Australian Airlines Ltd v Moore
[1995] IRCA 175
•28 April 1995
CATCHWORDS
INDUSTRIAL LAW - Conciliation and arbitration - Australian Industrial Relations Commission - jurisdiction - industrial dispute - demand by pilots employed by subsidiary company on parent company seeking recruitment into the parent company according to an integrated seniority list - whether demand capable of creating industrial dispute - meaning of "about matters pertaining to the relationship between employers and employee"
WORDS AND PHRASES - "Industrial Dispute"
Industrial Relations Act 1988 ss4, 412(2), 412(3) and 415(2)(d)
The Queen v Coldham Ex Parte Fitzsimons (1977) 137 CLR 153
The Queen v Evatt Ex Parte The Master Builders' Association of New South Wales (1974) 132 CLR 150
The Queen v Dunlop Rubber Australia Ltd Ex Parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71
R v Commonwealth Court of Conciliation and Arbitration Ex Parte Kirsh (1938) 60 CLR 507
Re Cram Ex Parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117
Re Boyne Smelters Ltd Ex Parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 447
Re The Amalgamated Metal Workers Union of Australia Ex Parte The Shell Company of Australia Ltd (1992) 174 CLR 345
Re Ranger Uranium Mines Pty Ltd Ex Parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656
AUSTRALIAN AIRLINES LIMITED V THE HONOURABLE MICHAEL FRANCIS MOORE AND OTHERS
No VI 806 of 1994
WILCOX CJ, NORTHROP AND GRAY JJ
MELBOURNE
28 APRIL 1995
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA No VI 806 of 1994
VICTORIA DISTRICT REGISTRY
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
B E T W E E N :
AUSTRALIAN AIRLINES LIMITED
Applicant
A N D :
THE HONOURABLE MICHAEL FRANCIS MOORE AND OTHERS
Respondents
COURT: WILCOX CJ
NORTHROP J
GRAY J
PLACE: MELBOURNE
DATE: 28 APRIL 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
Note: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 VI 806 of 1994
VICTORIA DISTRICT REGISTRY
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
B E T W E E N :
AUSTRALIAN AIRLINES LIMITED
Applicant
A N D :
THE HONOURABLE MICHAEL FRANCIS MOORE AND OTHERS
Respondents
COURT: WILCOX CJ
NORTHROP J
GRAY J
PLACE: MELBOURNE
DATE: 28 APRIL 1995
REASONS FOR JUDGMENT
THE COURT
Australian Airlines Limited ("Australian Airlines") is seeking orders preventing the Australian Industrial Relations Commission ("the Commission") continuing to hear and determine an alleged industrial dispute under the Industrial Relations Act 1988 ("the Act") between identified professional air pilots employed by Eastern Australian Airlines Limited ("Eastern Airlines") concerning career progression rights of those pilots into Australian Airlines. Australian Airlines and Eastern Airlines are related corporations, the latter being a wholly owned subsidiary of the former. Each company employs pilots but Eastern Airlines is engaged in regional operations only. As a result pilots employed by that company do not have the career prospects available to pilots employed by Australian Airlines. The issue raised, as stated by counsel for Australian Airlines, is:
"whether a dispute arising from a demand by employees of one employer (pilots employed by Eastern Australian Airlines) upon another employer (Australian Airlines) that that other employer employ them is a dispute which is about matters which pertain to the relationship between employers and employees within the meaning of the definition of "industrial dispute" in section 4 of the Act."
The issue raised, as stated by counsel for the persons asserting the existence of the dispute, is:
"whether a group of employees who are employed by a wholly-owned subsidiary company which is operationally integrated with its parent company can create an industrial dispute within the meaning of the Act with the parent company by making a claim for career progression into the parent company"
The application comes within the original jurisdiction of the Industrial Relations Court of Australia pursuant to subsections 412(2) and (3) of the Act. The application is being heard by a Full Court by reason of paragraph 415(2)(d) of the Act. On the application of Australian Airlines, the High Court of Australia constituted by Toohey J granted a rule nisi directed to the respondents in the proceeding to show cause why the Commission should not be prohibited from continuing to hear and determine the dispute. The rule nisi was due to come on for hearing before a Full Court of the High Court on 31 May 1994 but the hearing was adjourned to 10 June 1994. On 30 March 1994 the Industrial Relations Reform Act 1993 came into operation. As a result sections 412 and 415 were inserted into the Act. On 10 June 1994 a Full Court of the High Court ordered that further proceedings in the matter be remitted to the Industrial Relations Court of Australia; see High Court Practice Direction No 1 of 1994 dated 29 March 1994, (1994) 120 ALR 383.
