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 requested the Court to deal with these preliminary questions at the threshold. , The legal issues raised by the respondent employer are: 1. That the 1982 variation was not made in settlement of an industrial dispute extending beyond the limits of any one State as required by section 51 (xxxv) of the Constitution, and was therefore beyond the power of the Conciliation and Arbitration Commission (the Commission) to make; 2. That section 119 of the Act is only constitutionally valid if authorised by section 51 (xxxv) or if it is incidental (section 51(xxxix)) to the exercise of power under section 51(xxxv); and that this Court cannot therefore entertain any section 119 application based on an award not coming within the description contained in 1; 3. Alternatively to 2, that section 119 is ultra vires the Constitution and therefore does not endow this Court with jurisdiction to entertain this case. The legal issue raised by the applicant is: That by reason of section 60 of the Act this Court has no jurisdiction to entertain any of the questions of the respondent employer in this case. At the request of the parties, I first heard the respondent employer undertake his attack on the validity or availability of these proceedings, with the applicant then advancing his section 60 argument. The respondent employer then made written submissions in reply to the section 60 argument. Whatever the merits of this procedure, its consequence was that the respondent employer became primarily responsible to place the relevant facts before the Court for the determination of these legal questions. By the end of oral argument, nothwithstanding that I had raised the matter several times during the hearing, no evidence had been placed before the Court. Although it was said that relevant factual matters were not in dispute, I was unable to elicit or glean what facts came within that description. The file does contain affidavits and some exhibits thereto but none were read, despite my urgings, because it was said not to be necessary. I therefore directed that a statement of agreed facts be filed after the close of the hearing. A document bearing that name was filed, signed by counsel for the respondent employer alone, and was explained in an accompanying letter from his instructing solicitors as lacking the signature of or on behalf of the applicant because of the unavailability of the solicitor for the applicant. The applicant's solicitors then wrote to the Court that this was not the reason at all and that some of these "facts" were not agreed and were disputed. Having waited in vain to hear more since, I have been forced to ignore the statement filed by the respondent employer and am now left in the difficult position of not knowing what matters are and what are not agreed. This is most unsatisfactory. In my view, there must, for the definitive resolution of this matter, either be proved or agreed facts. It is true that the points of defence do not in substance deny the points of claim, and make a number of assertions of fact which are not denied by the reply, but I was told that these pleadings were ordered at a directions hearing for the purpose of stating the legal questions for preliminary determination. In these circumstances, I am not at all sure that they settle the factual position. In addition, it should not be necessary Tor me to go through each pleading to find the status of every minute fact involved in the case. I therefore propose to approach these reasons on the basis that the facts upon which I rely are agreed, and then before making final orders, to list the matter for further argument to give the parties the opportunity of agreeing on the correctness of these premises or otherwise. Section 119(3) of the Act provides: "Where, in any proceedings against an employer before a Court specified in sub-section (1), it appears to the Court that an employee of that employer has not been paid an amount to which he is entitled under an order or award, that Court may order that the employer shall pay to the employee the amount of the underpayment but no order shall be made in respect of so much of the underpayment as relates to any period more than 6 years prior to the commencement of the proceedings." Other parts of section 119 speak of the availability and imposition of penalties for non-compliance with awards. However, no penalties are being sought here; this is merely a claim for unpaid wages. In order to address the legal issues raised, it is necessary to examine the award history which is said to found the claim. The relevant award arose from a log of claims served by the AWU in about August 1964 (the 1964 log) upon, I am told, a number of organisations of graziers and individual pastoralists in several States, including New South Wales. There is no evidence of who they were - or even if they included the respondent employer. The 1964 log included demands for a minimum rate for woolpresser members of the AWU of the then currency equivalent of $112 per week. A dispute was found, the matter was