Downey v Trans Waste Pty Ltd

[1990] HCATrans 274

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-·- ---

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml9 of 1990

B e t w e e n -

PATRICK CORNELIUS DOWNEY

Appellant

and

TRANS WASTE PTY LTD

Respondent

MASON CJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 NOVEMBER 1990, AT 10.20 AM

Copyright in the High Court of Australia

Downey(2) 1 13/11/90

MR M.E.J. BLACK, QC:  May it please the Court, I appear with

my learned friend, MR L. KAUFMAN, for the

appellant. (instructed by Phillips Fox)

-·- -

MR K.M,:-.Jffl:YNE, QC: If the Court pleases, I appear with my

learned friend, DR r. HARDINGHAM, on behalf of the

respondent. (instructed by Arthur Robinson &

Hedderwicks)

MR BLACK:  May I hand to the Court copies of the outline of

our argument. I am told the Court has them. Might

I also at this stage hand to the Court a decision of a member of the State Industrial Relations

Commission in Victoria to which reference will be

made for various purposes during the course of

argument, and it might be convenient if I hand it

to the Court now. It is unreported, Your Honours.

MASON CJ: Yes, thank you.

MR BLACK:  I will be taking the Court only to selected

passages of a rather long decision.

MASON CJ: Perhaps I should declare that I have no interest

in this matter, Mr Black.	I have no relative by
the name of Binskin Mason.

MR BLACK:  Not in the American side of the family,

Your Honour?

MASON CJ:  No.

MR BLACK: If the Court pleases, this appeal raises in

substance two questions about the operation of the

Industrial Relations Act in Victoria concerning the

power to deal with and grant a remedy on a claim by

a person that his dismissal was harsh, unjust or

unreasonable - what I might perhaps hereafter call

unfair dismissal.

There are two questions essentially. The

first is this: granted that jurisdiction is

founded upon the existence of an industrial dispute

- that is to say jurisdiction to deal with unfair

dismissals - need there be some outward

manifestation of such a dispute, for example, union

agitation or some form of industrial action? The

Full Court held that before there may be an

industrial dispute about unfair dismissal, some

form of external agitation is necessary. They

rejected what we would describe as the notion of a

paper dispute.

The second question is, can a person for whose

trade, it is a term widely defined in the Act, no

conciliation and arbitration board has been

appointed obtain relief where that person claims

Downey(2) 2 13/11/90

his some years ago, but not in the

that or her dismissal was unfair? And the sections introduced

~OJ:iginal Act, constitute a code with the result

-- ~at a person such as our client, who is not

~ -.subject to-any conciliation and arbitration board,

in this case pursuing the trade of manager, cannot

obtain any relief.

Now in order to take the Court to this, might

I, with the Court's indulgence, spend a little time

going through the scheme of the Industrial

Relations Relations Act in Victoria. It is

somewhat - well I think it is unique to Victoria.

The old scheme of industrial regulation in Victoria

under the Labour and Industry Act 1958 focussed

upon what were called "wages boards" and boards

were established for different trades and

industries. They go back to the 19th century when

the first boards were established in, I think, the

1890s to cover conditions in what were thought to

be sweated trades, and they gradually extended.

There was no Industrial Relations Commission of

Victoria, as such. There was an industrial

appeal's court presided over by a county court

judge, for many years the late Judge Leckie, and

there was the wages board. Now in 1979 the

Industrial Relations Act was passed and it effected

fundamental changes to the system, including

relevantly for the purposes of this appeal, the

establishment of the Industrial Relations Relations

Commission of Victoria. At the same time, the Act

maintained the concept of conciliation and

arbitration boards as a separate tier in the system

and they were a part of the system that obviously
were intended to play a substantial, if not the

dominant role, in the system of industrial

regulation.

It is important for our argument to persuade

the Court that the two parts of the industrial

relations system in Victoria, that is to say the

commission and the conciliation and arbitration

boards, have quite separate and ample jurisdictions and it is particularly important for our argument	to persuade the Court that the Industrial Relations
Commission itself has original jurisdiction in all
manner of industrial disputes, notwithstanding that the boards have what might be called the more usual
or common jurisdiction in such matters.

Can I take the Court to the Act and go through

it very quickly. It is the Industrial Relations

Act 1979. It has been amended and some of the

amendments are quite central to this case,

particularly I imagine for my friend's argument,

and I will take the Court to its statutory history

Downey(2) 3 13/11/90

a little later as I develop that part of the

argument.

__ .._ The first thing to note about the Act, in our

__ £_espectful submission, is that the long title does

~ ,._not disclose all of its objects. It simply says

that it is-an Act to constitute the Commission, to

make provision for boards, and recognition of

industrial associations and for other purposes.

There is very limited reference to the prevention

and settlement of industrial disputes.	Industrial
disputes are defined - - -

DEANE J:	Mr Black, I have the Act up to No 28 of 1987.
MR BLACK:	Yes, that will be sufficient, Your Honour.
DEANE J:	That has the amendments, has it?
MR BLACK:	Yes, it has, Your Honour, and I will be giving the Court separate pieces of paper showing some
relevant changes, but I think the Court may
comfortably use the reprint that Your Honour has.

The Act defines "industrial dispute" and the

first part of the argument will shortly turn on the

definition of "industrial dispute". That is

defined by section 3(1) which appears at the top of

page 3 of the reprint that I believe Your Honours

have. It is a very wide definition and it has been

enlarged since this Court last looked at it. It

reads:

"Industrial dispute" means a dispute arising

between an employer and one or more of his

employees, or between an association of

employees -

et cetera -

and includes a threatened or impending or
probable dispute and a dispute arising from

the dismissal or threatened dismissal from his

The last words, the words starting with the employment of an employee.

expression "and includes", were added in 1983 or

thereabouts, and I will come to those additions.

DEANE J:  The French influence had declined in Victoria in

the mean time.

MR BLACK:  Yes, it seems so, Your Honour. Perhaps I should

not comment about that. Perhaps	it was the plain
English movement that swept away	part of our
linguistic ancestry.

