Brown, John v Roundstreet Pty Ltd

Re: JOHN BROWN
And: ROUNDSTREET PTY. LTD.
Nos. V1, V2, V3 and V4 of 1985
Industrial Law
20 IR 205

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Industrial law - award - whether named respondent bound - onus of proof - industrial dispute - whether successor to party to prior dispute bound by consent award - whether claim for award an "industrial matter" - whether threatened, impending or probable dispute.

Conciliation and Arbitration Act 1904 ss. 4, 28, 60, 61 and 119

Transport Workers' (Passenger Vehicles) Award 1978

R. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union (1981) 153 C.L.R. 376

R. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. (1984) 51 A.L.R. 469

Hansen v. Marco Engineering (Aust.) Pty. Ltd. (1948) V.L.R. 198 Accident Underwriters' Association of New South Wales v. Australian Insurance Staffs' Federation (1928) 26 C.A.R. 968

R. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 C.L.R. 297

Federated Clerks Union of Australia v. Victorian Employers Federation (1984) 154 C.L.R. 472

R. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union (1956) 96 C.L.R. 317

R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Printing Industry Employees' Union of Australia (1964) 109 C.L.R. 544

Re Ludeke; Ex parte Queensland Electricity Commission (1985) 60 A.L.R. 641

R. v. Judges of the Commonwealth Industrial Court; Ex parte Cocks (1968) 121 C.L.R. 313

HEARING

MELBOURNE

#DATE 19:3:1986

ORDER

THE COURT ORDERS THAT the preliminary question be answered as follows:

Question: Whether the respondent was, between 22nd May 1981 and 1st March 1983, bound by the Transport Workers (Passenger Vehicles) Award 1978.

Answer: Between 22nd May 1981 and 1st March 1983, the respondent was bound by the Transport Workers (Passenger Vehicles) Award 1978.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

On 14th March 1985, there were filed in the Court four applications by the same applicant. Each application claims relief pursuant to s. 119 of the Conciliation and Arbitration Act 1904 ("the Act"). The relief sought is penalties for alleged breaches or non-observances of terms of the Transport Workers' (Passenger Vehicles) Award 1978 ("the 1978 award"), with respect to the applicant. The applications also seek payment to the applicant of amounts to which he may be found to have been entitled.

In a statement of claim filed in matter V No. 4 of 1985 on the same date, the applicant alleges that, at all material times he was a member of the Transport Workers' Union of Australia ("the T.W.U."), which was an organization within the meaning of the Act, that the respondent was incorporated under the legislation of Victoria relating to companies, and that at all material times it was incorporated under the name "Australian Pacific Tours Pty. Ltd.". It is further alleged that at all material times the T.W.U. and the respondent were parties to the 1978 award, which applied to the employment of coach drivers employed by the respondent, that between 22nd May 1981 and 1st March 1983, the respondent employed the applicant as a coach driver, and that the respondent failed to pay the applicant at the rate to which he was entitled in respect of certain work.
The respondent denies that it is bound by the 1978 award. On 26th April 1985, the Court ordered that each of the four matters be consolidated, and that the question whether the respondent was, between 22nd May 1981 and 1st March 1983, bound by the 1978 award be decided separately from all other questions in the consolidated matters and before the trial of those other questions.
Pursuant to a direction of the Court, the applicant filed contentions of fact, dated 17th May 1985:

"1. Australian Pacific Tours Pty. Ltd. ("the Tours company") was between the 22nd day of May 1981 and the 1st day of March, 1983 a named Respondent to the Transport Workers (Passenger Vehicles) Award 1978.

2. The Tours company changed its name to Roundstreet Pty. Ltd. on the 30th of June 1983."

Also pursuant to a direction of the Court, the respondent filed points of defence, dated 24th June 1985. In paragraphs 1 and 2 of those points of defence, the allegations in the applicant's points of contention were admitted. The points of defence continued as follows:

"3. It was not a party to any industrial dispute in settlement or part settlement of which the Transport Workers (Passenger Vehicles) Award 1978 was made. Specifically, it did not receive any demand or log of claims from the Transport Workers' Union of Australia in late 1977, early 1978 or at any other time which might have been relevant for the creation of an industrial dispute in settlement of which the said Award was, or could have been, made.

4. In the premises, the respondent was invalidly named as a respondent to the said Award, and the said Award is not binding upon it."

