Australian and New Zealand Banking Group Ltd v Australian Bank Employees Union

JUDGMENT NO. 37.78.Z ,.,,

CATCiIWORDS

I N THE FT3ZERA.L COURT O F A U S W A L I A )
1

V I C T O R I A D I S T P J C T R E G I S T R Y 1 V . No. '16 of 1337
i

IXI2USTRIA.L D I V I S I O N )
3ETwE.,zhT :

EX TEMFOF!E REASONS F O R JUDGMENT

Inltialljr, the Court ralsed the issue of xhether thls xas a mattzr that should be referred to a Full Zourt

pursuant to the provls lons of s.113C of the Act. Sefore me,

counsel h r the banks has argued that the Court should re l sr the matter f.3r determinatlan by a Full Court vhile ccunsel f o r the Union has contended that therz should be no referenre

to a Full Csurt, 5ut that the mattzr should procsed in the

normai s a y , in vhlch case the application xould be heard and

Yhers appear; 5 6 be :-m disputed q u z s t l ~ n s f fa.:r,

arlslng as t.1 the ccnstruction =aught. It appears khere -a111

be no x t n e s s e s called, and there are no compeclng affida-zlts 3s tc factual natters. Wnat 1 s being ralsed 1: the

zonstruction of a initten document, namely the $raper

construction of an axard of the Concillation and Arbitratlon

Commission. The jurlsdiction conferred by 5.110 of the Act

iz rather unlque In that it gets very close to a pcssltlon xhere the Court 1 s empowered t o give an advisory uplnion for the guldance of partlcs, a course xhlch normally the Court

does not exercise under Its normal jurlsdictlon and powers. Hers the -Jery wording of s.110 makes lt clear that +-his is the purpose of the sectlon. That sectlon provides:-

Secondly, in my oplnlon, thls is a case xhet-e, an

tne probabliltiss, no matter xhich of the p . r t . l z z succeeds if

the rnattzr- xsrz to proceed before a sirqle Judge, the other

?,arty xculd appeal to a Fuli Caurt. The matter- 1s cjf -~l:al importance to the gartlzs, and It 15 deslcable co a.;.oid the

unnecesaary procedures and axprnse of hav ing a hearing by a

single Judge and then an appeal. T h ~ s 1 s nut the type rJf case xhere a crial and reasons for ]udgment by S, slngle Judge can be of assistance to a Full Court,. It 1 s well known that appellate courts derive enormous advantage from havlng the

beneflt of 3 trlal Judge glvlng his reasons for declsion, but in a case of this kind, the advantage to be achieved from 3

trlal followed by an appeal 1s not so great aa to deprlvle the

Full Zaurt .If deallng effsctlvely 21th the matter 57 ;;ay of

reference under s . l l X of the Act.

Third:>*, lt is apparent that sane of the current

s.113 appllcations do depend upon the csnstructlon af the clauses of the award, the zubject af the present 3ppllcatlon under s.llO. Not all those s.1:3 proceedings 30 arise, apparently, but 3 zubstantlal numhsr of them .b. In those circumstances, lt seems desirable ',o have 3n authorikat~ve

opinion of the Tuli Court as to t h e pr3per rznstruct;an of the x a r d beforz any of those 3.113 Sppllcatlons ;jhi<h depend

upm t h e rslsvant xlausez of the award, the ~ ~ S l e c t sf ?he

gres:ent proceedlnga, <dine on f n r hearing. TLae qul2ance af a

Full Ccurt as t t o the proper c o n a t r u s t l s n 3 thz t-eles-ant

clauses would be of assistance co c:ae Court in hearing ',hose

5.113 applicatlons in whlch the clauses af the award, the

aubject of the 5.110 appllcation, brs glrren.

i

CaseChat Overview and Summary

This case involved a dispute between Australian and New Zealand Banking Group Ltd and the Australian Bank Employees Union. The matter was heard in the Federal Court of Australia in the Industrial Division, where the bank sought a review of an award made by the Conciliation and Arbitration Commission. The specific issue at hand was whether the matter should be referred to a Full Court for determination under section 113C of the relevant Act or if it should proceed before a single judge. The bank argued for a referral to the Full Court, while the Union argued against it, asserting that the matter should be heard and determined by a single judge.

The Court considered the nature of the jurisdiction conferred by section 110 of the Act, which allows for a unique position where the Court is empowered to give an advisory opinion for the guidance of parties. The Court noted that the very wording of section 110 makes it clear that this is the purpose of the section. The Court also acknowledged that in this case, there would likely be an appeal to a Full Court regardless of the outcome, and it would be more efficient to avoid unnecessary procedures and expenses by referring the matter to the Full Court directly.

Furthermore, the Court recognised that some of the current applications under section 113 of the Act depended on the construction of clauses in the award, the subject of the present application under section 110. The Court concluded that it would be beneficial to have an authoritative opinion from the Full Court on the proper construction of the award before any of those section 113 applications, which depend on the relevant clauses of the award, were heard.

The Court decided to refer the matter to a Full Court for determination. This decision was made to avoid unnecessary procedures and expenses, as well as to provide an authoritative opinion on the proper construction of the award, which would be beneficial in hearing the section 113 applications dependent on the relevant clauses of the award. The Full Court was thus tasked with determining the proper construction of the award and providing guidance to the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

V I C T O R I A	D I S T P J C T	R E G I S T R Y	1	V . No.	'16	of	1337
i

zonstruction of a initten	document, namely the $raper
construction of an axard of the Concillation	and Arbitratlon

trlal followed by	an appeal 1s not so great aa to deprlvle the
Full Zaurt .If deallng effsctlvely 21th the matter 57 ;;ay	of
reference under s . l l X of	the Act.