Attorney-General (Qld) v Riordan

[1997] HCA 32

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN & ORS (Matter No B 2 of 1996); RE SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION; EX PARTE LAMSOON (AUSTRALIA) PTY LTD & ORS (Matter No A 38 of 1995); RE SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION; EX PARTE ACTION FOOD BARNS & ORS (Matter No A 44 of 1995)
Industrial law

(1997) 192 CLR 1

5 August 1997
Industrial law

Industrial law—Australian Industrial Relations Commission—Jurisdiction—Industrial dispute—Doctrine of ambit—Paper disputes—Real and genuine dispute—Onus—Weight to be given to evaluation by Commission—Operation of s 101 of the Industrial Relations Act 1988 (Cth) and s 51(xxxv) of the Constitution—Prerogative relief. Constitution of the Commonwealth, ss 51(xxxv), 75(v). Industrial Relations Act 1988 (Cth), ss 4(1), 101.

Orders

Order:
In appeal No B 2 of 1996:

1.Order that the notice of appeal be amended in accordance with the appellant's motion.

2. Order that the appeal be dismissed.

3. Costs reserved.

In application No A 38 of 1995:

1. Orders nisi for prohibition and certiorari, to the extent that they assert that the claims contained in the log of claims were fanciful and incapable of creating a genuine dispute, discharged.
2. Otherwise remit the matter to the Federal Court of Australia.

In application No A 44 of 1995:

1. Orders nisi for prohibition and certiorari, to the extent that they assert that the claims contained in the log of claims were fanciful and incapable of creating a genuine dispute, discharged.
2. Otherwise remit the matter to the Federal Court of Australia.

Decision

BRENNAN CJ AND McHUGH J.

In these cases, Kirby J has set out the history of the logs of claims which the respective industrial organisations of employees served on employers. His Honour has also set out the history of the proceedings in which the existence of an industrial dispute between the employers and the organisations of employees was in issue. Upon the non-acceptance of the respective logs of claims, notices of industrial disputes were given to the Industrial Relations Commission as required by s 99 of the Industrial Relations Act 1988 (Cth), now entitled the Workplace Relations Act 1996 (Cth) ("the Act"). Thereafter, in each case, the Commission found the existence of an industrial dispute.

Proceedings were brought in this Court, invoking its jurisdiction under s 75(v) of the Constitution, for the purpose of challenging the jurisdiction of the Commission further to proceed on the basis of the dispute findings made. In one matter, the Attorney-General for Queensland applied for writs of prohibition and certiorari directed to the relevant members of the Commission, joining the Australian Liquor, Hospitality and Miscellaneous Workers Union ("the ALHMWU") and others as respondents. That matter was remitted for determination by the Industrial Relations Court. That Court dismissed the challenge. Leave[1] was granted to the Attorney-General to appeal to this Court from the decision of the Industrial Relations Court. In the other two cases, applicants the first of whom was Lamsoon (Australia) Pty Ltd ("Lamsoon") and applicants the first of whom was Action Food Barns applied for orders nisi for writs of certiorari and prohibition directed to the Commission. Orders nisi were made and were returnable before the Full Court of this Court. In each case, the question is whether the Commission should have been or should be prohibited from proceeding further in exercising its powers on the footing of the dispute findings which the Commission has made.

A writ of prohibition may be issued under s 75(v) of the Constitution on grounds which include want of constitutional authority to exercise a jurisdiction or power that is proposed to be exercised or want of statutory authority to do so[2]. The constitutional authority for the exercise of the Commission's jurisdiction or powers is to be found in s 51(xxxv) of the Constitution. The statutory authority is to be found in the Act. The Act purports to confer on the Commission powers of conciliation and arbitration for the prevention and settlement of "industrial disputes" found by the Commission pursuant to s 101. That provision reads as follows:

" Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:

(a) determine the parties to the industrial dispute and the matters in dispute; and

(b) record its findings;

but the Commission may vary or revoke any of the findings.

(2) Where the Commission constituted in any manner has made findings in relation to an industrial dispute, the Commission (however constituted) may, for the purpose of exercising powers in subsequent proceedings in relation to the same industrial dispute (other than powers on an appeal in relation to the finding), proceed on the basis of the findings or any of them.

(3) A determination or finding of the Commission on 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 the question."

The term "industrial dispute" is defined for the purposes of the Act[3] to mean, inter alia:

"(a) an industrial dispute (including a threatened, impending or probable industrial dispute):

(i) extending beyond the limits of any one State; and

(ii) that is about matters pertaining to the relationship between employers and employees; or

(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a)".

Although the construction of s 101 was not fully argued before this Court, the precise question for this Court's determination cannot be answered without reference to the condition on which the Commission's jurisdiction to proceed depends. The arbitral powers which the Act authorises the Commission to exercise (which we shall call its statutory jurisdiction) are prescribed by reference to the industrial dispute which the Commission finds to exist. The first question that arises is whether, if the definition and s 101 are not read down, the statutory jurisdiction of the Commission is wider than the Constitution empowers the Parliament to confer.

A law made by the Parliament with respect to a subject contained in a constitutional head of power cannot confer on a repository jurisdiction that is wider than the head of power authorises. Section 51(xxxv) of the Constitution empowers the Parliament 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".

The powers of conciliation and arbitration which the Act might validly confer on the Commission are therefore limited to conciliation and arbitration "for the prevention and settlement of industrial disputes" of the stated kind. If s 101 of the Act, read in the light of the statutory definition of "industrial dispute", were held to confer on the Commission a statutory jurisdiction which goes beyond the constitutional power, the Act would be invalid to the extent of the excess because of the "elementary rule of constitutional law" which Fullagar J in Australian Communist Party v The Commonwealth[4] expressed metaphorically by saying that "a stream cannot rise higher than its source".

The problem arises under s 101 by reason of the phrase "if it considers" which, on one construction, would authorise the Commission to determine finally for itself the existence and scope of the industrial dispute by reference to which its arbitral powers might be exercised. But, as Dixon CJ, Kitto, Taylor and Windeyer JJ held in R v Portus; Ex parte McNeil[5],"the existence of an industrial dispute extending beyond the limits of any one State is under the Constitution a jurisdictional fact which on prohibition cannot be controlled by the finding of the tribunal against which the writ of prohibition is sought". Similarly, in R v Federal Court of Australia; Ex parte WA National Football League[6] Barwick CJ said:

"Where constitutional competence to create the jurisdiction depends on the actual existence of some specific fact or situation the court or tribunal, though it may form a view as to whether the fact or situation exists, is not competent to decide that in truth either does exist: only this Court may conclusively determine the actual existence of the fact or situation which grounds the constitutional power.

