Community and Public Sector Union & Ors v Commonwealth of Australia

[1995] HCATrans 192

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 1634  26.6.95
  A  28.6.95

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M36 of 1995

BETWEEN:COMMUNITY AND PUBLIC SECTOR UNION

STEPHEN MOSS and DENNIS YOUNG

Plaintiffs

- and -

COMMONWEALTH OF AUSTRALIA

MINISTER FOR PRIMARY INDUSTRIES AND ENERGY

Defendants

DAWSON J (In Chambers)

AT MELBOURNE, FRIDAY THE 23RD DAY OF JUNE 1995

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friend, MR P. MORRISSEY, on behalf of the applicants, or plaintiffs, I think they might be. (instructed by Gill, Kane and Brophy)

HIS HONOUR:   Yes, Mr Merkel.

MR R. HALLOWELL:   If your Honour pleases I appear on behalf of the defendants in this matter. (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Hallowell.  Mr Merkel.

MR MERKEL:   Your Honour, I apologise at the outset for the time at which this application has come before your Honour and the haste with which it has come before your Honour.  Your Honour the background to the matter is that for some period of time, some months, and I have to ask your Honour to forgive me, I have only come into it this afternoon myself, but for some period of months the Commonwealth and the Public Service Union, that is the first applicant, had been negotiating a transfer of employees from the quarantine sections.

HIS HONOUR:   What is the Quarantine Service, Mr Merkel?

MR MERKEL: Your Honour, it is dealt with in the Constitution, your Honour, under section 69 is probably the best starting point and it was one of the services, your Honour, dealing with quarantining livestock and plants and so forth which on Federation was to go with Posts, Telegraphs and so forth to the Commonwealth, but services that were to be transferred over time. All of the others, I understand, have gone, not lighthouses I am told, your Honour, but Quarantine remained and basically remained a State ‑ ‑ ‑

HIS HONOUR:   Does that mean that if you try to bring something in from overseas it is the State officer that ‑ ‑ ‑ 

MR MERKEL: I think that has been basically right if it is not Customs, but the Quarantine, the people who perform the functions of the Quarantine Department, in that sense, would all be State officers as between the States and the Commonwealth. There is a Commonwealth Act, your Honour, the Quarantine Act 1908, so there must be some federal element to it, but if one looks at the employment structure all the people who actually work in the quarantine in the various States performing the service are State employees.

HIS HONOUR:   Paid for by the State?

MR MERKEL:   Covered by State awards and employed by the State.

HIS HONOUR:   Paid out of State consolidated revenue?

MR MERKEL:   Yes, I am instructed so, your Honour.

HIS HONOUR:   Well I am surprised, but be it as it may.

MR MERKEL: Well, your Honour, I was a little surprised, your Honour, because sections 69 and 84 of the Constitution, which this matter arises under, have not been troubling this court for a long time because it has not become very common place for departments to be transferred, but your Honour, what has happened is the Quarantine Department was not transferred at Federation, I think it is accurate to say on my instructions, your Honour, that what happened is that there was not a Quarantine Department strictly as such, like a ministry for quarantine services but it formed part of a distinct service within a branch of government and it was intended under section 69 that on a date to be proclaimed after the establishment of the Commonwealth the Quarantine Department of the Public Service of each State shall become transferred to the Commonwealth.

Now, your Honour, that takes one to section 84 which gives rise to the problem in the present case. There are a number of decisions on section 84 but under section 84:

When a department of the public service of a State becomes transferred to the Commonwealth all officers shall become subject to the control of the executive government of the Commonwealth.

The second paragraph, your Honour, provides that:

Any officer who is not retained in the service shall, unless he is appointed to some other office of equal emolument in the public service of the State be entitled ...(reads)... the abolition of his office.

So that the two paragraphs assume that all officers will transfer to the Commonwealth but if the Commonwealth do not retain the service of an employee he is entitled to whatever the State law provides for abolition of his office, and it is the third paragraph that gives rise to the problem in the present case, your Honour:

Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights and shall be entitled to retire from office ...(reads)... of his service with the State.

