Downey v Trans Waste Pty Ltd

[1990] HCATrans 135

~

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MlO of 1990

B e t w e e n -

PATRICK CORNELIUS DOWNEY

A??:.~22.:--~:

and

TRANS WASTE PTY LTD

R.e s :)L:-'..~c~-=

Application for special

leave to appeal

DEANE J
GAUDRON J

McHUGH J

Downey

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 10.34 AM

Copyright in the High Court of Australia

MlTS/1/PLC 1 8/6/90

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

learned friend, MR L. KAUFMAN, for tne applicant

in this matter. (instructed by Phillips Fox)

MR K. HAYNE, QC: If the Court pleases, I appear with my learned

friend, DR I. HARDINGHAM,on behalf of the respondent.

( instructed by Arthur Robinson & Hedderwicks)

MR BLACK:  May it please the Court, this case raises not one

but two issues of fundamental importance to industrial

relations in Victoria, particularly as those relations

affect individuals at the worst time of their lives,

that is to say, when they have been sacked in

circumstances that they consider to be hash,

unreasonable or unjust.

Now, in Victoria, under the INDUSTRIAL RELATIO:~S

ACT, two things are undoubted and the first is that

if a person who claims that he or she has been

unfairly dismissed is a member of a trade for which

a conciliation and arbitration board has been established -

and "trade" is very widely defined for those ourooses -

and if there is some outward manifestation, some-

industrial agitation, surrounding that dismissal, for

example, union agitation or certainly a stoppage,

then that person has an entitlement to go before the

commission and seek reinstatement and possibly

compensation as well. There are hundreds of such

cases a year in Victoria.

The result of the Full Court's decision in this

case is that there is no redress outside the corrmon la,,,-

for large numbers of employees for whom there happens

to be no conciliation and arbitration board appointed -

and these are not just managerial employees - and for

people who have not been able to provoke some industrial

unrest or threatened industrial unrest consequent upon

their dismissal or threatened dismissal.

Now, if one accepts, as we submit it should be

accepted, that claims for reinstatement consequent upon

unfair dismissal are an accepted part of the industrial	relations process - not only in Victoria but now more
widely - and if one accepts that the aim of any
INDUSTRIAL RELATIONS ACT including the Victorian one
is to avoid and settle industrial disputes rather than
to promote them, then a result that excludes substantial
classes of persons from relief on grounds that have
nothing to do with the harshness, unreasonableness
and so forth of their dismissal, is surprising. Now,
we say that - first, of course, the matter is one of
great practical importance but we say, as a matter of
statutory construction, that surprising result is, in
fact, a wrong result. The Act does not compel such
a conclusion and, indeed, in our submission, as the
learned primary judge Mr Justice Cummins found, it
points to the opposite conclusion.

MlTS/2/PLC	2	8/6/90
Downey

The facts in Mr Downey's case are very straightfo::-~-:_,::_- __

they have perhaps three important elements. He was a

managerial employee, a circumstance that excited the

comment of the judges in the Full Court - reference to

his salary and so forth. He was -

DEANE J:	Mr Black, it involves two distinct points, does it ..
MR BLACK:	Yes, it does, Your Honour, two.
DEANE J:	Well now, one of them must put this case in a very rare
category, must it not - - -
MR BLACK:	No. With respect not, Your Honour.

DEA..1\JE J: - - - that is, the case where the dismissal of an employee

leads to no disharmony between the employer and the

union or an employer and a continuing employee?

MR BLACK:  Your Honour, in our submission, that is not a rare

case at all and, indeed - - -

DEANE J:	It would not be rare in the case of a general manager but then one is not particularly surprised that he say not come within the purview of this legislation.
MR BLACK:	Your Honour, can I answer the two points that are

implicit - that Your Honour raises. The first is tha:,

as is pointed out in a judgment of the commission to

which I desire to make very brief reference, there is no

warrant in the Act for supposing that managerial employees
are excluded because the boards which can be appointed

can and indeed do include, from time to time, managerial

employees.	Now, the Parliament had every opportunity
to cut them out if it desired to do so.	It has not done
so.