This Court has consistently taken the view which I have just expressed. See the line of cases beginning with Reg v Hibble; Ex parte Broken Hill Proprietary Co Ltd[7], and presently ending in the recent case of Reg v Heagney; Ex parte ACT Employers Federation[8]. These cases have been concerned with jurisdiction depending on s 51(xxxv), ie upon the existence of an industrial dispute extending beyond the limits of any one State."

Section 101(3) cannot affect the determination on prohibition of the question whether an actual, threatened, impending or probable dispute exists so as to attract the support of s 51(xxxv) of the Constitution to an exercise of the Commission's arbitral powers[9]. If s 51(xxxv) did not require any reading down of s 101, the statutory jurisdiction of the Commission might be differently ascertained. Looking first at sub-ss (1) and (2) of s 101, it would be for the Commission, not the Court, to determine the existence of an "industrial dispute" for the purposes of the Act[10] (and, by reference to that determination, to chart the scope of its powers) provided the Commission correctly understood and applied the term "industrial dispute" in making a dispute finding[11]. But the privative provision in s 101(3) purports to protect a dispute finding from subsequent review whether on the ground of error of law or on the ground of error of fact. Section 101 (3) is the statutory successor to s 60(2) of the Conciliation and Arbitration Act 1904 (Cth) to which Mason ACJ and Brennan J referred in R v Coldham; Ex parte Australian Workers' Union[12]:

" The jurisdiction of the Court conferred by s 75(v) of the Constitution to grant mandamus 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 an 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 (ie does not on its face go beyond the power) ...' to use the words of Kitto J in Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section)[13].

...

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". (Emphasis added.)

Section 101 must therefore be read down so that the phrase "if it considers" in sub-s (1) and the provisions of sub-ss (2) and (3) apply only when the industrial dispute found by the Commission is in truth an industrial dispute within the meaning of that term in s 51(xxxv). Sub-sections (2) and (3) may insulate proceedings in the Commission subsequent to the making of a dispute finding from prohibition on statutory grounds - a question which it is not necessary to resolve and which, in the absence of argument as to the operation of s 101, it is not appropriate to address further - but sub-ss (2) and (3) of s 101 cannot insulate a dispute finding from challenge on constitutional grounds[14].

Accordingly, when the Commission makes a finding under s 101 of the Act that an industrial dispute exists and prohibition is sought on the ground that there is no "industrial dispute" within the meaning of the term in s 51(xxxv) of the Constitution, the Court determining the matter must itself ascertain whether such an industrial dispute in truth existed. The constitutional categories of industrial disputes embrace industrial disputes which are susceptible of prevention or settlement by conciliation or arbitration. Industrial disputes which are "threatened, impending or probable" - the terms are taken from the statutory definition - are "industrial disputes" which fall within the constitutional conception[15]. When prohibition is sought on constitutional grounds, the question is not whether the Commission considered that there was an actual, threatened, impending or probable industrial dispute but whether there was in truth such a dispute. The phrase "if it considers" in sub-s (1) of s 101 cannot preclude the Court's determination of the constitutional issues in cases in which prohibition is sought on constitutional grounds.

However, although the existence of an industrial dispute must be ascertained for constitutional purposes by the Court on the evidence adduced before it[16], the evidence before the Court is usually and appropriately the transcript of evidence and the documentary evidence tendered before the Commission. Then, in evaluating that evidence, the Court gives particular weight to the evaluation made by the Commission. This approach was stated by Mason J in R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union[17]. In that case, Mason J, referring to the comments of Fullagar J in R v Blakeley; Ex parte Association of Architects, &c, of Australia[18],said:

"His Honour, though maintaining the doctrine that this Court must determine for itself questions on which the jurisdiction of the Commission depends, drew a distinction between questions of law and questions of fact. He said that if the jurisdiction depends on matters of fact, considerable weight is attached to the decision of the court. He was, of course, referring to the old Arbitration Court. His remarks have equal application to the Commission. He concluded by saying[19], after referring to the remarks of Isaacs J in Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1][20]: 'It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal.' The weight to be given to the Commission's decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission's knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent."

That case was followed by the Court in R v Ludeke; Ex parte Queensland Electricity Commission[21]:

" Whether the dispute is real and genuine, whether it is founded on a real and genuine demand, is a question of fact for the Commission to determine and it remains a question of fact for this Court to determine on an application for relief by way of prerogative writ: Reg v Alley; Ex parte NSW Plumbers and Gasfitters Employees' Union[22]; Cohen[23]. Although it is for the Court to decide the question for itself, it will give considerable weight to a decision of the Commission so far as the decision turns on the facts, the degree of weight depending on the circumstances. If the evidence remains the same, if the Full Bench has confirmed the decision at first instance and if the issue of fact is one in which the Commission's knowledge and experience of the industry specially equips it to provide an answer, greater weight will be given than in cases in which one or more of these factors is absent: Blakeley[24]; Alley[25]."

If the Commission proposes to exercise powers of conciliation or arbitration by reason of the Commission's opinion that a "threatened, impending or probable industrial dispute" exists, a court on an application for prohibition must give great weight to that opinion. The Commission is far better equipped than a court to assess the industrial situation. In Victoria v The Commonwealth[26],Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said:

" The question whether a situation is likely to give rise to an interstate industrial dispute is one that can be answered only by making a judgment or forming an opinion in that regard. Once it is accepted, as it must be, that the power conferred by s 51(xxxv) of the Constitution extends to a situation likely to give rise to an interstate industrial dispute, it follows that it extends to a situation in which a body entrusted with the power of conciliation and arbitration, as the Commission is, forms the opinion that there is a situation of that kind. Certainly, it extends to a law authorising the Commission to arbitrate claims for minimum wages if it considers that that is necessary to prevent an industrial dispute".

In strict theory, the Commission's consideration that arbitration is necessary to prevent an industrial dispute cannot be placed by statute beyond the reach of the Court's review under s 75(v) of the Constitution[27], but in practice the only cases of that kind which could be open to review would be cases where the Commission misunderstood the question it had to address. The present cases, however, are not cases in which an industrial dispute is merely threatened, impending or probable. The theory of paper disputes with which these cases are concerned is that, on non-accession to a log of claims, there exists or there is evidence of an actual dispute between the parties on whose behalf a log of claims is served and the parties on whom the log is served and who did not accede to the claims, the claims that are not acceded to being the matters in dispute.

In determining whether the service and non-accession to a log has given rise to an industrial dispute, the approach to be taken was stated by this Court in Re State Public Services Federation; Ex parte Attorney-General (WA)[28]. Mason CJ, Deane and Gaudron JJ said:

"the Constitution, in s 51(xxxv), speaks of 'industrial disputes', not 'industrial disturbances'. Leaving aside questions that may arise with respect to the parties to a dispute, its subject matter and interstateness, all that is necessary to constitute an industrial dispute is disagreement as to the terms or conditions that should, in fact, apply as between employer and employee. Obviously, disagreement of that kind may come about as the result of a written demand and, thus, there is nothing inherently artificial about a 'paper dispute'[29].