It may be seen, therefore, that the respondent admits that it was named in the 1978 award as a party bound by the 1978 award, but contends that it was invalidly so named, and that the 1978 award is not binding upon it. The question therefore arises as to which party carries the onus of proving the facts relevant to that issue. In the first place, Dr. Jessup, counsel for the respondent, conceded that his client bore the legal, and not merely the evidential, onus of proof on that issue. Subsequently, in the course of argument, Dr. Jessup sought to withdraw this concession. It seems desirable that I should determine that issue, as it was suggested that the incidence of the burden of proof may affect the result of the trial of the preliminary question.
The difference between the legal burden and the evidential burden is dealt with in Cross on Evidence, Second Australian Edition, at pages 78-80. To ascertain the incidence of the legal burden, it is necessary to determine on which party the law places the obligation to establish a case on a particular issue to the satisfaction of the tribunal of fact. In most cases, on most issues, this will be the party moving the court. The evidential burden will normally fall, in the first instance at least, on the party who carries the legal burden. It may, however, be cast upon the opposite party, either from the sheer necessity to lead evidence on an issue, in order to avoid losing that issue, or by some rule of law or presumption.
It cannot be doubted that a party claiming to have been named wrongly in an award as a party bound by such award would have at least the evidential burden. Notwithstanding his concession that the respondent bore the legal burden on this issue, Dr. Jessup argued that, once the respondent led some evidence that it had been wrongly named in the 1978 award, the burden would shift to the applicant to establish that circumstances arose in which the respondent was properly named in the 1978 award. The question of the incidence of the evidential burden was said to be important, because of the failure of both parties to call a witness whose evidence may well have been crucial. I shall refer in more detail to the consequences of the failure to call that witness when discussing the facts.
It is well established that, if the respondent had approached the High Court of Australia, seeking a writ of prohibition restraining the Australian Conciliation and Arbitration Commission from continuing to treat it as a party to an industrial dispute or an award, the respondent would have carried the onus of proving that the Commission lacked jurisdiction. In other words, the legal burden of proving that it was named incorrectly in the 1978 award would have fallen upon the respondent if it had sought a perogative writ from the High Court. Examples of the application of this rule are found readily. It is sufficient to mention two recent ones: R. v. Alley; Ex Parte New South Wales Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376, and R v Bain; Ex Parte Cadbury Schweppes Australia Ltd. (1984) 51 ALR 469
It is also safe to assume that, if a party appealed under s. 35 of the Act against a decision of the Commission to name it as a party to an award, that party would be required to establish the facts which showed that the Commission lacked jurisdiction, if that were the ground of the appeal. Similarly, if the respondent were to apply to the Commission under s. 59 of the Act, to vary the 1978 award by deleting the name of the respondent, or to set aside its terms, so far as they relate to the respondent, the respondent would carry the onus of establishing the original want of jurisdiction in the Commission to name it as a party.
No authority bearing upon the question of onus of proof on an issue of this kind in proceedings such as this was cited to the Court. I have been unable to find any direct authority on the point. The question is whether the normal rules should apply, that the party who moves the court (in this case the applicant) carries the legal onus of proving his or her case, or whether the law should cast upon a person in the respondent's position the legal burden of excluding itself from the operation of an award. If the normal rule were to apply, an applicant would be expected to be able to lead evidence of facts which might not necessarily be within his or her knowledge, or at his or her command. Section 119(2) of the Act contains a list of competent applicants for the recovery of penalties for breaches of awards. By no means all of such applicants would be in a position to know or ascertain the circumstances surrounding the naming of a particular party as a party bound by an award. For example, the Industrial Registrar, an inspector, or an individual employee would be disadvantaged by lack of knowledge and difficulty of obtaining evidence on such an issue. On the other hand, a party named as a respondent could be expected to have knowledge of the circumstances in which it came to be so named. These considerations tend to suggest that the law should require a party named in an award as bound by it, which seeks to exclude itself from liability under the award, to carry the onus of proving that it ought not to be bound. Further, the respondent should not be placed in a better position by having taken no action in the Australian Conciliation and Arbitration Commission or the High Court of Australia than if it had done so. A rule allowing a respondent to an award to cast upon the applicant in proceedings for breach of that award the legal burden of showing that the respondent is properly named would advantage a respondent which simply allowed its name to remain in the award, and only took the point that it was not properly so named when proceedings were commenced against it. Such a rule would be inimical to good industrial relations, and would tend against the chief objects of the Act, specified in s. 2(a), (c) and (d) of the Act. I therefore hold that, as a matter of law, a party named in an award, seeking to exclude itself from liability under that award, carries the legal burden of proving that it has been named wrongly in the award.
It is necessary to examine in some detail the history of the 1978 award. Prior to 9th June 1976, there were three relevant companies in existence, Australian Pacific Coaches Pty. Ltd., Melbourne Motor Coach Service Pty. Ltd., and McGeary's Parlor Coaches Pty. Ltd. Each of these companies operated motor coaches, and each co-operated with the others in the conduct of its business. The three companies had common directors. Each was a party to the Transport Workers (Passenger Vehicles) Award 1973 ("the 1973 award"), an award of the Australian Conciliation and Arbitration Commission, based on a dispute created by the service by the T.W.U. of logs of claims on those companies and other employers operating motor coaches. That dispute was designated within the Commission as matter C No. 2105 of 1972.
On 9th June 1976, the respondent was incorporated, under the name Australian Pacific Tours Pty. Ltd. Its directors were the same as those of the earlier three companies. On 1st July 1976, the respondent entered into the first of a series of agreements under which it became the manager of the business formerly conducted by Australian Pacific Coaches Pty. Ltd. Two of those agreements are in evidence, the first and a subsequent one dated 1st July 1980. The main features of these agreements were that the respondent, for and on behalf of Australian Pacific Coaches Pty. Ltd. had the entire conduct and supervision of the business, could in its own name but as agent employ staff, occupy premises, enter into agreements and arrangements, make payments, receive money and do other acts. The assets of the business remained the property of and in the possession of Australian Pacific Coaches Pty. Ltd. These agreements were said to have been the result of considerations relating to taxation, and not to have been for the purpose of evading the obligations of Australian Pacific Coaches Pty. Ltd. under the 1973 award.
In or about November 1977, the T.W.U. produced a log of claims, containing fourteen demands. The log seems to have assumed the continued existence of the 1973 award, and to have sought variations to it, in accordance with the demands made in the log. The log was served on two companies, known as Ansett Pioneer, and Greyhound Bus Lines of Australia ("Greyhound"). It may also have been served on some other employers who were parties to the 1973 award. It is common ground that the log of claims was never served on the respondent. Some industrial action appears to have been taken by employees of Ansett Pioneer and Greyhound in support of the T.W.U.'s demands.
On 6th March 1978, one Andrew Greig, an industrial officer of the Victorian Employers Federation, notified to the Australian Conciliation and Arbitration Commission the existence of a dispute between Ansett Pioneer and the T.W.U., and a dispute between Greyhound and the T.W.U. These disputes became matters C No. 313 of 1978 and C No. 316 of 1978 in the Commission. The matters were called on before Mr. Commissioner Gough on 8th March 1978. Mr. Greig announced his appearance for Ansett Pioneer and Greyhound, and sought leave to intervene on behalf of a number of parties. He said:

"In both these matters I seek leave to intervene on behalf of a number of organisations: The Victorian Employers Federation, members of the Bus Proprietors Associations of Victoria, Queensland, South Australia and Tasmania, and on behalf of members of the Chamber of Industries of the Northern Territory.

I seek leave to intervene on behalf of those organisations because they all have claims by the Transport Workers Union which is involved in this matter, and it is our intention to seek conferences under your chairmanship for settlement of that log of claims, and those organisations would be involved in that."

On the same day, an exchange took place between Commissioner Gough and Mr. Greig as to the identity of parties to the disputes which were before the Commission. The Commissioner said:

"I have proof in respect of Ansett Pioneer and Greyhound Express that they are involved in this dispute. Have you any means of proving that other bus operators are in dispute with the Transport Workers Union of Australia?"

In answer to this, Mr. Greig said:

"At this stage we have no written proof that any other operator is in dispute with the Transport Workers Union. The Transport Workers Union, of course, have not notified a dispute in relation to their log. What I do have is the authority to act on behalf of each of the organisations I sought leave to intervene for in relation to the negotiation of the 1977/78 log of claims."

Subsequently, the following exchange occurred:

"MR. GREIG: "The members of the Victorian Employers Federation served with the log of claims are as follows: Ansett Motors Pty. Limited of Gray Street, Hamilton, Victoria; Latrobe Valley Buslines, P.O. Box 390, Moorwell (sic.), Victoria; Mylon's Motorways Pty. Limited, P.O. Box 83, Wodonga, Victoria; Trans-Otway Limited, P.O. Box 497, Geelong, Victoria - they are the only direct members of the VEF who have been served with the log. In relation to the members of the Northern Territory Chamber of Industries, I have authority under a letter from Mr. Ralph Crow, the industrial relations officer of the chamber, dated 14 November and those authorities are for Matilda Tours of Darwin and Darwin Bus and Motor Services. In addition to that, I have a letter from Mr. M.C.G. Schrader, the executive director of the Bus Proprietors Association (Victoria) requesting my organisation to appear and act on behalf of his organisation in relation to the log of claims. I have a letter - - - "

THE COMMISSIONER: "Before you leave Mr. Schrader, did he give you the names of any particular members of his association?"

