Can, Lu v Martin, Robyn - [1995] FCA 533

CATCHWORDS

INDUSTRIAL LAW - Grievance board established under an award - constituted by a member of the Industrial Relations
Commission - whether an officer of the Commonwealth under paragraph 75(v) of the Constitution - whether grievance board had jurisdiction and power to order reinstatement

Industrial Relations Act 1988 s412
The Constitution s75(v)

Hilton v Wells (1985) 157 CLR 57
Re Federated Storeman and Packers Union of Australia Ex parte Wooldumpers (Victoria) Ltd (1989) 166 CLR 111
Re Boyne Smelters Ltd Ex parte Federation of Industrial Manufacturing and Engineering Employers of Australia (1993) 177 CLR 446

IN THE MATTER of an application for writs of certiorari and mandamus against a Full Bench of the Australian Industrial Relations Commission and writs of certiorari and prohibition against Commissioner Leary

THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION - First Respondent COMMISSIONER LEARY - Second Respondent THE AUSTRALIAN FEDERATION OF AIRLINE PILOTS - Third Respondent
Ex Parte: BRISTOW HELICOPTERS AUSTRALIA PTY LTD
No WI 1131 of 1995

NORTHROP, SPENDER AND LEE JJ
PERTH
28 JULY 1995

IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA          )
WESTERN AUSTRALIA           )
DISTRICT REGISTRY           )    No. WI 1131 of 1995

B E T W E E N: IN THE MATTER of an application for writs of certiorari and mandamus against a Full Bench of the Australian Industrial Relations Commission and writs of certiorari and prohibition against Commissioner Leary

THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

- First Respondent
COMMISSIONER LEARY
- Second Respondent
THE AUSTRALIAN FEDERATION OF AIRLINE PILOTS

- Third Respondent
Ex Parte:
BRISTOW HELICOPTERS AUSTRALIA PTY LTD

- Applicant/Prosecutor

MINUTE OF ORDER

JUDGES MAKING ORDER: NORTHROP, SPENDER AND LEE JJ

DATE OF ORDER 28 JULY 1995

WHERE MADE: PERTH

THE COURT ORDERS THAT:

The application for writs of certiorari, mandamus and prohibition be dismissed.

The order nisi made by Lee J. on 16 February 1995 be discharged.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA          )
WESTERN AUSTRALIA           )
DISTRICT REGISTRY           )    No. WI 1131 of 1995

B E T W E E N: IN THE MATTER of an application for writs of certiorari and mandamus against a Full Bench of the Australian Industrial Relations Commission and writs of certiorari and prohibition against Commissioner Leary

THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

- First Respondent
COMMISSIONER LEARY
- Second Respondent
THE AUSTRALIAN FEDERATION OF AIRLINE PILOTS

- Third Respondent
Ex Parte:
BRISTOW HELICOPTERS AUSTRALIA PTY LTD

- Applicant/Prosecutor

CORAM: NORTHROP, SPENDER AND LEE JJ

PLACE: PERTH

DATE: 28 JULY 1995

REASONS FOR JUDGMENT

THE COURT: In the events which have happened, the matter before the Court is an application by Bristow Helicopters Australia Pty Ltd ("Bristow") for the issue of writs of certiorari and prohibition against Commissioner Leary, a member of the Australian Industrial Relations Commission ("the Commission").

The jurisdiction of the Court arises from subsections 412(2) and (3)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Can, Lu v Martin, Robyn

Details

AGLC: Can, Lu v Martin, Robyn [1995] FCA 533
Case: [1995] FCA 533
Decision Date: 2 MARCH 1995

CaseChat Overview and Summary

Bristow Helicopters Australia Pty Ltd ("Bristow") sought writs of certiorari, mandamus, and prohibition against a Full Bench of the Australian Industrial Relations Commission ("the Commission") and Commissioner Leary, a member of the Commission. The application arose from Bristow's contention that the Commission, acting as a Grievance Board under clause 33 of the Helicopter Pilots (General Aviation) Award 1988, lacked jurisdiction and power to order the reinstatement of two pilots, Captain Ward and Captain McLoughlin, whose employment was terminated following a helicopter crash. The Australian Federation of Airline Pilots ("the Federation") opposed the application.

The primary legal issues revolved around the interpretation and application of clause 33 of the Award, specifically whether the Grievance Board constituted by Commissioner Leary had the jurisdiction and power to order reinstatement, and whether Commissioner Leary, in her capacity as a Grievance Board member, was an officer of the Commonwealth. The Court first addressed whether Commissioner Leary was an officer of the Commonwealth, finding that she was, and thus the Court had jurisdiction to hear the matter. The Court then examined the substantive issue of whether the Grievance Board had the power to order reinstatement. The Court found that the Grievance Board did have such power, as it was necessary to achieve resolution of the grievance under clause 33(a)(iv) of the Award.

The Court dismissed the application for writs of certiorari, mandamus, and prohibition. The order nisi made by Lee J. on 16 February 1995 was discharged.

Orders