It is sometimes said that a 'paper dispute' must be a 'genuine dispute'. That means no more than that written demands must be genuine demands[30]. If not - if, for example, they are part of a hoax or if they are intended to dress up a purely intrastate dispute[31] - their rejection will not involve any disagreement and, thus, will not result in a dispute at all.

To ascertain whether demands are 'genuine demands', it is sometimes asked whether the demands are seriously advanced[32] or, in the case of demands by or on behalf of employees, whether they are advanced with a view to 'obtaining improved terms and conditions ... within the framework of the claims made'[33]. This last formulation is one that takes account of the doctrine of ambit[34] and allows that a demand may be genuine notwithstanding that neither the union making it nor its members are 'intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log'[35].

Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or 'paper disputes', it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand."

The distinction that needs to be made is between what the claimant Union really and genuinely demands and what it expects to be granted. Apparent extravagance in the demands made is not inconsistent with the reality or genuineness of those demands, as this Court pointed out in R v Ludeke; Ex parte Queensland Electricity Commission[36]:

"The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands. Because the provisions of an award which settles a dispute must be 'relevant', 'reasonably incidental', or 'appropriate' to the statement of what is in dispute (Reg v Galvin; Ex parte Amalgamated Engineering Union, Australian Section[37]; Reg v Holmes; Ex parte Victorian Employers' Federation[38]), it is essential that the log is so expressed as to create a dispute which has sufficient breadth and scope: (1) to ground a general industry award free from objections on the ground of ambit; and (2) to justify variations of the award which may be made from time to time under s 59 in order to preserve the settlement of the initial dispute or to prevent a fresh dispute arising: Reg v Kelly; Ex parte Australian Railways Union[39]: Reg v Isaac; Ex parte State Electricity Commission (Vict.)[40]. For this reason, and because disagreement generating a dispute may relate to what is to be done in the future rather than the present, it is unnecessary for an organization to insist that its demands be implemented immediately in order that they be bona fide. These demands, known as 'ambit claims', are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seemed to be extravagant when made, appear, in the light of inflation, to be reasonable some years later."

Of course, inflation is not the only factor which might bring claims that at first appear to be extravagant within the realm of the attainable. Changes in productivity, technology, work practices or industrial relations generally may also have to be taken into account in framing a log of claims that is capable of grounding an industrial dispute.

The passage cited from the judgment in Ludeke was criticised in argument as an attempt to demonstrate the reality and genuineness of extravagant claims merely by reference to their utility in expanding the award-making jurisdiction of the Commission. Whilst the chief significance of an ambit claim is that it marks the limits of the award-making jurisdiction, it is not irrelevant to the reality and genuineness of the claim. The legitimate ambit claim can have regard to possible future developments and can allow some reasonable latitude in its formulation but it cannot exceed what might reasonably be thought to be attainable by negotiation, conciliation and arbitration in the foreseeable future. A claim that conforms to those requirements is not denied the qualities of being real and genuine, for it is reasonable to ascribe to the party serving such a log a desire really and genuinely to pursue such a claim by conciliation or arbitration. The proposition stated in Ludeke is correct in principle and entirely consistent with what was said in Re State Public Services Federation. And, as the Commission is better able than a court to evaluate possible industrial developments and to assess what might reasonably be thought to be attainable in the foreseeable future, the court will accord great weight to the Commission's opinion as to whether claims in a log are real and genuine. That is not an issue to be determined on extensive evidence given by union officials of their subjective intentions but by inference from the terms of the log and the general industrial situation known to or proved before the Commission.

The logs of claims in the present cases are described by Kirby J and we need not repeat them. The fact that the first log served by the ALHMWU was replaced by a second log, neither log being acceded to, did not preclude a finding by Senior Deputy President Riordan of a dispute between the parties about the claims in the second log. The service of the second log after the judgment in Re State Public Services Federation was published is in itself a factor which tends to show that the ALHMWU intended to pursue those claims. It can be readily acknowledged that those claims and the claims in the logs served on the prosecutors in the Lamsoon and Action Food Barns matters are extravagant and, perhaps, so extravagant as to invite the inquiry whether those claims were really and genuinely made. Without a background of industrial experience, a bystander might easily conclude that they were not real and genuine claims, even having regard to possible developments in the foreseeable future and allowing some reasonable latitude in their formulation. But the Commission found that the claims in the logs (subject to the excision on appeal of particular claims in the logs in the Lamsoon and Action Food Barns matters) that were regarded as being "far fetched and lacking in industrial reality"[41] were real and genuine. Possessed of special experience, the respective Commissioners revealed no vitiating error of principle in their findings. We would not find to the contrary.

We do not reach that conclusion by determining that on each occasion the Commission on the evidence before it was entitled to find that the log of claims was real and genuine. The question is not whether the Commission could reasonably have found that the logs were real and genuine but whether in truth they were real and genuine. In finding in favour of the respondents, however, the opinion of the Commission that an industrial dispute existed carries sufficient weight to lead us to the same conclusion. The proceedings before the Industrial Relations Court and before this Court were conducted on the evidence before the Commission. The appeal to this Court requires this Court to give the judgment which, on the same evidence, the Industrial Relations Court ought to have given[42]. Although we would give leave to the appellant to amend the notice of appeal by adding a ground (identified as ground 5F) relating to the scope of a legitimate log of claims we are satisfied that the Industrial Relations Court was correct to discharge the orders nisi for prohibition and certiorari. Accordingly the appeal should be dismissed. The orders nisi for prohibition and certiorari obtained by the prosecutors in the Lamsoon and Action Food Barns matters should be discharged to the extent that they assert that the claims contained in the logs of claims were fanciful and incapable of creating a genuine dispute.

DAWSON J.

I agree with the judgment of Toohey J and wish only to add the following comment.

The decision in Re State Public Services Federation; Ex parte Attorney-General (WA)[43], as I understand it, turned upon the fact that the so-called log of claims in that case was nothing more than a bare claim that the Industrial Relations Commission determine increased wages and allowances. It was a claim to which the assent or dissent of those upon whom it was served was irrelevant and accordingly it could not form the basis of an industrial dispute. At the most it could found a dispute concerning the power of the Commission to entertain such a claim and such a dispute would not be an industrial dispute.

