Attorney-General for the State of Queensland v The Honourable Deputy President Keith Hancock of the Australian Industrial Relations Commission
[1998] FCA 1073
•3 SEPTEMBER 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – application for writs of prohibition, certiorari and mandamus directed to members of the Australian Industrial Relations Commission – whether dispute created by log of claims demanding that benefits and entitlements be paid to an employee by reference to earlier employment and service with another employer – whether requisite connection existed between the demand and the employment relationship so as to found a dispute – whether demand purported to confer a legislative function on the Commission – meaning of the word “deemed” in the log of claims.
Murphy v Ingram [1973] Ch 434
R v Heagney; Ex parte ACT Employers Federation (1976) 137 CLR 86
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v THE HONOURABLE DEPUTY PRESIDENT KEITH HANCOCK AND THE HONOURABLE DEPUTY PRESIDENT JOHN WILLIAM MACBEAN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND COMMISSIONER JUSTINE OLDMEADOW OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN TEACHERS UNION
QI 1019 of 1997
OLNEY, COOPER AND MOORE JJ
3 SEPTEMBER 1998
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QI 1019 of 1997
BETWEEN:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
APPLICANT
AND:
THE HONOURABLE DEPUTY PRESIDENT KEITH HANCOCK AND THE HONOURABLE DEPUTY PRESIDENT JOHN WILLIAM MACBEAN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND COMMISSIONER JUSTINE OLDMEADOW OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENTSTHE AUSTRALIAN TEACHERS UNION
SECOND RESPONDENTJUDGES:
OLNEY, COOPER AND MOORE JJ
DATE OF ORDER:
3 SEPTEMBER 1998
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The order nisi for writs of prohibition, certiorari and mandamus is discharged.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QI 1019 of 1997
BETWEEN:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
APPLICANTAND:
THE HONOURABLE DEPUTY PRESIDENT KEITH HANCOCK AND THE HONOURABLE DEPUTY PRESIDENT JOHN WILLIAM MACBEAN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND COMMISSIONER JUSTINE OLDMEADOW OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENTSTHE AUSTRALIAN TEACHERS UNION
SECOND RESPONDENT
JUDGES:
OLNEY, COOPER AND MOORE JJ
DATE:
3 SEPTEMBER 1998
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE COURT
These proceedings involve an application to the High Court of Australia by the State of Queensland for writs of prohibition, certiorari and mandamus directed to members of the Australian Industrial Relations Commission (“the Commission”). A judge of that Court made orders nisi on 25 June 1992. On 3 March 1997 a judge of the Court made an order remitting the proceedings to the Industrial Relations Court of Australia. As a result of the enactment of the Workplace Relations and Other Legislation Amendment Act 1996 and Schedule 16 of that Act (see Kumar v Prima Furniture (NSW) Pty Ltd (1997) 75 FCR 477) the proceedings came to be heard by the Federal Court of Australia.
The application arose from proceedings in the Commission initially heard by Commissioner Baird which concerned an alleged industrial dispute flowing from the service of a letter of demand and a log of claims on the State of Queensland and other employers by what was then called the Australian Teachers’ Union (“the Union”) on 4 May 1989. At the time the proceedings were commenced the registered name of the second respondent was the Australian Teachers Union. It is now the Australian Education Union. The existence of an alleged dispute was notified to the Commission and became matter number C35705 of 1989. On 23 November 1989 Commissioner Baird found the existence of an industrial dispute between the Union and the State of Queensland and the other 24 recipients of the letter of demand and log of claims. That and related matters were later referred to a Full Bench of the Commission under s 107 of the Industrial Relations Act 1988 (“the Act”). The Full Bench was constituted by Deputy President Hancock, Deputy President McBean and Commissioner Oldmeadow. It appears that the Full Bench was invited to vary or revoke the finding that had been made by Commissioner Baird. On 23 December 1991 it published a decision refusing to vary the dispute finding and gave its reasons for doing so. The reasons traversed a number of issues including the issue raised in the proceedings in this Court which we discuss shortly.
The letter of demand of 4 May 1989 was, in so far as it concerned the State of Queensland, directed to the Director-General of Education and provided:
re: AUSTRALIAN TEACHERS’ UNION MEMBERS EMPLOYED IN THE
AUSTRALIAN EDUCATION INDUSTRY (PORTABILITY OF
ENTITLEMENTS) LOG OF CLAIMSOn behalf of members of the Australian Teachers’ Union employed pursuant to any Act of Parliament of any State relating to the provision of educational services, or in any other capacity specified in the attached Log of Claims, I hereby demand that you grant to those members of the Australian Teachers’ Union the terms and conditions of employment set out in the attached Log of Claims.
Should you not agree to the terms and conditions of employment set out in the attached Log of Claims within seven days I am instructed to notified the Registrar of the Industrial Relations Commission of a dispute and seek an award in the terms of the Log of Claims.