MR. GREIG: "No.""

On 8th March 1978, a formal finding of dispute was announced by Mr. Commissioner Gough. This formal finding did not name the respondent as a party to either dispute. It was stated to be a provisional finding which could be added to or detracted from at further hearings.

The Bus Proprietors Association (Victoria), ("the B.P.A.V.") was and is an association, not registered under the Act. The respondent was and is a member. Among other things, the B.P.A.V. assisted its members with industrial matters. For this purpose, it had an industrial sub-committee, on which sat representatives of some members. To represent members involved in industrial disputes, the B.P.A.V. engaged the services of industrial officers from the Victorian Employers Federation. Such officers often met with the industrial sub-committee to discuss ways of resolving disputes affecting members.
On 10th March 1978, matters C No. 313 and C No. 316 of 1978 were again heard before Commissioner Gough. Some discussion took place as to who had been served with the log of claims, and two names were added to the finding of dispute. Neither name was the name of the respondent. On 10th March and 17th March, conferences took place under the chairmanship of the Commissioner.
On 17th April 1978, the two matters were again before the Commission. It was on this occasion that the first mention occurred of any name which could be construed as being that of the respondent. Mr. Greig said:

"Following commission hearings and conferences under your chairmanship held in Melbourne on 10 and 17 March, employers respondent to the Passenger Vehicle Award undertook to meet to consider several matters in an attempt to reach settlement in relation to this log of claims. In line with that undertaking meetings have been held of the representative organisations as well as the principal operators in the industry, those principal operators being Ansett Pioneer, AAT, Australian Pacific, the various Greyhound organisations and Cobb and Co.; in fact Cobb and Co. was not represented at the last hearing. These companies as well as the various representative organisations met to consider first of all the question of service grants and secondly the area of award respondency."

The reference to service grants is a reference to incremental payments for employees, the amounts of the payments being dependent upon the length of service of the particular employee with a particular employer.

A further report on negotiating progress was made on 24th April. Another conference took place under the chairmanship of the Commissioner on 26th April 1978. On that occasion, after the completion of the conference, Mr. Greig said:

"Sir, as indicated to you in the conference, we wish to put on record our revised offer which we propose in settlement of the log of claims in C. Nos. 313 and 316 of 1978. I will detail those.

At this stage I would like to read into the transcript the names of the companies we are talking about in relation to the service grants which I shall refer to later on. Those companies are:

TAA - Mayne Travel Industries Limited trading as Australian Accommodation and Tours Limited.

Ansett Transport Industries Operations Limited trading as Ansett Pioneer.

Australian Pacific Tours.

Greyhound Express Pty. Limited (which is the Brisbane operation).

Greyhound Travel Centre Pty. Limited (which is the Melbourne operation).

Greyhound (Southern) Pty. Limited (which is the Adelaide operation).

The Cobb & Co. company is also in a similar category to the abovementioned companies. They are not represented directly today. We do represent them by way of membership of one of the representative organisations. Any undertakings given today should not be held to be binding on them at this stage, and we are still endeavouring to contact them."

A detailed account of the latest offer followed. On the following day, the proceeding continued, for the purpose of ascertaining the attitude of the T.W.U. to the offer which had been made. On that occasion, Mr. Greig said:

"While I am on my feet, one point I omitted to mention is the position of Cobb & Co. I am instructed by the Cobb & Co. representatives that whilst they object in principle to the concept of any money increase outside the wage indexation guidelines, they see the realities of the situation and will concur with the agreement reached by the other major employers in the industry. I would indicate that the question of award respondency we hope to discuss with Mr. Burke in private, and we will also report that to you when next we meet."

On 5th May, the matters again came on before the Commission, constituted by Gaudron J. Mr. Greig said:

"I would like to put on record exactly who I am appearing for. There has been some confusion in the past as to who I have been representing. I appear today with MR. L.J. McCOY, MR. M. SCHRADER and MR. R.J. POLLARD on behalf of Ansett Transport Industries

(Operations) trading as Ansett Pioneer, the Bus Proprietors Association of Victoria - respondent members of that organisation, respondent members of the Bus Proprietors Association of Tasmania, respondent members of the Bus Proprietors Association of South Australia, respondent members of the Bus Proprietors Association of Queensland, respondent members of the Chamber of Industries Northern Territory Inc., respondent members of the Victorian Employers Federation and Cobb and Co. Ltd. Previously I had taken Cobb and Co. to be members of the Bus Proprietors Association of Queensland but I am instructed that is not so so I would like to record an appearance for that organisation."

On that occasion, a draft award was tendered, which ultimately became the 1978 award, as a consent award of the Commission. In explaining the terms of the consent award, and the parallel negotiations with respect to service grants, Mr. Greig said:

"Just for your Honour's information, there is another part to the settlement of this dispute and it is an agreement to be entered into by the major operators, what I can class as the scheduled interstate operators who are respondent to this award and they are contained on page 24 of exhibit B1 under the schedule of respondents as group A1. Each of the companies listed there has entered into a private agreement with the Transport Workers Union in relation to service grants and once we have the document signed we will forward a copy to the commission to be placed on the commission's file.

On that point, the Transport Workers (Passenger Vehicles) Award 1973 contained two groups of respondents, group A to which the award applied all the time and group B to whom the award applied only when they were engaged on interstate operations. We have changed that by consent. There are certain companies listed in group A1 to whom the award applies for all purposes as does group A. So in fact what we have now is three schedules of respondents, group A1 and group A to which the award applies all the time and group B only for interstate operations.

The reason we have done this is so all operators in a similar class, that is major scheduled interstate operators, can be grouped together. This would assist all the employers whom I represent in relation to the future negotiation of this award."

On the same day, Mr. Burke, who appeared for the T.W.U., said:

"I would confirm what Mr. Greig has said in relation to the private agreement. The change in the respondency is acceptable to the union . . . "

Gaudron J. announced that by consent the 1978 award would be made as contained in the consent award which was tendered, and announced the date of operation. The formal award was issued by Commissioner Gough on 21st August 1978. It was expressed as having been made in matter C No. 2105 of 1972, and matters C Nos. 313 and 316 of 1978. It was expressed to be an award by consent.

