Australian Municipal, Administrative, Clerical and Services Union v Mcintyre, vice president
[1996] IRCA 370
•15 Aug 1996
DECISION NO: 370/96
CATCHWORDS
INDUSTRIAL LAW - Industrial dispute - Finding by Australian Industrial Relations Commission of industrial dispute in connection with claim by union that no employee be dismissed and that all dismissed employees be reinstated - Subsequent dismissal of two employees by one employer - JURISDICTION of Commission to make an award requiring employer to reinstate the employees - Whether there was evidence of a sufficient connection between the dispute constituted by recognition of the general claim and the application for reinstatement - Significance of material known to Commission concerning instability of employment in the industry and the union’s long standing concern about it
Industrial Relations Act 1988: ss 99, 101
Re Boyne Smelters Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 446
Re Federated Storemen and Packers Union of Australia and another; ex parte Wooldumpers (Victoria) Limited (1988) 166 CLR 311
Re Printing and Kindred Industries Union; ex parte Vista Paper Products Pty Ltd (1993) 113 ALR 421
Ranger Uranium Mines Proprietary Limited and others; ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656
Australian Social Welfare Union v Stones Corner Trading Association (1989) 31 IR 456
Re Social and Community Welfare Services (State) Award No 477 of 1981, (Industrial Commission of New South Wales, Glynn J, 6 August 1990, unreported)
No. NI 1279 of 1996
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION v THE HONOURABLE ANTHONY McINTYRE, VICE PRESIDENT; THE HONOURABLE LEIGH DRAKE, DEPUTY PRESIDENT; HELEN CARGILL, COMMISSIONER; AND PATRICIA LEARY, COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND GREAT LAKES COMMUNITY RESOURCES INCORPORATED
CORAM: Wilcox CJ, Marshall and Madgwick JJ
PLACE: Sydney
DATE: 15 August 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
NEW SOUTH WALES )
DISTRICT REGISTRY )
ON REMITTAL FROM THE )
HIGH COURT OF AUSTRALIA ) NI 1279 of 1996
BETWEEN: AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
Applicant
AND:THE HONOURABLE ANTHONY McINTYRE, VICE PRESIDENT; THE HONOURABLE LEIGH DRAKE, DEPUTY PRESIDENT; HELEN CARGILL, COMMISSIONER; AND PATRICIA LEARY, COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
AND:GREAT LAKES COMMUNITY RESOURCES INCORPORATED
Second Respondent
CORAM: Wilcox CJ, Marshall and Madgwick JJ
PLACE: Sydney
DATE: 15 August 1996
ORDER
THE COURT ORDERS THAT:
The following writs be directed to the Honourable Anthony McIntyre, a Vice President of the Australian Industrial Relations Commission, the Honourable Leigh Drake, a Deputy President of the Australian Industrial Relations Commission and Ms Helen Cargill, a Commissioner of the Australian Industrial Relations Commission:-
(a)A writ of certiorari requiring the record of proceedings in matter C No. 20173 of 1995, being an application for leave to appeal against the decision of Commissioner Leary of 5 January 1995 in matter C No. 20167 of 1994, to be brought in and the order made on 19 October 1995 quashed; and
(b)A write of mandamus requiring the said members of the Australian Industrial Relations Commission to hear and determine the said appeal according to law.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
NEW SOUTH WALES )
DISTRICT REGISTRY )
ON REMITTAL FROM THE )
HIGH COURT OF AUSTRALIA ) No. NI 1279 of 1996
BETWEEN: AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
Applicant
AND:THE HONOURABLE ANTHONY McINTYRE, VICE PRESIDENT; THE HONOURABLE LEIGH DRAKE, DEPUTY PRESIDENT; HELEN CARGILL, COMMISSIONER; AND PATRICIA LEARY, COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
AND:GREAT LAKES COMMUNITY RESOURCES INCORPORATED
Second Respondent
CORAM: Wilcox CJ, Marshall and Madgwick JJ
PLACE: Sydney
DATE: 15 August 1996
REASONS FOR JUDGMENT
WILCOX CJ & MARSHALL J: The issue that arises in this case is whether the Australian Industrial Relations Commission (“the AIRC" or "the Commission”) has jurisdiction to make an award compelling the reinstatement of two employees dismissed on the ground that they were redundant. The answer depends on whether there was evidence before the Commission of a sufficient connection between the application for the proposed award and a dispute previously found to have existed between the relevant union and the second respondent, amongst others, concerning the non-termination of employees and reinstatement of all employees who were terminated.
THE WIDER DISPUTE
On 7 April 1989 the Australian Social Welfare Union (“ASWU”), an organisation of employees then registered under the Industrial Relations Act 1988 (“the Act”), served a letter of demand and log of claims on a large number of entities who were alleged to be employers of persons “employed in relation to labour market programs” and eligible to be members of ASWU. One such entity was the second respondent, Great Lakes Community Resources Incorporated ("Great Lakes"). Clause 30 of the log was entitled “RECRUITMENT, TRANSFER, DISCIPLINE, TERMINATION AND REDUNDANCY PROCEDURES”. It provided as follows:-
“30.1The employer shall not dismiss any employee, or make any employee redundant without the explicit agreement of the Union.