No doubt the fanciful nature of the amounts claimed in that case pointed to the fact that the claim was merely for the determination of increased wages and allowances, but of more significance was the fact that the claim could not be seen as seeking to establish ambit for it stipulated that wages and allowances should be adjusted for cost of living increases.

As was observed in R v Ludeke; Ex parte Queensland Electricity Commission[44]:

"The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands."

On the other hand, a demand may, as Toohey J observed in Re State Public Services Federation; Ex parte Attorney-General (WA)[45], be so fanciful as to be incapable of being seen as genuine. The line, as Toohey J recognised, is not an easy one to draw.

But in these cases, there was no question that the demands made were merely to have the Commission determine terms and conditions of employment - bare claims for improved wages and allowances. Detailed provision was sought in the respective logs of claims and if some of the demands were inflated it was nevertheless open to the Commission to conclude they were put forward with the genuine intention of obtaining improved terms and conditions within the framework provided. In those circumstances, they might be seen as genuine notwithstanding there was no expectation that the demands would be met immediately as they were expressed[46].

TOOHEY J.

There are two matters before the Court. The first is an appeal, by leave, by the Attorney-General for Queensland ("the appellant") from orders made by the Full Court of the Industrial Relations Court of Australia dismissing a challenge made to a finding of industrial dispute made by a Senior Deputy President of the Industrial Relations Commission ("the Commission"). In the second matter Lamsoon (Australia) Pty Ltd and others and Action Food Barns and others seek by prerogative writs to challenge findings of industrial dispute made by members of the Commission. In each case the details of the claims made by the industrial organisations and the history of the proceedings in the Commission and thereafter appear in the judgment of Kirby J.

A great deal of material relating to the various proceedings in the Commission was presented to this Court. Much of it proved unnecessary to the resolution of the issues before the Court which are essentially questions of principle. The principles by which the issues raised by the appeal and the applications should be determined were largely identified by the Court in Re State Public Services Federation; Ex parte Attorney-General (WA)[47]. To a considerable extent these proceedings involve no more than the application of that decision. The appellant and the prosecutors did not challenge Re State Public Services Federation; their complaint, in part, was a failure by the Commission and the Industrial Relations Court to understand and to apply the decision. The precise issue in each case is whether service of a letter of demand and a log of claims by an organisation of employees upon employers in more than one State gave rise to an industrial dispute under the Industrial Relations Act 1988 (Cth) ("the Act")[48].

In the course of the argument by the appellant a challenge was made to the decision of this Court in R v Ludeke; Ex parte Queensland Electricity Commission[49]. More accurately, exception was taken to that part of the judgment of the Court in which reference was made to ambit claims. The Court said[50]:

"[I]t is unnecessary for an organization to insist that its demands be implemented immediately in order that they be bona fide. These demands, known as 'ambit claims', are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seemed to be extravagant when made, appear, in the light of inflation, to be reasonable some years later."

The legitimacy of ambit claims, so understood, has been accepted by the Court in a number of decisions[51]. There is no basis for departing from what the Court said in Ludeke, as far as it goes, but relevantly it goes no further than to say that the apparent extravagance of a claim does not of itself preclude the finding of an industrial dispute within the meaning of that term in the Act. However, as I said in Re State Public Services Federation[52]: "a log may be so far-fetched, so lacking in industrial reality that it cannot possibly be treated seriously". This is not inconsistent with what was said in Ludeke; indeed it follows from the statement in that case[53] that "the demands must be bona fide in the sense that they are being genuinely advanced". Inevitably questions will arise as to whether a demand is genuinely advanced. The extravagance of a claim may provide some evidence that it is not but its significance is evidentiary, to be taken into account along with other relevant considerations. It may be, for instance, that the motive in delivering a log of claims is to create an industrial dispute which will thereby attract the jurisdiction of the Commission to make an award. But so long as the claim is seriously advanced, it may give rise to an industrial dispute[54].

In R v Holmes; Ex parte Victorian Employers' Federation[55] Mason J said of the doctrine of ambit:

"Its purpose is not to determine the validity of a claim or log of claims, but to ensure that there exists an appropriate relationship between the dispute, especially a paper dispute, and the award which settles that dispute ... If the provisions are outside [the] ambit or scope [of the log] they cannot be characterized as a settlement of the dispute. It has been said that a provision will be within ambit if it is 'relevant' or 'reasonably incidental' or 'appropriate' to the settlement of the differences constituting the dispute or if it has a rational or natural tendency to dispose of the question at issue".

The significance given to the doctrine is further emphasised in the judgment of Brennan and Deane JJ in R v Bain; Ex parte Cadbury Schweppes Australia Ltd[56]:

" Once the stage of arbitration is reached, the ambit of the particular interstate industrial dispute is the yardstick for measuring the constitutional validity of an award made in exercise of the Commission's arbitral functions. That is because the ambit of the dispute determines the limits of the jurisdiction of an arbitrator to bind the parties by his award." Inevitably the effect of this approach has been to lead to inflated demands

[57]. The ambit doctrine has assumed importance because of the emphasis placed in many of the decisions upon the settlement, as opposed to the prevention, of industrial disputes. In the settlement of a dispute by the making of an award, ambit has had the consequence that an award beyond the scope of the claim is beyond power[58].

Another reason for the making of ambit claims is the view that the Commission cannot make a subsequent award or vary an industrial award to make provision beyond the amount claimed. As the Court pointed out in Ludeke[59]:

"These demands, known as 'ambit claims', are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins."

In Re State Public Services Federation[60] I noted, in relation to that dispute, that the Commission had observed that it may "take into account events subsequent to service and refusal of the log". And as Murphy J said in Bain[61] the ambit doctrine "is not to be applied rigidly" and an industrial dispute "may be diminished or ended or enlarged or altered during the course of the proceedings in the Commission".

None of this is intended to depart from the accepted principle that a log of claims must be real. Rather it is to suggest that too much emphasis on the ambit of a claim produces exaggerated demands, with the consequence that much of the time of the Commission is taken up with extensive (and often repetitive) cross-examination of union officials as to motive and what is hoped to be achieved by the claim.

Whether there has been a claim and a rejection so as to give rise to an industrial dispute is a matter for the Commission, subject to the right of appeal to the Industrial Relations Court and, by leave, to this Court and subject also to proceedings for prerogative relief in this Court pursuant to s 75(v) of the Constitution. But it is not the function of this Court to review the evidence before the Commission just to see what conclusion the Court itself would have reached. The existence of an industrial dispute is a matter which the legislature has entrusted primarily to the Commission, a specialist tribunal. If the jurisdiction of the Commission depends on matters of fact, "considerable weight" is attached to its decision[62]. Nevertheless, in the end the question is whether the claim is real and genuine.
In Re State Public Services Federation I discussed the role that onus has to play when the existence of an industrial dispute is asserted. Onus may not be the happiest of terms to use in relation to proceedings before the Commission since the Commission "is not bound by any rules of evidence" and "may inform itself on any matter in such manner as it considers just"[63]. Nevertheless, I adhere to what I said in that case[64]:

"It is for the applicant who has invoked the jurisdiction of the Commission to make good the proposition that jurisdiction exists. But, in doing so, the applicant will be assisted by the evidentiary weight to be attached to the service of a log of claims and a failure to accede to the demands contained in the log."