On 30th June 1983, the respondent changed its name to the name by which it is presently known. The company which was formerly known as Australian Pacific Coaches Pty. Ltd. adopted the name Australian Pacific Tours Pty. Ltd.
Pursuant to a direction of the Court, the evidence in the proceeding was given by affidavit. It is important to examine some of the affidavits in some detail.
There was filed on behalf of the respondent an affidavit of John David Burton, sworn on 24th June 1985. Mr. Burton is a director and the general manager of the respondent. He was general manager of Australian Pacific Coaches Pty. Ltd. from about 1973 onwards, and became general manager of the respondent on its incorporation. He was appointed a director of both companies in July 1978. After deposing to the fact that no log of claims was received by the respondent, or by any of the other three related companies, in late 1977 or early 1978, Mr. Burton said:

"9. Apart from any letter of demand or log of claims, there was no other industrial demand made by the Transport Workers' Union of Australia upon Australian Pacific Tours Pty. Ltd. in late 1977, early 1978 or thereabouts. Further, I was not aware at that time of any circumstances from which it might be said that that company was in dispute with the said Union or with the drivers it employed.

10. In early 1978 Australian Pacific Tours Pty. Ltd. participated in negotiations with the said union and other employers in the industry upon the question of what service grants should be paid to coach drivers. Those negotiations resulted in an agreement for the payment of service grants which were substantially less, at every relevant year of service, than the service incremental payments which had previously been paid, and, after the negotiations of the said agreement, which continued to be paid, by Australian Pacific Tours Pty. Ltd. to its drivers. The said agreement was never certified under the Conciliation and Arbitration Act 1904 and the service grants were not, until 1984, included in an award."

In response to this, several affidavits were filed on behalf of the applicant. The first exhibited a number of documents which had been obtained by subpoenas directed to an officer of the B.P.A.V. There are two documents, each entitled "Appointment of Executive Representative", which appear to constitute notice to the B.P.A.V. of the appointment of such a representative for a member. The first appears to be dated 16th August 1972, and to constitute the appointment of one M. Page as representing Melbourne Motor Coach Service Pty. Ltd., McGeary's Parlor Coaches Pty. Ltd. and Australian Pacific Coaches. The second is dated 1st September 1976, and notifies the appointment of Mr. Burton as executive representative of Australian Pacific Coaches Pty. Ltd. The word "Coaches" in this form has been struck out, and above it the word "Tours" has been inserted, in brackets.
The B.P.A.V. documents also disclose three memoranda, dated 3rd, 14th and 21st February 1978 respectively, addressed to a number of persons, including Mr. Burton. The memoranda deal with issues raised by the T.W.U. log of claims served on Ansett Pioneer and Greyhound, and with responses to the T.W.U.'s claims on those issues. In the first memorandum, there is reference to a meeting to be held on 10th February 1978. The second memorandum appears to be a report on a meeting held on 10th February. The third memorandum is a report of negotiation with a T.W.U. representative.
Also in the B.P.A.V. documents is a document which purports to be notes of a meeting on 20th January 1978, which records the attendance of Mr. Burton at that meeting, and various decisions of the meeting as to issues raised by the T.W.U.'s 1977 log of claims. A further minute of 6th April 1978 records Mr. Greig reporting with respect to "service grants and the division of the respondency to the award into two groups". Mr. Burton is not recorded as having been present at that meeting.
Also produced from the B.P.A.V. is a copy of an agreement entitled the Transport Workers' (Passenger Vehicles) (Scheduled Interstate Operators) Service Grants Agreement, 1978. This agreement purports to be an agreement between a number of companies and the T.W.U., with respect to the payment of service grants. One of the companies named in the agreement is the respondent (by its then name), and the agreement was executed on its behalf.
The applicant filed an affidavit of David Grove, sworn on 5th September 1985. Mr. Grove appeared on behalf of the T.W.U. in the early stages of the proceedings which led to the making of the 1978 award. He was involved in negotiations with Mr. Greig upon the matters which became the subject of the 1978 award. In the course of those negotiations, there was discussion about the fact that the respondent was not a party to the 1973 award, although Australian Pacific Coaches Pty. Ltd. was. Mr. Greig told Mr. Grove that he (Mr. Greig) was instructed to act for both Australian Pacific Coaches Pty. Ltd. and the respondent. Early in the negotiations, Mr. Greig stated that he understood the respondent was a successor to the business of Australian Pacific Coaches Pty. Ltd. Mr. Grove accepted this. Later, Mr. Greig corrected himself and said that, after further discussions with the respondent, he now knew that the respondent was not a successor to Australian Pacific Coaches Pty. Ltd., and that it was not a respondent to the 1973 award. He conceded that the business operated by the respondent was that formerly conducted by Australian Pacific Coaches Pty. Ltd. within the incidence of the 1973 award. He stated that he was authorised to say that the respondent accepted service of the 1977 log of claims on Australian Pacific Coaches Pty. Ltd. as service on itself.
Mr. Grove was alerted by these discussions to a possible future difficulty regarding enforcement of the 1973 award against the respondent. He told Mr. Greig that the situation had to be rectified. He told Mr. Greig that he was authorised to demand on behalf of the T.W.U. that the respondent agree to being bound by the 1973 award. When Mr. Grove made this demand, Mr. Greig stated that the respondent was aware that it was not a party to the 1973 award, and that he was instructed by the respondent to refuse all T.W.U. demands. Mr. Grove stated that such a refusal could seriously complicate the industrial situation. Mr. Greig later told Mr. Grove that he had sought further instructions from the respondent, and that he was then instructed to agree on its behalf to the demand that it be a respondent to the 1973 award, but that it still rejected the demands made in the 1977 log of claims.
Mr. Grove was not cross-examined on his affidavit, and the facts stated in it were not challenged, except to the extent that there was evidence that the 1977 log of claims was not served on Australian Pacific Coaches Pty. Ltd.
The applicant also filed an affidavit sworn by William Burke, the Federal Industrial Relations Officer of the T.W.U. Mr. Burke appeared on behalf of the T.W.U. in the later stages of the proceedings which led to the making of the 1978 award. He was also involved in negotiations with Mr. Greig on the matters the subject of that award. A very considerable amount of time was spent in negotiations, to which no reference was made in the proceedings in the Commission. Mr. Greig sometimes participated in the negotiation by himself, but more often did so in the company of other employer representatives. The matters discussed were new demands made by the T.W.U. in relation to the contents of the 1973 award and its predecessors, the question of which employers should be respondent to those awards, and into which category of respondency those employers should be allocated. Mr. Greig represented to Mr. Burke that he was authorised by the employers involved in those disputes, including the respondent, to participate in the discussion. The 1978 award was the outcome of those discussions. Mr. Burke believed that the respondent had agreed to be bound by the 1978 award.
The service grants agreement resulted from negotiations with Mr. Greig on behalf of employer companies (and sometimes employer representatives themselves) about the proposed quantum of incremental payments depending upon the length of service of employees, and about the question of incorporation of such payments into an award. Agreement was reached as to the amounts of the service grants, and that they should be the subject of an agreement outside the award. This latter agreement appears to have arisen from the difficulty perceived by the parties in persuading the Commission to make an award incorporating the service grants, because of the then existing wage indexation guidelines. It was agreed that the T.W.U. could exercise the right to have the service grants incorporated into an award at a later stage. This was done in 1984. According to Mr. Burke's affidavit, the service grants agreement was in part settlement of a single dispute, with the consent award which became the 1978 award being the remainder of the settlement of that dispute. At no time did Mr. Greig suggest that the respondent, which he claimed to represent, did not know of the T.W.U. demands, or did not know that those demands were being made on it.
Mr. Burke was not cross-examined on his affidavit, and the facts stated in it were not challenged.
The respondent's reply to these allegations was contained in an affidavit of Mr. Burton, sworn on 24th September 1985. Mr. Burton explained his receipt of the memoranda concerning negotiations with the T.W.U., and his attendance at a meeting to discuss the T.W.U.'s demands, in the following terms:

"2. In early 1978 I believed that the Transport Workers Union of Australia had made certain industrial claims upon some employers in the road passenger transport industry, other than any company with which I was associated. Representing an employer in that industry as I did, I was concerned lest the resolution of the claims by the said Union against those other employers might have some impact upon the going rates paid in the industry generally. Also, Australian Pacific Coaches Pty. Ltd. was a member of the Bus Proprietors' Association (Vic), and I was member of the industrial sub-committee of that association."

Mr. Burton was unable to explain the deletion of the word "Coaches" and the substitution of the word "Tours" in brackets in the document dated 1st September 1976, in which his appointment as executive representative was notified.

In paragraph 5 of this, his second affidavit, Mr. Burton said:

"5. Neither the Victorian Employers Federation nor Mr. GREIG was at any time authorised by Australian Pacific Tours Pty. Ltd. to represent that company in the Australian Conciliation and Arbitration Commission in any of the proceedings which led to the making of the Transport Workers (Passenger Vehicles) Award 1978. Neither was the said Federation of Mr. GREIG authorised by that company to represent it in negotiations with the said Union over industrial demands which had been made on other employers."

Mr. Burton's second affidavit also contains several other denials that the respondent was involved in any dispute with the T.W.U., and several other denials of any authority on the part of Mr. Greig to represent the respondent in the respects referred to in the affidavits of Mr. Grove and Mr. Burke.

Mr. Burton was cross-examined extensively by Mr. Hinkley, counsel for the applicant. For a number of reasons, I am unable to accept Mr. Burton's assertions that Mr. Greig lacked authority to appear or to negotiate on behalf of the respondent. I proceed to detail my reasons for reaching this conclusion.
The statement in Mr. Burton's first affidavit that he was not aware of any circumstances from which it might be said that the respondent was in dispute with the T.W.U. or with its employee drivers was too broad. Mr. Burton's proved awareness of the content of the T.W.U.'s 1977 log of claims, and of the reactions of other employers to it, from his attendance at the B.P.A.V. industrial committee meetings, and his receipt of memoranda about other meetings which he did not attend, required an explanation of Mr. Burton's role, if that role was other than as representing the respondent as a party to an actual or potential dispute.
Further, the reference in Mr. Burton's first affidavit to the service grants agreement, without any account of the place of that agreement in the settlement of the dispute which clearly involved other employers, served to conceal, rather than to enlighten.
The denials of Mr. Greig's authority in Mr. Burton's second affidavit were in the form of bare denials. They conveyed the impression that nothing had occurred between the respondent and Mr. Greig in relation to the question of authority. In cross-examination, Mr. Burton conceded that Mr. Greig was given authority to appear in the Australian Conciliation and Arbitration Commission for the respondent, in respect of the announcement of the service grants agreement. This was the first time at which any concession was made that Mr. Greig had any authority to act on behalf of the respondent. Mr. Burton then alleged an express conversation with Mr. Greig, in which he claimed that Mr. Greig was told that he had no authority to represent, or appear on behalf of the respondent, other than in relation to service grants. At a later point in his cross-examination, Mr. Burton purported to give details of such a conversation with Mr. Greig. If such a conversation had occurred, it is highly likely that it would have been referred to in Mr. Burton's second affidavit. I find it difficult to accept the accuracy of such evidence, about a point of such obvious importance, when it is mentioned so late in the proceeding.
When presented with evidence that, in 1982, another industrial advocate employed by the Victorian Employers Federation had appeared for the respondent in the Australian Conciliation and Arbitration Commission, and had consented on its behalf to a variation to the 1978 award, Mr. Burton again claimed that this appearance was without the authority of the respondent. According to his evidence, he was aware from his position in the B.P.A.V. of negotiations with respect to this variation, and the respondent was prepared to pay the increased wages involved, but the appearance in the Commission to consent to this variation was unauthorized. I regard it as highly improbable that such a state of affairs would have existed. In my view, this evidence reflects adversely on Mr. Burton's credit.