30.2The employer shall not disadvantage an employee in his/her employment (eg by demotion or reduction in paid weekly hours) without the explicit agreement of the Union.
30.3The employer shall provide to an employee whose employment is terminated three months’ notice of termination or pay in lieu thereof, paid time off of at least one week to seek alternative employment, and all entitlements on termination at or by the following pay day.
30.4The employer shall provide to an employee who is made redundant payment of eight weeks’ pay at normal highest ordinary time weekly rate of pay over the proceeding year, for every six months’ service with the employer.
30.5In addition to the requirement in 30.1 and 30.2 above, an employer shall not commence or terminate the employment of any person, nor discipline any employee, nor transfer any employee to another position, nor significantly alter the duties or hours of any employee’s position without timely prior consultation with the Union and all of his/her employees.
30.6In addition to the requirements in 30.1, 30.2 and 30.5 above, an employer shall establish and implement, in full consultation with the Union and all employees, recruitment, transfer, discipline, termination and redundancy procedures which are agreed to by the Union and by the employees directly affected.
These procedures shall include the following:
a)Union representation on selection panels, and
b)Clear and appropriate selection criteria for all positions, and
c)Union preference (as outlined in Claim no. 32), and
d)The employer shall provide to the Union and to the employees directly concerned all information relevant to employer decision-making in relation to recruitment, transfer, discipline, termination, and redundancy of employees and applicants for positions, except where the Union agrees that the confidentiality of an employee or applicant for a position would be prejudiced, and
e)Clear and adequate appeal mechanisms, and
f)The employer shall not dismiss or reduce the employment status of an employee unless fair counselling and warning procedures acceptable to the Union and to employees directly involved have been followed, the Union has had adequate opportunity to represent any member affected, and all other options have been explored in consultation with the Union and employees directly involved.
30.7Where an employer has transferred, terminated, made redundant, demoted or reduced the hours of work of an employee without the consent of the Union, the employer must reinstate that employee to his/her previous status upon the request of the Union.”
On 8 August 1989, Deputy President MacBean of the Commission made a finding of industrial dispute in respect of the matters raised in the letter of demand and the 1989 log of claims pursuant to s101 of the Act.
At the time of service of the 1989 log of claims, the ASWU was concerned to protect its members as far as possible from any adverse effect of redundancies resulting from the integration of various community based programs. The concern had arisen out of the establishment by the Commonwealth Government of a new labour market program called “Skillshare” in January 1989. Skillshare stemmed from the integration of several former labour market programs, including the Community Youth Support Scheme. The creation of Skillshare involved the rationalisation of employment amongst social workers formerly employed in connection with previous labour market programs. Not all retained their employment in the Skillshare system. This was a matter of grave concern to the ASWU and its membership. See generally Australian Social Welfare Union v Stones Corner Trading Association (1989) 31 IR 456 (“Stones”).
The uncertainty faced by employees in the relevant industry was highlighted by Glynn J in Re Social and Community Welfare Services (State) Award No 477 of 1981, Industrial Commission of New South Wales (6 August 1990, unreported) where her Honour said at 29:-
“people in the industry cannot be certain from year to year or from programme to programme whether funding will be received to be able to continue a programme beyond a particular funding period, thereby promoting a degree of uncertainty in respect of both planning and employment. Bluntly put, for the employee, when funds run out, employment ceases.”
On 1 July 1992 ASWU amalgamated with the applicant in these proceedings and became part of the Australian Municipal, Administrative, Clerical and Services Union (“ASU”).
In the context of a background of continuing problems arising from funding difficulties and employment insecurity amongst ASU members employed in relation to labour market programs, on 3 December 1993 ASU served a letter of demand and log of claims on various employers, including Great Lakes. Clause 30 of the log was in the following form:-
“30 - TERMINATION AND REINSTATEMENT
(a)A Respondent shall not dismiss any employee (whether or not such dismissal takes place before the making of any award or industrial agreement made in settlement of the log of claims).
(b)A Respondent shall reinstate forthwith all employees dismissed (whether or not such dismissal takes place before the making of any award or agreement made in settlement of this claim).
(c)The employee may decline the reinstatement whereupon the respondent shall pay the employee 15 weeks pay (inclusive of allowances, loadings and penalties) for each year of service or part thereof in addition to any other payment the employee is entitled to.”
On 21 February 1994, Commissioner Leary made a finding of dispute in respect of these claims. Great Lakes was found to be a party to the dispute.
THE TERMINATION APPLICATION
On 2 February 1994 Great Lakes terminated the employment of two ASU members, Anne Radburn and Deborah Armstrong, on the grounds of redundancy as a result of the restructure of its training unit. The ASU immediately notified the Commission of a dispute concerning the terminations.