Secondly, as a matter - the fact, we, apprehending the importance of Your Honour's question, with respect,

have dealt with it in the affidavit in support of the

application. That is the affidavit of Mr Rothville,
a solicitor experienced in industrial matters.	He deals

with the question at pages 74 and following of the

application book and also in a supplementary affidavit

to which I willrrake brief reference.	He says at the
top of page 74:

I know from my practice as a solicitor in the

area of industrial relations -

et cetera -

that applications to the Commission for

re-instatement by dismissed employees are

very common and that such applications frequently

involve circumstances where there is no actual

or threatened industrial action.

MlT5/3/PLC	3	8/6/90
Downey

And he makes that good in his supplementary a~fidavi:

because he has got the statistics.

DEANE J:	Except I said "disharmony" - - -
MR BLACK:	I am sorry, Your Honour, yes.
DEANE J:	- - - in the sense that I was not suggesting that you need an actual threat of industrial action.
MR BLACK:	Yes. Well, Your Honours, reading the Full Court's

decision, it certainly appears that there must be

something more than a mere, as Their Honours would put

it, dispute between the employer and the employee.

DEANE J:	Or the ex-employee.
MR BLACK:	I am sorry, Your Honour, the ex-employee, and fortunatel:;

that problem is dealt with by an amendment to the Act, in

our submission. But, Your Honours, the practical

reality seems to be, as is apparent from Mr Rothvill2's

supplementary affidavit, that there are a very large

number of applications, that even in the two months

since this matter was obviously going to be one to cone

to this Court, that have been adjourned. There are

some 44 in the last two months or thereabouts that have

been adjourned, 26 of those before a commissioner

sitting alone. Now, they must be matters where the

board has no jurisdiction, on the Full Court's view,

so that the reason for the adjournment - I am sorry,

the other matters, the matters that the board has

jurisdiction in, must be matters that are adjourned

because there is no sufficient outward manifestation

of industrial disharmony.

DEANE J: Unless the board is not a board affected.

MR BLACK:  Yes, but, Your Honour, there are two categories: some

of them are before boards so they must be boards

affected.	Now, 18 of those have been accumulated in
the last two months and they must therefore be cases

where it is apprehended that there is simply no external

disharmony produced by the dismissal.

Your Honours, in the case before the corrnnission

which, perhaps, I need not go to in any detail - - -

GAUDRON J:  Could I interrupt you there, Mr Black, just to ask:

of those 18, I take it though, the application has

been made by a trade union?

MR BLACK:	No, by an employee.
GAUDRON J:	By an employee?

MR BLACK:  These applications are always made by employees. Now, -

if the employee is a member of a union and as

Deputy President Lawrence pointed out in the corrnnission,

MlTS/4/PLC	4	8/6/90
Downey

only half of all employees are members of unions anc

they may not be members of unions that are active i~

a particular work place. If the employee is a member

of the union and the union knows about it and is

sympathetic then you can, no doubt, drum up a bit of

industrial disharmony but if the employee is -

the employee might just be an unpopular person and

everyone if very happy that he has been sacked and
it is extremely harsh and unreasonable. That oerson

is without a remedy simply because he has not been

able to produce a frustration of the objects of the

Act by producing some active jumping up and down.

Now, in our submission, even if this were onlv confined to managerial employees, that would be a,

surprising result but, in our submission, it is not.
So, the two issues, in our respectful submission:
issue one, we say, is of importance on the facts;
issue two is certainly of importance to everybody

because there are employees for whom there sir:1pl? a.re

no wages boards and they are not only managerial

employees.

DEANE J:	Mr Black, can I suggest that you direct some com1:1ents
to the question whether the amendments have, in fact,
removed the problem that your client is an ex-employee?

MR BLACK: Yes, Your Honour, indeed. In our submission, they

do and it was assumed in the court below that thev

had and the reason they do is that it is a 'means and

includes" type of definition.