The industrial dispute alleged by the pilots arises from a letter dated 18 September 1991 from the Australian Federation of Air Pilots as agent for the pilots to Australian Airlines with respect to career progression of pilots employed by Eastern Airlines into Australian Airlines. Australian Airlines does not employ anyone on behalf of Eastern Airlines nor does it recruit employees on behalf of Eastern Airlines. On the other hand Eastern Airlines and Australian Airlines are not at arm's length. As we have said Eastern Airlines is a wholly owned subsidiary of Australian Airlines. Eastern Airlines operates as a feeder airline for Australian Airlines operations though, in some respects, forms part of the Australian Airlines network itself. Bookings on Eastern Airlines flights can be coded as if they were Australian Airlines flights. Eastern Airlines aircraft have Australian Airlines livery though with the addition of the word "Eastern". Having regard to the history of the relationship between the two airlines, the demand by the pilots employed by Eastern Airlines that they be afforded career progression into employment with Australian Airlines would have been understood by the pilots, Australian Airlines and Eastern Airlines as requiring Eastern Airlines to maintain a register of pilots employed by it recording their seniority with Eastern Airlines and requiring Australian Airlines to recruit pilots in the employ of Eastern Airlines by reference to their seniority. The demand by the pilots would have no effective operation in the absence of an obligation on Australian Airlines to recruit from pilots employed by Eastern Airlines. Australian Airlines rejected the demand.
On 4 March 1992, the Commission constituted by Commissioner McDonald found that an industrial dispute existed between the pilots on the one hand and Australian Airlines and Eastern Airlines on the other and that the subject of the dispute was "a mode of recruitment" of pilots by Australian Airlines. On 25 September 1992, a Full Bench of the Commission constituted by Vice President Moore, Deputy President Williams and Commissioner Sweeney granted leave to Australian Airlines and Eastern Airlines to appeal the finding of dispute made by Commissioner McDonald but dismissed the appeals.
In order to determine this matter, it is necessary to refer to parts of definitions of certain words and phrases contained in section 4 of the Act:
""industrial dispute" means:
(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 ... "
""employee" includes any person whose usual occupation is that of employee;"
""employer" includes:
(a) any person who is usually an employer; and ... "
The Industrial Relations Act 1988 came into operation on 1 March 1989. Many of the authorities referred to in the course of submissions were based on equivalent definitions contained in the Conciliation and Arbitration Act 1904 ("the 1904 Act"). The parts of those definitions relevant for present purposes are:
""Industrial dispute" means:
(a)a dispute ... as to industrial matters which extends beyond the limits of any one State ... "
""Industrial matters" means all matters pertaining to the relations of employers and employees ... "
""Employer" means any employer in any industry and includes any person who is usually an employer in an industry ... "
""Employee" means any employee in any industry and includes any person whose usual occupation is that of employee in any industry."
In the proceedings before the Court, it is accepted that there is a dispute between the pilots and Australian Airlines extending beyond the limits of any one State. It is accepted also that Australian Airlines is an employer and that the pilots are persons whose usual occupation is that of employees. The only issue is whether the dispute is "about matters pertaining to the relationship between employers and employees". The pilots seek a restriction to be imposed on the right of Australian Airlines to engage persons as pilots. Such a restriction could lead to differences of opinion between pilots employed by Eastern Airlines on the one hand and other pilots whether employed by Australian Airlines or seeking to be engaged as pilots by Australian Airlines. These facts might explain why the Australian Federation of Air Pilots, an organisation of employees under the Act, acted as agent for the pilots employed by Eastern Airlines and not as a party principal to create a dispute between itself and Australian Airlines with respect to this issue.
Air pilots are highly skilled employees whose work forms an essential part of the successful operation of an airline such as Australian Airlines. The Court can accept what was inherent in the views of the Commission that a career structure for pilots is available within Australian Airlines but is severely restricted in Eastern Airlines. It is easy to visualize an organisation of employees making a demand as a party principal on Australian Airlines that air pilots, eligible to be members, be engaged as pilots by Australian Airlines so as to entitle those pilots to the career structure available in Australian Airlines. If such a demand could form the basis for the creation of an industrial dispute, it is difficult to see why pilots themselves cannot do likewise. Natural persons, being employees, have the capacity to create an industrial dispute under the Act with an employer or employers. This matter is discussed by Mason J in The Queen v Coldham Ex Parte Fitzsimons (1977) 137 CLR 153 at 170-3 ("the Ansett Case"). It is illustrated by a reference to The Queen v Evatt Ex Parte The Master Builders' Association of New South Wales (1974) 132 CLR 150 although the problems referred to in that decision would not be of the same magnitude in the present case.