I do not need to read on, your Honour.  The essential words there are that any officer who is retained, which means who transfers and continues in employment of the Commonwealth, must be transferred with all his existing and accruing rights which the cases have held means, your Honour, his long service leave, his current rate of pay, his terms and conditions of office.  The convention debates and the cases that I can briefly ‑ ‑ ‑ 

HIS HONOUR:   Now, what is the date proclaimed by the Governor-General for the transfer of the Quarantine Service?

MR MERKEL:   Your Honour, we have as yet not been able to ascertain ‑ ‑ ‑ 

HIS HONOUR:   Is there a date?

MR MERKEL: As far as we are aware, and from the brief discussion I have had with my learned friend for the Commonwealth, your Honour, it appears that the Commonwealth believe that this transfer that is occurring in the documents your Honour has before you is outside of the Constitution and therefore they have appeared to effect the transfer and disregarded sections 69 and 84 and it may be that that is the issue in the case, your Honour.

From the brief words I have been able to have to find out what the approach of the Commonwealth has been would appear to be that they can effect the transfer of the whole of the quarantine services currently being provided by the States. I think there are two that may have been left out of this, your Honour, I think Western Australia and Tasmania are retaining their quarantine service, but all the others are going entirely to the Commonwealth and it seems that the Commonwealth may be contending that that transfer is not of a department of the Public Service in each State, therefore they do not have to make a proclamation and all comply with section 84. As I apprehend what appears to be happening, your Honour, is that may be the issue between us. The convention debate, your Honour, in the early cases under section 84 ‑ ‑ ‑

HIS HONOUR:   Well, how does the Commonwealth then compel the transfer?

MR MERKEL:   What it has done, your Honour, is it has - and this is the very problem that has arisen for today - it has offered to the State officers an offer to transfer to the Commonwealth Public Service on terms that are less than those currently being received, or not transfer and remain in the State's service, and therefore not be part of the transfer.  And the employees in South Australia must accept or reject that offer by today.  There is another one for Queensland which I think is to be accepted or ‑ ‑ ‑ 

HIS HONOUR:   Well, what happens if they do not? 

MR MERKEL:   If they do not, they are deemed to not be transferred with the service to the Commonwealth sector but to remain in the State Public Service.  And the problem that has occurred, your Honour ‑ ‑ ‑ 

HIS HONOUR:   Deemed by whom and how?

MR MERKEL:   Because they are not offered the transfer to the Commonwealth Public Service so they just stay in the State Public Service, they just do not get transferred.

HIS HONOUR:   Well, the position remains as it is now.

MR MERKEL:   I think, your Honour, I think that the problem is, your Honour, that - sorry, would your Honour excuse me.  I think, your Honour, that the problem is twofold, that I think if they do not transfer, and I may have to get more precise instructions on this.  If they do not transfer and they transfer later they lose the continuity of service which they should be entitled to get.  Secondly, your Honour, what is happening, of course, is that it is being offered to the public servants in South Australia who must accept or reject by today, that if they do not accept then that is the end.  In other words, they are not part of the transfer and the problem that really arises, your Honour, if we are right in our contention, which appears to have a substantial basis for it, what the Commonwealth is doing by transferring the service with the offer of this kind, is doing so unlawfully.

HIS HONOUR:   How does it make the transfer?  Is it doing it by legislation, or what?

MR MERKEL:   It seems to be doing it entirely, your Honour, by executive act independently of the constitution.

HIS HONOUR:   Well then what I say is right, it does not matter what the conditions the Commonwealth imposes, it can change them tomorrow.

MR MERKEL:   That is the problem, your Honour, under the ‑ ‑ ‑ 

HIS HONOUR:   In other words, it says you must accept or reject this offer, but it can renew the offer.  It can do what it likes, can it not?

