CFMEU v AIRC & Gordonstone Coal Management

[2000] HCATrans 64

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S122 of 1999

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

and

THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of The Honourable Senior Deputy President John MacBean, The Honourable Senior Deputy President Colin Polites and Commissioner Ken Bacon

First Respondents

GORDONSTONE COAL MANAGEMENT PTY LTD

Second Respondent

MINE MANAGEMENT PTY LTD (now known as KESTREL COAL PTY LTD)

Third Respondent

THE HONOURABLE SENIOR DEPUTY PRESIDENT ANN HARRISON

Fourth Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2000, AT 10.04 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:  If the Court pleases, I appear with my learned friend, MS C.M. HOWELL, for the applicant.  (instructed by R.L. Whyburn & Associates)

MR R.J. BUCHANAN, QC:  May it please your Honours, I appear with my learned friend, MR H.J. DIXON, for the third respondent.  (instructed by Freehill Hollingdale & Page)

GLEESON CJ:   There is a certificate from the Deputy Registrar to the effect that she has been informed that the first, second and fourth respondents in this matter do not wish to be represented at the hearing of the application and will submit to any order of the Court save as to costs.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours. Your Honours, the issue in this case which we seek to agitate is to what extent privative provisions such as section 150(1) of the Workplace Relations Act can validly affect the availability of section 75(v) relief for jurisdictional error.

GLEESON CJ:   I gather that notices were given under section 78B.

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   They apparently have not attracted any response.

MR JACKSON:   No, your Honour.

GLEESON CJ:   Yes.

MR JACKSON:   Your Honours, it was a question, I suppose, whether they are necessary at this point of the case but they were given for safety sake.

McHUGH J:   Would this case be a suitable vehicle in any event?  Since the Gordonstone Mine employment award, has there not been the Kestrel Coal Mine Certified Agreement and does not 170LY(3) mean that the earlier award, or the Kestrel award, now prevails?

MR JACKSON:   May I deal with the utility of the application, your Honour? May I deal with that first, perhaps? Your Honours, the position is simply this. Your Honours will have seen that were it not for the decision of the Full Court, the Full Bench’s decision would have been quashed. It would remain in force and would be applicable to a successor by reason of section 149(1)(d) of the Workplace Relations Act.  The certified agreement was made after the date of the award and whilst the award would be revived, in a sense, by the decision of the court, it would not operate to the extent of any inconsistency with the agreement.  That is section 170LY.  But, of course, that does involve a question of what inconsistency there might be.

Your Honours, we would say two things in that regard.  The first question is whether there is any such inconsistency, apart from what I would describe as a manufactured inconsistency, and could I come to that now?  Your Honours will see that the order in question, or the award in question, is one which appears at page 74, and could I say two things about it, your Honours?  The first is that it is provided by clause 3 that it remains “in force until 25 August 1999”.  Now, that period is past, of course, but that would be affected by two provisions of the Act.  One is section 148(1), which continues awards in operation after their expressed expiry date, but there is also a limitation in a particular case brought about by section 120A(5) which provides that the type of award has a maximum term of two years. 

Could I just pause to say, your Honours will have seen in the reasons of the Full Court some discussion of the issue whether that did or did not mean that there could not be a further such award made and the court held that it could.  So, if I could just pause at that point, that is the first thing.  The second thing is, if your Honours begin at page 74, what is provided for by 4[a] is:

Subject to [b] when an increase in hands is decided upon by the employer former employees who were retrenched –

et cetera –

shall be re-engaged…..according to their length of service at the mine.

That is, essentially, what it says.  If I go over to page 75, you will see some qualification to that in relation to the ability to – in relation to skills.  If one goes then to the requirements of the agreement, that is page 204, what your Honours will see is this.  If I could go to the parts of it apart from, for the moment, clause 4, you will see in paragraphs 1, 2, 3 and, indeed, the contract of employment provision in clause 5, that there does not seem to be any particular inconsistency between the provisions of it, in substantive terms, and the provisions of the award.

