Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch - [2000] WASCA 386

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: BURSWOOD RESORT (MANAGEMENT) LTD -v- THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH [2000] WASCA 386

CORAM: KENNEDY J (Presiding Judge)
ANDERSON J
HASLUCK J

HEARD: 1 AUGUST 2000

DELIVERED : 11 DECEMBER 2000

FILE NO/S: IAC 3 of 2000

BETWEEN: BURSWOOD RESORT (MANAGEMENT) LTD
Appellant
AND
THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH
Respondent

Catchwords:

Industrial law (WA) - Whether decision of Full Bench erroneous in law - Decision of Senior Commissioner made in exercise of discretion - No basis demonstrated for interference with that discretion - Employer entitled to impose uniform dress standards in accordance with employment contract

Legislation:

Industrial Relations Act1979 (WA), s 44, s 49, s 90

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr R L Le Miere QC
Respondent: Mr J W Nolan

Solicitors:

Appellant: Mallesons Stephen Jaques
Respondent:

Case(s) referred to in judgment(s):

Australian Tramways Employees' Association v Prahran & Malvern Tramway Trust (1913) 17 CLR 680
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 174 ALR 585
House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Australian Workers' Union v Poon Bros (WA) Pty Ltd (1983) 4 IR 394
CFMEU v Australian Industrial Relations Commission (1998) 89 FCR 200
Foley v Padley (1984) 154 CLR 349
Gronow v Gronow (1979) 144 CLR 513
Hobbs v Capricorn Coal Management Pty Ltd, unreported; AIRC; U No 40253 of 1999; 27 June 2000
Lovell v Lovell (1950) 81 CLR 513
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration v Eshetu (1999) 197 CLR 611
Police Service of New South Wales v Batton [2000] NSWIR Comm 79
The Queen v Graham; ex parte Moore (1977) 138 CLR 164
R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association (1982) 148 CLR 601
Re Australian Conciliation and Arbitration Commission; Ex parte Co-operative Bulk Handling Ltd (1982) 2 IR 1
Re Building Construction Employees and Builders Labourers Award 1978 (1983) 4 IR 339
Re Operative Plasterers Workers Federation of Australia; ex parte Brown (1992) 46 IR 53
The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297

KENNEDY J (Presiding Judge): I have had the benefit of reading in draft the reasons to be published by Anderson and Hasluck JJ, with which I am in agreement. I would therefore allow this appeal. I would set aside the decision of the Full Bench and, in lieu thereof, I would order that the appeal to the Full Bench be dismissed.
ANDERSON J: This is an appeal against a judgment of the Full Bench of the Western Australian Industrial Relations Commission allowing an appeal from a decision of Senior Commissioner Fielding.
I agree with Hasluck J that this Court has jurisdiction to hear the appeal pursuant to s 90 of the Industrial Relations Act1979.
The matter first came before the Commission by way of a conference called under s 44 of the Act. The conference was sought by the present respondent union and the application was in the following terms:
"The Union seeks an urgent conference to resolve an issue over the wearing of union badges at Burswood International Resort Casino.
Members of the Burswood Resort Union of Employees, (BRUE) a section of the Australian Liquor, Hospitality and Miscellaneous Workers Union Miscellaneous Worker's Division, WA Branch (LHMU) employed at Burswood Casino have been instructed to cease wearing union badges which denote employees as members of the LHMU.
The LHMU believes this instruction by Burswood Casino is a contravention of the rights and privileges of union members. We seek an urgent conference to attempt conciliation of the matter, and if it is not resolved we will seek arbitration on the matter."
There was a conference before Parks C, but the matter was not settled by conciliation and Parks C prepared a draft memorandum of matters which were to go to arbitration as a claim by the union. It would appear that the final form of the claim was for an order in the following terms:
"That in all the circumstances it would be harsh, oppressive or unfair for the respondent to penalise, dismiss or in any other way discipline or disadvantage any employee because:

(a)The employee chooses to wear the membership badge of the Union whilst performing their work for the employer and/or
(b)the employee does not comply with an instruction from the respondent not to wear the membership badge of the Union whilst performing their work for the employer."