arbitrated, and in July 1965, the Commission made the relevant award consequent upon the 1964 log. There were a number of increases in the wage rates of the relevant award in the ensuing years, following successive applications for variation, until November 1981, when a further variation of the relevant award's wage rates was sought. One year later, in the 1982 variation, the woolpresser rate was set by the Commission at $325.80. It is this wage upon which the applicant's claim is calculated and I am informed that this far exceeds the maximum sum sought in the 1964 log. There was no appeal by the respondent employer or anyone else against, or application of any kind concerning, the 1982 variation. There have been various increases in the woolpresser rate since that time. Section 61 of the Act provides: "An award determining an industrial dispute is binding on - (a) all parties to the industrial dispute who appeared or were represented before the Commission; (b) all parties to the industrial dispute who were summoned or notified, either personally or as prescribed, to appear as parties to the dispute, whether they appeared or not; (ec) all parties who, having been notified, either personally or as prescribed, of the industrial dispute and of the fact that they were alleged to be parties to the dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the dispute; (d) in the case of employers, any successor to, or assignee or trangmittee of, the business of a party to the dispute or of a party bound by the award, including any corporation which has acquired or taken over the business of such a party; (e) all organizations and persons on whom the award is binding as a common rule; and (f) all members of organizations bound by the award." There is no evidence of whether the relevant award, by reason of this section, bound the respondent employer. If so, I do not know by the operation of which subsection he became bound. Section 59 (2) and (3) provide: "(2) The Commission may, if for any reason it considers it desirable to do so, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary any of the tems of an award (3) The provisions of this Act, so far as they are capable of application, apply in relation to applications for the variation or setting aside of awards and proceedings in respect of such applications in like manner as they apply in relation to industrial disputes and proceedings in respect of such disputes, and for that purpose such an application shall be treated as if it were notification of an industrial dispute. " The respondent employer says that the application for the 1982 variation had a different matter or cause number to the relevant award in the Commission's filing system, that it was served on some of the same and some different respondents than in 1965, and that it was substantially defended by a relatively new registered organisation of employers, the Livestock and Grain Producers' (Industrial) Association of New South Wales (LGPIA). The LGPIA was, I am told, registered after the relevant award following the amalgamation of two previously registered employer organisations, who or whose predecessors, I assume, had been respondents to the relevant award. The respondent employer was a member of the LGPIA. Section 59(3) appears, at least procedurally, to equate applications to vary with applications relating to industrial disputes. Section 61 would seem to me to be included among what section 59(3) calls "the provisions of (the) Act (that) apply in relation to industrial disputes and proceedings in respect of such disputes". If so, it means that variations, or awards called 'variations', are only binding on parties identified in section 61. In this case, I assume that the facts enable the provisions of section 61 to apply to make the 1982 variation binding on the LGPIA and its members, including the respondent employer. The respondent employer contends that the 1982 variation did not vary the relevant award because that award was limited by the ambit of the dispute found on the 1964 log. In other words, the Commission's power to vary as provided for in section 59 of the Act was limited to the subject matter of the 1964 dispute. The respondent employer says that by the time of the 1982 variation, nothing was left unsettled following that dispute, and that the 1982 variation was not made following the finding of any new industrial dispute between the "new" parties. Therefore, he argues, the 1982 variation was beyond the power of the Commission to make. It is clear enough that section 119 of the Act can only be constitutionally supportable if it is a law with respect to the prevention or settlement of an industrial dispute extending beyond the limits of one state (s. 51(zxxv) or is incidental to such a law (s. 51 (xxxix)). The respondent employer says therefore that section 119 cannot, consistent with the Constitution, authorise a recovery of moneys under an award which exceeded the award making powers of the Commission. Alternatively, he argues for the radical proposition that section 119 is ultra vires the Constitution. As I