Attorney General of New South Wales v Polites, President of the Australian industrial Relations Commission
[1996] IRCA 329
•26 Jul 1996
DECISION NO: 329/96
INDUSTRIAL LAW - Order of the Australian Industrial Relations Commission restraining State authority from dealing with specified matters that were then the subject of a proceeding before the AIRC - Validity of order - Whether it is an essential condition of validity that the parties in the State proceeding are identical to those in the federal Commission - Whether proceedings must be identical - Constitutional validity of s. 128(1)(c) of the Industrial Relations Act 1988.
The Queen v Moore; Ex parte New South Wales Professional Officers' Association (1984) 154 CLR 1
Industrial Relations Act 1988 s. 128
HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Applicant
THE HONOURABLE DEPUTY PRESIDENT POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE HONOURABLE DEPUTY PRESIDENT ACTON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and COMMISSIONER McDONALD OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
MEDIA ENTERTAINMENT AND ARTS ALLIANCE
Second Respondents
BIRCH, CARROLL AND COYLE LIMITED
Third Respondents
BIRCH CARROLL COYLE (NORTHERN RIVERS) PTY LTD
Fourth Respondents
AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Fifth Respondents
No NI 159 of 1994
CORAM: WILCOX CJ, von DOUSSA AND NORTH JJ
PLACE: SYDNEY
DATE: 26 JULY 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. NI 159 of 1994
QUEENSLAND DISTRICT REGISTRY )
ON REMITTAL FROM THE HIGH COURT )
OF AUSTRALIA )
BETWEEN:HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Applicant
AND:THE HONOURABLE DEPUTY PRESIDENT POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE HONOURABLE DEPUTY PRESIDENT ACTON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and COMMISSIONER McDONALD OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
MEDIA ENTERTAINMENT AND ARTS ALLIANCE
Second Respondents
BIRCH, CARROLL AND COYLE LIMITED
Third Respondents
BIRCH CARROLL COYLE (NORTHERN RIVERS) PTY LTD
Fourth Respondents
AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Fifth Respondents
CORAM: WILCOX CJ, von DOUSSA AND NORTH JJ
PLACE: SYDNEY
DATE: 26 JULY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The order nisi granted by Gaudron J in this matter on 30 March 1994 be discharged.
NB:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. NI 159 of 1994
QUEENSLAND DISTRICT REGISTRY )
ON REMITTAL FROM THE HIGH COURT )
OF AUSTRALIA )
BETWEEN:HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Applicant
AND:THE HONOURABLE DEPUTY PRESIDENT POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE HONOURABLE DEPUTY PRESIDENT ACTON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and COMMISSIONER McDONALD OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
MEDIA ENTERTAINMENT AND ARTS ALLIANCE
Second Respondents
BIRCH, CARROLL AND COYLE LIMITED
Third Respondents
BIRCH CARROLL COYLE (NORTHERN RIVERS) PTY LTD
Fourth Respondents
AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Fifth Respondents
CORAM: WILCOX CJ, von DOUSSA AND NORTH JJ
PLACE: SYDNEY
DATE: 26 JULY 1996
REASONS FOR JUDGMENT
THE COURT: This case concerns the power of the Australian Industrial Relations Commission ("the AIRC") to make an order restraining a State industrial authority from dealing with an industrial dispute or matter. The Commission's power is conferred by s. 128 of the Industrial Relations Act 1988 which reads:
"128(1)If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with:
(a)an industrial dispute;
(b)a matter provided for in an award or an order of the Commission; or
(c)a matter that is the subject of a proceeding before the Commission;
the Commission may make an order restraining the State industrial authority from dealing with the industrial dispute or matter.
(2)The State industrial authority shall, in accordance with the order, cease dealing or not deal, as the case may be, with the industrial dispute or matter.
(3)An order, award, decision or determination of the State industrial authority made in contravention of the order of the Full Bench is, to the extent of the contravention, void."
The various proceedings
Birch Carroll and Coyle Limited ("BCC"), the third respondent to this application, operates cinemas in Queensland. A subsidiary company, Birch Carroll and Coyle (Northern Rivers) Pty Ltd ("BCCNR"), the fourth respondent, operates cinemas in northern New South Wales. The second respondent, Media Entertainment and Arts Alliance ("MEAA"), is an organisation of employees registered under the Industrial Relations Act. On 29 May 1992, in proceeding C No 30828 of 1992, Commissioner Fogarty of the AIRC found that an interstate industrial dispute existed between MEAA and the two Birch Carroll and Coyle companies. Shortly after that date, on 24 June 1992, he granted leave to intervene in the proceeding to the Australian Theatrical and Amusement Union of Employees, Queensland ("ATAUE"), an entity registered under Queensland legislation.
