Ecob, E.C. v. Tongue, C. [1988] FCA 253

CATCHWORDS

INDUSTRIAL LAW - Validity of an industrial award - award in settlement of industrial dispute - variation of award - constitutional law - whether section 119 of the Conciliation and Arbitration Act constitutional - jurisdiction of Federal Court - meaning of section 60

of Conciliation and Arbitration Act.

Conciliation and Arbitration Act 1904: sections 59, 60, 61, 119

The Constitution: sections 51 (xxxix) and (xxxv)

Judiciary Act 1903

Federal Court Act 1976

ERNEST CHARLES ECOB v_ CECI TONGUE

No. 1 of 1986 as

- Ny AIST AON I i oe \ ' 1 54 ow ' oe t { Wo ' v PON. ' . Nee CORAM: EINFELD J. Se - DATE: 23 May 1988 PLACE: Sydney

IN THE FEDERAI, COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 1 of 1986 ) INDUSTRIAL DIVISION )

Between ERNEST CHARLES ECOB Applicant And CECIL TONGUE Respondent

CORAM: Einfeld J. DATE: 23 May 1988 PLACE: Sydney

REASONS FOR JUDGMENT

This is a claim against Cecil Tongue (the respondent employer) by the Federal Secretary (the applicant) of the Australian Workers Union (the AWU) under section 119 of the Conciliation and Arbitration Act 1904 (the Act) seeking the payment to an AWU member Geoffrey Sipple (the worker), of the sum of $228.06 (the unpaid wages) pursuant to an apparent award made under the Act which requires its payment.

The work for which the unpaid wages are claimed was allegedly performed between 16 August and 15 September 1983, during which the applicant alleged that the worker was employed under the Pastoral Industry Award 1965 (the relevant award) by the respondent employer as a woolpresser at

his NSW country property.

There is no dispute that the applicant is authorised to bring this application nor that there was a de facto variation of the award in 1982 (the 1982 variation) apparently entitling the worker to the unpaid wages. It is also conceded by the respondent employer that the unpaid wages were not paid, but there is an apparent contest about whether the non-payment was justified on the facts, for example because the worker did not work on all the relevant days. However, this factual dispute is not for present decision as the matters before me are preliminary questions of law raised by both parties, the outcomes of which are relevant, and may be critical, to the result of this claim. The parties