On 23 February 1994 the dispute notified by ASU on 3 February 1994 was heard by a Local Industry Board, chaired by Mr J Caesar. The Board was unable to settle the matter by conciliation. In the course of submissions before Mr Caesar, the advocate for the ASU said the following:-
“... Mr Chairman. If I could just give you a little background of what has happened over the last couple of months, statewide and indeed federally. The federal government allocates moneys from the budget to departments for them to then allocate money on to community organisations to administer varying services. In this case the federal budget allocated money to the Department of Employment Education and Training which is commonly called DEET. That money is then turned on to a sponsor body and in this case it is Great Lakes Skillshare.
That sponsor body forms a management board or management committee. The committee then acts as the employer administering the funds and ensures the service delivery. So that is the process. As a result of the last budget there was a shortfall in funds to specific services and a number of Skillshare organisations in this state have come to us with restructuring proposals that have meant a reduction in work, a reduction in funding and in some cases a reduction in hours of employees, other cases a reduction in positions. In those - and that is since November, basically.
In that process we have tried to put in place with each of the employers a fairly informal arrangement and that is that the employers would look at ways to mitigate, as the award states, the impact on having to make people redundant. The specific services, if that - whether it be job seekers with dependants, the program, and the service that is delivered has a specific employee performing those services only, we have looked at one or two options. One of them has been to offer the person redundancy if they so wish. If they did not but someone else in the organisation was happy to accept redundancy then there has been a job swap. If that has not been acceptable or not been practicable, we have looked at other alternatives such as reduction of hours across all of the employees who are funded by the same body which is DEET, because some of these organisations may receive funding from several departments.”
The dispute regarding the terminations was heard by Commissioner Leary on various days between 17 May and 27 September 1994. ASU sought an award ordering Great Lakes to reinstate the two employees. On 5 January 1995 Commissioner Leary published a decision entitled “RECOMMENDATION” which concluded in the following way:-
“I do not accept the submission of the ASU that the employees were dismissed and that the dismissals was (sic) harsh, unjust and unreasonable. I am satisfied, having considered the evidence and submissions, that the positions formerly held by the two employees were legitimate redundancies caused by reduced funding.”
On 30 January 1995, ASU filed in the Commission an application for leave to appeal against the decision of Commissioner Leary. The application came before a Full Bench comprising Vice President McIntyre, Deputy President Drake and Commissioner Cargill. With Commissioner Leary, they are the first respondents to this application. It transpired at the hearing before the Full Bench that there had been a misunderstanding between the parties in the proceedings before Commissioner Leary as to whether there was any issue about her jurisdiction to deal with the matter before her. On the appeal, the second respondent unambiguously raised the issue of jurisdiction. Because of the misunderstanding, on 9 August 1995, the Full Bench of the Commission adjourned the appeal to enable ASU to place material before it in support of its contention that the Commission had jurisdiction to make the reinstatement orders sought in the proceedings before Commissioner Leary. ASU subsequently filed written submissions in support of its contentions regarding the jurisdictional issue. Great Lakes replied to them.
On 19 October 1995, the Full Bench published a decision in which it decided that Commissioner Leary did not have jurisdiction to make the orders sought by the ASU and, therefore, there was no right to appeal from her decision. The Full Bench considered that the case before it was materially indistinguishable from one decided by another Full Bench in 1993, Re Australian Rail, Tram and Bus Industry Union, Print K9995 (“PTU case”). The Full Bench commented:-
“... on the material before us, there is nothing to suggest that there is a connection between the disputes created by the non-acceptance of either the 1989 or the 1993 claims, on the one hand, and the dismissals of Ms Radburn and Ms Armstrong and the claims for their reinstatement, on the other hand.”
AUTHORITIES
During recent years the High Court has dealt on four occasions with the Commission's jurisdiction to award reinstatement. It is instructive to analyse the cases. They are:
Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 ("Ranger");
Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 ("Wooldumpers");
Re Boyne Smelters Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 446 ("Boyne"); and
Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 113 ALR 421 ("Vista").
In pre-Ranger days, the received wisdom was that the Commission had no authority over reinstatement disputes: see Wooldumpers per Gaudron J at 335. It was thought that (a) the Commission would be impermissibly exercising judicial power; and (b) a controversy as to whether a particular employer should reinstate a dismissed employee could not give rise to a dispute extending beyond the limits of one State. Prior to Slonim v Fellows (1984) 154 CLR 505, only three years earlier, it was also thought that re-instatement disputes did not pertain to the relations of employers and employees because ex-hypothesi they involved disputes between a person who was now, in relation to the person sought to be reinstated, merely an ex-employer and one or more ex-employees.
The principles established in Ranger were: (a) that to order reinstatement might be no more than the permissible, quasi-legislative, arbitral act of establishing a new right; and (b) that reinstatement disputes may pertain to the collective relations between employers and the remaining non-terminated employees because of the interest of the latter class in their own employment security.
Wooldumpers is chiefly notable for a suggestion by Mason CJ: that the making of an award for the reinstatement of particular employees may be reasonably incidental to the settlement of an antecedent interstate dispute embracing a claim for the imposition on employers of an obligation to reinstate employees dismissed otherwise than in accordance with the terms of a proposed award. He said at 317:
"The Commission can validly make an award requiring employers not to terminate the employment of employees otherwise than in accordance with certain conditions or circumstances in settlement of an interstate dispute arising from the employers’ rejection of a claim by a union for an award incorporating a clause restricting the employers’ right to terminate in this way. ... In the context of a claim for permanent employment it is then but a short step to say that the making of an award for reinstatement of employees whose employment has been terminated otherwise than in accordance with the terms of the award or proposed award may in appropriate circumstances be reasonably incidental to the settlement of that interstate dispute.”