However, one sees in clause 4, if I could go to clause 4.2, it says:

Except as provided in sub-clause 4.1, this Agreement replaces in their entirety all awards and agreements applying to the parties, including –

and then your Honours will see a number of awards not specifying the one in question here.  Now, your Honours, an issue which does arise is whether simply by dealing with the matter in that way, there can be what I would describe as the manufactured inconsistency.  A different question, of course, if one is dealing with section 109.  But that is a question which does arise and, in our submission, it is one where it would be inappropriate to take the view the parties could simply say, “All awards have no effect, this is what we are going to have for the future”.

McHUGH J:   But, at least on its face, it purports to get rid of, or to rescind, the Gordonstone Mine Employment Award of 1998.

MR JACKSON:   Well, your Honour, it does not rescind it.

McHUGH J:   Well, it says it “replaces in their entirety all awards and agreements applying to the parties”.

MR JACKSON:   Yes.  Your Honour, I appreciate that is what it says.  It is then a question though one of two things, and what that means if one takes it at face value, it excludes it.  If, however, there is then the anterior question, whether that is something that is permitted to be – that is what is contemplated by the terms of section 170LY, and, in our submission, it is not.  One is talking about real inconsistency as distinct from just saying that something does not apply.  Your Honours, that is the first thing we would say.

McHUGH J:   Is it a question of inconsistency or is it open to the parties as a matter of law under the Act to say that they are getting rid of all their previous awards and agreements?  Can they do that?

MR JACKSON:   Well, in our submission, they cannot.  The way in which they could do it is by making an agreement which really covers the area but if one looks to see - well, I am sorry, could I put it this way?  If one looks to see what the parties can do, and looks at the effect of entering into such an agreement, that is provided for by the Act and it is just a question of what the agreement then says.  You cannot just get rid of – say nothing else is to apply.  You have to make provisions that do apply, and maybe then you would cover the field, but that is a different question.

Your Honours, could I then go on to say that in the event that the – I am sorry, the second thing was this.  The award that was made in this case was made in proceedings where there was part settlement of a larger dispute.  That that is so appears at the bottom of page 80 and the top of page 81.  Where there is a reference to it at the bottom of page 80, a jurisdictional issue being raised and I would simply refer to the passage down to about line 9 where it is apparent that there was an industrial dispute created by a rejection of the log of claims which included, and then your Honours will see one of a number of claims.

Now, your Honours, in the event that the decision of the Full Bench was quashed, it would be open to the applicant to seek to reopen the proceedings before the Commission to seek a further exceptional matters order in similar terms, for example, to the quashed order, pursuant to the Act, in further part settlement of the dispute.  If that order were made, it would prevail over the certified agreement by virtue of section 170LY(3) and would have the effect that employees whose employment was terminated, would have the opportunity to be re-employed as vacancies occur.  Your Honour, that is what I wanted to say on that issue in the case.

So far as the substantive issue is concerned, could I indicate simply what we would seek to say about it, and it is this.  The proceedings were ones where the Full Court of the Federal Court was exercising jurisdiction pursuant to remittal by this Court under section 44 of the Judiciary Act, and your Honours will see that the essence of the Full Court’s finding was that it could not grant section 75(v) relief because of section 150(1) of the Act. But section 150 - if I can take your Honours to that for just a moment. Your Honours will see that section 150(1) speaks of an award being “final and conclusive”. Your Honours, that is not adequate to protect it from prerogative relief.

If one goes to paragraph (b), that would not protect it from anything other than non-jurisdictional error of law and, your Honours, paragraph (c), where it speaks of not being “subject to prohibition, mandamus or injunction in any court on any account” is, in terms, in direct conflict with the jurisdiction conferred by section 75(v) which, being conferred constitutionally, cannot be taken away by Parliament. Now, your Honours, the Full Court sought to apply the Hickman principle but, your Honours, what we would submit is that it is clear that in the application of that principle a distinction is to be drawn between cases where the privative clause is part of a State enactment and cases under Commonwealth law where the imperative of section 75(v) remains.