MR MERKEL:   No.  But, your Honour, I think the problem that is arising is that the South Australian employees, if we are right, will be accepting the transfer and in doing so giving up their right, which we say they should have guaranteed and may be waving the right they have, to be paid no less than their existing entitlement on transfer.  A lot may not be taking the transfer because they will suffer a loss of conditions and the current problem, your Honour, is that what the Commonwealth, in effect, are doing and I am not sure to what extent they had considered this, but what they are in effect doing is presenting a quite false, if we are right, they are presenting a quite false ‑ ‑ ‑ 

HIS HONOUR:   When was ‑ ‑ ‑ 

MR MERKEL:   ‑ ‑ ‑ state of affairs to the employees concerned.

HIS HONOUR:   When was this offer made?

MR MERKEL:   I think the South Australian offer was made on 9 June and what has happened, your Honour, is that the matter had been the subject of some disputation between the Commonwealth and the union, but the section 80 - the problem of the actual right of the employees to not have their conditions reduced has really only emerged as a right after receiving advice yesterday and today.  What was sought, your Honour ‑ ‑ ‑ 

HIS HONOUR:   I am sorry, the right not to have their conditions reduced?

MR MERKEL:   Reduced.  What section 8 ‑ ‑ ‑ 

HIS HONOUR:   And what you did not realise that the section of the constitution was there, is that the position?

MR MERKEL:   I think it, your Honour, it came up - I am not sure that the Commonwealth appreciated it either, your Honour, but it came up, your Honour, in an incidental way where there was an enquiry, I am told, by a member that did not we have right under the constitution about all this and it was that that activated the enquiry.  And the first time legal advice was got on it from junior counsel was yesterday and that led to the matter being investigated and efforts to try and ascertain whether there was a proclamation and if there was why the conditions of service of employees have been reduced in this way.  I think it was ‑ ‑ ‑ 

HIS HONOUR:   Well, now, there have been proceedings in the Industrial Relations Commission, have there not?

MR MERKEL:   There were proceedings in the Industrial Relations Commission, your Honour, but they, as I understand it, have been proceeding on the basis of a potential or actual industrial dispute but not as if there were a constitutional right not to have your conditions reduced, and nothing is ‑ ‑ ‑ 

HIS HONOUR:   But what I am enquiring is, why has not the Industrial Relations Court got jurisdiction in this matter?

[5.20pm]

MR MERKEL:   I think, your Honour, because ‑ ‑ ‑ 

HIS HONOUR:   Well I mean, you have not denied it ‑ ‑ ‑ 

MR MERKEL:   No.

HIS HONOUR:   ‑ ‑ ‑ so I should just ask the question:  has it?

MR MERKEL:   Your Honour, in coming to your Honour I considered whether the Federal Court had jurisdiction and I came to the conclusion in the very short time available that it probably does not, your Honour, because it is in that - the High Court gets the jurisdiction under section 30 of the Judiciary Act, your Honour.

HIS HONOUR: Well I suppose the jurisdiction of the Industrial Relations Court in relation to injunctions is where they are sought against an office of the Commonwealth holding office under the Industrial Relations Reform Act.

MR MERKEL:   Yes, your Honour.  Again I thought the jurisdiction that the Industrial Relations Court had was not the original jurisdiction of the High Court but would be the remitted jurisdiction in industrial matters but your Honour, this does not come under an industrial matter.  I have just been handed a note that the Commonwealth's jurisdictional point is that they cannot have an industrial dispute with these persons because they are not yet in the relationship of employer and employee.

HIS HONOUR:   Yes.

MR MERKEL: But the point is a more fundamental one, your Honour. It is this, that the cases that we have been able to look at under section 84, treats section 84 as conferring a personal right on an employee transferred and the right is enunciated in the cases, your Honour, as being - and I can give your Honour some references, is really in effect to be transferred on the terms and conditions of employment that you enjoyed under the State employment. Can I hand up - probably the most succinct passage, your Honour, is in the judgment of Le Leu v The Commonwealth, which is 29 CLR page 305. A passage later adopted in a joint judgment of Edwards and ‑ ‑ ‑

HIS HONOUR:   Where is the passage?