The matter was subsequently assigned to Commissioner McDonald who heard an application by BCC and ATAUE under s. 111(1)(g) of the Act. That application was still unresolved when, on 10 September 1993, the fifth respondent to this proceeding, the Australian Workers' Union, Queensland ("AWUQ"), made an application (No B 486 of 1993) to the Queensland Industrial Relations Commission ("QIRC") for an award pursuant to the Queensland statute, the Industrial Relations Act 1990 (Qld), binding BCC but not BCCNR. AWUQ is also an entity registered under Queensland law, being the successor, after amalgamation, of ATAUE. The application came before Commissioner Edwards of QIRC on several occasions during November and December.
In the meantime, on 19 October 1993, MEAA's application for a federal award was listed for mention before Commissioner McDonald in the AIRC. The Commissioner was informed of the amalgamation between ATAUE and AWUQ. He was also apprised of the possibility of an agreement being reached between MEAA and the two employers and the proceeding was further adjourned. An agreement was in fact reached between MEAA and the employers and they made an application (C No 21810 of 1993) to the AIRC for certification of that agreement pursuant to Division 3A of Part VI of the Industrial Relations Act. The application was listed, along with matter C No 30828 of 1992, before Commissioner McDonald on 30 November 1993.
In the meantime, apparently about 23 November, MEAA made an application to the AIRC for an order under s. 128 of the Commonwealth Act restraining the QIRC from dealing with AWUQ's application for an award. That application was still outstanding on 30 November. Presumably because of the confused situation, Commissioner McDonald made no order that day.
On 17 December 1993, Commissioner Edwards of the QIRC announced his intention to make an interim award under the Queensland statute, to be entitled "Birch Carroll and Coyle Limited Interim Award - State". As he had insufficient material to enable him to determine the proper content of the award, he directed the parties to confer on that matter and report back on 8 February 1994. Apparently, BCC filed an application for leave to appeal to a Full Bench of the QIRC against that decision.
On 19 January 1994, MEAA's application for a s. 128 order came before a Full Bench of the AIRC comprising Deputy President Polites, Deputy President Acton and Commissioner McDonald, all first respondents to this proceeding. MEAA and the employer companies appeared and leave to intervene was granted to AWUQ and the State of Queensland. MEAA based its application on s. 128(1)(c) of the Act. BCC supported MEAA's application but it was opposed by AWUQ and the Queensland government. Counsel for AWUQ argued that the Commission had no power to make an order under s. 128 because the two proceedings involved different parties. He also put merit arguments. These arguments were supported by counsel for Queensland, who also argued that s. 128(1)(c) was constitutionally invalid.
The Full Bench handed down a decision on 8 February 1995 in which it rejected the submission of lack of power. The Full Bench declined to deal with the constitutional argument, holding that it was bound to proceed on the basis that s. 128(1)(c) was valid. In relation to the merits, the Full Bench applied a statement of principle enunciated by the Commonwealth Conciliation and Arbitration Commission in Re Commonwealth Steamship Owners' Association v The Western Australian Industrial Commission (1973) 150 CAR 342 at 342:
"In exercising the discretion reposed in the Commission by the section, regard must be had to all the circumstances of a particular case. It is clearly not the position that the mere fact that there are two sets of proceedings, one before a State tribunal and one before this Commission, is in itself sufficient to justify an interference with proceedings before the State tribunal. Regard must be had to the degree of embarrassment or interference with the processes of this Commission if both sets of proceedings continue. Different considerations will arise in cases where there already exists an award of this Commission and proceedings dealing with matters covered by that award are taken in another jurisdiction."
The Full Bench went on:
"In this case the Commission is proceeding inter alia to consider whether it should certify an agreement pursuant to Division 3A. One of the tests for certification requires the Commission to satisfy itself that the agreement does not disadvantage employees. One of the statutory conditions involved in applying that test is the question whether certification of the agreement would result in the reduction of an entitlement or protection under '...any other law of the Commonwealth or of a State or Territory that the Commission thinks is relevant' [s. 134E(2)(a)]. Clearly a State award falls within that provision. In our opinion a material change in the State award coverage occurring between the time when an application is filed and heard and a decision handed down could seriously embarrass this Commission in its deliberations on this question.