understand the argument, it is that Parliament cannot confer on this Court the power to enforce an award containing a de facto term which is invalid because the enactment which purports to provide the power is not a law for the settlement or prevention of interstate industrial disputes or incidental thereto. This argument is for the total invalidity of the section, not merely that the Constitution prohibits attempts to enforce awards or parts of awards beyond power. No authority was cited in support of any of these propositions. The applicant replies that the application for the 1982 variation raised a dispute when it was opposed and arbitrated, and that the 1982 variation was an attempt to settle that dispute. Alternatively, he puts that the 1982 variation was an attempt to prevent a possible future dispute. For present purposes I again assume the correctness of the facts alleged in these submissions. In Rv Bain & Others; ex parte Cadbury Schweppes Australia Limited and Another (1984-85) 159 CLR 163, the High Court entertained a dispute in Telation to section 28 of the Act which provides the machinery for certification of the terms for settlement of industrial disputes. An award had been made by the Commission in 1980 in settlement of an interstate dispute and the Commision reserved for future consideration provision for the redundancy of employees. In 1983, an association of employees served a claim on an employer (both had been parties to the 1980 award) relating to the redundancy of workers at a plant in one State. Agreement was reached and certification requested. Another employer who was also party to the 1980 award sought prohibition of certification on the ground that it was outside the ambit of the original industrial dispute. At 167, Murphy J said: "In prohibition the onus is on the prosecutor to prove clearly the absence of jurisdiction in the Commission. The validity of the Award is presumed. It is presumed therefore that there was an industrial dispute within the meaning of 3.4 of the Act, i.e., an actual or potential dispute exterxling beyord one State which justified the Camission in reserving the matter of redundancy.. ...The view has been taken that the process of arbitration requires a determination which is within the ambit of the dispute. But this doctrine is not to be applied rigidly; an award is authorized if it relates to the matters in dispute or is reasonably incidental to them or calculated to settle the dispute..." Brennan and Deane JJ, agreeing with Murphy J, said at 175: "The case was presented and argued on the basis that the only issue involved is whether it appears from the evidence that the terms of the agreement are outside the ambit of any interstate industrial dispute to which the Association and the respondent companies were parties .(T)he prosecutors have failed to establish that the reservation as to the redundancy in cl.44 (of the relevant award) was outside the ambit of the interstate industrial dispute." In R_v Turbet & Others; ex parte The Australian Building Construction Employees' and Builders' Labourers' Federation (1980) 144 CLR 335 (the Loy Yang case), the employer was engaged in the erection of steel structures for a power station in Victoria. It was proposed to employ four labourers to make the steel in Sydney, and then to transport it by rail to Victoria where it would be loaded on to semi-trailers and delivered. Two unions had the policy that they should do such work exclusively. The Commission had found an industrial dispute in relation to the allocation of labour to effect the transportation and unloading of steel from the employer's plant in Sydney to the power station site in Victoria, but determined that there was no interstate dispute relating to the interstate transportation of the steel. On the return of an order nisi for prohibition at the suit of one of the unions, Stephen J said at 340 to 342: "Had matters remained in this position on the return of the order nisi for prohibition there would have been a clear case for the order nisi to have been made absolute: the Commission would have lacked jurisdiction in what the evidence showed to be a purely intrastate dispute..............08, (340) The evidence now before the Court establishes that there had indeed been a previous history of disputes between the two -l1l- unions ....0 ....... 2... (341) One question remains: should prohibition go, having regard to the erroneous description given by the Commissioner to the dispute which was before him. From the material now before the Court I think it is clear that both the Commissioner and the parties . . were intimately aware of the long-standing dispute of which Loy Yang marked the most recent eruption ........ (342) I do not think it approriate that prohibition should go to the Commission. It is open to the Commissioner to vary his findings so as accurately to describe the dispute. When so described it will be a dispute over which the Commission has jurisdiction." (342-3) Mason J, as he then was, said at 348: "Central to the traditional conception of an industrial dispute extemdiing beyond the limits of one State is a 'disagreement between people or groups of people who stand in sane industrial relation upon some matter which affects or arises out of the relationship. Such a disagreement may cause a strike, a lock-out, and disturbance and dislocation of industry; but these are the consequences of the industrial dispute, and not the industrial dispute itself, which lies in the disagreement.' Caledonian Collieries Limited v Australasian Coal and Shale Employees' Federation No.1) (1930) 42 27, per Gavan Duffy, Rich, Starke and Dixon JJ at 552: see also Metal Trades pmployers- Association v Amalgamated Engineering on (1935) 54 CIR 87 at 429. On the basis of these views, the respondent employer's first argument entirely fails. I believe it to be clear that the 1982 variation was the settlement of a new industrial dispute in 1981, or the prevention of what would almost certainly have led to another dispute if it had not been made. It has long been held that there can be no permissible variation of any award which results in a wage rate above that claimed at the time of the award sought to be varied. In other words, no variation can add a condition of employment that had not been part of the log of claims preceding, or of the application for, the award sought to be varied: The Queen v Kelly & Others; ex parte Australian Railways' Union (1953) 89 CLR 461 at 473-4 (per Dixon CJ). However, the facts available or assumed here, including the asserted different filing numbers of the Commission and the apparent differences between the parties to the relevant award and to the 1982 variation, suggest that a new industrial dispute existed or was found prior to that variation. Even if the relevant words were not spoken or minutes of order made, there is no doubt in my mind that the parties were in fact in dispute if, as I am informed, the claim was resisted and opposed, and then arbitrated. Service or notification of the claim was no doubt dealt with at the time, as is customary, but in any event the respondent employer was a member of a registered organisation which opposed the application to vary (the LGPIA). It is difficult to imagine that this could have occurred if the application to vary had not named and been served on the LGPIA. Its opposition to the claim indicates to me "the disagreement" of which Mason J was speaking in the Loy Yang case (above). Although these are not reasons to deny efficacy to the respondent employer's submissions, there would of course be widespread effects on the industrial award situation in this country if section 119 of the Act was construed as suggested by him here. Presumably thousands of workers between (and probably before) 1982 and the present date will have been paid under invalid variations brought about merely by the effect of the passage of time on old awards and alterations to the constellations of registered organisations and individual employers. This might therefore explain the development of authority gradually broadening the dispute finding, award-making and award-varying powers of the Commission since it first came into existence, and the inability of the respondent employer to cite authority in support of his argument, notwithstanding that these matters have often been examined and considered. The question to be considered, however, is whether the Act should be so construed and limited. An award does not necessarily settle a dispute finally. The power to vary denies to it any sense of res judicata, even 1f such a doctrine could extend to arbitral decisions of the Commission. Regardless of any difference in file numbers of the Commission and parties to the original award, there can still be, in certain circumstances, dispute revival or re-initiation until the original log of claims is exhausted, with the need for a new dispute arising at that time. Any opposed application for variation raises a dispute in fact if not in law. In the context of laws fixing the wages of potentially Millions of workers, it is difficult to dwell on drawing a distinction between the two. Even in the facts of this case, if Australia's woolclip was not able to be marketed because of a refusal by employers to pay wages sought by AWU members in the pastoral industry, it is difficult to say that there is no dispute merely because no one has in terms found or declared accordingly. Even if the same file number was used and the same parties existed, and what was called a 'variation' was sought beyond the ambit of the original log of claims and was resisted, there would prima facie appear to be an industrial dispute within the meaning of the Act. It will in these circumstances be a new dispute, but it may also be the resurrection or rebirth of the old one if the original ambit is not being exceeded. Where there are new file numbers and some new parties, the matter is almost certainly a new dispute. I read section 59(3) of the Act to have these results. Because of the lack of evidence, this matter could be determined on the basis of the respondent employer's failure to discharge his onus of proof. It 1s