Boulton, Re; Construction, Forestry, Mining and Engineering Union, Ex p [sic]

High Court of Australia Kirby J Boulton, Re; Construction, Forestry, Mining and Engineering Union, Ex p [sic]

Kirby J.

Before the Court is an application for an order nisi for constitutional and other writs.

Proceedings for award simplification

1. The Construction, Forestry, Mining and Energy Union (the Union) is the first prosecutor in the proceedings. Mr Garry Barnes is the second prosecutor. Mr Barnes is, and at all material times was, a member of the Union. Prior to the termination of his employment by Pacific Coal Pty Ltd (the second respondent), Mr Barnes was employed at the Blair Athol Open Cut Coal Mine near Clermont in Central Queensland.

2. The application is also directed to Boulton J (the first respondent), a Senior Deputy President of the Australian Industrial Relations Commission (the Commission). He has submitted to the orders of this Court. The substantive contest is, therefore, between the prosecutors and the second respondent. Notice of the proceedings was served on the second respondent which has appeared today. Notice was also served on the law officers and the Attorney-General for the Commonwealth has intervened.

3. According to an affidavit sworn by the solicitor for the prosecutors and read without objection, Boulton J, on 19 November 1997, determined to make a new award applying to persons engaged in the coal mining industry in New South Wales, Queensland and Tasmania. The new award was named the Coal Mining Industry (Production and Engineering) Consolidated Award 1997. That award remains in force. There are 149 respondents to it. The second respondent in these proceedings was, and has remained, a respondent to that award. The Union represents the vast majority of production and engineering employees employed in coal mines operated by the respondents to the award. Most of the workers at the Blair Athol mine were, like Mr Barnes, members of the Union.