This potential clearly exists in this case and for that reason we consider the order justified on its merits."
On 22 February 1994, the Full Bench made a formal order pursuant to s. 128(1)(c) of the Industrial Relations Act. The order contained three clauses and a Schedule. The three clauses were as follows:
"1. The Queensland Industrial Relations Commission shall not deal with matter No. B486 of 1993 insofar as it relates to the terms and conditions of employment of employees of Birch, Carroll and Coyle Limited set out in Schedule 1 hereto which are the substantive matters the subject of proceedings before the Commission in matters C No 30828 of 1992 and C No 21810 of 1993.
This order shall operate until further order of this Commission.
Leave is hereby reserved to all parties hereto to make application to this Commission to continue or discharge this order upon the said matters having been dealt with by this Commission."
The Schedule listed 36 topics, each of them being topics with which awards and certified agreements ordinarily deal.
On 16 March 1994, Commissioner McDonald handed down a decision rejecting the s. 111(1)(g) application that had been made to him in 1992. His reasons indicated that BCC had changed its attitude to federal coverage since that time. BCC no longer pressed the s. 111(1)(g) application, but AWUQ did so. AWUQ immediately intimated that it would seek leave to appeal to a Full Bench against Commissioner McDonald's decision.
Late in March 1994, the Queensland Attorney-General instituted this proceeding in the High Court of Australia. He sought writs of prohibition and certiorari directed to the first respondents, the members of the Full Bench that had made the s. 128(1)(c) order and the AIRC itself. On 30 March 1994, Gaudron J granted an order nisi. On the following day, AWUQ filed its application for leave to appeal against Commissioner McDonald's decision. On 11 April 1994, Gaudron J remitted to this Court the order nisi that she had made on 30 March.
There was a delay in the matter proceeding in this Court. This was apparently caused by the High Court proceeding, Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for Queensland (1995) 132 ALR 198, concerning the nature of ATAUE. That matter was determined on 9 November 1995. In December 1995, this proceeding was re-activated, and was expanded by the applicant to raise the question whether s. 128(1)(c) is beyond the legislative power of the Commonwealth under s. 51(xxxv) of the Constitution. As this issue involved a question falling within s. 78B of the Judiciary Act 1903, notice of the proceeding was given to the Attorney-Generals of the Commonwealth and the other States. As a result of this notice, the Commonwealth Attorney-General appeared by counsel, Mr H Burmester QC and Dr C Staker, to support the constitutionality of the provision. Mr J S Douglas QC and Mr R S Jones appeared for the Attorney-General of Queensland. Their submissions were supported by Mr J A Logan, counsel for AWUQ, but opposed by Mr J Nolan, counsel for MEAA. BCC and BCCNR took no part in the argument. Neither, in accordance with usual practice, did the members of the Commission or the Commission itself.
Identity of the parties
The first argument put by the applicant, and supported by AWUQ, is that s. 128(1)(c) applies only where there is an identicality of parties, as between the proceeding in the AIRC and the proceeding before the State industrial authority; any discrepancy in parties excludes the application of the paragraph. In the way it was put, the argument depends substantially upon the decision of the High Court in The Queen v Moore; Ex parte New South Wales Public Service Professional Officers' Association ("Moore") (1984) 154 CLR 1. That case concerned s. 66 of the Conciliation and Arbitration Act 1904. In substance, though not in form, s. 128 of the present Act is identical with s. 66 of the 1904 Act.
Moore arose out of an order of the Conciliation and Arbitration Commission ("the C & A Commission) restraining the Industrial Commission of New South Wales from dealing with applications for awards made by the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales. The applications related to professional engineers employed in the New South Wales Public Service. Prior to the restraining order being made, a federal employee organisation, Association of Professional Engineers Australia ("APEA"), had served a log of claims upon the Public Service Board of New South Wales and the Crown in right of New South Wales concerning engineers with certain qualifications. The C & A Commission had heard, but not determined, an application for a dispute finding.