certainly aggravating that the facts have to be guessed at when they must be known and should have been presented or agreed, but in view of the importance of the matter, and because it is historically common for industrial matters to be argued on evidence supplied somewhat informally and litigated oddly, I will provide a further opportunity to set this situation right. Pending that further opportunity, and making the assumptions earlier detailed, I determine that the 1982 variation followed the finding of a new dispute and was made in settlement of that dispute. Alternatively, it was made to prevent a dispute arising from the non-compliance by the respondents with the terms of the application for variation. This I assume included the respondent employer at least by virtue of his membership of the LGPIA. The 1982 variation is, in my view, therefore, a valid exercise of the Commission''s statutory and constitutional powers. It follows that whether section 119 of the Act is authorised by section 51(xxxv) or (xxxix) of the Constitution - and it is not necessary to allocate one or the other for the purposes of this case - the claim in this case is available and open to the applicant under its terms. It is therefore strictly not necessary to go to the legal question raised by the applicant that section 60 of the Act prevents this Court from entertaining these questions at all. However, as the matter has been fully argued, as I am not sure that this argument should not have been presented first, and so that the matter can be comprehensively dealt with on appeal if desired, I shall briefly deal with this submission as well. For this purpose, I must assume that my view on validity is wrong and that the 1982 variation igs, or may be, invalid for the reasons alleged. Section 60 provides: "L. Subject to this Act, an award including an award made on appeal - (a) is final and conclusive; (b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and {c) is not gubject to prohibition, mandamus or injunction in any court on any account. 2. A determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question. 3. An award shall not be called in question in any way on the ground that it was made by the Commission constituted otherwise than as provided by this Act " The substantive issues raised by the respondent employer on this subject are that: the onus is on the applicant to prove that the 1982 variation is valid; he has not discharged the onus; in any event, section 60 cannot protect an award which is ultra vires the Constitution. - 16 - My earlier findings and observations deal with arguments 1 and 2. If the respondent employer can choose to argue first and then produce no evidence to support or found his case, he will have fallen on the onus question long before the applicant is even called on. However, I have already said that I will not resolve this matter at this time on this basis. I therefore turn to argument 3. It is obvious that Parliament cannot pass a law which permits or protects a constitutionally ultra vires act (R v Hickman & Others; ex parte Fox & Another (1945) 70 CLR 598). It has also been held more than once that only the High Court can give prerogative relief under section 75(v) of the Constitution where an officer of the Commonwealth has exceeded jurisdiction (see The Australian Coal and Shale Employees Federation v Aberfield Coal Mining Company Limited & Others (1942) 66 CLR 161). There has been no application for such relief in this case. By a combination of sections 76 and 77 of the Constitution, sections 33 and 39B of the Judiciary Act 1903, and section 19 of the Federal Court Act 1976, the Federal Court gains jurisdiction to deal with all matters within the original jurisdiction of the High Court, except the power to prohibit a member of the Commission. Thus the Federal Court clearly has power to determine whether it has jurisdiction to entertain and decide this argument. The applicant says that a Full Court of this Court has definitively ruled on this argument in Roundstreet Pty. Ltd. v John Brown (1987) 14 FCR 50. At 51, Evatt & Northrop JJ said: "In the present case, the learned trial judge held that he need not decide the third matter because he had gone behind the 1978 Award and found that Pacific Tours was properly named as a party to the 1978 Award. In doing that, he did the very thing which, in our opinion, sub-section 60 (1) of the Act prevents him from doing." At 55-56, Keely J said: "In the present appeal, the award provision that the appellant is bound by the terms of the award is plainly not such a provision ........ cece cece ee eee . In my opinion s.60 (1) of the Act provides that in those circumstances such a provision cannot be challenged, nor can +' its validity be called in question in this court ... Because of the original jurisdiction conferred upon the High Court by 3.75 (v) of the Constitution to grant a writ of prohibition, the appellant is not left without a remedy; the burden of proof would fall upon the appellant if it brought such a proceeding. In my opinion s. 60(1) of the Act intends that subject to such a proceeding in the High Court, or an appeal or an application for variation under the Act, the award shall not be challenged or called in question in this court or in any other court." The applicant says that these views are determinative of this case. The respondent employer, however, attacks Roundstreet, and especial Keely J's observations at pp 54-6. He says that an award cannot on i face appear to be within the statutory power of the Commission if it truth exceeds the law making powers of Parliament. He argues that Kee J misread and misinterpreted the High Court's views in several cases. In Clothing and Allied Trades Union of Australia v Cocks and Othe (1968) 12 FLR 138, a Full Court of the Commonwealth Industrial Court w concerned with an attack on the validity of an award during enforceme proceedings similar to these. Although the Court did not decide t validity of the award, in considering section 60, Dunphy and Smithers JJ said at 154 - 155: "We think this Court must have regard to s.60 of the Act, which states that subject to the Act an award shall not be challenged, appealed against, reviewed, quashed or called in question in any court ... It does not appear possible to treat these words as referring only to awards lawfully made within the jurisdiction of the Commonwealth. To do so would ignore the clear intent of the Act to exempt an award made in fact, even if beyond jurisdiction, from being called in question in this Court ... In this state of authority we think we must regard ourselves as bound by what appears to us to be the natural meaning of the words of the section." On the other hand, Joske J at 162 said "But an award can be challenged in the Commonwealth Industrial Court, having regard to s.60 of the (Act) ... The Commonwealth Industrial Court is created by statute and the rule, ag I have always understood it, is that a court created by statute is bound by the terms of its statute and is subject to the limitations of jurisdiction imposed upon it by the statute. If as a result of s.60 of the Act, the court is required to treat as valid an award which is not valid, the situation probably is not without remedy." On appeal to the High Court as Rv The Judges of the Commonwealth Industrial Court and Others; ex parte Cocks and Others (1968) 121 CLR 313, section 60 was not argued. However, at 321, Barwick CJ, Taylor and Owen JJ said: "(T)he Industrial Court did not decide that the clause was valid; it assumed that it was debarred by s.60 of the Act from pronouncing upon the question. Whether this was or was not a correct assumption was not argued before us but, as at present advised, we are inclined to the view that it was not. " However, in apparent contradiction of those observations, their Honours proceeded at 322: "... if the Industrial Court had pronounced in favour of the sub-clause we would have no doubt that it would be incumbent on this Court, if it considered the provision to be beyond the authority of the Conmission, to hold that the Industrial Court had acted without jurisdiction." At 323, McTiernan J, who dissented on the result of the case, said: "Although the Commonwealth Industrial Court was not competent by reason of s.60 of the Conciliation and Arbitration Act 1904 - 1966 to give a binding decision on the question of the validity of cl. 30, and their Honours recognized this position, it is interesting to note their observations as to the object of the clause and its application to and in relation to independent contractors. " Kitto J said at 324-325: "In this connexion it is necessary to bear in mind s.60 of the Act, providing that 'subject to the Act' an award is final and conclusive and shall not be called in question in any court, and that a determination or finding of the Commission upon a question as to the existence of an industrial dispute is conclusive in all courts teem e tere et nee The mode of =yreconciliation.....is to interpret s.60 as validating, so far as it can validate it constitutionally, any award provision which is outside the power of Commission if on its face it appears to be within power and is in fact a bona fide attempt to act in the course of the relevant authority" (my underlining). At 326, Kitto J continued: "... $8. 60 could not constitutionally have an operation which would validate [a clause of an award] in its application in respect of non-employees, even if on its true construction it affected to do so. Equally s. 119 considered by itself, being construed so as to be constitutionally valid, cannot be interpreted to mean that a penalty may be imposed for a breach of something which, though appearing as a term of an award, is not one that in its nature is capable of being included as part of the settlement of an industrial dispute in the constitutional sense of the expression. I am therefore of opinion that the learned judges of the Commonwealth Industrial Court were not precluded by the provisions of s. 60 or by any other consideration from investigating the question whether the application they were being asked to give [the clause of the award in question] was one