Could I take your Honours to one reference in that regard?  That is Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, and I want to take your Honours to the reasons for judgment of Justices Gaudron and Gummow in a passage which commences at page 631. Your Honours, could I say the passage goes from 631 to 633. If I could indicate, your Honours, three parts of it specifically. The first is the last paragraph on page 631 where their Honours say that:

Certain matters need to be borne in mind in ascertaining the extent of the inconsistency of the relevant provisions of an enactment containing a privative clause.

Then there is a reference to being unable to oust the jurisdiction of constitutional cases.  Then it said:

Nor can it oust the jurisdiction conferred on this Court by sub-ss (iii) and (v) of s 75…..with respect to matters “in which the Commonwealth, or a person –

et cetera, and then section 75(v) is recited. From there, your Honours, one goes to page 632 in the last paragraph on the page where, having quoted from the Metal Trades Employers’ Association, their Honours say:

It is to be noted that, in the passage quoted, Dixon J distinguishes between power and jurisdiction. It is a significant distinction in the context of s 75(v)…..which, as already mentioned, confers “jurisdiction” in “all matters” in which “mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. These are constitutional expressions and their place in s 75 gives them a significance and operation beyond that understood at common law.

Then in the next paragraph, your Honours:

Mandamus and prohibition are remedies which are granted in cases of jurisdictional error –

and their Honours indicate what that is and:

The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law –

et cetera.  Now, your Honours, the finding in this case was that the matter was jurisdictional and it falls, in our submission, within those propositions.

McHUGH J:   But the majority in the Full Court set out that passage, including the sentence:

The Hickman principle has been treated as applying in respect both of the limits of the constitutional competence of the legislature in question and of the ambit or nature of the power conferred by a valid law.

They came to the view that it fell within the Hickman principle.  It did not involve anything more than an application of settled principle.

MR JACKSON:   Well, that is, with respect, where their Honours were wrong.

McHUGH J:   They may be arguably wrong but that is all that is involved in the case, is it not?

MR JACKSON:   Well, your Honour, that is itself an important question, whether in a case where there is a finding of jurisdictional error, then a provision like section 150 removes jurisdiction. If I could just say this, your Honours, if one goes back to the words of section 150, it is very difficult, indeed, with respect, to see how 150(1)(c) can validly stand with section 75(v). It uses words which are entirely antithetical to section 75(v). Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Buchanan.

MR BUCHANAN:   There are two reasons, your Honours, why the outcome of the appeal would be substantially academic.  One is that there has been erected an inconsistency of a kind which the Full Court found would be entirely effective to overcome the agreement.  Might I point out that the inconsistency arises, not from clause 4.2 of the new agreement, but from clause 5.3 of the agreement.  The Full Court dealt with this issue at page 149 and 150 of the appeal papers.  They found at lines 45 to 50, unnecessary to deal with the inconsistency which my learned friend has referred to but they go on to point to what they say “is a more direct inconsistency” which arises from the terms of the agreement which was then before them and which is, in identical terms, in the new agreement, namely, that there is an express provision to enrol people upon a foundation which is completely contradictory to the operation of the award.

That part of the Full Court’s judgment has not been challenged and, accordingly, the new agreement which has been certified will operate from the date of its certification in July 1999 to exclude the operation of the order if it otherwise revives.  The second reason, in our submission, arises from the limitation in the order itself, with its life limited to 12 months expiring on 25 August 1999, coupled with the operation of section 120A(5) of the Act, which provides that an exceptional matters order ceases to be in force two years after it is made and cannot be extended.  This is an order which, notwithstanding section 148, was made with a limited initial life and, in our respectful submission, it does not survive beyond 25 August 1999.

Your Honours, as to the substance of the point which is sought to be agitated, our submission is that this Court has, in a number of cases, considered and decisively pronounced upon the interaction between section 75(v) of the Constitution and the provision which is now section 150 of the Act but which was, in earlier times, section 60 of the Conciliation and Arbitration Act in identical terms.  It did so, for example, in O’Toole v Charles David and in relation to analogous principles, in the Deputy Commissioner of Taxation v Richard Walker.

