open to question. In my opinion, therefore, the Regulations, including reg. 17, should be construed as limited in their operation to the coal mining industry, and the powers of a Local Reference Board should be interpreted accordingly.
When the matter came before the Local Reference Board, the prosecutors objected that they were not employers in the coal mining industry, and that their employees in respect of whom the application was made, namely lorry drivers, who were members of the applicant union, were not employees in the coal mining industry: See reg. 14 (1) (a).
The evidence shows that the applicants are haulage contractors who employ about twenty-three lorry drivers. Of these lorry drivers, at a date immediately prior to the application made to the Board, according to the prosecutors, some thirteen were engaged in carting coal exclusively, eight were carting coal on some days and other materials on some days, and two were exclusively carting other materials than coal. According to the respondents, the number of lorry drivers carrying coal was greater, but it was not disputed that some lorry drivers carried materials other than coal. There is no evidence that any lorry drivers were limited by the terms of their engagement to the carrying of coal. The evidence is that they were simply employed as lorry drivers to carry materials for the firm as directed from time to time. The firm had contracted with the owner of the Wollondilly Extended Colliery to carry coal at agreed rates, but all the lorry drivers were employed by the firm, and not by the owner of the colliery. They carried the coal either to the railway station at Camden or to customers of the colliery at Sydney.
The order nisi was granted upon the grounds that the applicants were not engaged in the coal mining industry, that none of their lorry drivers were engaged in that industry, and, alternatively, that such of the lorry drivers as were not engaged in the carting of coal were not engaged in the coal mining industry. The last-mentioned ground depends upon the interpretation of the decision of the Board, which in terms applies to the employees of the firm "engaged and employed as lorry drivers", and therefore apparently to all their lorry drivers, whether they carry coal or not. In the view which I take of the case, however, it is unnecessary to consider what is the true construction of the decision in this respect.
The question which arises is whether the employing firm and their employees employed as lorry drivers are persons engaged in the coal mining industry.
The fact that a person is engaged in carrying coal does not show that he is engaged in the coal mining industry. A coal merchant or carrier may deal in or with coal without it being possible to suggest that he was engaged in the industry of mining coal. It may be added that a man employed by a colliery owner to drive a lorry for the purposes of the colliery could be engaged in the coal mining industry though he never carried any coal. These examples are sufficient to show that the mere fact of coal-carrying is not in itself decisive of the question whether the carrier is engaged in the coal mining industry.
The term "industry" is not a precise technical term. One industry sometimes overlaps into another industry. In my opinion, no absolute rule can be laid down for determining the limits of a particular industry. The question whether a particular industrial operation belongs to one industry rather than another cannot be decided merely by considering the nature of that operation itself. For example, a clerk may be employed in the boot-making industry, the coal industry, the transport industry, or almost any industry. The problems associated with the overlapping of craft and industrial unions are well known, and have to be carefully considered by industrial authorities when they are determining the terms of their awards. In my opinion, all the circumstances of each case must be taken into account. If coal is taken in skips by employees of colliery owners from the pit top to a place of storage on the colliery, such work would be work in the coal mining industry. Similarly, examples are given in affidavits filed on behalf of the respondents of railways, owned and controlled by proprietors of collieries and operated by employees of such proprietors, upon which coal is conveyed considerable distances to railway sidings or wharves. Such transport of coal may be regarded as falling within the coal mining industry. In the present case, however, the lorry drivers who carry coal are employed as lorry drivers generally, and not as carriers of coal, and they are not employed by the colliery proprietors. They are employed by persons who carry on the business of carriers, and who do not in any real sense belong to the coal mining industry. The fact that some lorry drivers belong to unions to which coal mining employees belong is a circumstance of little weight. Competition for members between unions is not unknown. The fact upon which the respondents rely is that the lorry drivers carry coal and carry it from a colliery. But lorry drivers employed by the prosecutors carry firewood, timber, blue metal and other materials. In my opinion, it would not be in accordance with the ordinary meaning of the term "industry" to say that the firm was therefore also engaged in the firewood industry, the timber industry, or the industry of producing blue metal, even if the carting were done from a forest, mill or a quarry. In my opinion, the whole of the evidence shows that the employers and employees concerned are not engaged in the coal mining industry, and that therefore the decision of the Local Reference Board was made without jurisdiction.
The order nisi should be made absolute.
Ex parte Clinton and Others
In this case, it is shown that lorry drivers employed by a carrying firm, and not by the colliery proprietor, carry coal from a colliery to a depot. They also carry at times other commodities, such as cattle, lime, sleepers, etc The coal is graded at the depot by employees of the carrying firm, the firm being paid sixpence per ton by the colliery company for the grading. In my opinion, this case is, in the material particulars, indistinguishable from that of R. v Hickman; Ex parte Fox. The operations of carrying coal performed by such employees are not such as to justify the conclusion that they and their employers are, in respect of such operations, engaged in the coal mining industry.
The order nisi should be made absolute.