Downey(2) 4 13/11/90

MASON CJ:  Now, that amendment was made before the decision

in Slonim v Fellows -

MR BLACK-;. -.Yes, it wa~, Your Honour.

-~ ~

MASON CJ: - - - not- -taken into account in Slonim v Fellows.

MR BLACK: That is exactly so, Your Honours. That amendment

was - I think the Act was proclaimed at the end of

1983. Slonim v Fellows was argued in May 1984 and

the Court delivered judgment in August 1984.	One
of Their Honours in the court below - - -

MASON CJ: Mr Justice Murphy.

MR BLACK:  Yes. Mr Justice Murphy noted that fact with some

dissatisfaction. So the Act is quite unlike the

federal Act, it does not set out its objects and it

proceeds in a rather different way, but it is

submitted that one of the principal objects of the

Act must be the settlement and prevention of

industrial disputes. That is to be inferred, we

say, from its nature and subject-matter from the
absence of any other mechanism in Victoria for the

general prevention of settlement of industrial

disputes. And, might I say, from the nature of

Victorian society it is a statement with an

industrial basis with the history of industrial
regulation and a degree of industrial disputation.

The purpose of this Act must have been to prevent and settle industrial disputes. Some

specific indication of that is to be found in

conferences and the underlying theme of the Act is reflected by subsection (5), which reads:

section 12B(5) on page 11 of the print where the

A direction may be given to any person whose

presence at the conference is, in the opinion
of the Commission, likely to assist the
prevention or settlement of the industrial

dispute.

That, we say, in any event, must be one of the
purposes of the Act.	It simply could not be
otherwise.

Might I now take the Court to the part of the

Act that sets up and confers powers upon the

Industrial Relations Commission of Victoria. As I

indicated earlier, it is important for our argument

to establish that the Industrial Relations

Commission itself, quite independently of the

boards, has a broad jurisdiction to settle

industrial disputes of any nature.

Downey(2) 13/11/90

The Commission is dealt with in Part II of the

Act.	It is established by section 4 on page 4 of
Your Honours' prints.	The office of president is

-~~vided for in section 5. It is obviously

-- -intended to be an important office as section 5(5)

~ -provides that:

The President shall be entitled to such salary and allowances as are for the time

being payable to a puisne judge of the Supreme

Court.

And, of course, he has security of tenure though

not quite that - yes, indeed, essentially that of a

judge.

The Act provides for deputy presidents and

acting presidents in sections SA and 6. It

provides, in section 7, for persons to be known as

commissioners who form part of the Commission.

They are people with extensive experience in

conduct of industrial relations and they are not

required to have legal or other qualifications

other than their extensive experience.

Section 10 provides for the various ways in

which the powers of the Commission may be

exercised. The Commission in court session may

exercise certain powers; that is, when it is

constituted by a president or a legally qualified

deputy president. There is the Commission in full

session and that must comprise three or more

members, one of whom must be a president or a

deputy president, and it may exercise its powers by
deputy presidents or commissioners sitting alone. Section 11 is an important, though not the

only section that confers power on the Commission,

and the Court will note that section 11(1) is

mainly concerned with appeals and machinery matters

important though they be. The only industrial

matter that, by section 11, the Commission may hear

and determine is the matter referred to in ll(l)(e)

and that is:	any industrial matter referred to it under
this Act by -
(i) the Minister,
(ii) a Board; or

(iii) the chairman of a Board.

Those powers may be exercised by a commissioner or

deputy president sitting alone where it appears to

the president that that should happen.

Downey (2) 6 13/11/90

Section 12 deals with the powers of the

Commission in court session. And then we come to

section 12A which is at the centre of one of our

-~a.r.guments because it confers, it is submitted,

~ ._and determine industrial disputes of any nature. -~ '-Criginal ju~isdiction upon the Commission to hear

Section 12A was inserted in 1987 but its predecessor which was in force at the time of

Slonim v Fellows, and I think since the Act was

enacted was in essentially the same terms except
that it did not allow all members of the Commission

to determine matters; but the jurisdiction was

essentially the same. And it reads:

A member of the Commission sitting alone may

hear and determine -

(a) at the direction of the President, any

industrial dispute or any matter referred to

the Commission under section ll(l)(e) - The "or" is, in our submission, disjunctive so that

the matter that the Commission may hear, sitting
alone, is not just an industrial matter referred to

the Full Commission by the minister, et cetera, it

is any industrial dispute which the president

directs may be so heard.

Section 12A is, in our submission, an original jurisdiction. That is made clear by reason of a

number of circumstances.	12A(2) provides, for
example, that:

An award, order or determination made by a

member of the Commission sitting alone, is

subject to appeal to the Commission in full

session.

So there is the ordinary appeal process and, of

course, it is called an award. The power of the

Commission in full session to determine an appeal

was conferred at the same time as section 12A

itself was enacted. That appears from the marginal

note. If the Court would go to section ll(l)(fa),

it will see the marginal note was inserted by Act

No 28/1987 and it confers power on:

The Commission in full session -

to -

hear and determine -

Downey (2) 7 13/11/90

any appeal under this Act against an award,

order or determination made by a member of the

Commission sitting alone -

~ ~onferred upon it, when the president so directs, _~§._o, stopping-there, if I may, the Commission has ample jurisdiction to hear and determine any

industrial dispute and it may make awards to that

end and those awards are subject to appeal.

The Act contemplates that the Commission,

itself, may make awards.	The definition of award
in section 3(1) is that an:

"Award" means award of a Board or of the

Commission.

And in some amendments introduced a little later to

give effect to the notion, or what is termed the

complementary industrial relations systems, it is a form of trust vesting, in section 46E on page 35 of

the print, it is plain that the Parliament had in

mind that there would be a commission jurisdiction

and a board jurisdiction.	The language of 46(l)E
is as follows:

The President may -

et cetera, et cetera, refer a matter -

to a member of the Federal Commission the

whole - - -

McHUGH J:	What section is this, Mr Black?
MR BLACK:	Section 46E on page 35 of the print. I think

Your Honour may not have the right - - -

MCHUGH J:	No, I have got it.
DAWSON J:	You said, 46(l)(E), it is 46E(l)?
MR BLACK:	I am sorry, Your Honours, I meant 46E(l). The

words at the end of 46E(l):	refer to a member of the Federal Commission
the whole or any part of an industrial
dispute -

et cetera -

which under this Act is at the time of the

reference within the jurisdiction of the

Commission in Full session, a member of the

Commission sitting alone or a Board.