Otherwise, so far as is presently relevant, Wooldumpers simply confirmed that (a) a demand for reinstatement of an individual at a particular workplace will not alone raise an inter-state dispute; and (b) reliance upon a broader, antecedently-created, inter-state paper dispute to ground arbitral jurisdiction entails that the award sought should have a rational tendency to dispose, in part, of the antecedent dispute; that is, the award sought must be within the "ambit" of the dispute relied upon to ground it. Although Mason CJ pointed out in Wooldumpers at 318 that "the concept of ambit does not precisely or adequately express the scope of the Commission's award-making power", it is convenient to continue to use that well-understood expression.
In Boyne, the Mason route to jurisdiction, as it seems to have been perceived, was followed by the union concerned. The union served a written demand on aluminium industry employers in various States that each of them "shall not dismiss any employee ..." and "shall reinstate forthwith any employee dismissed". At or about the time of the demand, Boyne Smelters was asserting its need for improved productivity. Upon non-compliance with the demand, the AIRC in 1990 recorded a dispute in the terms of the demand. A few months later, in 1991, Boyne Smelters retrenched a number of employees. The union sought an award requiring it to reinstate any employee dismissed without the employee's consent "upon request made within three months of the dismissal by the employee" or the employee's union. The union relied on the 1990 dispute finding as the source of AIRC's jurisdiction to make the award it sought. The employer disputed this reliance but the High Court held it was well-founded. The proposed award was within the ambit of the claim, which had to be read as confined to dismissals made after the date of the claim.
The second argument of the employer in Boyne was that, "if and to the extent that the 1990 dispute is concerned with the actual reinstatement of the employees dismissed ..., it is not concerned with the relationship between employers and employees and, hence, is not an industrial dispute as defined in s 4(1) of the Act. That definition requires that the dispute be about matters pertaining to [such a] relationship." As to this argument, Brennan, Deane, Toohey and Gaudron JJ said at 455-457:
"As was pointed out in [Ranger at 660-661], 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 circumstance in which an employer will come under an obligation to reinstate...
...
And there may be circumstances were 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' ([Ranger at 661]). Or it may be that they show a concern with staffing levels or the skill and qualifications of fellow workers.
The full circumstances surrounding the 1990 demand are not known. But it is known that, in discussions between the F.I.A. and Boyne Smelters, Boyne Smelters asserted its need for improved productivity. It is reasonable to infer that, even if there was no other reason for concern, this generated an apprehension as to security of employment and staffing levels, not only in relation to Boyne Smelters but in relation to other employers in the industry who might be expected to be subject to the same conditions. If that be so, the circumstances relating to the service of the demand would indicate that it was not made solely to enable the Commission to deal with reinstatement applications ad hoc or as and when dismissals occurred, but to deal with a matter involving the relationship between employers and employees generally.
...
Given that the demand which gave rise to the 1990 dispute was not confined, as the Full Bench held, to a demand for general conditions and that the circumstances attending the making of the demand and the application, so far as they are known, point to the existence of an interstate dispute which would authorize the making of an award for the actual reinstatement of employees retrenched in April 1991 and for incidental matters, the Full Bench decision must be viewed as a constructive failure on the part of the Commission to exercise its jurisdiction to conciliate and arbitrate the 1990 dispute so far as it concerns Boyne Smelters" (emphasis added)
The following propositions may be derived from these passages:
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 will not necessarily fail in its purpose.
It will be effective if, but only if, there are "circumstances [which] show that, in some way, it is a matter affecting the industrial interests of other employees".
Examples of circumstances where a demand for actual reinstatement will give rise to a relevant dispute include situations where (a) "the demand was made 'on behalf of the remaining employees' because of their 'interest in the security of their own employment' "; and (b) "there is a concern with staffing levels or the skill and qualifications of fellow workers".
It should be noted that the authors of the joint judgment did not say that it was necessarily to be inferred that a log in the Boyne form was put forward only to enable the Commission to hear and determine particular reinstatement applications. They were content to assume that that was the position for the sake of illuminating the principles that would nevertheless apply. Moreover, in determining the existence or otherwise of relevant circumstances, their Honours were prepared to draw inferences from the evidence, scanty as it was, concerning conditions in the industry including the employer's demand for improved productivity.
The other member of the Court, McHugh J, found it unnecessary to examine whether, apart from the terms of the 1990 union demand itself, there was evidence of a genuine concern on the part of the union and/or the class of employees it represented as to employment security. He said (at 470):
"Contrary to the contention of Boyne Smelters, the 1990 dispute did not pertain to the relationship between ex-employees and ex-employers. The 1990 dispute was a dispute between existing employees and existing employers as to dismissal and reinstatement. The dispute finding reflected that dispute. True it is that the dispute finding referred to a period of time, prior to the settling of the dispute, during which employees were not to be dismissed and, if dismissed, were to be reinstated. But that part of the dispute did not pertain to a relationship between ex-employees and ex-employers. It concerned a dispute as to the protection to be provided for existing employees until the dispute was resolved by way of award or agreement. At all times, the dispute pertained to the relationship between existing employees and existing employers."