MR MERKEL:   Sorry your Honour, at page 314 in Le Leu, at point 5, where his Honour says:

So far as I am personally concerned it must not be inferred that even if there were no section 60 -

that is of the particular Commonwealth Act, I think, your Honour -

the plaintiff would not retain his right of tenure by virtue of section 84.  There is nothing in the decision of Cousins when closely examined against the view that under section 84, the right of tenure is preserved from ...(reads)... can be varied or withdrawn.

His Honour then down at the bottom of the page at point 8 says:

Preservation must be against the Commonwealth and is unlimited in time.  Preserve is not a technical word but it certainly implies retain, keep in tact or unimpaired.  The right to retain existing rights without being ...(reads)... by the South Australian Acts.

Now your Honour, his Honour's discussion there was adopted by a later judgment of Rich, Evatt and McTiernan JJ in Edwards v The Commonwealth which is 54 CLR 313 at page 320. So your Honour, that is a person right has been accepted in other cases and ‑ ‑ ‑

HIS HONOUR:   Well now what relief are you seeking?

MR MERKEL:   What we are seeking today, your Honour, is relatively modest relief so that the matter can come back and be more fully considered by the Court.  What we seek today, your Honour, is - does your Honour have the summons?

HIS HONOUR:   Yes and I have got a draft form of orders which is what I am looking at at the moment.

MR MERKEL:   Sorry, your Honour, I think your Honour might have more than I have.  Would your Honour just excuse me for a moment.  It is paragraph 2, your Honour, which is in essence in terms of paragraph 2 of the summons and I will give your Honour the date of the offer but what we are concerned about your Honour, is that until this matter can come back before the Court and we would apprehend subject to your Honour - or the Court's availability as far as time is concerned, that it could come back within a very short space of time possibly as early as Tuesday of next week.  But what we are concerned your Honour, is to maintain the status quo as it presently exists so that the Commonwealth cannot act upon the offers until the Court gets an opportunity to consider the matter more fully.

That is what the effect of paragraph 2 would be, so all we would seek at this stage, your Honour, subject to your Honour's convenience is that if an injunction were to issue until 4.15 next Tuesday in terms of paragraph 2, it would stop the Commonwealth from acting upon the offers and changing the status of any employees in a way which if we are right, would be breaching section 69 and 84 of the constitution.

HIS HONOUR:   Well now you are asking for an injunction, it may not be necessary.  What is your attitude, Mr Hallowell?

MR HALLOWELL:   The Commonwealth certainly does not see the problem the way that the plaintiff sees it.  Perhaps on the last point ‑ ‑ ‑ 

HIS HONOUR:   Maybe the plaintiff is not seeing it the right way but that is ‑ ‑ ‑ 

MR HALLOWELL:   No, I would not put it that way, your Honour.  There seems to be a concern from ‑ ‑ ‑ 

HIS HONOUR:   What I am asking you is there any need to make an injunction?  I mean obviously nothing is going to be done over the weekend or on Monday.

MR HALLOWELL:   No and perhaps the point I was going to make was that my instructions are that it has been made perfectly clear to the 44 officers in South Australia who received offers, that the fact that they do not respond to the offer by presumably close of business or midnight tonight, South Australian time, will have no effect whatsoever.  The Commonwealth had always intended and it made it perfectly clear that people who have not responded to the offer will be contacted on Monday and said that we have not had a response from you, what is your position?  In other words, the fact that they have not responded within the time does not have any effect.

HIS HONOUR:   Well there would be no difficulty in your giving an undertaking, would there, in the terms which were acceptable to you but along the lines of draft order 2, have you got that?

MR HALLOWELL:   I do, your Honour.

HIS HONOUR:   Until 4.15 on Tuesday, which would give you time to consider your position and enable a notice of motion to be served for permanent injunction, whatever course the other side want to take.

MR HALLOWELL:   My only reservation about that is that I do not have any instructions to give any undertaking to that effect and would it be possible to seek those instructions?  Could the matter be stood down for 5 or 10 minutes so that I can speak to my instructors to see what they feel about that?