Downey(2)

What we say flows from that is that the Parliament

intended that the Commission itself should, subject

to the direction of the president have an original

-·.-iMustrial relations jurisdiction, and it may make

-- ,iWards - - - -

~ . ,.._

GAUDRON J: Industrial matter is not defined, Mr Black?

MR BLACK:  No, it is not, Your Honour, only industrial

dispute is defined.

GAUDRON J: There is no distinction to be drawn between the

two terms in your submission?

MR BLACK:  Your Honour, I hope I am not impertinent saying, not relevantly to our argument.

The other indication that the Commission

should have ample original jurisdiction in

appropriate cases, comes from the machinery

provisions of section 12B and following and if I

could run through those very quickly indeed.

Section 12B provides for compulsory conferences;

section 13 just a usual provision that proceedings

should be in public; 13A provides for intervention

by the minster; 14(1) provides for appearances and

the usual restriction on counsel and solicitors

without consent;	14A gives the minister power to
appear;	15 is the fairly common type of section in

respect of industrial tribunals, about procedure

and evidence and regulation of its own proceedings
and then 16 and following deal with the appellate

jurisdiction of the Commission on appeal from

boards. So that, shortly expressed though it be, is

the essence of the provisions dealing with the

Commission itself.

Part III of the Act then deals with boards and

these are the descendants of the old wages boards

and the part commences with section 24 on page 18

of the print. Section 24 provides that:

(1) The Commission may from time to time by

order -	(a) appoint one or more Conciliation and
Arbitration Boards for any trade or branch of a trade or group of trades;

"Trade" is defined in section 3(1) to include, if I

may say so, virtually anything. It is "any

trade, business or occupation" or words to that

effect.

DAWSON J: Boards are not part of the Commission?

MR BLACK:  No.

Downey(2) 9 13/11/90

DAWSON J: But they are chaired by a commissioner?

MR BLACK:  They are chaired by a commissioner and in brief

-~stance, the boards comprise equal numbers of

-~ ~epresentatives of what ,I might loosely describe as

~ ._employee interests and employer interests, and the

commissioner sits figuratively, or actually, in the

middle, as the chairperson of the board, and that

is a reflection of the old Victorian system dating
back to the 1890s, the first Factories and Shops

Act, I think.

Boards, however, need not be appointed.

Obviously they will be and they have been and a very large number have been, but the Act does not

proceed upon the basis that boards will be

appointed for every trade and there are obviously

some trades for which they have not been appointed

and hence, in one of its aspects, this case. The

Act goes on to deal, in sections 26 and 27, with

the constitution of the boards and in section 28

with the term of office of the members.

DAWSON J:	You mean there could be a trade of managers?
MR BLACK:	Yes, indeed; absolutely, Your Honour, as any

trade or occupation, and when one considers

the - - -

DAWSON J:	The trade of managing directors.
MR BLACK:	Yes, there could be.
McHUGH J:	Trades defined include business.
MR BLACK:	Business or any occupation, I think I am correct in saying that, Your Honour. Yes, there could be a trade of managing directors. There certainly could
be a trade of managers.
DAWSON J:	Judges, unless it is employee or employers ..... I

do not know.

MR BLACK:  It shows what horrible things one can do to

language, Your Honour, to think of such a concept,
but there could be a trade of commissioners.	It is
really not surprising when one thinks of the

horrible industries that one finds in the federal
industrial relations system, the horrible

definitions of industries and callings, and so

forth. This does not even require that degree of

violence to the language. There could be a trade

of managers. There is absolutely no reason why

not, but there is not a board for managers.

The result of that, according to the

Full Court, is that managers cannot claim relief,

Downey(2) 10 13/11/90

and I will come to that in a moment, but nor, of

course, can any other form of employee for whom

there is no board appointed. The Act goes on to

--:-<Nal with the appointment, and so forth, of

-~ '"eommissioners, and then it comes to section 34, a

~ -section at-the centre of one of the arguments which

provides in section 34(1):

Every Board shall have power to make an award

relating to any industrial matter whatsoever -

the "whatsoever", I am bound to say, is not in section 12A, but does not add anything, in our

submission -

in relation to a trade or branch of a trade or

group of trades for which that Board is

appointed and in particular -

and then various matters are set out. Section 34,

as originally enacted, did not contain what are now
subsections (5), (6) and (7), and they are the

sections that constitute the principal part of the

Code that the Full Court found to .be determinative

of one of the questions in this matter.

McHUGH J:	Can I ask you this: has the board a power to act of its own motion, as do the conciliation
committees in New South Wales, or can it only act
when it has a lease in front of it, either by way
of notification?
MR BLACK:	Your Honour, I confess not to have the answer to

that at my fingertips. I do not think it can.

That is my impression, but I will check that,

Your Honour.	I am sorry I cannot answer
Your Honour's question directly.	I do not think it
can.	I think it has to be enlivened by some form

of application, or I think it may be that the

president may refer a matter to a board.

Mc HUGH J: Yes .

MR BLACK:

We say, of course, the Commission may act on its

own motion if the president so directs, but not

necessarily a board. The system is very very

different from the - certainly the federal system

and what limited knowledge I am afraid I have of

the New South Wales State industrial system.

My learned junior reminds me that

section 44(5) provides that:

If the existence of an industrial dispute

comes to the knowledge of the President or a

Board other than by notification ..... the

Downey(2) 11 13/11/90

chairperson may, and, if directed by the

President, must, proceed as if -

~tice had been given. So I think that does

__ ~nswer Your Honour's question and my impression was

~ ~ubstantial1y wrong.