It is important to note that the circumstances in Boyne are similar to those currently before the Court. In each case:
a demand had been made for an employer not to dismiss any employee and to reinstate any employee who was dismissed;
a finding of dispute had been made in respect of an industrial matter that included this demand;
individual members of the relevant union were dismissed after the making of the demand; and
the relevant union sought an award imposing on the relevant employer an obligation to reinstate the employees.
Finally, in Vista, the High Court re-asserted the prima facie efficacy of the "paper dispute" in generating jurisdiction and that "the onus of establishing that a demand is a sham lies on the person or party who asserts it" (per Gaudron J at 430).
In Vista, the applicant employer ("Vista") carried on business at a single mill west of Sydney. On 4 March 1991 it dismissed certain of its employees. Three days later, their union served a log of general claims, including a demand in the form of that in Boyne, on Vista and other employers in Vista's industry in various States. The demands were not acceded to. It was not disputed that, "if and to the extent that the demands were genuine, the log of claims gave rise to an interstate industrial dispute" (p 424). In reliance upon that alleged dispute, the AIRC had made an award reinstating the employees.
It is not necessary to go into the background facts other than to say that the dismissals took place at a time when there were negotiations between the union and paper mill operators in various States about the implementation of a "structural efficiency principle" enunciated by the AIRC in 1989.
In the High Court Vista argued that the log served on 7 March 1991 did not give rise to a real and genuine interstate industrial dispute because it was served for the purpose of getting Vista into the Commission. Gaudron J (with whom Brennan, Dawson and Toohey all agreed) responded to this submission by saying, at 429:
"the service of a log of claims is 'viewed prima facie as real and genuine' with the onus 'of clearly establishing the contrary' being on the party who claims to that effect",
and
"so long as the demand is seriously advanced it does not matter that the demand is motivated by some other consideration or some perceived collateral advantage, including that of attracting the jurisdiction of the Commission".
At 430 her Honour repeated that "the onus of establishing that a demand is a sham lies on the person or party who asserts it." She pointed out that the argument of sham is ordinarily advanced in the context of an antecedent intrastate dispute but said that, in such a case, the onus is not discharged by establishing the antecedent dispute as interstate disputes often originate in one State. "What has to be shown is that the demand is not seriously advanced, but is put forward in an attempt to give an appearance of interstateness to what, in truth, is no more than an intrastate issue".
In considering the genuineness of the 7 March log of claims, Gaudron J had regard to the facts, among others, that there were other demands in the 7 March log, dealing with wages and conditions generally, and that it was served on a range of appropriate employers. These and other factors pointed to a conclusion that the demands were "real demands to be pursued in the ordinary course, either immediately ... or ... as and when it suited the interests of the [union] and its members": see 430-431. However, the fact that Gaudron J dealt with arguments based on the actual and complex facts surrounding the service of the log does not detract from the significance of her view as to its prima facie efficacy.
McHugh J saw problems with the paper dispute on the facts of that case (other employers had no interest in resisting the demand that Vista reinstate employees dismissed prior to service of the log), but nothing he said detracts from the efficacy of an entirely prospective Boyne-type log, such as that under consideration in the present case.
The effect of those four decisions, especially Boyne and Vista, is that there is recent High Court authority to the effect that non-compliance with a log of claims, in the form used by ASU in 1993 and served on relevant employers in more than one State, prima facie gives rise to an interstate dispute in the resolution, or partial resolution, of which the AIRC may make awards for the reinstatement of particular employees. The reason why this is so is that such a log prima facie genuinely affects existing employer-employee relationships. And it is for those who assert that such demands did not genuinely affect existing employer-employee relationships to prove it.
CONCLUSIONS
Despite the brevity of the Full Bench's reasoning, we have no cause to doubt that its members understood the High Court principles we have just summarised. They seem to have appreciated that the disputes created by Great Lakes' non-compliance with the 1989 and 1993 claims about reinstatement led to a situation where it was within the competence of the Commission to make an award for the reinstatement of Ms Radburn and Ms Armstrong provided there was an appropriate "connection" between the union's general demand and the circumstances of their cases. This was a correct appreciation of the position. Any award had to be "relevant" or "reasonably incidental" to the dispute that founded the Commission's jurisdiction; it had to have a "natural or rational tendency to dispose of the question" raised by the dispute: see per Mason CJ in Wooldumpers at 317.