The High Court was unanimous in granting prohibition in relation to the s. 66 order. However, there was some diversity in the reasons expressed by the members of the Court. Gibbs CJ said at 6-7 that the order made by the C & A Commission "will be valid if these conditions are satisfied:
(1)s. 66 ... is a valid enactment;
(2)the Industrial Commission of New South Wales was dealing or about to deal with a matter which is the subject of proceedings under Pt III of the Act ...; and
(3)the subject of the restraint effected by the order is specifically defined, ie the order identifies, with substantial precision what is the 'matter' with which the Industrial Commission may not deal".
His Honour said he saw no reason to doubt the validity of s. 66, but did not need to express an opinion on that point as the other two conditions of the order were not satisfied.
In relation to the second stated condition, Gibbs CJ thought it immaterial whether the dispute finding was made before or after the s. 66 order; although it was obviously important to him that one had been made. He said at 7-8 that, once a dispute was found,
"the substantial matter for determination that remained was what (if any) provision should be made, by way of award in settlement of the dispute, as to the salaries and working conditions of professional engineers employed by the New South Wales Public Service Board, and as to whether preference should be given to members of (APEA). The parties to that dispute were the employer (the New South Wales Public Service Board) on the one hand and the APEA ... on the other. The matter with which the Industrial Commission of New South Wales was dealing or about to deal was whether an award should be made on the application of the prosecutors, the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales, in respect of certain professional engineers employed in the Public Service of New South Wales.
In each application the prosecutor sought an award dealing with the salaries payable to the professional engineers and providing that preference in employment should be given to members of the union making the application. It is apparent that the matters the subject of the applications before the Industrial Commission of New South Wales are similar to, and in a practical sense related to, those the subject of the proceedings in the Commission. They are not however the same. As was pointed out in Australian Timbers Workers' Union v Sydney and Suburban Timber Merchants' Association (1935) 53 CLR 665 at 674, the expression 'a matter ... the subject of proceedings' connotes parties as well as a subject for decision; see also Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v Western Australian Sawmillers' Association (1929) 43 CLR 185 at 202. Although it may be accepted that one party (the Public Service Board of New South Wales) was common to the matters the subject of the proceedings in both Commissions, neither of the prosecutors was a party in the Commission (although they intervened in those proceedings), and the APEA was not a party in the Industrial Commission of New South Wales. Some professional engineers employed in the New South Wales Public Service are not members of the APEA, and it is by no means clear that all such professional engineers are eligible for membership of that organisation."
His Honour later said:
"the parties to the matters in the respective Commissions are not the same, and any award made by the Commission would not confer rights or obligations on professional engineers who are not members of APEA but who might be affected by an award made by the Industrial Commission of New South Wales."
Dealing with the third condition, Gibbs CJ pointed out that the C & A Commission's order extended beyond matters that were the subject of proceedings before it and did not identify the subject of proceedings under Part III with which the State Commission might not deal.
Murphy J agreed that prohibition should issue. His reason was that the order did not properly or sufficiently identify the matter with which it was attempting to restrain the New South Wales Commission from dealing. At 10 his Honour said:
"The purpose of s. 66 is to avoid the making of inconsistent federal and State awards, and to avoid the embarrassment to the Arbitration Commission of having a State industrial authority trespass upon its processes of conciliation and arbitration by dealing with any dispute or part of a dispute which has been or is being dealt with by the Arbitration Commission, or by dealing with the imposition or award of rights, privileges or obligations, in respect of work when the Arbitration Commission has dealt or is dealing with a dispute about rights, privileges or obligations in respect of the same work.
If the Arbitration Commission is dealing with a claim it is highly undesirable, and destructive of its work, if some part of the claim is pre-empted by an award (or agreement) in a State tribunal, arrived at by giving effect to principles of wage fixation different to those which are applied by the Commission. This tends to create industrial disharmony and to inhibit a considered and balanced resolution of a claim by the Arbitration Commission."
After referring to the embarrassment that had arisen in the instant case, at 10-11 his Honour made some general observations that have present relevance:
"In s. 66 the meaning of the expression 'matter' is not a dispute, a proceeding, an application or a claim; it is the subject-matter, for example, the pay or conditions to be applicable in respect of certain work when done by any employee (or if the award or proceedings were so restricted, the pay or conditions applicable to work when done by persons of a particular class, such as unionists). The qualification 'which is provided for in an award or is the subject of proceedings under this Part', demonstrates that 'matter' is the subject-matter.