DAWSON J:  So that in a sense a board operates - at least in

its original jurisdiction - may operate quite

outside the system that established the

Commission - - -

MR BLACK:	Yes, indeed.
DAWSON J:	- - - has an independent function
MR BLACK:	The two certainly interact, and matters before boards, as I will seek to demonstrate to the Court,
may be referred to the Commission, as indeed
happened here. In one instance, if the
jurisdiction of the board is "invoked", we would
say one invokes jurisdiction by calling upon it. One does not necessarily have to establish ultimate
jurisdiction to hear and determine a matter before
one invokes it.  I will come to that later in the
argument.

McHUGH J: Well, if a dismissal matter was properly before a

board, could the president give a direction that

that matter be heard by a member of the Commission?

MR BLACK:  Yes, that would happen under section 44. Indeed,

under section 44(4) a party has a right to apply to

the president for an order referring the matter of
the dispute to the Commission for hearing and

determination.

McHUGH J: That is a reference, but could the president of

his own motion direct that a matter be heard by a

member of the Commission under 12A?

MR BLACK:  I think theoretically yes, he could. There is no

reason why he in law should not.

unqualified. 12A is just

DAWSON J:  So there could be two sitting hearing the same

matter at the same time?

MR BLACK: Well, Your Honour, there would be no doubt - if

the matter were properly within the jurisdiction of

one, then since it is the one matter, we would say

\	that it could then not be heard by the other.
DAWSON J:	Why, if the board operates outside the

Commission?

Downey(2)	12	13/11/90
MR BLACK:	I see what Your Honour says.	The practical

answer would be in many cases that a party would

invoke the power to apply for a reference, and if

-. t--Ae presiden~ wants to hear it, then no doubt he

-: ,rould grant_the application. It does not fully

~ ._answer Your Honour's question, and I appreciate

that.

I will come, if I may, to the complexities -

which, I confess, do exist - of section 34 and

section 37 which gives other powers to refer and
section 44 in the second limb of the argument but I

was concerned to give the Court an overview of the

provisions of this legislation first and that will,

indeed, save me going in great detail to some of

the matters when I develop the substance of the

argument.

Now, the argument falls into two parts. The

first argument is that there was indeed an

industrial dispute in this case irrespective of the

fact that there was, as was found at all levels, no

external agitation in support of Mr Downey's claim.

The starting point of the argument is that

section 3(1) of the Act is in very wide terms.	The
width of the original section 3(1) was noted by members of this Court in Slonim v Fellows. I should give the Court a reference to Slonim v

Fellows, I apologize for that. It is reported in

(1984) 154 CLR 504 and I will take the Court to

that case in a little detail shortly.

The width of the definition of section 3(1)

was noted in that case and the members of the Court

observed that it would, of course, have to be read

down by reference to the concept of an industrial matter otherwise it would be beyond the scope and

object of the Act and so forth. But, it is very

wide in terms and it does not, in terms, require

any external agitation for there to be a dispute,

that is to say a dispute that is an industrial

dispute, and we say that, focusing on the word

"dispute", as a matter of popular conception, a

dispute does not involve of itself, necessarily,
any external agitation.	One can have a dispute

with one's neighbour in the most polite terms

constituted by the delivery of a polite letter

about the overhanging tree and a polite refusal to

remove the overhanging branch. One can be the best

of friends but still be in dispute. There does not

need to be any external agitation, as a matter of

ordinary English, for there to be a dispute.

Nor, we would say - and drawing heavily, of course, on federal experience - need there be any

external agitation for there to be an industrial

dispute. A dispute may, as a matter of language of

Downey(2) 13 13/11/90

this Act and ordinary conception, be constituted by

the making of a demand that is not acceded to,

which is what happened here although the demand was

-~~de in the Commission and the proceedings - the

__ c.f_efusal, of course, is to be inferred by the

~ ~onduct of_the parties in the Commission itself;

the sort of thing one would expect in an industrial

situation where the problem is the dismissal of an

individual employee who, in this case - as, no

doubt would happen in all sorts of cases - did not

have popular agitation on his side.

The next point in the argument is that - and,

again, the argument focusing only on the words of

the Act, the exact words for this purpose - the

definition contemplates that there may be a dispute

between an employer and only one of his employees,

so one can, in the Victorian system, have what may

popularly be termed a one man or one person

dispute. That indicates, in our respectful

submission, that the Victorian concept of

"industrial dispute" involves no element of common

cause and we say that that sits readily with the

notion that there need be no actual or threatened

disputation and, of course, under the Victorian

system, an industrial dispute does not have to

involve, in any way at all, any activity on the

part of an association of employers or employees.

Such associations are recognized and are part of the system but quite clearly, in our submission,

one can have in the Victorian system a dispute as a

matter of exact statutory definition between an

employer and one of his employees and that was

always the case before the amendments.

Therefore, we say, no external agitation

needed. All that is required is a dispute with the

requisite industrial character.

DAWSON J: Being?

MR BLACK:  Being a dispute pertaining to the relationship of

employer and employee. The character was so

defined under the original definition in Slonim v

Fellows, (1984) 154 CLR SOS, and might I now take

the Court to that case. That arose out of a claim
for reinstatement by a teacher who claimed that her
services - or her services had been lawfully

terminated but she alleged:

that the termination was harsh, unreasonable

and unjust -

and she went to an arbitration board relevant to

her trade seeking reinstatement under section 44.

Section 44(1) provided then, as I think it does

now - just to make completely sure, it is set out

Downey(2) 14 13/11/90

towards the bottom of the page:	in the judgment of Sir Harry Gibbs at page 507
-·- .......	(1) Where it appears to an employer -

;:-:-,.._.;t cetera -

that an industrial dispute has arisen ..... he

shall inform the registrar -

(2) The registrar shall forthwith inform the

President -

et cetera -

(3) If the Board is unable to settle the

matter of the dispute by conciliation the

chairman shall proceed to determine the matter

by arbitration.

Now the Chief Justice of Victoria, Sir John Young, had held consistently with an

earlier decision of the Full Court of Victoria

in Reg v Marshall ex part Plumrose, (1983)

1 VR 469, Plumrose's case, that there was no power

to order reinstatement because the notion of
reinstatement was simply outside the notion of.what

could be done in an industrial dispute under the Act. That indeed was the view of the board. It

declined to exercised jurisdiction. The

learned Chief Justice of Victoria upheld that view

of that decision and the applicant obtained special

leave to appeal to this Court, no doubt because the

Full Court had already decided the matter in a

different context.