However, in addressing the question, the Full Bench fell into legal error. It held there was no evidence of such a connection; there clearly was. The submissions made before Mr Caesar, and set out earlier in these reasons, were before the Full Bench. The facts stated in those submissions were not disputed. No doubt this was because they accorded with the facts established in Stones and in the New South Wales case heard by Glynn J, of which cases the parties and the Commission must have been cognisant. Those facts provided a connection between the dispute created by the rejection of the 1993 claim and the dismissals of the two individuals concerned. They showed a serious continuing problem in the social worker "industry" and a desire by the relevant union to prevent, or at least control, terminations by employers. The case made by ASU, on behalf of Ms Radburn and Ms Armstrong, was that these terminations were made on the grounds of redundancy; they were examples of the very type of situation about which the union was concerned. It is not clear that Commissioner Leary saw the facts in that way. She did not accept that Ms Radburn and Ms Armstrong had been dismissed although, incongruously to our minds, she also found that their positions were "legitimate redundancies caused by reducing funding", as Great Lakes itself had contended. But if there were problems about the Commissioner's findings, that was what the application for leave to appeal was all about. Having regard to the background material about the industry that was before the Full Bench, it could not conclude that there was no relevant connection until it had determined for itself the facts concerning Ms Radburn and Ms Armstrong.
The background industry facts were not formally proved. This does not matter. In The Queen v The Commonwealth Conciliation and Arbitration Commission and others; Ex parte The Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228, Barwick CJ said at 243:
“The Commissioner was not disentitled to act upon the assertions of the Union advocate, merely because they were not made on oath, or because he might not have been competent as a witness according to the ordinary rules of evidence to make them. No doubt, if the correctness of his assertions were challenged, it would at the least be imprudent on the part of the Commissioner not to have further examined the matter, so as to satisfy himself of the actual facts, if need be, by evidence formally given. But there was nothing in the instant case which, it seems to me, the Commissioner might not properly regard in the circumstances as sufficiently ‘evidenced’ by the statements of the Union advocate.”
This material amply demonstrated the problems in the industry caused by the introduction of Skillshare and the long standing concern of ASU (and its predecessor ASWU) for job security. This concern had been evidenced in the demands for no terminations and for reinstatement that were contained in both the 1989 and 1993 logs. The termination of the employment of two members, on the ground of redundancies following restructuring, if that is what had happened, was clearly related to the concerns expressed by those demands and the dispute generated by Great Lakes rejection of them. On that basis, it was incorrect for the Full Bench to say that there was no evidence of a connection between the dispute found in February 1994 as a result of the rejection of the 1993 claims and the dismissal of the ASU members by Great Lakes. On that basis, it was open to the Commission to determine that an award for the reinstatement of the two employees would be “relevantly connected with a demand for a regime regulating dismissal and formulating the circumstances in which an employer will come under an obligation to reinstate” see Boyne at 455. Such an award would have a rational or natural tendency to dispose, in part, of a question at issue in the 1993 dispute: the issue of insecurity of employment of ASU members employed in or in connection with labour market programs.
ORDERS
In coming to the conclusion that there was no material before them to connect the industrial dispute arising out of the rejection of the 1993 log of claims with the application for reinstatement of the second respondent’s two former employees, the Full Bench must have rejected from their consideration the material to which we have just referred. This was an error of law. It was for the Full Bench to determine the facts, and therefore the weight that ought to be given to that material in making a factual judgment about the existence of a sufficient connection. But it was an error of law to ignore the material or to deny its relevance. The material was plainly relevant to the issue of jurisdiction because it had a tendency to prove the existence of jurisdiction. As the error caused the Full Bench to deny that it had jurisdiction, it was an error of a jurisdictional nature and amenable to correction by prerogative relief. Accordingly we propose to make an order in the nature of certiorari removing to this Court and quashing the decision of the Full Bench of 19 October 1995. We will also make an order in the nature of mandamus requiring the members of the Full Bench to hear and determine the appeal against the decision of Commissioner Leary in accordance with law.
I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment herein of their Honours Chief Justice Wilcox and Justice Marshall.
Associate:
Date:
APPEARANCES
Counsel for the Applicant: Mr S.C. Rothman SC, with
Ms N. Rudland
Solicitor for the Applicant: R.L. Whyburn and Associates
Counsel for the Second Respondent: Mr B.D. Lawrence
Solicitor for the Second Respondent: Phillips Fox
Date of hearing: 5 June 1996
Date of judgment: 15 August 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
NEW SOUTH WALES )
DISTRICT REGISTRY )
ON REMITTAL FROM THE )
HIGH COURT OF AUSTRALIA ) No. NI 1279 of 1996
BETWEEN: AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
Applicant
AND:THE HONOURABLE ANTHONY McINTYRE, VICE PRESIDENT; THE HONOURABLE LEIGH DRAKE, DEPUTY PRESIDENT; HELEN CARGILL, COMMISSIONER; AND PATRICIA LEARY, COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
AND:GREAT LAKES COMMUNITY RESOURCES INCORPORATED
Second Respondent
CORAM: Wilcox CJ, Marshall and Madgwick JJ
PLACE: Sydney
DATE: 15 August 1996
REASONS FOR JUDGMENT
MADGWICK J: I agree with the conclusion and much of what Wilcox CJ and Marshall J have said. In particular, I think that the analysis of the recent High Court judgments set out in their reasons is correct. But that analysis, it seems to me, has the necessary consequence that the effort in this case to deny the Commission’s jurisdiction must be taken to have failed.