The accompanying claims were in the following terms:
The Australian Teachers’ Union demands that, in relation to each employee who is eligible for membership of the Australian Teachers’ Union (other than on account of employment in a University or College of Advanced Education) who commences employment in Queensland pursuant to the Education Act 1964-1987 (the Act) after 1st July, 1989, you agree that:-
1. Any and each period of employment of that employee –
(a) pursuant to the Act,
(b) with any other respondent to this log of claims, or
(c)in the service of any State or Territory government department, instrumentality, authority or other body in the education industry, or in any case as a teacher, or
(d)to the extent agreed to by the Australian Teachers’ Union with any other employer
shall for all purposes be deemed to be employment and service pursuant to the Act and shall, in any calculation made for the purpose of determining or identifying the existence or extent of any right, entitlement or benefit of, or for that employee arising out of that employment, be counted and included as though it had been continuous service pursuant to the Act immediately prior to the commencement of that employment and continuous with the commencement of that employment. Without limiting the generality of the above, the rights, entitlements and benefits referred to above shall include:
(a) Superannuation,
(b) Recreation leave, sick leave, long service leave and all other leave,
(c) Salary status entitlements,
(d) Promotion prerequisites.
2. You shall recognise and credit for all purposes the qualifications of any person you commence to employ as a teacher pursuant of the Act who was, immediately before being employed pursuant to the Act or at any time in the 10 years preceding 1st July, 1899, employed as a teacher as though that person had been in continuous service pursuant to the Act immediately prior to the commencement of that employment and continuous with the commencement of that employment.
The finding of dispute made by Commissioner Baird on 23 November 1989 was in the following terms:
FINDING OF DISPUTE
1.I find that an industrial dispute exists between the Australian Teachers’ Union and:
(Various officers are identified including the Director-General of Education, Queensland)
2.The dispute relates to wages and conditions of employment as per the letter of demand and Log of Claims served on 2 May and 19 May 1989.
3. The dispute exists in all states of Australia.
Senior counsel for the State of Queensland developed two submissions in support of a contention that no industrial dispute had been created by the service and rejection of the log of claims though the submissions are related. The focus of these submissions was the use in the log of claims of the word “deemed” and the later expression of “be counted and included as though it had been”. It was submitted that an industrial dispute must pertain to the relationship of employers and employees and reference was made to Re The Federated Manufacturing Grocers’ Employees Federation of Australia; Ex parte The Australian Chamber of Manufacturers (1986) 160 CLR 341 at 353; Re The Amalgamated Metal Workers’ Union of Australia & Ors; Ex parte The Shell Company of Australia Limited (1992) 174 CLR 345 at 360, 361, 364, 369 and 377; Re Finance Sector Union of Australia; Ex parte Financial Clinic (Vic) Pty Ltd (1993) 178 CLR 352 at 363. It was submitted that the log demanded that the employer treat the employee as having a status referable to employment with an employer other than, in the present case, the State of Queensland. Thus, it was submitted, there was not the requisite connection between the demand and the employment relationship. The other aspect of the submissions was that the demand purported to confer upon the Commission a power it did not derive from the Act namely, a power to afford employees a status they did not have. It involved, in essence, a legislative function. That is, to treat them as having been employees of the State of Queensland when in fact and in law they had not been. Reference was made to R v Portus; Ex parte The City of Perth (1973) 129 CLR 312 at 315, 323, 325 and 328; Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia (1993) 178 CLR 249 at 269-270; Re Media, Entertainment and Arts Alliance; Ex parte The Hoyts Corporation Pty Ltd (1993) 178 CLR 379 at 389.
The starting point in considering these submissions is the proper characterisation of the claim made. A consideration of the letter of demand and log of claims must not proceed on any technical or narrow basis. The log of claims is drafted in language reminiscent of a style of legal drafting untainted by notions of plain English. It includes the device of “deeming” which has been described by Megarry J in Murphy v Ingram [1973] Ch 434 at 436:
To deem, if I may say so, is usually perilous in that it is always difficult to foresee all the possible consequences of the artificial state of affairs that the deeming bring into being. As Lord Asquith of Bishopstone said in East End Dwellings Co. Ltd v Finsbury Borough Council [1952] AC 109, 132:
‘If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.’
A research student in search of a suitable topic for a thesis might do worse than to choose as his subject “The Dangers of Deeming”.
However notwithstanding the language used in the log of claims the Court’s task is to approach the matter in the way described by Mason J in R v Heagney; Ex parte ACT Employers Federation (1976) 137 CLR 86 at 100:
If one claim in a log is so expressed as to be meaningless, either because it contains contradictory demands which cannot be reconciled, or for any other reason, then the ambit of the dispute will not be extended by that claim. If it be the only claim in the log then as in the Tramways case there can be no industrial dispute within the meaning of s 51(xxxv). It is otherwise, if in accordance with the liberal interpretation which should be given to industrial claims, a meaning can be assigned to the log, notwithstanding its inadequacies of expression. The Court will, as it does in other fields of law, strive to give meaning to the claim and lean against any construction which renders it devoid of meaning or certainty.