Now, the judgment that commanded most

acceptance was that of Justice Wilson. It was a

judgment with whom Your Honour the learned

Chief Justice and Your Honour Justice Deane agreed,

but might I start with the judgment of the former

Chief Justice Sir Harry Gibbs at page 508. At the bottom of the page, His Honour said:

An industrial dispute in the ordinary sense of

the words is, in my opinion, for the reasons

which I gave in Federated Clerks Union of

Australia v Victorian Employers' Federation, a dispute which arises out of or, in the course

of, the relationship between employer and

employee as such. It will not be enough if

the connexion between the subject of the
dispute and the relationship of employer and

employee is remote or indirect.

Downey(2) 15 13/11/90

And then going to the heart of the matter at page 510, reading from the middle of the page,

His Honour having referred to Plumrose's case said,

-~~ about poi~t 6 of the page:

-......:.- ~

~ ,.._	It is-true that the power to order the
reinstatement of a dismissed employee can be
regarded as an interference with an employer's
ordinary rights, but it is apparent that the purpose of the Act is to give the Boards and
the Commission established under the Act wide
powers to affect the common law rights of
employers in cases where an industrial right
has arisen or an industrial matter exists. I
can see no reason in principle why the conception of industrial dispute in its
ordinary sense should be so narrow as to
exclude a dispute as to the fairness of the dismissal of an employee. The legislature of Victoria is not subject to the constitutional
constraints that might lead to a different
conclusion -

et cetera -

and the Act itself is widely drawn, and

contain no indication that a more limited
construction was intended.

In my opinion an industrial dispute in

the ordinary sense had arisen in the present
case -

I should read on -

To come within the definition ins. 3(1) of
the Act the dispute must, however, be (amongst

other things) between an employer and one or

more of his employees ..... In the present

case, the applicant was no longer an employee

This is, of course, before the amendment -

since her employment had been terminated.

And then His Honour points to facts in that case

which were distinct from the present case. There
was, in fact union - I will paraphrase it. There was union agitation in support of the employee so

there was an industrial dispute in the broadest

sense. At the end of his judgment, His Honour said

this:

The duty to determine the matter necessarily

carried with it the power to make the

determination effective; the Board therefore

Downey(2) 16 13/11/90

had power to order the reinstatement of the

applicant if it decided that such a course was

appropriate. It follows that the Board

---- ~ wrongly_declined jurisdiction.

;..~~~

Then tne judgment of Justice Wilson, the

passage to which we desire to refer is at page 513.

His Honour, towards the top of the page, refers to

the definition as it then stood and said:

In terms, the definition is extraordinarily

wide.

And then said that it:

must be read down by reference to the Act as a

whole and so read must be confined to a

dispute of an industrial nature.

And then referred to the Social Welfare Union case.

On the next page, His Honour referred to the

problem of there being a former employee but that

problem did not exist in the present case. I will

have to come back to that. Then, at page 515, in

the middle of the page, His Honour said this - in

holding that Plu.mrose was wrongly decided:

a clear distinction should be drawn between

employment of a person and reinstatement of a

recently dismissed employee.

I should say that the Full Court in Plu.mrose said that what the dispute was about in that case was

really about who should be employed and therefore

it was outside the concept of an industrial matter.

His Honour held that that was the wrong view.

As the court rightly observed, the power to

direct that A employ Bis a very drastic one.

It is not lightly to be inferred -

et cetera.

But the difficulty of drawing such an

inference is perhaps very much less in a case

where, in the context of arbitrating a dispute

concerning the fairness of a recent dismissal,

a claim for reinstatement is made. The fact

that industrial legislation in other places

may expressly confer such a power does not

necessarily deny its availability in the

absence of such express mention; on the

contrary it may serve to identify such a

remedy as forming part of the recognized
armoury of available remedies in the modern

pursuit of harmonious industrial relations.

However, it will always be a power to be

Downey(2) 17 13/11/90

exercised with caution having regard to the

circumstances of the case. There will be many
cases where the working relationship of

----- .:....... employer and employee is so close that to

--:;.._

impose_such a relationship by an award would

~ -	be quite destructive of industrial harmony.
we might add, perhaps as a footnote to that,

that in such a case it may be impossible to resolve

the industrial dispute by reinstatement but the

industrial dispute will still exist and will need
to be resolved by some other weapon in the

industrial armoury and I will take the Court,

later, in another stage of the argument, to a case

in Victoria where that happened and where, if the

Code argument is correct, that apparently could not

have happened. It was a case of a person who the

fellow employees in the unions would not have back

even though it had been found that the allegations

made against him about sexual harassment and the

like were groundless. The dispute could not be

resolved by ordering his reinstatement but one

possible method of resolution was to give him some

compensation.

McHUGH J:  I do not follow what Mr Justice Murphy's

criticism of this accord in Slonim is concerned

with. Do the amendments have any relevance?

MR BLACK:	Well I think, Your Honour, what His Honour had in mind was that if the court had known of the passage
of the Act and it is, with great respect, asserted
that the court did not know, folklore suggests that
it did, but I have not checked the transcript of
argument. It woµld seem surprising if the court
was not· told about it, because it was then old - -

McHUGH J: When did the legislation come into force?

MR BLACK:  The legislation came into force in December 1983.

I will give Your Honour the exact date -

McHUGH J: Well, the critical question is whether the board

had jurisdiction on 26 April 1983.

MR BLACK:  Yes. Your Honour I think His Honour

Mr Justice Murphy was thinking of a comment that

Mr Justice Brooking had made in an earlier case,

that if the court had known of the later amendments

it might have been able to interpret the earlier

Act by reference to the intention of the Parliament as disclosed by its later amendments. I think that

was the point that His Honour was trying to make.