which carried it beyond the authority of the Commission under the Act and beyond the power of the Parliament to authorise." The Federal Court now has the same relevant powers, and restrictions on power, as the Commonwealth Industrial Court had at that time. In R_v Coldham & Others; ex parte The Australian Workers' Union (1982) 153 CLR 415 at 418, Mason ACJ and Brennan J said: "The jurisdiction of the Court conferred by section 75 (v) of the Constitution to grant mandams and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause. However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s.60 of the Act will validate the award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (1.e. does not on its face go beyond the power) to use the words of Kitto JinRv Commonwealth Conciliation And Arbitration Commission; ex parte Amalgamated Engineering Union (Australia Section) and Others (1967) 118 CLR 219 at 252-53" (my underlining). I take the underlined words "so far as it can (validate it/do so) constitutionally" to mean "so far as the constitutional reach of section 60 permits". Hence these expressions mean that an award which is bona fide, statutorily and industrially relevant, and on its face referable to the prevention or settlement of interstate industrial disputes, is protected by section 60. Taking up the reconciliation efforts of Kitto J in Cocks, Mason ACJ and Brennan J continue at 418-9: "... it is a matter of reconciling the prim facie inconsistency between one statutory provision which seems to limit the powers of the Tribunal and another provision, the privative clause, which seems to contemplate that the Tribunal's order shall operate free from any restriction. The inconsistency is resolved by reading the two provisions together and giving effect to each. The privative clause is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies. The object of a provision of this kind is generally to protect the award or order from challenge. Consequently, the making of the award or order is the occasion for taking the privative clause into account in interpreting the Tribunal's authority or power more liberally. Before the award or order is meade the Tribunal will be held to a strict construction of its powers uninfluenced by the clause, thereby enabling the grant of prohibition, notwithstanding that had the proceedings reached the stage when an award or order was made prohibition could not have been obtained. But a clause like s. 60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a clause like s. 60 is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints ..." These views do not seem to have definitively resolved the problem here. However, they seem to me to say that an award or variation apparently valid on its face - and in this case the 1982 variation so qualifies - is to be presumed to be valid, and it is not for this Court to go fossicking for ways to declare it invalid. The operation of section 60 protects such determinations of the Commissions from the jurisdiction of this Court, although they are still susceptible to review by the High Court in proceedings for prerogative relief. I should add a final note about the course of these proceedings. After oral argument on both sides and what I was told was the major part of the respondent employer's reply, I directed that any additional argument should be addressed in writing. This brought a further 20 foolscap pages of argument from the respondent employer, two pages of reply from the applicant and a further 30 pages from the respondent employer in further reply. The respondent employer also filed the so-called Agreed Statement of Facts and a nine page affidavit with four exhibits thereto comprising 18 pages in all. There were also two pages of written submissions on the new affidavit. The applicant protested this barrage as well as the "Agreed Statement of Facts". I am inclined to agree with the applicant's objection. To say the very least, if the respondent employer felt that despite the spirit of the directions at the end of the hearing, he needed to make such lengthy further submissions and proffer additional evidence, he should first have secured the agreement of the applicant to the factual matters needed for the resolution of these questions of law. If necessary, these matters, as well as _ the appropriate findings of fact and orders, will be debated at a hearing after the delivery of these expressions of opinion. It is desirable that the parties reach agreement on the appropriate findings of fact and on short minutes of the orders that should now be made. If that is not possible, the relevant issues of fact should be agreed so that they may be promptly tried and final judgment given. Counsel and solicitors Mr. G. Maidment for the applicant instructed by Carroll and O'Dea Solicitors Counsel and solicitors Mr. M. Cockburn for the respondent instructed by Manion McCosker Date of judgment 23 May 1988 leesfy chhvtine and tha ao preezairg 27073 are 2 tive cozy of the Rezsers for Jiu'cmont hsran cf his Honour Mr. Justice E nfo'd cre. 7 Asscocisy Dated' 23 May IS Kea ba UE oR