Whether or not one uses the term onus, the statutory functions of the Commission are to prevent and settle industrial disputes[65]. "Industrial dispute" is defined by s 4(1) in wide terms which include "a situation that is likely to give rise to an industrial dispute". Nevertheless as Windeyer J observed in Ex parte Professional Engineers' Association[66]:

"It is not possible by fictions to transgress the boundaries of the Constitution. A dispute may be a paper dispute. It must still be a real dispute, really extending beyond the boundaries of any one State."

It follows that, however the "standard of proof" is expressed, there must be material before the Commission from which it can legitimately conclude that an industrial dispute (as defined) exists.

Reference to a "paper dispute" tends to cloud the issue. A demand and a log of claims have evidentiary value. Indeed in R v Cohen; Ex parte Attorney-General (Q)[67] Gibbs CJ said:

"A formal demand will prima facie be regarded as real and genuine, unless the contrary is established".

Nevertheless there must be a dispute and, in the language of the cases, it must be real and genuine. It must not be, for instance, a bare claim for increased wages and conditions; the Commission is not a general regulatory body[68].

When prohibition is sought in this Court the onus is clearly on the prosecutor to demonstrate an absence of jurisdiction in the Commission; this is an inevitable consequence of challenging the jurisdiction of the Commission to do what it did[69]. But the two situations should not be conflated; they are different.

As Kirby J has observed in his judgment, before this Court only two points were argued by the appellant. The first was an attack on the finding of the Commission that a real and genuine industrial dispute existed. The second, which is not unrelated, was as to the consequences of the abandonment by the Australian Liquor, Hospitality and Miscellaneous Workers' Union ("ALHMWU") of its first demand and log of claims. The submission was that by abandoning its earlier claim ALHMWU must be taken to have acknowledged that its original log lacked reality and genuineness and that its second log of claims was similarly tainted. The submission must be rejected as it was rejected by the Industrial Relations Court. The second log must be judged on its own merits or lack thereof. If anything, the service of a second log in terms considerably modified from those in the first log points to the reality and genuineness of the second set of demands. I agree with Kirby J's detailed analysis of the second demand and log and with his Honour's conclusion that the Commission did not err in holding that the service of the demand and log and their rejection gave rise to a real and genuine dispute.

As to the applications for prerogative relief, findings of the existence of industrial disputes were made by particular Commissioners and upheld by Full Benches of the Commission. In each case there was a letter of demand and log of claims at the instance of the Shop, Distributive and Allied Employees' Association. Again, I agree with Kirby J's analysis of demands and logs and with his conclusion that the prosecutors have failed in their challenge to the findings of the Full Benches, based, as his Honour says, "upon their editing of the log of claims as originally demanded".

In the course of the hearing of the appeal and the applications for prerogative relief, mention was made of s 101(1) of the Act though it had not been relied upon by the respondents in the Commission or in the Industrial Relations Court or indeed in this Court. As it happens, the appeal may be dismissed and the applications refused without reliance upon s 101(1). And in the circumstances this is the appropriate course to take since its significance was not considered in the proceedings below and full argument was not addressed to the Court as to the proper construction and operation of the sub-section. Section 101(1) provides that subject to s 101(2):

"where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:

(a) determine the parties to the industrial dispute and the matters in dispute; and

(b) record its findings;

but the Commission may vary or revoke any of the findings".

On one view of the sub-section, the task for this Court where a finding of industrial dispute has been made by the Commission, is to determine whether it was open to the Commission, on the evidence, to form a view ("if it considers") that there was an industrial dispute as defined. This would be a different approach to that taken before 1988 when s 24(1) of the Conciliation and Arbitration Act 1904 (Cth) required the Conciliation and Arbitration Commission to "determine whether there is an industrial dispute". However broadly s 101(1) is construed, the power of the Parliament is constrained by the language of s 51(xxxv) of the Constitution. Section 101 has been mentioned in decisions of this Court, the Federal Court and the Industrial Relations Court[70]. These references are to the various sub-sections of s 101 including sub-s (1) but in none is any reliance placed upon the words "if it considers". This simply confirms the undesirability of expressing a view on the construction or operation of those words in these proceedings.

I agree with the orders proposed by Kirby J.

GAUDRON AND GUMMOW JJ.

The issue in each of these matters is whether service of a log of claims by an organisation of employees upon employers in different States gave rise to an industrial dispute for the purposes of the Industrial Relations Act 1988 (Cth) ("the Act"). The Act has since become the Workplace Relations Act 1996 (Cth). References in this judgment to the Act and its provisions are references to the Industrial Relations Act 1988 (Cth)as it stood immediately prior to its amendment by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).

It was argued by the appellant in the first matter and by the prosecutors in the second and third matters that it is to be inferred from the extravagance of the claims contained in the log of claims involved in their respective matters that the claims were not genuinely advanced and, thus, did not give rise to industrial disputes. The facts and the legislative and constitutional provisions relevant to that issue as it arises in each matter are set out in the judgment of Kirby J. They need not be repeated.

We agree with Kirby J, substantially for the reasons that his Honour gives, that this Court should not in these cases reconsider its statement in R v Ludeke; Ex parte Queensland Electricity Commission that, because of the ambit doctrine "and because disagreement generating a dispute may relate to what is to be done in the future rather than the present, it is unnecessary for an organization to insist that its demands be implemented immediately in order that they be bona fide."[71] That principle has been adopted and acted upon on several occasions[72]. And once it is accepted, as it must be, that logs of claims are to be understood in the light of that principle, including the ambit doctrine[73], it follows, as Kirby J points out, that the apparent extravagance of the claims in question does not, of itself, indicate that they were not genuinely advanced.

As the only matter advanced in support of the proposition that there was no dispute in any of the matters presently before the Court was the extravagance of the claims made, we agree with Kirby J that the dispute findings made by the Industrial Relations Commission ("the Commission") should stand. We do so on the basis that it was for the Industrial Relations Court, in the first matter, and that it is for this Court, in the second and third matters, to determine whether, in fact, there were industrial disputes as found by the Commission. In that exercise, we have proceeded in accordance with long-established principles which require that service of a log of claims be viewed "prima facie as genuine and real"[74] and that the party who asserts to the contrary bears the onus of "clearly [so] establishing"[75].