DEANE J:	Now, can we get the provisions.
MR BLACK:	Yes, indeed, Your Honour. Section 3(1) is the

definition and Your Honours will find that on page 3

of the reprint that I expect Your Honours have

at about point 3 of the page. Now, the definition -

DEANE J: We seem to have - well, if I am any guide, I go from

page 1 to page 4. Is it in the application book

anywhere?

MR BLACK:  Your Honour, I am sorry, the section is not set out

in the application book. I had understood that the

Court had been given a list of authorities with the

Act in it. I regret that that has not been done.

DEANE J: Yes. Well, two of us have it now.

GAUDRON J:	I have a recollection of it.
DEANE J:	Mr Hayne has a third one.
MR BLACK:	I am indebted to my friend, and I am sorry that the

Court does not have it. If the Court will pardon me

one moment, it is, I think, set out in the application

book but I do not have the reference at my fingertips.

MlTS/5/PLC	5	8/6/90
Downey

DEANE J:  I recall it is somewhere myself but - - -

GAUDRON J: Well, it seems that we are advancing by the minute.

DEANE J:  We now each have one.

MR BLACK: If the Court pleases. It is a definition that had,

as it were, tacked on to it after earlier decisions of

the supreme court that, in fact, went to this Court,

but the Court was in ignorance of them at the time it

gave its decision.

DEANE J:	Yes, I noticed a member of the Full Court was at pains
to point that out.

MR BLACK:  Very specifically, Your Honour. I am glad I was not

counsel in the case.

It is one of these "means and includes" definitioc1s

so it:

means a dispute arising between an employer

and one or more of his employees -

and, of course, the first point we would make about

that is that because it can be a one-person dispute,

it rather suggests that elements of corrnnon cause

for which read "industrial disharmony and agitation''

are not within the purview of the notion -

a dispute arising between an employer and

one or more of his employees -

et cetera -

and includes -

now, because it is a "means and includes" definition,

the 'fneans"really just simply carries on.	The "includes"
is otiose really. It has to be. So, it:

includes a threatened or impending or

probable dispute and a dispute arising

from the dismissal or threatened dismissal
from his employment of an employee.

Now, what we say is that because it is a "means" type

definition, one does not read down the second part of

it, the critical limb of it, by reference to the

first limb and that must be our answer.

DEANE J: There is a bit of a problem, is there not - - -

MR BLACK:  There is a bit of a problem, Your Honour, and it

troubles us but -

DEANE J:  - - - in that the first "threatened or impending or
probable" must be encompassed in the "means"?

MlTS/6/PLC	6	8/6/90
Downey

MR BLACK:  Yes, but it would be a most odd reform as, indeed,

it was obviously intended to be if it simply left

unresolved and unresolved against the employee - the

former employee - an issue that has been agitated in

the courts for some considerable time and as to w~Lc~

this Court has never had occasion to deliver in this

sort of context a firm answer.

DEANE J:	1;,Jha t was added by the amendment?
MR BLACK:	The words, Your Honours, were from "and includes".

I am sorry, I am corrected and justly corrected.	The
words added were "and a dispute arising from the
dismissal" - - -

DEANE J:  Which helps you.

MR BLACK:  Yes, it does. It would be a very odd reform - the

history of this is that the Victorian Supreme Courc,

in decisions that were overruled in this Court, had

taken a narrow view of the notion of "industrial dis:H.:.ce"

and whilst the appeals were pending these amendments·

were brought in though, I think, not proclaimed.	Now,
it would be an odd reform if it did not do what we
submit it does do and the words, in our submission,

although not free from doubt, I condede that, support

what we - at least, give us a reasonable argument

and we would put it higher than that.

So that is our answer to the question that the

Court puts and, indeed, whilst the Court has the

section, we say that it contains powerful indicatio~s

within itself that a one-person dispute, if I can so

call it, is an industrial dispute within the meaning

of this Act, firstly, because it plainly envisages

a dispute between an employer and one employee, or

we would say, former employee, so that there is no

reason to suppose that an employee has to make cowmon

cause with anyone else. Secondly, if one simply

looks at it as a "means and includes" dispute, and

that is the correct way of reading it, if that

is right, then it just falls quite neatly within it.

