R v Gallagher; Ex parte Australian Coal and Shale Employees' Federation [1966] HCA 45

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. R v Gallagher; Ex parte Australian Coal and Shale Employees' Federation [1966] HCA 45

ORDER Order nisi discharged. Order that the costs of the respondent company be paid by the prosecutor.

Cur. adv. vult.

The Court delivered the following written judgment:

Aug. 12 Barwick C.J., McTiernan, Taylor, Menzies and Owen JJ.

The prosecutor seeks to make absolute a rule nisi for prohibition to restrain the Coal Industry Tribunal constituted under the Coal Industry Act 1946-1965 Cth and Australian Iron and Steel Pty. Ltd. (the company) from proceeding further upon an order made by the Tribunal on 7th July 1966 by which the Tribunal further varied the Coal Mining Industry Miners' Award 1963, New South Wales, (the award) by inserting a ban, limitations and restrictions clause in a form which has now become familiar, but limited to any ban, limitation or restriction upon the performance of work at Kemira Colliery—a colliery operated upon the South Coast of New South Wales by the company.

It seems that in June 1965 a machine known as an A. B. Ranger Drum Shearer was introduced into the colliery by the company for operation on pillars of coal by a method known as the long wall method. Men working on the return air side of this machine claimed that the air in which they were required to work contained such an undue proportion of dust, including both coal and stone dust, as to be dangerous to their health. These claims led to proceedings before a local coal tribunal which, upon evidence placed before it, decided that the dust counts of the air in question were at that time within the limits allowed by law and directed that the men should work as required on the return side of the machine. However, individually they refused to obey the requirement of the company to work as required. For that they were suspended by the company from its employment. Thereupon a stoppage by all the 300 employees of the mine took place. The company then made application to the Tribunal for the variation of the award, which was a federal award, by the insertion of a bans clause with respect to the performance of work in accordance with the award at its Kemira Colliery. The Tribunal referred to the local coal authority the "matter", meaning as we take it, the application before the Tribunal, for investigation and report. After consideration of the evidence given upon this investigation by that authority and its report, the Tribunal made the order in respect of which prohibition is sought.