Notwithstanding our agreement with Kirby J as to the matters indicated, we wish to comment specifically on certain matters raised in argument. The matters in question are relevant both to the ambit doctrine and to the task of this Court when prerogative relief is sought with respect to the Commission's decisions as to the existence of an industrial dispute.

The view was taken with respect to the Commission's predecessors, the Conciliation and Arbitration Commission and the Court of Conciliation and Arbitration, that their powers were exercisable only in respect of disputes the existence of which was established as a matter of fact[76]. Thus, it was said in Ludeke that "[w]hether [a] dispute is real and genuine, whether it is founded on a real and genuine demand, is a question of fact for the [Conciliation and Arbitration] Commission to determine and it remains a question of fact for this Court to determine on an application for relief by way of prerogative writ"[77].

By s 24(1) of the Conciliation and Arbitration Act 1904 (Cth), as it stood when Ludeke was decided[78], the Conciliation and Arbitration Commission was required to "determine whether there [was] an industrial dispute"[79]. It is clear that that provision operated to require it to determine whether there was a dispute as a matter of fact. And because s 75(v) of the Constitution[80] operates so that a tribunal such as the Commission cannot exclusively determine the facts upon which its jurisdiction depends, this Court was also required to determine whether there was a dispute as a matter of fact when relief was sought by way of prerogative writ.

The dispute findings made by the Commission in these matters were made pursuant to s 101(1) of the Act - a provision markedly different from s 24(1) of the Conciliation and Arbitration Act. Section 101(1) provides that, subject to s 101(2):

"where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:

(a) determine the parties to the industrial dispute and the matters in dispute; and

(b) record its findings;

but the Commission may vary or revoke any of the findings." (Emphasis added.)

It is provided in s 101(2) of the Act that, for the purpose of exercising its powers in subsequent proceedings, other than on appeal, the Commission, however constituted, may proceed on the basis of findings recorded under s 101(1). In that context and as a matter of ordinary language, the prima facie operation of s 101(1) is to require the Commission to exercise its powers if it considers that there is a dispute and not, as was previously the case, only if it determines that there is a dispute as a matter of fact. And if s 101(1) operates in that way, the task of this Court on an application for prerogative relief is not to determine whether a dispute exists as a matter of fact but whether, on the evidence, it was open to the Commission to form a view to that effect[81].

The prima facie view as to the operation of s 101(1) is one that is consonant with the definition of "industrial dispute" in s 4(1) of the Act. That definition includes a "threatened, impending or probable [interstate] industrial dispute" and extends to "a situation ... likely to give rise to an [interstate] industrial dispute". In these respects, the definition is to much the same effect as definitions contained in earlier legislation[82]. Although different considerations may apply to a threatened dispute, it is difficult to see that the Commission - and, indeed, its predecessors - could ever do more than form a view, as distinct from determining as a matter of fact, that a situation was likely to give rise to an industrial dispute or that a dispute was impending or probable.

Prima facie, at least, there is nothing in the Act to suggest that s 101(1) should be construed other than in accordance with its natural and ordinary meaning. And as presently advised, we do not see why s 51(xxxv) of the Constitution does not authorise the conferral of powers on the Commission to be exercised in the event that it considers there is an interstate industrial dispute as defined in s 4(1) of the Act[83]. In this regard, we note that s 51(xxxv) is directed to the "prevention and settlement" of industrial disputes and is apparently concerned with industrial disputes "in the abstract"[84], not particular disputes.

If s 51(xxxv) is viewed by reference to its component parts, it is arguable that that aspect concerned with settlement of disputes only permits of laws for the conciliation and arbitration of actual disputes. However, even on that approach, its preventive aspect clearly extends to authorise laws conferring powers of conciliation and arbitration if the Commission considers that an interstate dispute is otherwise likely to occur. In this regard, it is sufficient to note that it is clear that "[t]he question whether a situation is likely to give rise to an interstate industrial dispute is one that can be answered only by making a judgment or forming an opinion in that regard."[85]

There is an incongruity in the approach which would allow the Commission to exercise its powers if it forms the view that a situation is likely to give rise to an interstate industrial dispute, but not if it considers that there is a dispute of that kind. In our view, that incongruity requires that the phrase "prevention and settlement" in s 51(xxxv) of the Constitution be read as a whole. When so read, it is tolerably clear that, at the very least, it extends to laws authorising the Commission to exercise its powers of conciliation and arbitration if, in terms of s 101(1) of the Act, it considers there is an interstate industrial dispute.

In Darling Casino Ltd v NSW Casino Control Authority[86], we discussed the operation of s 75(v) of the Constitution with respect both to the limits of the constitutional competence of the Parliament and jurisdictional error going to the ambit or nature of the power conferred by a valid law. The expressions "constitutional fact" may be used in relation to the former and "jurisdictional fact" in relation to the latter.

If s 101(1) be construed in accordance with its natural and ordinary meaning and, so construed, is supported by s 51(xxxv) of the Constitution, then, upon an application under s 75(v) of the Constitution, the existence of an industrial dispute would be neither a constitutional fact nor a jurisdictional fact. And if s 101(1) operates according to its terms, these cases have been conducted on an erroneous view as to the task to be undertaken by the Industrial Relations Court, in the first matter, and by this Court, in the second and third matters. However, it is not necessary in these proceedings to determine whether s 101(1) does operate according to its terms.

The extent of the power conferred by s 51(xxxv) of the Constitution also bears directly on the doctrine of ambit and the practice that has developed with respect to so-called "paper disputes". Both the ambit doctrine and the approach which this Court has traditionally taken to "paper disputes" can be traced to the decision in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co[87]. One aspect of that case concerned the wages of "boy apprentices", it "never [having been] in controversy ... that experience combined with age was the basis on which [their] pay ... should [have been] regulated."[88] Wages were fixed on the basis of age only, with the consequence, in the words of Isaacs J, that "as to some apprentices more [was] awarded than was asked for and refused, and therefore more than was in dispute."[89] His Honour was of the view that in that respect the Court of Conciliation and Arbitration exceeded its jurisdiction because "[i]t is the dispute that has to be regarded and adjudicated upon."[90] It was the emphasis in that case on the precise claim made and refused that is the foundation of the ambit doctrine. And the precise ambit of the dispute as it affected apprentices was ascertained by reference to the claims contained in a written document served upon employers[91], the dispute so raised having been treated "prima facie as genuine and real"[92] - an approach that has been followed by this Court ever since.