Counsel for the pilots submitted that the reasons expressed in the Ansett Case supported the finding of an industrial dispute in the present matter. That authority had similarities to the present but there were differences also. It involved one corporation, Ansett Transport Industries (Operations) Pty Ltd. In the report, this company is called "ATIO". ATIO conducted regular scheduled airline services throughout Australia but under four business names. Its principal activity was carried on under the name Ansett Airlines of Australia ("Ansett Airlines") being interstate trunk routes plus other services. The other three activities were carried on under other names but, as Stephen J said, for the sake of convenience these activities could be described as intra-state airlines although that was not necessarily an accurate description. ATIO employed a large number of pilots many of whom were members of the Australian Federation of Air Pilots. A dispute arose between ATIO and pilots employed by it concerning aspects of a proposed integrated seniority list of pilots. At the time the matter came before the High Court, the Federation was not a party to that dispute. The dispute was between ATIO and the pilots employed by it in relation to the operations of the intrastate airlines. Pursuant to the provisions of the 1904 Act then in operation, an individual pilot claiming to represent, and in fact accepted as representing, all pilots employed by the intrastate airlines notified the Flight Crew Officers' Industrial Tribunal of an industrial dispute concerning the manner of compiling the integrated seniority list. The other pilots employed by ATIO in Ansett Airlines unsuccessfully challenged the existence of an industrial dispute. The Tribunal found there was an industrial dispute relating to the seniority listing of those pilots employed by the intrastate airlines and Ansett Airlines.
At 157 Stephen J described the integrated seniority list as follows:
"The proposed integrated seniority list which is the subject of the dispute would include all pilots employed by ATIO, regardless of their engagement with a particular airline. Their order of seniority on that list would govern all matters of promotion, retrenchment and the like, the whole of the ATIO network of airlines being for this purpose treated as one. This would mark a substantial change in ATIO industrial policy which has long treated the staffing of each of its four airlines as a matter domestic to that particular airline, although for some time some form of integrated seniority list, employed for apparently quite limited purposes, has been in existence. This is a change to which the pilots who now fly with Ansett Airlines of Australia are apparently opposed and they, as prosecutors, now seek prohibition against the Tribunal, those pilots flying with the intrastate airlines also being respondents."
Mason J, who wrote the other major judgment, described the integrated list at 164-5 as follows:
"Hitherto the pilots of each of the four airlines have had their promotion in rank and qualification for operating aircraft measured or determined by a seniority list confined to pilots employed in the particular airline in which they were employed. The essence of the claim for the integrated seniority list is that when a vacancy occurs in one of the four airlines it will be filled by the pilot who has priority according to the integrated list, notwithstanding that he may not be a pilot employed in the airline in which the vacancy occurred. Likewise, when a retrenchment is made in one airline the pilot whose services will be terminated will be the pilot whose seniority according to the integrated list marks him out for retrenchment, notwithstanding that he is not working for the airline called upon to make the retrenchment. The position of the retrenched pilot will them be taken by a pilot from the airline in which the redundancy has actually occurred."
Stephen and Mason JJ each concluded that there existed an industrial dispute as defined on the basis that ATIO was the employer of all the pilots. It is interesting to note the views of Mason J relating to the creation of a dispute by a natural person as distinct from an organisation, see 170-173.
Stephen J expressed the opinion that even if Ansett Airlines and the intrastate airlines were separate and distinct employers, nevertheless there would be an industrial dispute between the pilots and Ansett Airlines. Concerning this issue, commencing at 161, his Honour expressed the view that a demand relating to an employee's entitlement to promotion must concern an industrial matter. A fortiori it would be a matter "pertaining" to the relationship between employers and employees. His Honour referred to the difficulty arising if the employers were competitors, but said that no such difficulties were involved in the case before the High Court since "the common interest and close relationship of the Ansett Airlines, in an industry where qualifications and training are officially standardized, provide a ready basis for integration of seniority rights". His Honour then considered a number of authorities of the High Court and at 164 said:
"It is in the light of considerations such as these that I have concluded that a demand for an integrated seniority list for pilots engaged in the four airlines would, if refused, give rise to an industrial dispute even if each airline was a distinct legal person, a subsidiary company of ATIO. The demand would relate to an industrial matter and would not be deprived of that character by the fact that ATIO chose to conduct its affairs by means of a group of subsidiary companies rather than through divisions of the one corporate entity. This conclusion serves to demonstrate how unrewarding must be the prosecutors' search for a want of industrial subject matter if directed only to showing some high degree of separation between the various "businesses" of ATIO."