It is a dispute arising from the dismissal from his

employment of an employee.

Now, what the Full Court said is that you cannot have, as it were, a paper log. Their Honours take the

view that the notion of an industrial dispute is

antithetical to somebody simply making a claim and

somebody else resisting it. Now, the federal system

has always been thought curious because you need to have

a paper dispute, an actual industrial dispute, to found

jurisdiction. Here it is more curious still because

a claim that is resisted, according to the Full Court,

cannot be a dispute. You have to go something more.

Now, the notion of a paper dispute, which we say this is,

really permeates the federal industrial law for

MlTS/7/PLC	7	8/6/90
Downey

constitutional reasons but it is not a foreign not~on.

It is a perfectly accepted notion and it is part o

industrial culture. Now, that is something, in our

submission, the Full Court was incorrect about and

with the curious consequences, that people whose

dismissal is, indeed, harsh, unfair and unreasonable

will have a remedy or not according to whether they

can drum up an industrial dispute in the more general

sense and, in our submission, the Act simply does noc

require that.

In any event - and perhaps this is always the

weakest argument on a special leave application -
the point being important is, in our submission,

certainly fairly arguable and it really is an important

point.

Before turning to the second issue, might I jus~ say this: as a matter of ordinary English, if I ~ake

a claim upon somebody, whether it is by putting in a

summons in a court of petty sessions or by putting a

piece of paper in a letterbox and the other party says,

"No, I don't agree with you, I'll fight you", that is

a dispute as a matter of ordinary English. It does

not need anything more. That is our first point and

we say it is very important.

The second point is this, that the Full Court

held, as Your Honours will have observed, that the

amendments to the Act, again designed, one would have thought, as part of a reform, introduced a code which confines, effectively, jurisdiction to boards and if

you do not have a board appointed for your trade then

you do not have any remedy. Now, in our submission,

that is wrong because - for two basic reasons. First,
there is a very explicit conferral of power on the

commission,which is quite distinct from the boards,

by section 12A of the Act. That is, in fact, set out

in the application book at page 26, and it provides:

A member of the Commission sitting alone

may hear and determine -

(a) at the direction of the President, any

industrial dispute -

and there are some other things, but full stop,

rhetorically, and secondly, if one goes to subsection (2),

it provides:

An award, order or determination made by a

member of the Commission sitting alone is

subject to appeal -

so it contemplates that the cormnission, sitting as the
commission, distinct from the boards, will do something
that is called "an award, order or determination" which

is of importance and which may be the subject of an

MlTS/8/PLC	8	8/6/90
Downey

appeal. So, there is an explicit grant of jurisdic~i0~

and why should it be limited? Well, in our suboission,

there is really no reason unless one mistakes, as we
respectfully submit the Full Court did, the natures o:
the various tiers in the industrial relationssystem in

Victoria.

True it is that the conciliation and arbitration

boards form an important part of the system but they are not the only part, and might I very briefly make

that good? Section 12A of the Act confers a power to

refer "any industrial dispute" to a member of the

commission. There are other sections: 12A(2), as I

have indicated, that suggests that the power is to be

ample, and then there are supporting sections which

confer on the commission powers and duties to do things

in the settlement of industrial disputes, such as

compulsory conferences. Sections 13 and 14 deal

with appearances and intervention. Section 15 deals
with evidence and procedure before the commission.

And then if one turns to Part III itself which is

the part that deals with "Conciliation and Arbitration

Boards" specifically, there are even, within that

part of the Act, powerful indications that there

will be matters that nevertheless will go to the

commission. One indication of that is in section 37(3)

and (9) which empower proceedings to be referred:

to the Commission for hearing and determination.

Another one, perhaps a more important one, is in

section 44 which deals with the "Settlement of

industrial disputes".