The ambit doctrine is grounded in the notion that the powers of conciliation and arbitration are to be exercised only with respect to an actual dispute the limits of which can be identified precisely both as to its parties and its subject-matter. However, it is not apparent that that is required by s 51(xxxv). Rather, in our view, the position is as stated by Deane J in Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd[93]:

"If the Constitution means what is says when it confers a broad power to make laws with respect to conciliation and arbitration for the prevention of interstate industrial disputes in the abstract, it is far from evident either that there is any constitutional need to make the manufacture of an interstate dispute, whether paper or real, a condition of the exercise of jurisdiction conferred pursuant to that grant of legislative power or that it would not suffice for constitutional purposes if, eg, the grant of jurisdiction to an expert tribunal such as the Commission were merely conditioned upon the opinion of the tribunal that circumstances exist in which the tribunal's conciliation or arbitration procedures may be conducive to the prevention of interstate industrial disputes."

Were power conferred in those terms, a log of claims might continue to serve a useful procedural function in engaging the Commission's jurisdiction, but the need for claims to be exaggerated lest they fall foul of the ambit doctrine would be significantly reduced.

There is one other matter with respect to the scope of s 51(xxxv) that bears upon the ambit doctrine. As with other legislative powers, s 51(xxxv) carries with it all that is "necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter."[94] That being so, it is by no means evident that power cannot be conferred on the Commission to vary an award to preserve or maintain the settlement effected by the award. In the absence of a power of that kind, it is inevitable that the ambit doctrine will be of continuing significance. And so long as significance attaches to the doctrine, it is a matter properly to be taken into account in determining whether claims are genuinely advanced.

The final matter to which we would advert is one raised on behalf of the Attorney-General of South Australia who intervened in these matters pursuant to s 78A of the Judiciary Act 1903 (Cth). The ambit doctrine has been applied as authorising an award "if it is 'relevant' or 'reasonably incidental' or 'appropriate' to the settlement of the differences constituting the interstate dispute or if it has a 'natural or rational tendency to dispose of the question at issue'"[95]. However, it may be that the doctrine permits of greater flexibility than has hitherto been recognised. The power which may be conferred pursuant to s 51(xxxv) is a power to be exercised for a purpose, namely, the prevention and settlement of interstate industrial disputes. And the terms of s 89(a) of the Act identify the main function of the Commission in terms of purpose. By that paragraph, its function is:

"to prevent and settle industrial disputes:

(i) so far as possible, by conciliation; and

(ii) where necessary, by arbitration".

There is no doubt that the Commission is bound by the rules of procedural fairness[96]. Subject to that consideration, there seems no reason why the Commission's award-making powers should not extend to the making of an award the terms of which are reasonably capable of being viewed as appropriate and adapted to the prevention and settlement of interstate disputes between those parties whose industrial interests are at stake. Similarly, there seems no reason why the Commission's powers should not extend to the variation of an award by provisions which are reasonably capable of being viewed as appropriate and adapted to preserving or maintaining the settlement effected by the award when first made. In respect of these matters, it is sufficient to note that it is uncontroversial that a general power which is to be exercised for a purpose extends to whatever is reasonably capable of being viewed as appropriate and adapted to that purpose.

Were jurisdiction to be conferred on the Commission in the terms indicated and were its award-making powers to be exercised on the basis that they extend to the making and variation of awards which are reasonably capable of being viewed as appropriate and adapted to the purposes to which reference has been made, there would be little, if any, justification for the making of extravagant demands. So to say is merely to acknowledge that industrial claims must be viewed in the light of the relevant legislative provisions which from time to time set the limits of the Commission's power and the manner in which it exercises those powers. Changes in those matters may well justify a more critical analysis of claims which, in the light of current practice, are merely regarded as "extravagant".

We agree with the orders proposed by Kirby J.

KIRBY J.

The proceedings before the Court concern the limits of the jurisdiction of the Australian Industrial Relations Commission ("the Commission"). Relevantly, those limits are fixed by the requirements of the Constitution[97] and the Industrial Relations Act 1988 (Cth) ("the Act")[98] as to an "industrial dispute"[99]. Constitutional[100] and statutory[101] powers to prevent industrial disputes might, as this Court has repeatedly pointed out, provide a means of escaping some of the artificialities which have developed around the concept of "industrial dispute"[102]. Prevention of such disputes could give rise to a jurisprudence more in harmony with "the realities of contemporary economic and industrial affairs"[103]. However, the present proceedings involve a further exploration of the notion of "industrial dispute" and the requirement that the "dispute" must be a "real"[104] and "genuine"[105] one.

Two matters are involved[106]. The first is an appeal, by leave, brought by the Attorney-General for Queensland ("the appellant") from orders of the Full Court of the Industrial Relations Court of Australia[107] ("the Industrial Relations Court"). That Court unanimously[108] rejected a challenge to the finding of an "industrial dispute" made by the Hon Joseph Riordan, Senior Deputy President of the Commission[109]. The second involves applications brought to this Court by Lamsoon (Australia) Pty Ltd and others[110] and Action Food Barns and others[111] ("the prosecutors") against various members of the Commission, designed to challenge the findings of the existence of "industrial disputes" affecting them[112]. In the applications, a constitutional writ of prohibition[113] and a writ of certiorari[114] have been sought to prohibit the Commission from any further proceedings based on such findings and to quash the findings already made. Originally, the proceedings on these applications were remitted for determination by the Industrial Relations Court[115]. However, because the issues and arguments raised in the applications were common to those involved in the pending appeal, the orders of remitter were revoked[116]. By consent of the parties, both the appeal and the applications were heard together.