The impression I have of Mr. Burton is that he was a man taking great care to ensure that his answers in the witness box did not detract from the picture he desired to present. Often, his answers were unresponsive to the questions asked; it seemed as if he were trying to determine how a question would affect the respondent's case, before answering it. This impression leads me to lack confidence in his veracity.
A crucial factor in the case was the failure to call Mr. Greig. If a simple answer exists to the question whether Mr. Greig had authority to act on behalf of the respondent, Mr. Greig would be able to provide that answer. Each party alleged that the other had an obligation to call Mr. Greig. It is my view that such an obligation fell on the respondent, if it wished to discharge the legal burden which I have held that it carries. Even if the respondent only carries an evidential burden, in the circumstances I would have expected Mr. Greig to be called by the respondent. The failure to call him gives rise to grave suspicion that his evidence would not have assisted the respondent on this point.
One further point arises, specifically in relation to Mr. Greig's authority. Mr. Burton's second affidavit makes general statements about the absence of such authority. Mr. Burton was not the only person involved in the management of the respondent's business. There were three other directors, including Mr. Page, who had previously been nominated as excutive representative to the B.P.A.V., for the three related companies. There were other management personnel, as well as the directors. No attempt was made to lead evidence from any of these persons as to the giving or failure to give authority to Mr. Greig, or to explain the absence of such evidence. So far as Mr. Burton's general statements about authority are to be taken as evidence that no other person had given authority to Mr. Greig to act on behalf of the respondent, those statements are not made from personal knowledge, and are therefore hearsay. No objection was taken to the admission of this hearsay evidence, so it is properly before the Court. The question is one of the weight to be attached to that evidence. Having regard to the absence of any explanation for failure to provide evidence, which in the normal course would be obtainable easily, and to the views which I have formed about the credit of Mr. Burton, I find it impossible to give great weight to these hearsay assertions.
On the other hand, there is evidence before me of statements made by Mr. Greig to the Australian Conciliation and Arbitration Commission as to his authority to appear for the respondent. These statements are also hearsay. They were in transcript tendered by the respondent, so not objected to as hearsay, and in any event were probably admissible pursuant to s. 7B of the Evidence Act 1905. There were also statements in the affidavits of Mr. Grove and Mr. Burke, attributed to Mr. Greig, as to his authority to negotiate on behalf of the respondent. These were objected to as hearsay, and cannot be relied upon as evidence of the authority of Mr. Greig. They are admissible only as operative words, that is as evidence that Mr. Greig represented himself as having authority, not as evidence that he actually had the authority he claimed. For the purposes of this aspect of the case, I disregard those passages in Mr. Grove's and Mr. Burke's affidavits.
It is improbable that Mr. Greig, an experienced industrial officer employed by the Victorian Employers Federation, and described by Mr. Burton as an "honourable industrial advocate", would misrepresent to the Australian Conciliation and Arbitration Commission his authority to appear. This is especially so in a case in which Mr. Greig was so careful to inform the commission as to his lack of authority to appear for Cobb & Co. on one occasion when the matter was before the Commission. I am prepared to give more weight to the hearsay in Mr. Greig's statements to the commission about his appearances than I am to the hearsay statements in Mr. Burton's second affidavit about Mr. Greig's lack of authority. On the balance of probabilities, Mr. Greig did have authority to appear on behalf of the respondent in the proceedings which led to the making of the 1978 award. Authority to appear normally carries with it authority to negotiate a compromise. In Hansen v. Marco Engineering (Aust.) Pty. Ltd. (1948) V.L.R. 198, at page 202, Fullagar J. followed a statement of Lord Alverstone C.J. in Neale v. Lady Gordon Lennox (1902) 1 KB 838, at page 843, in these terms:

"I think it is now clearly established that counsel appearing for a party in an action is held out as having authority and has full authority, as to all matters which relate to the conduct of the action and its settlement, and further that, notwithstanding a limit may have been placed upon the authority of counsel, the party for whom he appears is bound by such settlement, unless the fact that the counsel's apparent authority had been limited was communicated to the other side."

In the present case, I am not dealing with a legal practitioner briefed to conduct a case in court. The passage quoted, however, rests upon public policy considerations as to the need for certainty in litigation. The same sorts of considerations apply in relation to the settlement of industrial disputes which have become the subject of proceedings in the Australian Conciliation and Arbitration Commission, and to the conduct of advocates in that Commission. For these reasons, the same rules should apply, namely that an advocate appearing for a party in a proceeding is taken to have authority to enter into a settlement, on behalf of that party, unless some limit on his or her authority has been communicated to the other side.

For these reasons, I find that the respondent has failed to prove that Mr. Greig lacked authority to consent on behalf of the respondent to the 1978 award, or to engage in the negotiations which led to that award. If I am wrong about the onus of proof, I would find it more probable than not that Mr. Greig had such authority.
This conclusion does not resolve the preliminary question. Dr. Jessup argued that, even supposing that Mr. Greig did have authority on behalf of the respondent, on the evidence no industrial dispute had arisen in settlement of which the 1978 award could have been made. The 1978 award was made pursuant to s. 28 of the Act. That section provides:

"28(1) If, before an industrial dispute has been referred to arbitration in accordance with this Act, the parties to the dispute or any of them reach agreement on terms for the settlement of all or any of the matters in dispute, they may either -

(a) make a memorandum of the terms agreed on and request a member of the Commission to certify the memorandum; or

(b) request a member of the Commission to make an award or order giving effect to their agreement,

and, subject to this section, the member of the Commission may, by order to which a copy of the memorandum is attached, certify the memorandum or may make an award or order accordingly.

(2) Subject to sub-section (2A), a member of the Commission shall not refuse to certify a memorandum or make an award or order in accordance with this section unless he is of the opinion that -

(a) the terms are not in settlement of an industrial dispute;

(b) any of the terms is a term that the Commission does not have power to include in an award; or

(c) it is not in the public interest that he should certify the memorandum or make the award or order.

(2A) A member of the Commission shall not certify a memorandum in accordance with this section unless, in relation to each organization that is a party to the agreement to which the memorandum relates, there is produced to him a statutory declaration by an officer authorized by the committee of management of the organization declaring that the committee of management has approved the principal terms of the agreement.

(3) A memorandum certified in accordance with this section has the same effect as, and shall be deemed to be, an award of the Commission for all purposes of this Act.

(4) An award or order made in accordance with this section, or an award constituted by a memorandum certified in accordance with this section, is binding on-

(a) each of the parties making the request under this section;

(b) all members of an organization that is such a party; and

(c) an employer who is a successor to, or an assignee or transmittee of, the business of such a party, including a corporation that has acquired or taken over the business of such a party.

(5) An award or order made in accordance with this section shall be expressed to be made by consent."

It is to be noted that a consent award can only be made in settlement of an industrial dispute. The phrase "industrial dispute" is defined in s. 4(1) of the Act. Part of the definition is as follows:

""Industrial dispute" means-

(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State; and

(b) a situation which is likely to give rise to a dispute as to industrial matters which so extends . . ."

The phrase "industrial matters" is also defined. The opening words of its definition, in s. 4(1) of the Act, are:

""Industrial matters" means all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes . . ."

There follows a list of specific matters which are regarded as industrial matters.