Counsel for the pilots in the present case submitted this opinion was correct and should be adopted by this Court. If correct, the dispute extended both to the employment of existing pilots employed by Australian Airlines and the engagement of new pilots on principles similar to those relating to preference claims - on this latter point, see Mason J at 169 and Murphy J at 174. Counsel for Australian Airlines submitted the opinion of Stephen J was obiter only, was wrong in law and should not be adopted by this Court.
Barwick CJ concurred in the reasons given by Mason J. Gibbs J agreed with the reasons given by Stephen and Mason JJ but preferred not to express any final view on the question of whether the result would be the same if there were four separate employers. Jacobs J was in substantial agreement with the reasons of Stephen and Mason JJ. At 174-176 Murphy J gave reasons rejecting the claim for prerogative relief. At 174, his Honour agreed with the construction put on the meaning of "industrial matters" and continued:
" ... Even if the businesses were separate (or even if they were conducted by separate employers), the statutory provisions do not support the argument that the dispute does not concern an industrial matter.
There is no satisfactory distinction between the determination of claims made here and those for preference in employment, which have been held to come within the constitutional power and within statutory meanings of industrial matter and are well recognized in some industries."
For present purposes, the relevant statutory definitions are, for practical purposes, the same in that there the relevant provision defined industrial matters to mean all matters "pertaining to the remuneration or other terms or conditions of service or employment of ... (pilots) ... employed or to be employed by" defined employers. In the present case, the relevant definition is "about matters pertaining to the relationship between employers and employees" (emphasis added). At 169 Mason J referred to the fact that the word "pertaining", when used in relation to terms or conditions of employment, connoted a wider meaning than the listing of matters in the definition of industrial matters in section 4 of the 1904 Act.
Authorities of the High Court show that there need not be an existing contractual relationship between an employer and an employee in order to create an industrial dispute. This is made clear by a reference to the role played by organisations as parties principal being able to create industrial disputes as illustrated by The Queen v Dunlop Rubber Australia Ltd Ex Parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71. It is illustrated by the preference cases discussed in the Ansett Case. It is discussed by Stephen J in the Ansett Case at 161-164. The true legal position is made clear by reference to the definitions of "industrial dispute", "employer" and "employee" contained in the Act. These definitions are general in application and are to be given the full amplitude of their meanings. The principle is illustrated by what Stephen J said in the Ansett Case at 163 where he sets out part of the reasons given by Dixon J in R v Commonwealth Court of Conciliation and Arbitration Ex Parte Kirsh (1938) 60 CLR 507 at 537-8 explaining the effect of the Metal Trades Case (1935) 54 CLR 387 as establishing "an industrial dispute may be raised by it" (an organisation of employees) "with employers employing none of its members and an award may be made binding on such employers and regulating the terms and conditions upon which they may employ unionists or non-unionists."
The principle is inherent in many later cases, see Re Cram Ex Parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ at 133-136 and Re Boyne Smelters Ltd Ex Parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 447. The latter case involved a question relating to a demand for reinstatement of employees. At pages 451 to 456, Brennan, Deane, Toohey and Gaudron JJ considered principles of law relevant to the present case insofar as a dispute could involve a person who was not an employee of the employer concerned. A passage from their Honours reasons at 455-6, with necessary adaptations, applies with respect to a demand for career progression into the parent company involving, where necessary, preference to be granted by Australian Airlines with respect to pilots employed by Eastern Airlines when pilots are being recruited by Australian Airlines:
"As was pointed out in Re Ranger Uranium Mines Pty Ltd Ex Parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR at pp660-661, where a dispute as to the reinstatement of individual employees arises after dismissal, two questions will usually arise: is the dispute interstate, and, does it pertain to the relationship between employers and employees or merely to the relationship between the employer and the individual former employee or employees concerned? That second question will often also arise when it is said that a "paper" dispute authorizes an award for the actual reinstatement of a former employee or former employees.