In the course of the arbitration before Fielding C, there was some debate as to what was the essence of this claim. In his reasons for decision, the learned Senior Commissioner defined the claim as a claim for "a declaration that [the Union's] members be allowed to wear the badges whilst performing their work notwithstanding anything to the contrary in either their contract of employment or the industrial award or enterprise agreement regulating their employment".
There is no dispute that this claim and the employer's opposition to it was an industrial matter which the Commission was empowered to resolve by conciliation and, if necessary, by arbitration.
Both the contract of employment and the relevant industrial agreement (the Burswood International Resort Casino Employees Industrial Agreement 1997) contained provisions which furnished the employer with the authority to give a coercive instruction to employees not to wear badges of any kind on their uniforms. Included amongst the findings made by Fielding C and not now disputed were the following findings:
(a)It was a term of the contract of employment of all casino employees that they observe all of the employer's policies and procedures and the rules and regulations as outlined in the employees' handbook.
(b)The grooming regulations in the handbook prohibited the wearing of badges and the like on uniforms unless authorised by the employer.
(c)The Burswood International Resort Casino Employees' Industrial Agreement 1997 provided that where the employer supplied special uniforms, the employees were obliged to wear those uniforms at all times and in line with the employer's standards.
In these circumstances, the union had to accept in the arbitration proceedings that the grooming regulation prohibiting the wearing of unauthorised badges was a condition of the contract of employment and a term of the relevant industrial agreement. As I understand the union's argument, it was not the condition itself which was objected to. The union did not claim that every casino employee should be at liberty to wear whatever buttons, badges, ornaments or emblems he or she liked on his or her uniform. It is therefore hardly necessary to dwell on the question whether it is or is not reasonable for a casino operator to impose uniform dress standards extending to regulations about the wearing of buttons and badges. I think that the answer to that question must surely be that it is perfectly reasonable for such an employer to have such standards and to enforce them. The real question in this case was whether this employer should have made an exception for union badges. In addressing this question, Fielding C was not persuaded that refusal to make the exception was unreasonable. He thought that "to make any exception" would "undermine" the employer's efforts to maintain "a high standard of presentation through uniformity", which he considered to be "important" in the particular industry. Furthermore, he considered that if an exception was made for this badge, it would create "difficult management problems" in that it would be "difficult … to refuse to allow members of other unions to wear badges".
He adverted to matters advanced on behalf of the union as to why it was harsh, oppressive or unfair on the part of the employer not to allow these badges to be worn and he considered that they were not sufficient to sustain the union claim.
The union appealed to the Full Bench on four grounds, two of which were upheld. The grounds which were upheld were pleaded as follows:
"3.The Senior Commissioner erred in finding that the respondent's policy prohibiting the wearing of Union badges is not an unreasonable infringement on employees right to freedom of speech and or expression.
4.The Senior Commissioner gave insufficient weight to the uncontradicted evidence that the Union badge did not interfere with visional impact made by employees uniforms to the public."
In my opinion, there is no doubt that the determination itself, namely, that it was not unreasonable on the part of the employer to have the policy and to refuse to make an exception as regards the wearing of this union's badges, was a determination which depended on the exercise of a discretion by the Senior Commissioner in the sense defined in Norbis v Norbis (1986) 161 CLR 513 per Mason and Deane JJ at 518 ‑ 519. The exercise of the discretion was a function entrusted by the Act to the Commissioner to whom the industrial matter was referred for arbitration. It is worth setting out again the settled principles on which an appeal against an exercise of discretion is usually to be determined. They can be taken from the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 ‑ 505:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
It was submitted on behalf of the union in the appeal before us that the principles laid down in House v The King do not apply with full force, if at all, in the case of appeals to the Full Bench of the Industrial Relations Commission. A different approach is appropriate, so it was submitted, because of the peculiar position of the Full Bench as an industrial tribunal having a general supervisory jurisdiction with respect to the settlement of industrial disputes and related matters. Mr Nolan, on behalf of the union, went so far as to submit that it would not be an error on the part of the Full Bench to depart altogether from the principles in House v The King; that application of those principles by the Full Bench was optional. I do not accept this submission. Pursuant to s 12 of the Industrial Relations Act 1979, the Commission is a court of record. The Full Bench is bound to decide appeals according to law and to act within jurisdiction and its decisions are, of course, subject to appeal to this Court for error of law and excess of jurisdiction: s 90. There is nothing in the Act to support the proposition that when hearing an appeal from an order made in the exercise of a discretionary power, the Full Bench may exercise the discretion afresh. The powers of the Full Bench set out in s 49(4) to hear and determine appeals "on the evidence and matters raised in the proceedings before the Commission" are consistent with the appellate function of the Full Bench being limited to correcting error when the appeal is against the exercise of a discretionary power. Its function is not to give a second opinion, as it were. In my opinion, what was said by Mason and Deane JJ in Norbis v Norbis (loc cit) is directly applicable to the functions of the Full Bench where it is hearing an appeal in a matter of this kind. Mason and Deane JJ said:
"The principles enunciated in House v The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision‑making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal." (518 ‑ 519)
Turning now to the grounds of appeal which the Full Bench allowed, the reference to the "right to freedom of speech and or expression" in ground 3 set out above would appear to be merely a reference to the right of free speech which arises as an ordinary incident of democracy. There was no submission that the right pleaded in this ground is some kind of entrenched right incapable of restriction or modification by contractual agreement.
The majority of the Full Bench, comprising the President and Beech C, gave separate judgments in which they gave different reasons for upholding this ground of appeal. I hope I do not do him an injustice by oversimplification, but as I understand the learned President's reasoning at AB 33 ‑ 34, he reasoned as follows:
(a)In a democratic society citizens are generally free to speak and express themselves.
(b)The union badge was an expression of the fact of the employees' membership of this industrial union.
(c)The badge was inoffensive and unobtrusive as badges go.
(d)To refuse to let it be worn in the workplace simply because it was a badge was therefore an unfair infringement on the employees' freedom to express themselves as members of an industrial organisation.
What this comes down to is that no employer may prohibit as part of its dress standards the wearing of badges or emblems or insignia if the item in question conveys a message or opinion which the person concerned has a "right" to hold and impart to the public and an interest in doing so. The employer may only prohibit the wearing of badges, emblems or insignia which are not an exercise of freedom of expression, which are obtrusive or which carry an offensive message. For the employer to go further would be to act oppressively, unfairly or unreasonably.
In my opinion, and with due respect, there is no such general law; and the fact that the message conveyed by the wearing of a union badge is a particular message having an industrial content does not affect the matter. If the learned President's reasoning is valid, the law must surely exist for the benefit of all employees as regards the full range of their interests and opinions and affairs. As I say, I do not believe there is such a rule.
Beech C upheld this ground of appeal because he considered the Commission at first instance had failed to give sufficient weight to the evidence of employees as to their reasons for wearing the badge. With respect, I am afraid I cannot see that the Commission at first instance failed to do so. Fielding C expressly had regard to the evidence of employees as to their reasons for wearing the badge. He left out of his consideration no matter of importance on that subject that I can see or that Beech C has identified in his judgment. I think the submission of Mr Le Miere QC on behalf of the appellant must be accepted: on the face of it, Beech C has substituted his own opinion for that of the Commission at first instance as to the importance that should be accorded to the reason why the employees in question wished to wear their union badges.
I should say that in my opinion it would not have been erroneous to give very little weight to the subjective wishes of the employees. Once the Commission came to the conclusion (a conclusion which was open to it) that it was reasonable to have a policy of uniformity with respect to dress and the wearing of display buttons and badges on the company's uniform, the question whether the policy should be departed from in a given case could hardly be made to depend on the personal wishes of the employees in question. That would be inimical with the notion of uniformity.
As to ground 4, this raises the question whether the size and design of these particular badges was a relevant consideration in considering whether the employer's refusal to allow employees to wear it was harsh, oppressive or unfair and if it was, whether it was taken into account and if so, whether it was given proper weight.
It is true that Fielding C did not expressly refer to the size and other physical or aesthetic characteristics of the badge in deciding it was not harsh, oppressive or unfair (unreasonable) to refuse to let it be worn. I am not persuaded he was obliged to do so in order to properly exercise his discretion. He decided the matter on a different basis. He gave primary importance to the reasonableness of the dress policy as applicable to buttons and badges per se, to the contract of employment wherein employees agreed to abide by the dress policies as a condition of employment and to the binding nature of the relevant industrial agreement which allowed for the policy. He decided that there were good management reasons not to make exceptions in the case of this particular badge. I am not persuaded that this was a wrong approach. On this approach, the size and aesthetic quality of the badge was of little or no relevance. The badge was simply not part of the uniform which the employer was entitled to insist be worn.
When all is said and done, the Commission at first instance was not persuaded that it was harsh, oppressive or unfair in the industrial sense for this employer carrying on its particular operation to have a strict dress policy and to strictly enforce it, even to the extent of disallowing the wearing of union badges on the company uniform. That involved an assessment of circumstances and called for a value judgment which it was