We would submit that trrat court would not have done

that, but that was the cause of His Honour's vexation on the authority of the judgment of

Justice Dixon in Grain Elevators Board v Dunmunkle

Downey(2) 18 13/11/90

I think, about 79 CLR. So that the argument would

have had to have been that the 1983 Parliament -

that is a different Parliament from the 1979

-: Pa-rliament -_would have thrown some light on what

-'-:- "the 1979 predecessor had intended. We submit that

~ -could not have been done in the circumstances.

MASON CJ:  But frequently cases are conducted in this Court

on the footing that counsel says there is a later

amendment, but it does not touch the question that

arises in this case.

MR BLACK:  Yes, indeed Your Honour, I - - -

MASON CJ: It disappears out of it.

MR BLACK:  With respect, Your Honour, that is entirely what

we would say and Mr Justice Brooking in a case

called Casamento, which is unreported, but deals

with essentially the same point, was - - -

MASON CJ:  I think the passage from his judgment is quoted

in the judgment that you have handed up to us.

MR BLACK:  Yes, it is and people, to put it colloquially,

get something of a caning, we would - - -

MASON CJ:  You have managed to inflame me sufficiently by

drawing my intention to this judgment. I have no

doubt that is the desired purpose, Mr Black.

MR BLACK:  Not at all, Your Honour. I never sort to inflame

the Court in a previous case, although with

profound respect, it is suggested that I was trying

to - - -

DEANE J:  Mr Black, on your argument about industrial

dispute and relating to industrial matter, where

would a claim by an employee for damages for an

industrial accident fit in?

MR BLACK:  It would not be within jurisdiction, because it

would not be an industrial dispute within common

conceptions. Now having said that I appreciate

that the definition that I gave, which I

paraphrased from Slonim v Fellows, would as a

matter of words perhaps encompass such a matter,

but, Your Honour, we would say that an industrial

tribunal would simply, as a practical matter,

shrink from such an extention. Similarly, some of

the disputes that the members of the Full Court

referred to simply would not be regarded by an

industrial tribunal as "industrial dispute".

Your Honour, I can give no other answer than that.

It would simply be experience and perception,

rather than perhaps strict logic in the application

of the definition.

Downey(2) 19 13/11/90

So what we derive from Slonim v Fellows is

that the Act as it existed in 1983, it was plain

then and we submit it is plain now, that a

~CQ.ntested claim for reinstatement has the necessary

__ -J:ndustrial character. So all other things being

~ .,._equal, any body that has power to deal and settle

an industrial dispute can order reinstatement. If

that is so, was there an industrial dispute here?

In the absence of any implied necessity for

external agitation, we submit there was, and might
I invite the Court to turn briefly to the facts.

Deputy President Marsh, at page 009 of the appeal book in his conclusions says at about line 16:

It is very plain that under section 3 of the

Act an industrial dispute in the relevant

sense can include a dispute arising between an

employer and an employee when the employee

alleges the dismissal is harsh, unjust and

unreasonable and places a demand on the

employer for re-employment.

Now, that is what happened here although the demand

was placed through the activation of the mechanisms

of the Commission. Mr Justice Murphy dealt with

the matter at page 32 of the appeal book, at the

top of the page, where His Honour said:

The present application to the Registrar

is an application on its face made pursuant to

s.~4(7), and s.44(2), seeking reinstatement

and, invoking powers which, if they exist at

all, would seem to be found in s.34(5) of the Act, which gives a power to a Board to direct

an employer to re-employ an employee, but only

in certain circumstances.

Now, the form that was used to create the dispute

was the standard printed form, it is reproduced at

the top of page 23 and it is in Mr Justice Murphy's
judgment and it simply recites the sections, refers

to harsh, unreasonable, unjust dismissal and makes

the allegation and requests that the "Applicable

Board" be convened to deal with the matter. Now, that demand which we say was a demand was

not acceded to and was contested by the employer.

It is a paper dispute and, in our submission,

consistently with the aspects of the definition of

"industrial dispute" in this Act, that is an

industrial dispute.	Where - I am sorry,
Your Honour.

DAWSON J:  I was just going to say, I am not entirely sure

what you mean by external agitation.

Downey(2) 20 13/11/90

MR BLACK:  Some manifestation of an industrial dispute other

than - - -

DAWSON .L:.. _what, a st~ike or a - - -

MR BLAtKf"'-- A strike -or rumblings of a strike a threatened,

impending or probable strike; some sort of

support, some sort of industrial disruption, some

what the court called an additional factor other

than the employee, the single employee who as I

have sought to show can be a party to an industrial

dispute under this Act saying, "This is my claim"

and the employer rejecting it. In other words, a

one person paper log though in the context of

reinstatement. We say that can be an industrial

dispute even as a matter of modern parlance but

certainly as a matter of interpretation under this

Act.

Can I just briefly deal with the policy

arguments in a non-inflammatory way. Were it

otherwise the objects of the Act would be furthered

by those who were popular and who could get people

on side; those who are members of unions that

supported them and jurisdiction could not be found

unless by the quiet employee who had no supporters

or had a union that was not interested in him or

her or had a union that was a small union in a

disorganized work place which would be a strange

way of achieving the objects of the Act which

implicitly are to promote industrial peace and

harmony. So, that it would be worse than the

criticism made of the Federal system that one has

to create the malady before applying the physic.

You would have to create not just a paper malady

but an actual jumping up and down type of malady

and we say that cannot be consistent with the

objects of the Act.

Now, it is to be put against us, as my learned friend was good enough to tell me in advance - and

this was a point that the Full Court implicitly

found in our favour - that the dispute that we

claim was shown was not the right sort of dispute because it was a dispute between a former employee	and his employer, and that the problem adverted to
by Justice Wilson in Slonim v Fellows and noticed
in other cases in this Court, of former employees
and current employees, was not solved by the
amendments to section 3(1) that begin with the word "includes".

Can I take the Court first to what the Full

Court said about the matter. His Honour

Mr Justice Murphy dealt with it at page 35, and I might usefully refer to it because His Honour sets

out the passage in the judgment of Justice Wilson

Downey(2) 21 13/11/90

in Slonim v Fellows. In the middle of the page he

refers to the doubts that Justice Wilson expressed,

and then His Honour Mr Justice Murphy continues:

....., ___	...._
_,.__ ~	Thts latter doubt may I think, be thought

~ ,._

to be-resolved by the addition of the words

"and a dispute arising from the dismissal -

from his employment of an employee" by s.4 of

Act 10000 of 1983 unless, of course, it is

intended by these words to include only

industrial disputes, popularly understood,

such as threatened stoppages, bans or any form

of disruption .