A "paper" demand made only to enable the Commission to hear and determine applications for the actual reinstatement of individual former employees as and when dismissals occur would not, in our view, give rise to dispute about a matter involving the relationship between employers and employees unless the circumstances show that, in some way, it is a matter affecting the industrial interests of other employees. In the absence of circumstances of that kind, its subject matter would involve no more than the relationship between an individual employer and the individual former employee or employees concerned. Clearly, there may be circumstances where an award for the actual reinstatement of former employees may be relevantly connected with a demand for a regime regulating dismissal or formulating the circumstances in which an employer will come under an obligation to reinstate. This was recognized by Mason CJ in the Wooldumpers Case. His Honour allowed that, "in appropriate circumstances, the Commission might well conclude that the making of an award reinstating particular employees was fairly incidental to the settlement of a dispute involving a claim to permanent employment", adding that it "would depend on the nature of the original dispute and the way in which it had evolved" (1989) 166 CLR at p318. An obvious example is a case where it is necessary to restore the status quo pending arbitration of a claim for the imposition of a general regime.
And there may be circumstances where a demand for actual reinstatement (whether in respect of dismissals that have occurred or in respect of dismissals that might occur) will give rise to a dispute involving the required relationship between employers and employees and not merely the more limited relationship between employer and former employee usually encountered in situations where claims for reinstatement are made ad hoc or as and when dismissals occur. Thus, for example, the circumstances may reveal that the demand was made "on behalf of the remaining employees" because of their "interest in the security of their own employment" Re Ranger Uranium Mines Pty Ltd Ex Parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR at p661. Or it may be that they show a concern with staffing levels or the skill and qualifications of fellow workers."
In Re The Amalgamated Metal Workers Union of Australia Ex Parte The Shell Company of Australia Ltd (1992) 174 CLR 345, the principles were explained in more detail. The issue involved a superannuation fund created in connection with the employees of Shell and questions arose whether an industrial dispute under the Act could be created with respect to the management of the fund.
In their reasons, Mason CJ, Deane, Toohey and Gaudron JJ at 354 set out the definition of "industrial dispute" contained in the Act. Their Honours drew attention to differences between this definition and the corresponding definition contained in the 1904 Act and commented that the current definition could have a wider meaning and application than the earlier provision. They considered a number of earlier authorities and the facts of the matter before the Court and continued their reasons at 357:
"As has been seen, the present definition of "industrial dispute" is satisfied if there is a dispute "about [a] matter ... pertaining to the relationship between employers and employees". And that is satisfied by a less direct relationship than might be necessary in the case of a requirement that a dispute be as to an industrial matter. In our view, a dispute with employers as to whether they should take steps (and, if so, what steps) with a view to persuading others, who have the power, to make changes to the superannuation funds to which their employees belong is one that can fairly be described as a dispute about superannuation benefits. Hence, but subject to another argument to which we now turn, it is a dispute about a matter pertaining to the relationship between employers and employees."
At 359-360 their Honours said:
"It was also said in Manufacturing Grocers (1986) 160 CLR at p353, in relation to the definition of "industrial dispute" in the Conciliation and Arbitration Act, that "a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee". That is also implicit in the present definition of "industrial dispute". The relationship to which the definition refers is that in which the rights and obligations of employers and employees arise. And that necessarily imports a relationship between employers and employees as such."
This passage must be read in the light of the High Court authorities dealing with preference claims and reinstatement which support the view that there need not be any existing contract of employment between an employer and an employee to found the creation of an industrial dispute.
An organisation of employees has capacity to create an industrial dispute with an employer or employers before that employer has or those employers have engaged any person as an employee within the class of employees covered by the dispute. In the definitions of "employee" and "employer" the subject of the dispute must relate to employees and employers in the context of their relationship of employee and employer but this does not deny that a dispute may be created before a contract of employment is entered into. There is no reason why an industrial dispute of a similar nature could not be created by persons seeking to become employees of an employer. Whether an award should be made as sought by those persons is not a matter for this Court to consider. That is a matter to be considered by the Commission in the exercise of the powers conferred upon it by the Act.