for the Senior Commissioner to make. In the absence of error, his determination must stand. I am not persuaded there was any error.

I would allow the appeal.
HASLUCK J: I have had the benefit of reading in draft the reasons to be published by Anderson J. For those reasons, I agree that this appeal must be allowed. I wish to add a few observations concerning the jurisdiction of the Industrial Appeal Court to deal with the present appeal.
The appellant seeks an order quashing the decision of the Full Bench of the Western Australian Industrial Relations Commission. The appeal comes before the Industrial Appeal Court pursuant to s 90 of the Industrial Relations Act1979. Section 90 provides that an appeal lies to the Industrial Appeal Court from any decision of the President, the Full Bench, or the Commission in Court Session on the ground that the decision is "erroneous in law" or is in excess of jurisdiction, but upon no other ground.

Counsel for the respondent union submitted that the appeal, as it has been framed, was not an appeal with which the Industrial Appeal Court was empowered to deal in that the grounds of appeal relied upon did not raise matters suggesting that the decision appealed against was erroneous in law. It will be necessary to return to the nature of that concept in due course. Before doing so, it will be useful to set out the background to the matter.
The Industrial Relations Commission is empowered to deal with "industrial matters". That term refers to any matter relating to the work, privileges, rights or duties of employers or employees.
Section 29 of the Industrial Relations Act provides that an industrial matter may be referred to the Commission by a registered union or in the case of a claim by an employee that he has been harshly, oppressively or unfairly dismissed from his employment, by the employee.
It follows that an employee is at liberty to challenge a dismissal on the grounds that it was harsh, oppressive or unfair, notwithstanding the express terms of the relevant contract of employment. That being so, there is obviously room for an argument in law as to the extent to which the facts and matters relied upon by the employee are affected by the terms and characteristics of a particular contract of employment. It might seem harsh and unfair to dismiss a coal miner for having a grimy shirt, but not necessarily unfair to censure a barman for his standard of dress,

especially in circumstances where the relevant contract of employment includes express terms concerning grooming.