In the present case the Full Bench’s view of the nature of the claim, and thus the subject matter of the dispute arising from its refusal, can be inferred from its discussion of the type of award that might be made which is found in the following passage from its reasons for decision given on 23 December 1991. It said:
Turning to the question whether an award may require that previous periods of employment be “deemed to be employment and service pursuant to the Act” in the calculation of entitlements, we think that no rule limits the regulation of wages and conditions to criteria which are intrinsic to the work performed. Employers may be and indeed are or have been subject to requirements reflecting extrinsic criteria such as qualifications, experience, age, consumer prices, family circumstances and war service. Previous employment of a specified nature is another extrinsic criterion. To deny the Commission the capacity to make awards reflective of such extrinsic factors would be to prevent it from dealing with the substance of many disputes between employers and employees. In our view, the law requires no such restriction.
What the Full Bench is implying is that the log of claims seeks that wages and conditions of employment be calculated, and thus provided, on a basis that includes as a criteria for their calculation prior service as a teacher. The Full Bench went on to consider specific aspects of the claim and its discussion of them is consistent with what we understand to be the Full Bench’s view of the claims as a whole.
Indeed, it is apparent from an affidavit filed in these proceedings on behalf of the State of Queensland that the claims are susceptible of such a meaning. The affidavit was of Mr Vernon Finlay, the solicitor who had carriage of the matter on behalf of the State. He said in relation to the demands:
In essence, the demand appears to seek to have accrued entitlements, for leave, superannuation, salary, status entitlements and promotion prerequisites from periods of prior employment with other teaching institution employers, counted in the calculation in benefits arising during and/or out of current employment as a State school teacher in Queensland.
In its written submissions the Union characterised the demands in two ways:
2. The material elements of the demands in the log are as follows:
(a)The demands were made by the union of the employers in respect of future employees (ie those employed after 1 July 1989).
(b)The demands were that for the purposes of the employment of such employees, their previous service with other State employers shall be taken into account in the specified respects in the determination of the entitlements of employment.
And later:
8.Once the demands were understood, as they should be, as being concerned with the basis upon which certain entitlements of employees will be determined, the proposition that the demands do not relate to matters pertaining to the relationship between employers and employees becomes untenable. The demands have meaning and effect only within that relationship; they go to the very terms of it.
9.The deeming provision in the log is nothing more than a convenient drafting device for expressing an indicia for the determination of certain entitlements of employment. The provision is patently not used to overcome the absence of the essential employer/employee relationship for that relationship exists in the circumstances in which the provision applies.
In our opinion, the log of claims, properly construed, in so far as it demands that earlier employment is deemed to be employment with the State of Queensland, is no more than a shorthand way of demanding that the State of Queensland pay and provide benefits and entitlements to an employee who comes to be employed by it by reference to criteria which will include earlier employment and service with another employer. In this respect, in our opinion, it is no different in principle to an entitlement to a rate of pay payable to a tradesman which is calculated, in part, by reference to the years of experience the tradesman has had in the industry in question. That experience may have been gained, and often would have been, in the employment of an employer other than the employer upon whom the obligation to make payment is imposed.
It follows, in our opinion, that the primary submission of the State of Queensland must fail. The claim, properly characterised, is one that pertains to the relationship of employer and employees and will, if an award is made imposing any or all of the obligations identified in the claim, require the employer to afford employees benefits which will be calculated, in part, by reference to periods of earlier employment with other employers. It follows that the second limb of the submissions of the State of Queensland must also fail.
We should make it clear that this judgment deals with a contention, in substance, that the Commission has no jurisdiction to entertain the alleged dispute in any respect. It may be that in due course the width of the finding of dispute will have to be further considered by the Commission and it may emerge that the power of the Commission to make an award in settlement of the claim is not unconstrained. We have in mind a situation where a benefit, and the obligation to provide it, is regulated by a state Act. If the source of the entitlement is a state Act, and not an award made by the Commission, there may be some jurisdictional limits on the Commission requiring an employer to provide the benefit other than as dictated by the state Act. However these issues were not canvassed in submissions in these proceedings and we should do no more than advert to them.
The order nisi will accordingly be discharged.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Court
Associate:
Dated: 3 September 1998
Counsel for the Applicant: Mr J Douglas QC with
Mr J MurdochSolicitor for the Applicant: Crown Solicitor for the State of Queensland Solicitor for Second Respondent: Mr O'Connor, Australian Education Union Date of Hearing: 21 July 1998 Date of Judgment: 3 September 1998
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