In those cases, and in Hickman itself, the question of the interaction between section 75(v) of the Constitution and privity provisions was under consideration, and the approach of this Court has been to regard such provisions as statutory provisions which qualify what otherwise would be limits on jurisdiction and the exercise becomes one of reconciling the two provisions within the context of the instrument as a whole and subject to the applications of the principles in the Hickman Case, which have been adopted since, such a provision operates to validate what would otherwise be an invalid Act.  The provisions operate upon a premise that there would be invalidity but for the operation of the privity provision.  Operating upon that premise, in our submission, they operate to validate the Act and to protect the Act from subsequent challenge.

Your Honours, in our respectful submission, the issue which is sought to be agitated here has been, in that sense, conclusively decided.  There appears to be no suggestion that the Court will be asked to grant

leave to overrule those decisions and we submit, accordingly, that this case is not a suitable vehicle for the grant of special leave and would not, in any event, because of the matters I mentioned at the outset, be a suitable vehicle for such a grant.  Those are our submissions, your Honours.

GLEESON CJ:   Thank you, Mr Buchanan.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say two things?  The first is that in O’Toole v Charles David and the issue of the correctness of the Hickman principle was not itself put in issue.  What was in issue was the contention that it could apply to cases where there was a constitutional difficulty of another kind altogether and the cases really do not ‑ ‑ ‑

McHUGH J:   Justice Deane, Gaudron and myself expressed our reasons in quite general terms in so far as section 60 was concerned, did we not?

MR JACKSON:   Yes, your Honour, I appreciate that, but your Honours, if I could just say so, did not have the benefit of argument on the point because the Court was dealing with a different question.  Your Honour will recall that the issue was a quite different question.  The second thing we would seek to say, your Honours, is that the provision which our learned friend refers in the agreement is not, in our submission, inconsistent with the terms of the award.  Your Honours, there might be an argument about it but, in our submission, if one looks at them they are covering perhaps slightly overlapping topics, but different.

GLEESON CJ:   What about the point you made concerning the duration of the award?

MR JACKSON:   Well, your Honour, could I just say in relation to that, there is no doubt that the award cannot go on for a period of more than two years from the date on which it was made.  It cannot extend for longer than that but there is nothing to prevent us applying for another award in the same terms in the same application.

MR BUCHANAN:   Your Honour, I apologise.  Might I have leave to deal with one matter that I omitted?

GLEESON CJ:   Yes.

MR BUCHANAN:   Your Honours, in our bundle of authorities we have dealt with the matter which is raised in the last paragraph of the reply by attaching a copy of an order made by Justice Muir on 11 November 1999 which restrains the applicant from proceeding in relation to the application for a further exceptional matters order which is referred to in the final paragraph of the reply.  That order does not, in terms, restrain further such

applications, although that was the application which was made, but it is clear enough from – and the order is at tab 10 of the folder – his Honour’s reasons for judgment at tab 9 that an application for a further injunction, if necessary, would be granted.  Thank you.

GLEESON CJ:   Thank you.

MR JACKSON:   Your Honour, may I say something in relation to that?  What my learned friend says is right so far as it goes but the decision that was made was based upon the terms of an agreement containing a release and the terms of the release, and if I could just give your Honours copies of the reasons for judgment of Justice Muir in the Supreme Court of Queensland, set out at paragraph 5 – this was the document upon which the proceedings were based.  You will see in paragraph 4(a) of the quotation in paragraph 5 of his Honour’s reasons, in the last two lines, the exception, “except for proceedings C No 24609 of 1996 before the Commission”, which are these proceedings and that is why I adverted to the fact earlier that there was a dispute of which the award made was part and those proceedings remain otherwise in being.

GLEESON CJ:   The Court is of the view that this matter does not raise an issue suitable for the grant of special leave and is not a suitable vehicle for determining the issue that the applicant seeks to agitate.  The application for special leave to appeal is refused.

Can you resist an order for costs?

MR JACKSON:   They are not asked for, your Honour, according to - - -

MR BUCHANAN:    That is so.

GLEESON CJ:   The application for special leave to appeal is refused.

We are going to adjourn to reconstitute.

AT 10.30 AM THE MATTER WAS CONCLUDED