Section 44 makes provision for a compulsory conference conducted by a Commissioner and, with respect to industrial matters, allows for the making of any order or declaration which the Commission is otherwise authorised to give or make under the Act. By s 46, the Commission may, on the application of a party bound by an award, declare the true interpretation of the award.
In mid‑1999, a dispute arose between the parties to the present appeal as to whether members of the respondent union employed by the appellant were at liberty to wear a membership badge of the union whilst performing their work for the employer at the Burswood Casino. The matter came before the Commission pursuant to s 44 of the Act. The respondent union sought a declaration that its members be allowed to wear the badges whilst performing their work, notwithstanding anything to the contrary in either their contracts of employment or the industrial award or enterprise agreement regulating their employment.
A sample contract of employment formed part of the evidentiary materials. It consisted of a letter dated 2 January 1996 to an employee called Leanne Clayton. This letter contained details as to the remuneration and duties of the employee in question, and went on to say that all other conditions of employment shall be in accordance with Burswood Resort Casino Employees' Industrial Agreement 1995 and subject to the observance of policies and procedures outlined in the employee handbook. The industrial agreement did not deal directly with the matter in issue, but the handbook contained a provision that no badges, ornamental buttons or jewellery may be worn on the employee's uniform unless issued by the company. Exceptions could be authorised by the manager of wardrobe. The rule did not apply to employee identification badges.
The dispute came on for hearing eventually before Senior Commissioner Fielding. He received evidence touching on various aspects of the dispute, including the question of whether the badge had an adverse visual impact upon the grooming of employees and whether the employer had condoned wearing of the badges, and authorised the wearing of similar badges, such as those distributed by charitable organisations. He heard submissions from the parties as to whether employees have a right to wear union badges as a manifestation of an implied right to freedom of expression.
The Senior Commissioner handed down his reasons for decision on 22 October 1999. He found it to be a term of the contract of employment for the employees in question that they not wear badges or similar items unless otherwise authorised by the respondent. This was an express term of the contract. In his view, the relevant contractual provisions were neither unlawful nor unreasonable. It was inherent in his decision that the express terms of the contract were not displaced by an implied right of the kind asserted by the respondent. He therefore dismissed the respondent's application for relief.
The respondent union decided to appeal against this ruling to the Full Bench of the Industrial Relations Commission.
Section 49 of the Industrial Relations Act1979 provides for "appeals" to the Full Bench from a decision of a Commissioner. Section 49 does not define exactly the limitations imposed upon the Full Bench in dealing with provisions pursuant to this provision. I note in passing, however, that the provision does not contain any reference to the appeal being by way of rehearing. By s 49(4), an appeal shall be heard and determined on the evidence and matters raised in the proceedings before the Commission. This suggests that the Full Bench was required to review questions of law and to ascertain whether there was any error in the manner in which the Commissioner in the forum below exercised any discretionary power allowed to him: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 174 ALR 585.
A majority of the Full Bench, including the President of the Industrial Relations Commission, overruled Senior Commissioner Fielding and allowed the appeal. The President and Commissioner Beech, as the members of the Full Bench comprising the majority, agreed with Senior Commissioner Fielding that the Australian Tramways Employees' Association v Prahran & Malvern Tramway Trust (1913) 17 CLR 680 is not authority for the proposition that employees have an absolute right to wear union badges in the workplace. The High Court in that case simply recognised that a badge is a facet of collective bargaining, with the result that a dispute over a badge can properly be regarded as an industrial dispute or matter.
Nonetheless, the President considered that Senior Commissioner Fielding should have made a finding that the badge was an important tool for the promotion of the respondent union as a representative organisation. The President held that "there was an unfair infringement upon the employees' freedom to express themselves as members of an industrial organisation." Thus, it seems that he was prepared to give effect to an implied right or entitlement very similar to that contended for by the respondent union.
The Full Bench went on to hold (as expressed by President Sharkey) that the employer's direction was "unreasonable and unfair, represented also a harsh, oppressive or unfair exercise of rights under the contract, and the finding that it was not so represented a miscarriage of the Commission's discretion, such as to warrant the Full Bench substituting its decision for that of the Commission at first instance."
For the reasons given by Anderson J, it is clear that the Senior Commissioner's determination involved the exercise of a discretion. It was seen in this light by the Full Bench. A question then arises as to whether the exercise of a discretion in the relevant circumstances can give rise to reviewable errors of law.
The President's judgment referred to the crux of the matter as being whether it was a harsh, oppressive and unfair act of the employer, however reasonable and lawful its policy might be, to prohibit the wearing of the union badges under pain of disciplinary action, which might include dismissal. The President's reasons also included a finding that there was no evidence that the badges were visually or otherwise exceptional.
While dealing with the ground of appeal from Senior Commissioner Fielding's judgment concerning the implied right to freedom of expression, Commissioner Beech said this:
"In this case, the manner in which the case was presented to the Commission at first instance did not strictly follow the terms by which the matter had been referred for hearing and determination. Rather the issue to be determined by the Commission was seen to be 'whether the respondent's policy with respect to grooming so far as it applies to the wearing of union badges in particular is unreasonable' (AB 224). The union is correct, in my respectful view, in submitting that in the context of that issue the Commission was required to balance the reasons advanced by the employees for wearing the badge against the right of the employer to set reasonable standards of dress."
Commissioner Beech concluded that insufficient weight was given to the reasons for wearing the badge, but did not hold directly that an implied right or entitlement of the kind identified by the President could override or displace the express terms of the contract.
The appellant (Burswood Resort) has appealed against the decision of the Full Bench to the Industrial Appeal Court. Counsel for the appellant relied upon the well‑known decision of the High Court in House v The King (1936) 55 CLR 499 in asserting that the Full Bench had exercised its discretion to resolve the issue before it in an improper manner, with the result that the appeal should be allowed. Counsel submitted that the majority of the Full Bench had failed to take account of those facts and matters bearing upon the application of the employer's policy concerning grooming which had been relied upon by Senior Commissioner Fielding in making his ruling.
Counsel for the appellant answered the objection to the jurisdiction of the Industrial Appeal Court by submitting that the ruling made by the Full Bench could properly be described as "erroneous in law" within the meaning of s 90 in that a false dichotomy was set up by the Full Bench in the passages I have just mentioned.
In undertaking the balancing exercise described by Commissioner Beech, the Full Bench seemed to give certain matters of fact - the reasons for wearing the badge - the same weight as the express contractual provisions concerning grooming, and without making any or any proper determination as to the exact scope and effect of the contractual provisions. Alternatively, the reasons for wearing the badge were given an undue weight in that they were elevated beyond matters of fact and given the status of an implied right which was then held to be sufficient to outweigh or override the express terms of the contract.
There is also the further question of whether the President was correct in holding that an implied right of freedom of expression could override or displace the express terms of a contract of employment concerning grooming when the High Court decision relied upon - Australian Tramways Employees' Association v Prahran & Malvern Tramway Trust (supra) - does not seem to support such a conclusion.
It must be kept steadily in mind that the "policy" that the employer sought to apply to its employees was simply a shorthand way of describing certain supervisory rights which were clearly vested in the employer as part of the contract made between the parties. Accordingly, in my view, the Full Bench proceeded in a manner that can be characterised as "erroneous in law" in that it failed to make any or any sufficient determination as to the scope of the supervisory powers allowed to the employer by the contract, and as to whether the powers in question were qualified by implied rights or otherwise had not been exercised in a fair and reasonable way. It follows that, in my view, contrary to the submissions advanced by counsel for the respondent, the Industrial Appeal Court has jurisdiction to deal with the matter.
Counsel for the respondent union argued that the matters before the Full Bench were essentially matters of industrial fairness concerning the introduction and use of a badge. These were factual matters which lay exclusively within the jurisdiction of the Industrial Commission. The real matter in issue between the parties was the question of the visual impact (if any) of the badge in question. The resolution of this issue represented the resolution of a factual issue and any ruling upon that point did not give rise to a decision which could be described as erroneous in law. Viewed in that light, counsel for the respondent submitted, the Industrial Appeal Court did not have jurisdiction to deal with the matter pursuant to s 90 of the Industrial Relations Act because there was no question of law involved.
This line of argument, although superficially attractive, overlooked the reality that one of the issues raised by the respondent union, and acted upon by the Full Bench, was whether the provisions of the contract of employment could be overridden or displaced by an implied right of freedom of expression. The same line of argument glosses over the legal issue I mentioned earlier, namely, the need to construe the contract with a view to determining the scope of the employer's supervisory powers as a matter relevant to a further determination as to whether the employer's policy concerning the union badge was fair and reasonable in the circumstances of this particular case.
These issues were raised before Senior Commissioner Fielding, and remain important issues, not only between the parties to this particular dispute, but generally. The parties to a dispute of this kind need to know what weight should be given to express contractual terms in determining whether the employer's conduct is unfair or unreasonable in the context of a particular dispute. These are legal issues. Accordingly, in my view, the Industrial Appeal Court does have jurisdiction to dispose of the present appeal.
In summary, then, I consider that the Full Bench fell into error in seeking to balance rights vested in the employer as a consequence of the contractual arrangements as against "the reasons advanced by the employees for wearing the badge". The reasons for wearing the badge are not of the same contractual or normative order as the rights of the employer to determine what is required by way of grooming. Accordingly, in my view, for these reasons, and for the reasons given by Anderson J, the ruling of the Full Bench was "erroneous in law" and the appeal should be allowed.