HIS HONOUR:   Yes, it is preferable to have that.  If an injunction is to be issued - let me rephrase that - it is preferable to have the parties agree to preserve the status quo until the matter can be argued rather than issue an injunction if that is possible.

MR HALLOWELL:   Exactly, I think that is far preferable.

HIS HONOUR:   Can you get instructions?

MR HALLOWELL:   I can, your Honour.

HIS HONOUR:   Very well, we will stand the matter down until you tell us that you have managed to get into contact with someone and receive some instructions.

MR HALLOWELL:   Thank you, your Honour.

SHORT ADJOURNMENT

[5.55pm]

HIS HONOUR:   Yes gentlemen.

MR MERKEL:   Your Honour, thank you very much for the time.  It is has enabled a resolution of the problem until Tuesday.  Your Honour, the resolution is that I am instructed and do give the usual undertaking as to damages on behalf of the first plaintiff and my learned friend is instructed and I understand when I have stated it, will give on behalf of the defendants, an undertaking that until 4.15 on Tuesday, 27 June ‑ ‑ ‑ 

HIS HONOUR:   Just a moment.

MR MERKEL:   Sorry, your Honour.

HIS HONOUR:   The defendants undertake - or Mr Hallowell on behalf of the defendants, undertakes ‑ ‑ ‑ 

MR MERKEL:   That until 4.15 on Tuesday, 27 June or further order, the defendants will not give effect to or act upon the offers of employment and the rest will be, your Honour, in the last four lines of paragraph 2:

Made by or on behalf of the defendants, dated 9 June 1995 and 19 June 1995.

It will be in the words in paragraph 2, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   Your Honour, we would ask that the summons which is returnable this afternoon, be adjourned until 10.15 on 27 June if that is suitable for the Court, your Honour.

HIS HONOUR:   Yes, until 10.15 on 27 June.

MR MERKEL:   And would your Honour reserve costs?

HIS HONOUR:   Yes.  That is by consent, is it Mr Hallowell?

MR HALLOWELL:   That is correct, your Honour.

HIS HONOUR:   So that you, Mr Merkel, give the usual undertaking as to damages on behalf of the plaintiffs?

MR MERKEL:   It is the first plaintiff, your Honour, it is the Union.

HIS HONOUR:   On behalf of the first plaintiff.  That is satisfactory with you, is it?

MR HALLOWELL:   Yes, your Honour.

HIS HONOUR:   Yes, and Mr Hallowell on behalf of the defendants, undertakes until 4.15 on 27 June 1995, or further order, the defendants will not give effect or act upon the offers of employment made by or on behalf of the defendants or either of them dated 9 June 1995 and 19 June 1995, to officers in the public services in the States of South Australia and Queensland respectively including offers made to the second and third plaintiffs and to members of the first plaintiff.

MR HALLOWELL:   That is correct, your Honour.

HIS HONOUR:   The summons returnable today is to be adjourned until 10.15 on 27 June 1995 and I reserve costs.

MR MERKEL:   We express our gratitude, your Honour, hearing the matter at this rather late hour.

MR HALLOWELL:   And for the indulgence for the instructions as well, your Honour.

HIS HONOUR:   Well I take it that the discussions will not cease now that you attend the adjourned return of the summons?

MR MERKEL:   They will not, your Honour.  We will be in touch with your Honour's associate if there is a real prospect of resolution which we will know about on Monday but if not, I would imagine your Honour there would be a contested interlocutory application on Tuesday but as I understand the contest appears to be essentially one of law, your Honour, whether this is a department in the terms of the constitution that is being transferred because the facts seem to be the Commonwealth takes the view they are not bound by the constitution on these transfers, the Union and its members take the view, it is and it seems to be that issue that may loom up if we cannot resolve it.

HIS HONOUR:   Very well.

AT 6.00 PM THE MATTER WAS ADJOURNED
UNTIL 10.15 AM ON TUESDAY, 27 JUNE