It is not necessary for the application of s. 66 that the parties in each Commission be identical. If it were, s. 66 would be virtually a dead letter, at least in relation to the Industrial Commission of New South Wales. The need for registration at the State and federal levels means that only rarely would the same union be a party before both Commissions. Because Commonwealth registered organisations of employees cannot be party disputants or claimants in the Industrial Commission, the parties to disputes in that Commission and the Arbitration Commission can never be the same."
Murphy J concluded at 12:
"If s. 66 is interpreted so as not to operate unless the parties are the same in both the Arbitration Commission and the State industrial authority it will be useless in practice. If the Arbitration Commission is to have the power 'to clear the ring' as Higgins J called it (see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Engineers etc (State Conciliation Committee)(1926) 38 CLR 563 at 573) then legislative intervention will be necessary to ensure that, when the Arbitration Commission has dealt or is dealing with any dispute about rights, privileges or obligations in respect of particular work of certain employers when done by anyone or when done by any particular class of person such as members of a union, a State industrial authority shall not deal with the award or imposition of any rights, privileges or obligations in respect of the same work when done by anyone or by the members of that class of persons, as the case may be."
Wilson J delivered short reasons in which he expressed general agreement with both Deane and Dawson JJ. He commented at 12 only on the failure of the C & A Commission order "to specify with sufficient precision the industrial dispute or matter with which the State industrial authority is to be restrained from dealing and to state whether the restraint extends to the whole or part of that dispute or matter".
Deane J said at 15 that he was "not persuaded that there exists any proper ground for questioning the correctness of the decisions in this Court to the effect that the provisions of the predecessor of s. 66 (the former s. 20 of the Act) and of s. 66 itself are within the constitutional competence of the Commonwealth Parliament in that they represent a valid exercise of the legislative powers conferred by s. 51(xxxv) and (xxxix) of the Constitution". But he thought it unnecessary to form a concluded view on that matter, or to "charter the outer limits" of the power conferred by s. 66; s. 66 did not authorise the order made in the instant case. The reason was the failure of the order to specify the thing with which the State authority was restrained from dealing. Pointing out the need for precision on that subject, Deane J said at 17 it was "conceivable that circumstances might arise in which there is complete correspondence of parties and subject between a matter before the State authority and the whole or part of a matter before the Commonwealth Commission under Pt III". But he commented at 18 that "(s)uch correspondence of parties and subject-matter will ... be found, if ever, but rarely".
Dawson J made a comment concerning constitutional validity. Referring to the judgment of Dixon J in Western Australian Timber Workers, he said at 21:
"A number of provisions led Dixon J to the conclusion that the Court's power to deal with a dispute depended upon whether that dispute had come within its cognizance and that the making of an order under s. 20 was consequential upon the Court having taken cognizance of the dispute in relation to which the order was made. Although cognizance has disappeared as a condition of the exercise of power by the Commission in dealing with disputes, the significance of the observations of Dixon J lies in the fact that its disappearance may have widened considerably the application of the section, now s. 66, so as to bring into question the relationship between the section and the constitutional power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State."
However, his Honour did not determine the matter of constitutional validity. At 22 he said that, although s. 66's "validity is not beyond question having regard to the changes made to the structure of the Act since the (earlier) decisions", it was undesirable to deal with that question where this was unnecessary. Like the other members of the Court, Dawson J thought the order invalid for want of specificity. In developing that reason, his Honour noted at 22 that the parties in the State proceedings were different from those before the C & A Commission. He did not say that this constituted an objection to the validity of the order. But he did observe, at 23, that there may have been professional engineers employed by the State who were beyond the reach of the Commonwealth Commission.
Counsel for the applicant and for AWUQ argue that Moore insists on identicality of parties, as between the State proceeding and the proceeding in the Commission relied upon in justification of a s. 128(1)(c) order. In the present case, there was not identicality of parties and they say this is enough to invalidate the Full Bench order.
In the present case, there was certainly not an identicality of parties as between the two proceedings; the applicants were different entities, one being a State-registered union and the other an organisation registered under the federal Act. This will almost always be the situation. Murphy J observed in Moore, that if identicality of parties is required, s. 66 "would be virtually a dead letter". If identicality of parties is critical to its application, the same statement may be made about s. 128(1)(c).