First, there was simply nothing positive to point to a lack of the elements of (a) advancement of claims actually of concern to present employees, considered as an industrial class, or (b) the extent of such a class beyond the limits of one State.
Second, if, contrary to my comprehension of the relevant legal principles, it is necessary to examine the factual material referred to by Wilcox CJ and Marshall J, and is contained in (i) the submissions made to Mr Caesar; (ii) the decision in Australian Social Welfare Union v Stones Corner Trading Association (1989) 31 IR 456 (Stones); and (iii) the decision in Re Social and Community Welfare Services (State) Award (Industrial Relations Commission of New South Wales, Glynn J, 6 August 1990, unreported), of all of which the Commission must be taken to have been aware, such material affords positive reason for finding an interstate dispute and one pertaining to the relations of employers and employees (as distinct from ex-employees only), and that the particular award sought was within the ambit of that antecedent dispute.
Next, there are other powerful reasons, grounded in the facts of the nature of the "industry" of social work, for coming to a positive conclusion that the collective relations between actual employers and actual employees were affected by the antecedent paper dispute, whether or not it was put forward "only" for the purpose of creating jurisdiction in the AIRC. These facts include that: many social workers are employed either directly by governments or by community organisations wholly or partly dependent on government funding; in the nature of things governmental, enthusiasm for particular kinds of social work projects is apt to wax and wane. Employment in the “industry” is thus often precarious. The entire industrial class of social workers tends therefore to have a live interest in how potential and actual redundancy situations are handled - for example, to minimise complete loss of employment, to substitute voluntary for involuntary terminations of employment, and to minimise unconscientious resort to alleged redundancy to mask more particular reasons for termination of employment of particular people.
Finally, there are more general but also powerful reasons to support an inference that the claims in the log were probably not being put forward only for the purpose of giving the Commission jurisdiction to deal with particular reinstatement disputes. In the last 25 or 30 years full employment seems to have slipped away from Australia. Anxiety about employment security is increasingly general: erstwhile bastions of secure employment have moved to arrangements seen by many employers as desirably more flexible, but which are experienced by many employees as undesirably less secure; industries and firms fall (as well as rise) more frequently than in less frenetic, bygone days. The proposition, once stated, hardly requires proof. Indeed, it is not easy to think of any category of organised employees that does not have a real interest, as an industrial class, in attempting to establish rights in employees to equitable treatment by employers as to possible termination of their employment, and rights to reinstatement if they do not receive that equitable treatment. In recent times there has been sharp political controversy about how best to accommodate the concerns of both employers and employees about these very subjects. But from no quarter, in that debate, has there emerged any suggestion that such concerns are not legitimate and real. Hence there is, at least in present economic circumstances, a sound practical justification for the prima facie legal assumption that a paper inter-state industrial dispute about the terms, if any, on which employees may be dismissed and the circumstances in which dismissed ex-employees ought be reinstated (that is, a claim for employment security) affects existing employer-employee relations, and ought not be seen as a mere stratagem to invest the arbitral authority with jurisdiction to intervene simply in the interests of ex-employees. If that means that there is nothing very special, for present purposes, about social workers and their concerns, then that is just a reflection of the way things are in Australia at the present time .
The broader considerations referred to in the last two paragraphs, like the factual material earlier referred to, were not put to the Commission. But that is no reason for this Court not to act upon them. Real expertise must be attributed to, as well as much weight accorded (see per McHugh J in Boyne at 461) to the decision of, the Commission. But it is inescapable that this specialised Court itself will have a degree of specialised knowledge. It is simply perverse not to widen the permissible scope of judicial notice accordingly. See also s 144 of the Evidence Act 1995 (Cth). Further, the Commission did not rely on its expert knowledge in a way that produced different factual conclusions from those arrived at by this Court; rather, the Commission seems not to have felt free to apply its broad factual expertise. The Commission appears, in my opinion, to have been deflected by a search for particular indicia of genuineness and relatedness (in the ambit sense) present or absent in other particular cases, and occasionally, but without doctrinal significance (as I indicate below), referred to in the High Court as signs of a "connection" between the dispute and the proposed award. In any case, the matters referred to were raised in this court in the course of argument with counsel for the employer and he dealt with them by means of a confession and attempted avoidance. Finally, examples of investigation on judicial review into material departing very considerably from what was before the Commission are not wanting: see R v Turbot, Ex parte Australian Building & Construction Employees and Builders Labourers Federation ("Loy Yang") (1980) 144 CLR 335 at 340-1.
It is, in my view, a misreading of the recent High Court judgments, and an error in principle, to suggest that they posit, or that otherwise there is, an additional requirement that there be a "connection" between an antecedent inter-state paper dispute which in the relevant ways, prima facie pertains to employer-employee relations and has an interstate element, and a later application for an award, within the ambit of the dispute, that particular employees be reinstated. There is either a genuine interstate industrial dispute and a proposed award within its ambit, or there is not. If there is, the fact that the proposed award is within ambit is all the "connection" that is necessary. There is no warrant to go looking for some other connection. The notion of "connection" is and can be no more than a synonymous concept for other formulations of the ambit requirement: the classic formulation of the relevant requirement was stated in R v Galvin; Ex parte Amalgamated Engineering Union (AEU) (1952) 86 CLR 34 at 40:
"An award cannot give a form of relief that is not relevant to a matter in dispute, that is not reasonably incidental or appropriate to the settlement of that part of the dispute and that has no natural or rational tendency to settle the particular question in dispute. But the award need not adhere to the remedy or relief proposed or claimed in the course of the dispute or in a demand forming a source of the dispute, so long as the provision in the award is related to the dispute or its settlement in the manner stated."