An attempt was made by Mr. Hinkley to argue that the respondent was a successor to, or an assignee or transmittee of, the business, or a corporation that had acquired or taken over the business of Australian Pacific Coaches Pty. Ltd., which was a party to the dispute found in matter C No. 2105 of 1972. It was that dispute which was partly settled by the 1973 award, and further settled by the 1978 award. It was argued that s. 61(d) of the Act would have the effect of making such a successor, assignee, transmittee or corporation a party to a dispute, so that that party could enter into a settlement of the dispute by a consent award. There must be some doubt whether the words of s. 61(d) are appropriate to apply to the respondent, which at no time acquired any of the assets of the business of Australian Pacific Coaches Pty. Ltd., but conducted that business only as agent for that company. A transaction whereby one party, in its own name, employs persons, whilst acting as agent for another party is unusual, and does not appear to have been contemplated by the framers of s. 61(d). It may be that such an agent could properly be termed the "successor" of the party originally conducting the business. I do not need to decide that question, however, because the argument is based on a misunderstanding of the effect of s. 61(d). The opening words of s. 61 make it clear that the section deals only with the categories of persons on whom an award is binding. It does not make any provision as to who should be regarded as a party to an industrial dispute. This proposition is confirmed by R. v. Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376, especially at pages 383 (per Gibbs J.), 389 (per Mason J.), and 400 (per Brennan J.). Even assuming that the respondent was a "successor" to Australian Pacific Coaches Pty. Ltd., and was therefore bound by the 1973 award, by virtue of s. 61(d), it would not follow that the respondent became a party to any industrial dispute, whether the dispute on which the 1973 award was based, or that which resulted from the T.W.U.'s claim in 1977 and 1978. The binding effect of the 1978 award is derived from the specific provisions in s. 28(4), relating to consent awards, and not from the general provisions of s. 61. The provisions of s. 28(4)(c), dealing with successors, assignees, transmittees, etc., are narrower than those of s. 61(d); there is no reference in s. 28(4)(c) to any successor to, assignee of, or transmittee of a party to a dispute settled by a consent award. Only if the 1978 award had been made otherwise than by consent could it have been argued that the respondent was bound by it, by the application of s. 61(d).
The applicant relied upon the conversations which took place between Mr. Grove and Mr. Burke on the one hand and Mr. Greig on the other, as giving rise to an industrial dispute, to which the respondent was a party, and which was appropriate to be settled by the 1978 award. Assuming, as I have found, that Mr. Greig did act with the authority of the respondent in those conversations, the question arises whether such conversations can give rise to an industrial dispute within the meaning of the Act. At first sight, it is difficult to see how it could be argued that such a dispute does not fall within the Act. Even though there may be no difference between the parties as to the wages and terms and conditions of employment, a demand by an organization of employees against an employer that the wages and terms and conditions of employment be the subject of a federal award appears to pertain to the relations of employers and employees. The making of a federal award gives rise to rights in certain persons, including employees members of the organization concerned who are affected by breaches of the award, to seek enforcement of the award pursuant to s. 119 of the Act, by way of penalty. It was held in Accident Underwriters' Association of New South Wales v. Australian Insurance Staffs' Federation (1928) 26 C.A.R. 968, at page 971, that a demand with respect to the methods of recording and enforcing agreed terms and conditions of employment was a demand as to an industrial matter, and could therefore be the subject of an industrial dispute within the meaning of the Act. Recent authorities suggest that the definitions of "industrial dispute" and "industrial matters" in s. 4(1) of the Act should be given their full meanings, and should not be restricted arbitrarily. See R. v. Coldham; Ex Parte Australian Social Welfare Union (1983) 153 CLR 297, at pages 314-316, as to the definition of "industrial dispute", and Federated Clerks Union of Australia v. Victorian Employers Federation (1984) 154 CLR 472 as to the meaning of "industrial matters" in the legislation of a state.
Nevertheless, Dr. Jessup argued that a dispute as to respondency to an award was not a dispute as to any industrial matter, and therefore was not an industrial dispute. There is some authority to support this view. In R. v. Graziers' Association of New South Wales; Ex Parte Australian Workers' Union (1956) 96 CLR 317, at page 337, Fullagar J said:

"Here what the employers wanted when they made their demand with respect to non-unionists, and the only thing they wanted, was an award: only a federal award could have given them what they desired - the supersession of State awards. The only real disagreement between the parties, if any can be said to have existed, lay in this, that the employers wanted, and the union did not want, the rates of pay of non-unionists to be governed by a federal award. And that is not a disagreement about an "industrial matter"."

That case concerned a demand made by an employer organization upon an employee organization, in which there was a claim for rates of pay lower than those which applied under the law of a state, with respect to both members of the employee organization and non-members. The High Court of Australia held that, because the organization of employees had no interest in resisting such a demand with respect to employees who were not its members, no industrial dispute was created by the making of that demand. Other than Fullagar J. no member of the court committed himself to the proposition that a demand for an award could not give rise to an industrial dispute. Fullagar J.'s statement must be read in the context of the issue which was before the court. This was recognized in the subsequent High Court decision in R. v. Commonwealth Conciliation and Arbitration Commission; Ex Parte Printing Industry Employees' Union of Australia (1964) 109 CLR 544. In that case, Kitto and Taylor JJ. each expressed agreement with the judgments of Menzies and Owen JJ. At page 550, Menzies J. said:

"It is not necessary to consider here whether a demand for an award and nothing but an award of the Commission, without changing existing conditions of employment, could form the basis of an industrial dispute because, as has already been seen, the claim of the employer organisations was for an alteration in existing conditions of employment - and this could certainly give rise to an industrial dispute."

At page 552, Windeyer J. said, with respect to the issue then before the court:

"The dispute was, and is, as to long service leave among other conditions of employment. In particular it is as to whether that subject should be regulated by the Commonwealth award governing the conditions of employment generally. We would, I consider, be deserting reality for mere legalisms if we were to hold that there was not a real dispute. In my opinion the dispute is clearly about an industrial matter within the definition in the Conciliation and Arbitration Act, and is an industrial dispute within the meaning of the Constitution."

At pages 556-557, Owen J. quoted a portion of the passage which I have set out above from the judgment of Fullagar J. in the Graziers' Association case, and said:

"Counsel's argument proceeded upon the basis that this statement meant that a dispute between employers and employees as to whether the conditions governing an industry should or should not be laid down by a Federal award could not constitute a dispute about an industrial matter. But when the facts of that case are examined I think it is apparent that the passage quoted was not intended to convey that meaning. The facts were that a demand had been made upon a union by employer organizations that certain minimum rates of pay and conditions of employment should apply to all employees, that is to say to those who were members of the union and those who were not. There was in existence a State award covering both unionists and non-unionists and the purpose of the employers was to obtain a Federal award and thus supersede the State award which provided for higher rates of pay than were proposed in the employers' demand. The union did not accede to the demand. A Conciliation Commissioner purporting to act under the Conciliation and Arbitration Act made an interim award which covered non-unionists as well as employees who were members of the union, and an application for a writ of prohibition was successfully made to this Court to prohibit further proceedings on the interim award but only in so far as it related to employees who were not members of the union. The Court held that since the union represented only its own members, its mere failure to accede to the employers' demand concerning non-unionists afforded no evidence of the existence of an industrial dispute as to the rates of pay and conditions of employment to be prescribed for such persons. Accordingly the Conciliation Commissioner had no jurisdiction to make an award governing the rates of pay and conditions for those who were not members of the union. The fact "that the employers wanted, and the union did not want, the rates of pay of non-unionists to be governed by a federal award" did not constitute an industrial dispute since there could be no such dispute without at least two disputants and this element was lacking."