Counsel for Australian Airlines implicitly accepted that proposition but submitted that the relevant opinions expressed by Stephen J in the Ansett Case were obiter and thus were not binding on this Court. That may be correct, but weight must be given to these opinions. Counsel submitted that this Court should not adopt those opinions since they were erroneous and did not conform to other authorities of the High Court. The essence of their submissions was that in applying the definitions contained in the Act, there must be in existence the relationship between employers and employees in their capacities as employers and employees and asserted that the relationship was that of the parties to the relevant employment. In support of this proposition, counsel referred to a number of authorities some of which have been considered earlier in these reasons. It is not necessary to refer to each of those authorities but reference is made to one only namely Re Boyne Smelters which, on its proper analysis, is contrary to the submission of counsel. At 454-5, Brennan, Deane, Toohey and Gaudron JJ said:
"It was argued on behalf of Boyne Smelters that, if and to the extent that the 1990 dispute is concerned with the actual reinstatement of employees dismissed before the imposition of a regime regulating dismissal and reinstatement, it is not concerned with the relationship between employers and employees and, hence, is not an industrial dispute as defined in s4(1) of the Act. That definition requires that the dispute be "about matters pertaining to the relationship between employers and employees". It is clear that the relationship required by the definition of industrial dispute in s4(1) of the Act is not that of individual employer and individual employee or former employee, but a more general relationship inhering in the subject matter of the dispute such that it can be identified as involving the collective relationship between employers and employees as such."
A number of footnotes making reference to a large number of authorities were given by their Honours to support that statement. They are not set out in these reasons but it is interesting to note that one reference was made to what Mason J said in the Ansett Case at 171-172, a passage referred to earlier in these reasons which stresses the more general relationship inhering in the subject matter of the dispute such that it can be identified as involving the collective relationship between employers and employees as such.
The observations already made require us to reject the other two main submissions made by counsel for Australian Airlines in attempting to distinguish the authorities relating to reinstatement and preference claims. On the reinstatement issue, counsel contended that, to the extent that reinstatement disputes are within the definition of industrial disputes, it is because they are agitated by or on behalf of employees who have not been dismissed and are still in the relevant relationship with the employer with the result the dispute is with respect to the relationship between the employer and the continuing employees. This contention is based on a passage in the reasons of the High Court in Re Ranger Uranium Mines Pty Ltd Ex Parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 661. That passage was used by way of illustration only and should not be taken as having any limiting effect. This can be illustrated by example. An employer is setting up a new business but employs no persons eligible to be members of an organisation. That organisation seeks award coverage for persons who may be employed. Among the conditions sought to be included in the award is a reinstatement clause. Assuming an industrial dispute is created which extends beyond the limits of any one State, the dispute could include a claim for reinstatement. There could be no basis for asserting that claim could not be included in the dispute because the employer employed no employees. The dispute relates to a matter pertaining to the general relationship between employers and employees.
A similar submission was made with respect to the basis of a dispute relating to preference. Reference was made to a passage in the reasons of the Court Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ in Re Cram 135-6. There, the Court expressed the view that the competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards and that employees as well as employers have a legitimate interest in both those matters. The Court continued at 135-6:
"Why then is not the proposed employment of non-union labour or the refusal to abide by a system of recruitment which gives preference to union labour a matter directly affecting the relations of employer and employee? The decision in Reg v Gaudron Ex Parte Uniroyal Pty Ltd (1978) 141 CLR 204 shows that it is. There the Court held that a dispute about preference in employment for a particular class of members of a union was a dispute as to an "industrial matter" as defined by s4 of the Conciliation and Arbitration Act: see also Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482; Reg v Holmes Ex Parte Altona Petrochemical Co Ltd (1972) 126 CLR 529. It is simply not to the point that the industrial matter related to prospective employment: see Uniroyal (1978) 141 CLR at p211. There was an actual dispute between existing employees and employers about that industrial matter."
That statement was sufficient to justify the finding of an industrial dispute in that case under the 1904 Act. It was not necessary for the Court to go further. The other authorities referred to earlier in these reasons show that an industrial dispute under the Act can arise with respect to nothing more than prospective employment provided the subject matter pertains to the relationship of employers and employees generally.
The submissions made on behalf of Australian Airlines are not accepted.
Without going into any detail, and having regard to later authorities, the Court is not persuaded that the relevant opinions expressed by Stephen J in the Ansett Case and agreed with by at least two other Justices of the High Court, are erroneous.
In the result, the application by Australian Airlines is dismissed.
I certify that this and preceding nineteen (19) pages are a true copy of the Reasons for Judgment of the Court.
Associate:
Date:
ATTACHMENT
Counsel for the Applicant: Dr C.N. Jessup QC
Mr K. Mueller
Solicitor for the Applicant: Blake Dawson Waldron
Counsel for the members of No appearance
the Industrial Relations
Commission:
Solicitor for the members of Australian Government
the Industrial Relations Solicitor
Commission:
Counsel for the Respondent Mr H. Borenstein
Pilots:
Solicitor for the Respondent Mahoney Galvin Rylah
Pilots:
Date of Hearing: 15 November 1994
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