We think it is incorrect to say that, in Moore, the High Court held that identicality of parties was critical to the application of s. 66. No member of the Court founded his decision on the lack of correspondence of parties. The observations on this matter are only obiter dicta; although of course they carry the great weight of being observations made in reserved judgments by members of the High Court. Even so, there was not much support for the proposition now urged by counsel.
Murphy J rejected the notion that there was a requirement of identicality, in express and categorical terms: see the passage at 10-11 quoted above. Deane J did so implicitly, by saying at 18 that "correspondence of parties and subject-matter" will be found rarely, if ever; without suggesting that this militated against the utility of s. 66. It is true that in a passage emphasised by counsel before us, Dawson J at 22 observed that "the parties in the proceedings before it were different from the parties before the Conciliation and Arbitration Commission". But his Honour did not say that this affected the availability of the section. As we read his judgment, he was merely making a statement of fact on the way to the real point, that the membership of the two unions was different and the State Commission had a capacity to confer rights on non-unionist employees that the federal Commission did not. Wilson J apparently did not think that Dawson J had a different view about identicality of parties from Deane J. He agreed generally with both his colleagues without commenting on this issue.
This leaves Gibbs CJ, whose reasons provide the jewel in counsel's argument. His Honour referred at 8 to a sentence in Sydney Timber Workers at 674. The relevant sentence was that emphasised below. We put it in context by also quoting the preceding sentence.
"The expression 'a matter which is provided for in an award' involves not merely a subject of regulation but objects, viz, the parties bound by an award. In the same way, a matter which is the subject of proceedings before the Court is necessarily the subject of dispute between the disputants, and, again, the expression connotes parties as well as a subject for decision."
Gibbs CJ followed his reference to the sentence by making the point, not only that different unions were involved, but that it was not clear that all professional engineers were eligible for membership of APEA. His following statement that "the parties to the matters in the respective Commissions are not the same" seems to have been directed to the same point as that made by Dawson J, noted above.
We have some difficulty in determining Gibbs CJ's view about the necessity for identicality of parties. We accept that he may have thought this to be a necessary pre-condition to the valid operation of s. 66; although, if so, it is odd that he did not include it in his list of conditions for the validity of a Commission order. But it seems clear that, if this was his view, it was a minority view.
There being no decision of the High Court on the point, we are free to give effect to our own view about the need for identicality of parties. In our opinion the paragraph is not confined in its application to cases where there is an identicality of parties. The main reason for our opinion is that the paragraph says nothing about parties at all. It merely refers to a "matter that is the subject of a proceeding before the Commission". Murphy J explained in Moore that, in this context, "matter" does not refer to a dispute, proceeding, application or claim but to the subject-matter of a dispute, proceeding etc. He gave as examples the pay and conditions applicable in respect of certain work done by any employee, or any employee of a particular class. This understanding of the word "matter" is consistent with that adumbrated in Sydney Timber Workers: "a matter ... is ... the subject of dispute between the disputants".
Once it is appreciated that "matter" refers to the subject of a dispute or proceeding, rather than the dispute or proceeding itself, the linguistic argument for implying into s. 128(1((c) a need for identicality of parties simply disappears. To take Murphy J's example, it is perfectly possible for two unions (one State, one federal) to be in dispute with a particular employer, alone or with other employers and/or employer organisations, about appropriate pay rates for people holding particular qualifications. If the dispute involving the federal union is the subject of a proceeding before the AIRC, pay rates are "a matter that is the subject of a proceeding before the Commission." If the dispute involving the State union is before a State industrial authority, that authority will be dealing, or about to deal, with the same "matter"; that is, appropriate pay rates. The requirement of s. 128(1)(c) is satisfied. The paragraph confers power on the AIRC to restrain the State industrial authority from dealing with pay rates. There is nothing incongruous about that result. A State determination about appropriate pay rates for people with those particular qualifications has the potential to pre-empt or embarrass the decision of the AIRC. Even if the State authority never reaches the stage of making a determination, the mere continuance of the State proceeding is likely to be a distraction to the parties engaged in the federal (AIRC) proceeding and to complicate its conduct.
When the issue is seen in this way, it is obvious that there is no justification for reading into s. 128(1)(c) a requirement that the disputants before the State authority be identical to those before the AIRC. To impose that requirement would be to deprive the provision of much, if not all, its practical utility.