DAWSON J: Well, that is not the problem, is it?

MR BLACK:  No, it is not a problem and - - -

DAWSON J: It is not the problem that you have to confront.

MR BLACK: No, it is not. We would respectfully say though

that His Honour was in error in saying, "It is a

matter of popular understanding", certainly to

industrial lawyers, that an industrial dispute has

to have people jumping up and down. We would say

nor does a fencing dispute have to have people

jumping up and down.

DAWSON J:  The problem you have to confront is that it still

has to be a dispute between an employer and an

employee, and it cannot be where the employee has

been dismissed, although others may, in fact, raise

an industrial dispute about that dismissal.

MR BLACK:  Yes, well that, Your Honour, is the advance

notice of cross-contention that has been given to
us, and if I may, with the leave of the Court, deal

with it now rather than in reply - I am in the

hands of the Court.

MASON CJ: Yes.

MR BLACK:  The problem, in our submission, is, in fact,

solved as it was doubtless intended to be by

Act No 10000, by the inclusion of these words in

the definition:

and includes a threatened ..... dispute -

et cetera -

and a dispute -

I think I have read too much into the - the

additional words certainly included these -

Downey(2) 22 13/11/90

and a dispute arising from the dismissal or

threatened dismissal from his employment of an

employee.

_.,:...;._ .a...._

~-:-,..:Now, it is ~-"means and includes" type of

definition-which Professor Pearce says is something
that should be eschewed by everybody because two

conflicting concepts come into conflict. But if

one says that because the definition starts with

"means" that therefore "includes" is really part of
"means" and reads it as a "means" dispute, it still

satisfies our case because it then means -

a dispute arising from the dismissal or

threatened dismissal from his employment of an

employee.

"Employee" in that sense naturally means and

naturally includes a former employee. It cannot

be, in our submission, and the language used, that

all the "means" part of the dispute is a

qualification of the "includes" part of the
definition because to do so would narrow the

concept that was intended to be included; and if

that were intended, then different language would

have been used. I can say no more about it. It is

either - and I will not labour the point - but that

is how we put it. But we are able to obtain

assistance from other sections in the Act

introduced at the same time which, in our

submission, confirm that what the legislature had

in mind was a right to a former employee to raise an industrial dispute about his or her dismissal.

McHUGH J: Well, in the comparable field of workers'

compensation, there are a series of cases in

New South Wales and Victoria which hold that a

dismissed employee or an employee whose employment

has been terminated is still entitled to the

benefit of the journey provisions of the Act even

though, strictly speaking, he is not an employee on

his way home from - - -

MR BLACK:  By reference, as I understand Your Honour, to the nature, scope and object of the legislation?

MCHUGH J: Yes.

MR BLACK: Well, so too, here. This was a - and I use the

word "reform" and, indeed, it was. It was

something that was designed to overcome what was

thought to be a restrictive view, and it would be

odd, in our submission, if a former employee could

not obtain relief and yet if the employee was given

sufficient - an hour's notice - to go up to Nauru

House and fill in the form before the axe fell, there would be jurisdiction and it would equally be

Downey(2) 23 13/11/90

odd if the employee who was the loner, not a member

of the union or an out of favour member of the

union or whatever, could not get relief because he

_._. o~ she could not ferment agitation and the other

--:---person cou1~-and we rely upon legitimate policy

~ ._objectives-to enable the words to be read as, in our submission, they can be read if they are not

qualified by the means part of the definition.

If all that is against us, and "means" means "means" all the the way through, then the relevant

provisions read "and means a dispute arising from

the dismissal or threatened dismissal from his

employment of an employee".

There are two further aspects of the argument and they are these: in section 34(5) and

section 34(7) introduced at the same time as the

extended definition - sections to which I will have

to take the Court in a little detail in the second

part of the argument shortly - it is, in our

submission, fairly clear that the legislature had

in mind that a dismissed employee was an employee

for the purposes of this Act.

If I might turn first to 34(5), at page 27 of

the print:

A Board may hear and determine any question in

an industrial dispute as to whether the
dismissal or threatened dismissal from his
employment of an employee, not being an

employee who has under any Act or law a right

of appeal ..... was or would be harsh, unjust or

unr.easonable and the Board may direct the

employer of that employee to re-employ that
employee -

Now, it is just using "employee" in the broad sense

as obviously including "former employee" and the

legislature has not thought it necessary to draw

the distinction. In subsection (6), there is a

limitation on the amount of compensation that may

be paid in a reinstatement case, but only in a

reinstatement case, and subsection (7) provides:

The Board shall not, in the case of a

dismissal, exercise the jurisdiction conferred

upon it by subsection (5) unless an

application invoking that jurisdiction is made

to the Registrar, by or on behalf of the

dismissed employee -

Now, that indicates, in our submission, that the

legislature had in mind that a person who has been

dismissed without more and who can claim dismissal

was harsh - was unfair - can simply come along to

Downey(2) 24 13/11/90

the Commission and make the application

irrespective of whether - even though the employee

might on one view and, no doubt, in truth for some

~PUrposes, be_termed a "former employee".

~'-:-..,.,_,_,,,_ The other section from which we would seek to

draw comfort is section 44(2) which reads:

The registrar, upon being informed pursuant to

subsection (1) of an industrial dispute or

upon receiving an application pursuant to

section 34(7) -

That is the section that the employee applies

under.

So those indications, we say, together with the general purpose of the section but, above all,

its words, indicate that that aspect of the matter

was correctly resolved in our favour by the Full

Court.

DAWSON J: What is the section in the Interpretation of

Legislation Act which refers to - - -

MR BLACK:  Section 35A, Your Honour. I had the copies made

of that section alone and might I - - -

DAWSON J:  35A?

MR BLACK: It is 35A. My friend is correct, 35(a). Might

I hand just that part to the - the Court has it.