Likewise, there is either, in the language of Boyne, a 'paper' demand made only to enable the Commission to determine particular reinstatement claims, or there is not. The onus of showing that there is, that is, that service of an unmet log, which prima facie does pertain to the collective relations of employers and employees, may not really so pertain, is on the party who would say the contrary: Vista at 432-4. But, even if the log does have that purpose, that will not be an end of the matter: there may be other circumstances which "show that, in some way, it is a matter affecting the industrial interests of other employees" (Boyne at 455).
It is of no logical or practical assistance in determining these questions to ask and attempt to answer the further question: is there some connection other than an ambit one between the application for the reinstatement award and the dispute relied upon to found it? That this chimera has ever been chased stems, in my opinion, from according mistaken significance to phrases such as that used in Boyne at 455:
"... 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".
In that case, it is quite clear, from the passage following that extract, that ambit-type considerations, and no others, were being referred to. Further, upon a doctrinal analysis, it cannot be otherwise.
It is the kind of reasoning set out above which, in my view, explains why counsel for the union in this case did not err in declining to take up an invitation from the Commission to put on further evidence: from her submissions, she evidently, and in my view rightly, took the view that, on a proper understanding of the law, there was no reason why she needed to do so. The union relied on a prima facie adequate interstate dispute and on its proposed award being within ambit. It needed no more.
But fortune did not favour the bold. In my respectful opinion, the Commission fell into jurisdictional error through rejecting the union submissions, and through applying to this case remarks made in a different case (Australian Rail Train and Bus Industry Union (Australian Industrial Relations Commission, Polites DP, Williams DP and Holmes C, 1993, Print K9995) by a differently constituted Full Bench of the Commission. In that earlier case, the Commission seems to have thought that there was some positive material to point to a conclusion that the antecedent paper demand was made only (the Commission said "merely") to create a mechanism to vest jurisdiction in the Commission to deal with ad hoc dismissals (cf. Boyne supra p 455-6). There is no warrant in these proceedings to revisit the facts of that earlier case. But here, there is no such positive material. And, the onus being on those who would deny jurisdiction to prove the lack of efficacy of a prima facie adequate paper dispute, absent such material, they fail. Neither was there any material here to cause doubt as to whether the particular award sought was within the ambit of the antecedent dispute. If, properly understood, there is anything in the earlier decision which tends to a contrary approach, then, in my opinion, to that extent, it ought not be followed.
I wish to add one final remark. If the Commission was not assisted in the best way possible by counsel (which, as indicated, I doubt), that can never be an end of a jurisdictional matter: in Loy Yang a very unhelpful misdescription (see p 340) to the Commission of circumstances said to constitute an industrial dispute did not deter the High Court from acting on the true facts, so as to justify the issue of a prerogative writ affirming jurisdiction. Thus, the requirement to examine jurisdiction is not discharged without a close examination of the substance of the matter on all the available facts, regardless of how much or how little assistance the adjudicating tribunal receives. Given the importance of questions as to the jurisdiction of the Commission, that is a less surprising and unfortunate result than it may, at first blush, seem to be.
I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment herein of His Honour Justice Madgwick.
Associate:
Date: 15 August 1996
APPEARANCES
Counsel for the Applicant: Mr S.C. Rothman SC, with
Ms N. Rudland
Solicitor for the Applicant: R.L. Whyburn and Associates
Counsel for the Second Respondent: Mr B.D. Lawrence
Solicitor for the Second Respondent: Phillips Fox
Date of hearing: 5 June 1996
Date of judgment: 15 August 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
ON REMITTAL FROM THE )
HIGH COURT OF AUSTRALIA )
No. NI 1279 of 1996
BETWEEN: AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL
AND SERVICES UNION
Applicant
AND: THE HONOURABLE ANTHONY
McINTYRE, VICE PRESIDENT,
THE HONOURABLE LEIGH DRAKE,
DEPUTY PRESIDENT; HELEN
CARGILL, COMMISSIONER; AND
PATRICIA LEARY,
COMMISSIONER OF THE
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
First Respondents
AND: GREAT LAKES COMMUNITY
RESOURCES INCORPORATEDSecond Respondent
CORAM: Wilcox CJ, Marshall and Madgwick JJ
PLACE: Sydney
DATE: 15 August 1996
CORRIGENDUM
Order (b) of the orders of the Full Court reads as follows:-
(b)A write of mandamus requiring the said members of the Australian Industrial Relations Commission to hear and determine the said appeal according to law.
Please delete the word “write” and insert “writ”.
Peteris Ginters
Associate to Justice Marshall
Monday, 19 August 1996
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