It is interesting to speculate on the reason why so much attention has been placed on the question of identity of parties in connection with applications under s. 128(1)(c). It may be that this attention derives from treating the word "matter" in the subsection as referring to the proceeding or application; as it has been construed in other contexts, such as Fencott v Muller (1983) 152 CLR 570. That such an approach is erroneous, and why it is so, was explained by Murphy J in Moore, as we mentioned earlier.
When the use of the word "matter" in s. 128(1)(c) is properly understood, it can be seen that there may be identity of parties in proceedings in the AIRC and in the State authority, but the "matter" may not attract the jurisdiction established by s. 128(1)(c). For instance, the same employer and the same union may be opposed in both tribunals, but in relation to a claim for superannuation in the AIRC, and in a claim relating to the termination of a particular employee in the State authority. The parties would be identical, but the "matter" for the purposes of s. 128(1)(c) being dealt with by the State authority would not be the "matter" being dealt with by the AIRC.
We reject the first ground of attack on the Full Bench's order.
Identity of the proceedings
Counsel's second argument is that the Full Bench's order is invalid for want of identicality in the proceedings before the QIRC and the AIRC. They point out that the QIRC was not dealing with the dispute that Commissioner Fogarty had found to exist between MEAA and the two Birch Carroll and Coyle companies but with an award application by AWUQ. They say that the QIRC has never entered into the question of which union should represent the companies' employees or whether there should be a certified Commonwealth agreement. No doubt all that is true, but it seems to us beside the point. There was an overlap between the "matters" being dealt with in each proceeding: wages, holidays, annual leave etc. The items were specified by the Full Bench in its s. 128(1)(c) order. So it was clearly open to the Full Bench to find that the QIRC was dealing, or about to deal, with a number of matters that were the subject of the proceeding before the AIRC and to make an order restraining the QIRC from dealing with any of those matters. The Full Bench specified the particular matters, thereby avoiding the defect that had brought undone the Moore order. In the present case, no argument is put about the form of the order. The second ground advanced by the applicant and AWUQ should also be rejected.
The constitutionality of s. 128(1)(c)
The applicant and AWUQ contend that s. 128(1)(c) goes beyond the power conferred on the Commonwealth Parliament by s. 51(xxxv) of the Constitution. They say it cannot properly be regarded as incidental to that power. Counsel recognise that an earlier version of the provision, s. 20 of the 1904 Act, was regarded as valid in Western Australian Timber Workers. But they say the current provision lacks the nexus with the Commission's conciliation and arbitration power that existed in s. 20. In particular, they point to what was said by Dixon J in that case at 205, and to the comment on his statement by Dawson J in Moore at 21, quoted above. They say that s. 128(1)(c) permits a situation where there is no existing federal award, and no federal award ever comes into existence, yet a State authority is stopped from performing its statutory functions. The constitutional defect in the provision, according to counsel, is that the power to make an order restraining a State authority from resolving a dispute about a particular subject is not confined to cases where the federal Commission has done so, or must do so.
This argument does not derive much support from Moore, where it was equally open; s. 66 contained the same suggested defect. Murphy J clearly thought s. 66 was constitutionally valid and both Gibbs CJ and Deane J pronounced themselves, "as at present advised", not persuaded to the contrary. Dawson J raised a question about constitutional validity but did not pronounce on the matter. However, it cannot be said that Moore was a decision in favour of constitutional validity. The matter is clearly open for determination by us.
In Western Australian Timber Workers only Dixon J directly addressed the constitutionality of s. 20 of the 1904 Act. He held that, having regard to the statutory context of the section, "the words 'industrial dispute' ought not to be understood to include disputes outside the Court's cognizance". It followed, he thought, that the section authorised orders "when, and only when, the Court has taken cognizance of a dispute in relation to which the order is required". Upon this construction, he thought the provision to be constitutionally valid.
Counsel for the Commonwealth Attorney argue, in effect, that the same reasoning applies to s. 128(1)(c). They point out that the paragraph relates only to a matter that already is the subject of a proceeding before the Commission; in other words, it is within its cognisance. A State authority cannot be restrained from dealing with a matter not before the Commonwealth Commission, even if that particular matter is part of the same dispute. Counsel say that the purpose of s. 128(1)(c) is to protect the effective functioning of AIRC; it
"enables the AIRC to prevent a State industrial authority from trespassing upon its processes of conciliation and arbitration by dealing with the same matter at the same time. Although any award made by the AIRC would override any inconsistent award the State industrial authority might make with respect to the same matter, the conduct of State proceedings during the pendency of federal proceedings with respect to the same matter can be expected in practice to hamper the AIRC in dealing with that matter. The expression of an opinion by the State authority on the matter may cause friction and unrest between the parties, and may militate against the practical success of the federal award if made in settling the dispute."