As has been observed, it is a broad section and it

does not circumscribe the circumstances under which

consideration may be given to such matters. It

just leaves it quite general, unlike the

Commonwealth Act which has conditions in it.

So for essentially those reasons, we say that

on the first argument the Full Court was wrong.

The court was greatly influenced it would, in our

respectful submission, appear by two things: the

managerial status of the particular applicant in

this case and by the apparent width of the power;

and that appears from the judgment of

Mr Justice Murphy at page 37 and from the judgment

of Mr Justice Brooking at pages 40 and 56.

There are countervailing considerations

bearing upon those matters. In the case of Hyman v Binskin Mason Green, which I handed to the Court, a decision of Mr Deputy President Lawrence,

unreported of 24 May 1990, the learned deputy
president had to deal with a case which involved

the same problems as Downey's case, except the man

was an auctioneer manager, and it had, I think,

Downey(2) 25 13/11/90

virtually been completed when the Downey decision,

on appeal, came down.

-_-· ,._ It was argued by counsel for the worker that

-- ~he Downey v-Trans Waste decision did not apply.

~ -rt was a v~liant and quite hopeless attempt to

distinguish it and in the course of dealing with

the matter the learned deputy president displayed

great independence and critically analysed the Full

Court's decision, indicating however that he was

bound by it, as indeed he was.

In the course of doing so, I do not desire to

rely upon the case, of course, as authority for any

proposition but it does contain, in our submission,

authoritative statements of the relevant industrial

position in Victoria and, in substance, what the

deputy president says is that - the policy

arguments essentially - the problem with the Full

Court's decision, as a matter of the objects of the

Act, is that people who are not covered by boards

or who cannot foment industrial disputation on

their behalf are remediless and that can be put

properly and improperly. We put it only properly

as being odd in an Act which, as Your Honour the

Federated expect to be interpreted broadly, dealing with the

learned Chief Justice remarked in the

resolution of industrial disputes, it would exclude

a lot of people from jurisdiction for no other

reason than, in a sense, industrial happenstance.

The learned deputy president also observed

that there were over half of the work-force who

were not members of unions, there were people for
whom there were no boards and really there is a gap

in the legislation if the Full Court's interpretation were right; a gap that

Mr Justice Brooking himself acknowledged might

exist, and the deputy president deals with that at

pages 60 and 61 of his decision.

MASON CJ: What really was the point of this very lengthy

judgment which seemed to have as its principal

purpose the criticism of the Full Court decision?

After all the conclusion was that the tribunal was

bound by the Full Court's decision.

MR BLACK: It was, Your Honour, and I cannot answer that

question.

MASON CJ: It seems to be a pointless exercise.

MR BLACK: Well, Your Honour, it certainly w~s a very

lengthy and very critical thing and one may

question whether the matter should have been

Downey(2) 26 13/11/90

expressed in those ways; but it was and we rely

upon it as indicating background industrial facts,

relevant to be taken into account on the policy

-·-: ar.guments. ~ow, I put it no higher than that?

-,:::-~

The otner matter that the Court was concerned

with was the width of the jurisdiction in unfair
dismissal cases. Might I take a moment to deal

with that because it is based, in our respectful

submission, on the misconception of industrial

notions. In the middle of page 36,

Mr Justice Murphy says:

But if all that occurs is that the dismissed

employee seeks for whatever reason he chooses,

to be reemployed and makes application to the

Registrar, and there is no industrial unrest

to which to point, I doubt that it was
intended that the Commission or a Board

thereof should act.

The point about that criticism, or that

approach, is that it ignores completely the

circumstance that industrial tribunals only act and

can only act where there is an unfair dismissal;

where there is some industrial aspect, and some

industrial problem, to remedy. So it is not the

open door to disappointed managers that the Full

Court thought it was. It is a door that will only

ultimately open to people who can establish, within

industrial principle, that their dismissal was

harsh, oppressive or unreasonable, whatever the

words are. So that the power is not one that is

confined by floodgates. It is a power that when

exercised in the principled fashion is simply, as

Justice .Wilson referred to it as, one of the useful

weapons in the armoury of industrial relations.

There is one final issue on this point which I

assume will be raised against us and which I would

like to perhaps answer in advance, and that is that

it is said the power or the nature of the

industrial dispute that attracts the unfair

dismissal jurisdiction must be limited because, in section 34(5), the board that is given power to hear and determine the matter is given a power to:

hear and determine any question in an

industrial dispute -

and so it is said that that is an indication that

there must be some wider dispute because the power

is only a power to determine the question within

the wider dispute.

The answer to that, in our submission, is a

very short one and that is, the industrial dispute

Downey(2) 27 13/11/90

is constituted by the demand and its rejection.

The question in the industrial dispute that the

board is empowered to consider is the central one,

~~-that is to say, whether the dismissal which is at

-~- cthe heart of-the dispute was in fact harsh, unjust

~ ""or unreasonable. That is the answer to it, in our

submission. If we have done justice the point,

that is what we say is the answer to it.

So, that is the first hurdle that we have to

persuade the Court we should overcome. There is

another and might I now turn to the second part of
the argument.

Essentially, we say, that the Full Court's decision that section 34(5) to (7) constitute a

remarked upon by this Court, to exist as it does in

section 3(1). One would expect such a narrow

conception of an industrial dispute to be

specifically defined; and secondly, were it only

to be a board-based system of industrial
regulation, one would not have found in 1987 when

section 12A was amended the insertion of section

ll(l)(fa) which gives specifically to the

Commission in full session an -

appeal under this Act against an award, order

or determination made by a member of the

Commission sitting alone -

that is to say, made under section 12A(l), which

was introduced by the same legislation.

So whatever was the position, at the times

relevant to this appeal there was conferred upon

the Commission, in our submission, an original

jurisdiction, and the confirmation of that is to be

found in section ll(l)(fa).	May it please the
Court.

MASON CJ: Thank you, Mr Black. The Court will consider

its decision in this matter.

AT 3.51 PM THE MATTER WAS ADJOURNED SINE DIE

Downey(2) 79 13/11/90