[189] Attorney-General (Queensland) v Riordan (1995) 63 IR 317 at 319-320.
[190] Attorney-General (Queensland) v Riordan (1995) 63 IR 317 at 319.
[191] Attorney-General (Queensland) v Riordan (1995) 63 IR 317 at 319.
[192] Attorney-General (Queensland) v Riordan (1995) 63 IR 317 at 319-320.
[193] (1993) 178 CLR 249. On the same day the Court delivered judgment in Re PKIU; Ex parte Vista Paper Products (1993) 67 ALJR 604; 113 ALR 421; and Re Finance Sector Union (1993) 67 ALJR 619; 113 ALR 448.
[194] Unreported, Australian Industrial Relations Commission, 11 October 1993 (Print K9423) per Riordan SDP.
[195] Unreported, Australian Industrial Relations Commission, 21 December 1993 (Print L0729) per Boulton J, Polites DP and Holmes C.
[196] Unreported, Australian Industrial Relations Commission, 16 February 1994 (Print L1769). The challenge is to that finding of a dispute as varied by Senior Deputy President Riordan on 21 February 1994.
[197] Unreported, Australian Industrial Relations Commission, 22 July 1994 (Print L4450) per Keogh SDP, Munro J, Frawley C.
[198] Attorney-General (Queensland) v Riordan (1995) 63 IR 317.
[199] Unreported, Australian Industrial Relations Commission, 11 October 1993 (Print K9423) at 7.
[200] SPSF Case (1993) 178 CLR 249. He also referred to Re PKIU; Ex parte Vista (1993) 67 ALJR 604; 113 ALR 421.
[201] R v Commonwealth; Ex parte Kirsch (1938) 60 CLR 507 at 538.
[202] (1993) 178 CLR 249. Judgment delivered 3 June 1993.
[203] Unreported, Australian Industrial Relations Commission, 16 February 1994 (Print L1769) at 5.
[204] Unreported, Australian Industrial Relations Commission, 16 February 1994 (Print L1769) at 15.
[205] Order of Commission, 21 February 1994.
[206] Attorney-General (Queensland) v Riordan (1995) 63 IR 317.
[207] (1993) 178 CLR 249.
[208] Attorney-General (Queensland) v Riordan (1995) 63 IR 317 at 326.
[209] (1985) 159 CLR 178 at 182.
[210] (1995) 63 IR 317 at 331.
[211] (1995) 63 IR 317 at 343. Note that there have been several cases where the Commission has found that demands were not "real" or "genuine". See for example Victorian State Building Trades Union v Pioneer Plasterboard (1991) 4 CAR 300 (Print J7482) and other cases referred to in Kollmorgen and Harvey, "Genuine and 'Post-modern' Industrial Demands: The State Public Services Federation Case and Federal Tribunal Practice" (1994) 36 Journal of Industrial Relations 394 at 400-401.
[212] cf Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] (1930) 42 CLR 527; Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558.
[213] cf SPSF Case (1993) 178 CLR 249.
[214] SPSF Case (1993) 178 CLR 249 at 270-271.
[215] Mr T M Allen, Senior Finance Officer with the Queensland Bureau of Emergency Services estimated that, if implemented, the April 1993 log would increase the wages and salaries budget of the Queensland Ambulance Service from $70.523 million to $1,175.266 million. The cost of implementing the December 1993 log would be $766.925 million. It is estimated that the earnings of an individual full-time qualified ambulance officer with eight years service would rise from $28,699 per year to $196,040 per year (April log) or $171,200 (December log). See Attorney-General (Queensland) v Riordan (1995) 63 IR 317 at 329.
[216] SPSF Case (1993) 178 CLR 249 at 306.
[217] The Act, s 147.
[218] (1985) 159 CLR 178.
[219] (1993) 178 CLR 249.
[220] Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] (1930) 42 CLR 527 at 549.
[221] Re McIntyre (1995) 131 ALR 689.
[222] Holyman's Case (1914) 18 CLR 273 at 285.
[223] (1993) 178 CLR 249.
[224] (1985) 159 CLR 178 at 183.
[225] (1993) 178 CLR 249.
[226] (1993) 178 CLR 249 at 267-268 per Mason CJ, Deane and Gaudron JJ, 292 per Toohey J, 303, 305-306 per McHugh J.
[227] (1993) 178 CLR 249 at 269 per Mason CJ, Deane and Gaudron JJ, 277 per Dawson J, 291 per Toohey J, 307 per McHugh J.
[228] See (1993) 178 CLR 249 at 299-301 per Toohey J. This point is elaborated and explained in Weeks, "Major Tribunal Decisions in 1993" (1994) 36 Journal of Industrial Relations 74 at 89.
[229] (1993) 178 CLR 249 at 266 per Mason CJ, Deane and Gaudron JJ, 276 per Brennan J, 277-278 per Dawson J, 301 per McHugh J.
[230] (1993) 178 CLR 249.
[231] Cll 6(b), 20(b), 61.
[232] Cl 65.
[233] Cl 66.
[234] Cl 73.
[235] On 29 November 1996.
[236] Shop Distributive and Allied Employees Association v Lamsoon Australia Pty Ltd, unreported, Australian Industrial Relations Commission, 9 September 1994 (Print L5202) at 4.
[237] Shop Distributive and Allied Employees Association v Lamsoon Australia Pty Ltd, unreported, Australian Industrial Relations Commission, 9 September 1994 (Print L5202) at 5.
[238] Hancock SDP, Harrison DP and Leary C.
[239] Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76.
[240] Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 81.
[241] Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 82.
[242] Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 83.
[243] Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 81.
[244] Shop, Distributive and Allied Employees Association and A & N Jeffers, unreported, Australian Industrial Relations Commission, 14 December 1994(Print L7778).
[245] Shop, Distributive and Allied Employees Association and A & N Jeffers, unreported, Australian Industrial Relations Commission, 14 December 1994(Print L7778) at 10.
[246] Shop, Distributive and Allied Employees Association and A & N Jeffers, unreported, Australian Industrial Relations Commission, 14 December 1994(Print L7778) at 16.
[247] Sub nom The Retail Traders' Association of Victoria, unreported, Australian Industrial Relations Commission, 31 October 1995 (Print M6550) per Hancock SDP, Watson DP and O'Connor C.
[248] (1993) 178 CLR 249.
[249] Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76.
[250] (1995) 63 IR 317.
[251] The Retail Traders' Association of Victoria, unreported, Australian Industrial Relations Commission, 31 October 1995 (Print M6550) at 12.
[252] The Retail Traders' Association of Victoria, unreported, Australian Industrial Relations Commission, 31 October 1995 (Print M6550) at 13.
[253] (1993) 178 CLR 249; see also Re PKIU; Ex parte Vista (1993) 67 ALJR 604; 113 ALR 421.
[254] (1995) 63 IR 317.
[255] R v Commonwealth; Ex parte Kirsch (1938) 60 CLR 507 at 538 per Dixon J dissenting; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 317-318.
[256] Re PKIU; Ex parte Vista (1993) 67 ALJR 604 at 613; 113 ALR 421 at 433.
[257] According to a schedule tendered with the prosecutors' submissions, the logs of claim (as varied) would involve extra payments to employees so that the total annual salary would increase for an employee of one year's service from $21,291.52 at the time of the receipt of the demand to $421,875.48 in compliance with the log.
[258] Ludeke (1985) 159 CLR 178 at 183.
[259] The Act, s 101(1).
[260] See Ludeke (1985) 159 CLR 178 at 184; SPSF Case (1993) 178 CLR 249 at 283-284.
[261] (1993) 178 CLR 249.
[262] See also the Act, s 101(1).
[263] SPSF Case (1993) 178 CLR 249 at 288-289.
[264] By the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sch 16, the jurisdiction previously conferred upon the Industrial Relations Court is returned to the Federal Court of Australia from 25 May 1997.
[265] Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 93-94.
[266] cf De L v Director-General (NSW) (1997) 71 ALJR 588; 143 ALR 171.