Counsel point out that s. 128(1)(c) merely confers a discretion on the AIRC; it is for the AIRC to determine whether any order should be made and, if so, its extent. They say that, given its purpose of protecting the effective discharge of AIRC's functions, s. 128(1)(c) is clearly reasonably incidental to the matters over which Parliament has legislative power pursuant to s. 51(xxxv) of the Constitution.
We accept the Commonwealth Attorney-General's submission on this point. It is true that s. 128(1)(c) is expressed sufficiently widely to enable the AIRC to make an order restraining a State authority from dealing with a matter which, in the end, is left unregulated by Commonwealth law; perhaps because of a successful application under s. 111(1)(g) of the Industrial Relations Act, perhaps simply because the AIRC ultimately decided not to include a provision relating to that particular matter in the award it made resolving the dispute that gave rise to its exercise of power. However, even if that happens, it does not follow that, when the s. 128(1)(c) order was made, there was a lack of nexus between the effective exercise of AIRC's functions and the State proceeding. For an order to be authorised by the paragraph, when it was made, the AIRC must have had before it a proceeding involving a particular matter - that is, a particular industrial topic - that was before, or about to come before, the State authority. As the Attorney-General's submission points out, whatever the final result in the AIRC, the mere conduct of State proceedings during the pendancy of federal proceedings concerning the same matter may hamper the AIRC in dealing with the matter; even in deciding not to make an award provision about it. Of course, if the AIRC eventually decides not to make a provision about a particular matter, and there is no other AIRC proceeding concerning it, the State authority will be left free to deal with it. The paragraph enables the AIRC to restrain a State authority only to the extent that is necessary to protect its own processes. As such it is reasonably incidental to the conciliation and arbitration power. In our opinion, it is constitutionally valid.
Other matters
Counsel for MEAA submits that, as a matter of discretion, this Court ought not to entertain the present application. He points to cl. 3 of the order granting leave to all parties to apply to the AIRC to discharge the order when the matters referred to in the Schedule have been dealt with by it. He says this stage has been reached; the AIRC has now certified the agreement. He indicates that MEAA would not oppose any application that might be made for discharge of the s. 128(1)(c) order; it has fulfilled its purpose and is no longer necessary.
There is force in this submission but we have decided not to give effect to it. First, the factual position is not completely clear. Although we do not doubt the accuracy of counsel's statement, there is no evidence about certification. Moreover, we were told by counsel for the applicant that the certification order is the subject of an unresolved application for leave to appeal to the Full Bench of AIRC; so it is, at least, theoretically possible that the certification will be set aside and the matters the subject of the dispute will come back before a Commissioner for determination. Second, the arguments advanced by the applicant concern issues of general importance. The issues have been comprehensively argued by counsel representing four parties including the Queensland and Commonwealth Attorney-Generals. It would be unfortunate to leave them unresolved.
In saying this, however, we wish to make it plain that, where a Commission order reserves leave to apply, it will ordinarily be more appropriate for a party to exercise that leave, at least in the first instance, rather than seek prohibition or certiorari. These are discretionary remedies and the Court will take into account any other remedies that are available to an applicant: see Re Griffin; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 at 41.
The order nisi granted by Gaudron J should be discharged.
I certify that this and the preceding twenty five (25) pages are a true copy of the Reasons for Judgment of the Full Court.
Associate:
Dated:
APPEARANCES
Counsel for the Applicant : J S Douglas QC and R S Jones
Solicitor for the Applicant : Crown Solicitor Queensland
Counsel for the second : J Nolan
Respondent
Solicitor for the second : Kylie Nomchong
Respondent
Solicitor for the third : Freehill Hollingdale & Page
and fourth Respondent
Counsel for the fifth : J A Logan
Respondent
Solicitor for the fifth : C A Sciacca & Associates
Respondent
Counsel for the Commonwealth : Mr H Burmester QC and
Attorney-General intervening C Staker
Solicitor for the : Australian Government
Commonwealth Solicitor
Date of hearing : 7 June 1996
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