Plainly, in the Printing Industry Employees' Union case, the High Court left open the question whether a demand for terms and conditions of employment to be expressed in a federal award could give rise to an industrial dispute.

In Re Ludeke; Ex Parte Queensland Electricity Commission (1985) 60 ALR 641, the High Court dealt with an allegation that no genuine demand had been made by the service of a log of claims. At page 644, the court said:

"But it is not an objection to the genuineness of the dispute that the purpose of delivering the log of claims is to create an industrial dispute which will thereby give the Commission jurisdiction to make an award (R. v. Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 C.L.R. 71 at 81). This is a necessary consequence of the doctrine that industrial disturbance or dislocation is not an essential element of an industrial dispute and that disagreement as to terms and conditions of employment in a particular industry constituted by non-acceptance of a log of claims is enough to bring such a dispute into existence. And it is a recognition of the reality that generally lies behind paper disputes - the desire to create a dispute which will attract the jurisdiction of the Commission to make a general industrial award, that is, an award which will regulate terms and conditions of employment in the particular industry. The point is that the unions serving the log of claims seek both the conditions and an award making provision for them (Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (NSW) (1938) 58 CLR 436 at 441). The desire to give the Commission jurisdiction so that it can make an award must be a reflection of the organization's desire to obtain the conditions.

I do not consider that this statement stands in the way of the view that a demand purely for the making of a federal award, which is not acceded to, can create an industrial dispute. That question was not before the High Court, as there was a claim for conditions. The court does not appear to have addressed its mind to the question whether a demand for a particular method of recording and enforcing terms and conditions of employment can give rise to an industrial dispute. In my view, no authority stands in the way of holding that an industrial dispute can arise in this manner. It follows, therefore, that a demand that an employer become a respondent to an existing award is capable of giving rise to an industrial dispute, even if that employer is already paying the rates and affording the other terms and conditions prescribed by the award. The conversations between Mr. Grove and Mr. Burke on behalf of the T.W.U., and Mr. Greig on behalf of the respondent, therefore gave rise to an industrial dispute within the meaning of the Act.

The existence of an industrial dispute to which the respondent was a party can also be discerned from other circumstances. As Mr. Burton disclosed in his second affidavit, he was aware, at least in February 1978, of the demands which had been made by the T.W.U. against Ansett Pioneer and Greyhound. He was also aware that those demands were likely to be made upon other employers of motor coach drivers. Industrial action had been taken by motor coach drivers employed by Ansett Pioneer and Greyhound, in support of the T.W.U.'s demands. Unless those demands were met, or a settlement of them negotiated, it was likely that there would be industrial disruption by employees of other employers in the industry. In other words, there was, in the words of the definition of "industrial dispute", "a threatened, impending or probable dispute", or "a situation which (was) likely to give rise to a dispute". It is not surprising that an employer in the respondent's position would wish to see some compromise of the demands, even before those demands were expressly made upon that employer, and certainly before any industrial action arose in respect of them. Nor is it surprising that an employer in that position would avail itself of the conciliation processes of the Australian Conciliation and Arbitration Commission. An appropriate way for the respondent to resolve its position with respect to the new demands was to become bound by the provisions of the 1973 award, as altered in accordance with the industry-wide settlement of the new demands. It may be that the normal constraints requiring that an award made in settlement of an industrial dispute be entirely within the ambit of that dispute do not apply to a consent award, which is the product of the conciliation process. See Re Bain; Ex parte Cadbury Schweppes Australia Ltd. (1984) 51 ALR 469, especially at page 472 per Murphy J. and page 479 per Brennan and Deane JJ.
Either the dispute as to award respondency, or the threatened, impending or probable dispute as to the T.W.U.'s 1977 demands, or both disputes in combination, provided jurisdiction to the Australian Conciliation and Arbitration Commission to make the respondent a party bound by the 1978 award, pursuant to s. 28 of the Act. Because the work done by the respondent's coach drivers was work which extended beyond the limits of one state, the interstate element was present in each dispute. It is true that the Commission did not make and record a formal finding of dispute, naming the respondent as a party, in respect of either of those disputes. The process of making a finding and recording that finding is, however, a procedural one. The Act does not link such a finding directly with s. 28. It is enough for s. 28 to operate that there is in existence an industrial dispute. For these reasons, I hold that the respondent was a party to and bound by the 1978 award.
So far, I have dealt with the matter without reference to s. 60 of the Act. Sub-section (1) of that section provides:

"60(1) Subject to this Act, an award (including an award made on appeal)-

(a) is final and conclusive;

(b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus or injunction in any court on any account."

On its face, this provision would prevent the Court from examining whether the respondent was validly named in the 1978 award; such an examination undoubtedly involves challenging, reviewing, or calling into question the award. Dr. Jessup argued, however, that the alleged defect in the award was a defect which went to the jurisdiction of the Australian Conciliation and Arbitration Commission to make it, and that it was established by the decision of the High Court of Australia in R. v. Judges of the Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313 that s 60 did not protect an award which was made without jurisdiction. In that case, the High Court restrained by writ of prohibition the Commonwealth Industrial Court from imposing a penalty pursuant to s. 119 of the Act in respect of a breach of a clause in an award which was held not to relate to an industrial matter. The High Court held that the Commonwealth Industrial Court was not debarred by s. 60 of the Act from pronouncing upon the validity of the clause in the award. In that case, the clause of the award concerned showed on its face that it was beyond the jurisdiction of the Commission. In the present case, the respondent attempted to go behind the 1978 award, in an endeavour to establish that the factual basis necessary for the jurisdiction of the Commission did not exist. As the judgment of Kitto J. in Cocks's case, at page 325, shows, there may be a distinction in the operation of s. 60, between an award which is shown to be beyond jurisdiction on its face, and an award which can only be challenged by going behind it. It is unnecessary for me to determine the question, but I incline to the view that s. 60 would operate to protect the award in the present case, even if the Commission did lack jurisdiction to make it, because of the absence of an industrial dispute to which the respondent was a party. This Court does not have the jurisdiction given to the High Court of Australia to grant perogative writs against officers of the Commonwealth by s. 75(v) of the Constitution, which jurisdiction cannot be taken from the High Court of Australia by Act of Parliament.

It was not suggested that anything occurred after the making of the 1978 award to cause the respondent to cease to be bound by it. In the result, the respondent has failed to discharge the burden of proving that it was not bound by the 1978 award at the relevant times. Even if my conclusion as to the incidence of the burden of proof is wrong, I should still hold on the evidence before me that the respondent was bound by the 1978 award. The preliminary question will be answered accordingly.

[1986] FCA 95

19 MARCH 1986