Now, true it is, as the Full Court said, that

that section focuses on boards, but the depth of field
is quite broad and within that depth of field one finds

references to the commission itself. For example,

section 44(4) empowers:

any party to the industrial dispute may

at any time -

apply -

to the President for an order referring the

matter of the dispute to the Corrrrnission -

likewise, section 44(6) empowers:

The Minister -

to -

refer the matter of any industrial dispute

to the Corrrrnission.

MlTS/9/PLC	9	8/6/90
Downey

So, looking at it perhaps somewhat briefly, t~ere

is another tier in the Victorian system.	One would
expect it would be so unless there was	some dutv

to cover everyone by a board and there is no such dutv

in the Act.	The appointment of boards is a discretio~ar~
matter, essentially on the part of the commission.	·
The other matter that we would wish to raise is this: if there is, indeed, a code, then one asks
what was the position before the sections were
introduced that are now said to constitute the code?
Before those sections were introduced the Act was
interpreted by this Court in SLONIM V FELLOWS and
the Court held, absent the present code, that there
was power to order reinstatement and to determine an
industrial dispute constituted by a claim - in that
case, with external agitation - for reinstatement.

Now, in our submission, it would fly in the face

of accepted principles of statutory interpretation

to say that the introduction of new subsections into

an Act effectively alters the meaning of sections that

were already there unless there is some very powerful

reason to suppose that the Parliament impliedly repealed

what was already there. Now, it was established in

SLONIM V FELLOWS that what was already there did give

a right to reinstatement. Can it therefore be supposed

that the Parliament, by apparently effecting a reform,

in fact, narrowed rights that already existed? And,

of course, before there was a code, a supposed code,

there could have been no doubt that the equivalent to

section 12A which were in the same terms, the predecessors,

empowered a commissioner, on the direction of· the Dresiden:

to settle an industrial dispute.

Now, that point emerges in a previous decision of a single judge of the supreme court. I need not

take the Court to it but it is a point that has been

ventilated below. Now, might I - - -

McHUGH J:  But it is a well-known rule of construction that

when legislation deals with a subject-matter specifically

and subject to conditions and limitations, it is not

appropriate or proper to refer to general powers in the
same legislation to seek to avoid the limitations and

conditions.

MR BLACK:  Yes, Your Honour, I respectfully accept that, Your Honour,

but our point or the point I am seeking to make is

different in that that would be so if the whole Act were

re-enacted but this is, as it were, an implied repeal

of pre-existing powers by tacking on new ones. Now, in our submission, that does not destroy the breadth of the pre-existing powers unless there is a very

powerful reason to suppose that that is what the

Parliament intended.

McHUGH J:  But does it not make the case stronger for concluding

that 34 was set up to deal with this issue to the general

exclusion of the other authorities?

MlTS/10/PLC	10	8/6/90
Downey

MR BLACK:  Your Honour, not to the general exclusion of the

other authorities because it is assumed that thev

always had the power. If the parliamentary inte~tion

then was to cut out the rights of people who were

exercising those rights and everyone knew that, then

it would do so explicitly. That must ultimately be

our answer, and it would be an astonishing reform

to do that by a side wind. We are dealing, perhaps,

with a class of persons, though numerically large,

that is outside, perhaps, the mainstream but there is

no reason to suppose the Parliament intended to exclude

them and, in our submission, it would be a very odd

result if that is, indeed, what the Parliament intended.

It is clear that there are managerial employees

who are subject to boards although obviously many ~ill

not be; there will also be people who are subject

to federal awards which do not contain any unfair

dismissal provisions. Now, they, at the moment or

until March of this year, so long as they were in

time, could go off to the State corrnnission .nd seek

redress and if it was harsh they would get redress.

These people are just chopped out. Now, these are

"ordinary battlers", if I can use the expression. This

case is not just confined to Mr Downey who - - -

McHUGH J: Well, I know it has consequences but in the end

does the case come to anything more than there are

some difficult questions of construction in respect

of a Victorian statute which has got no interest outside

the State of Victoria?

MR BLACK:  Your Honour, the bench as presently constituted, I

would have to exercise great tact in my reply to that

question. But as Your Honours will have noticed, it

is a big State with a lot of industry;	we like it
and it is very important in this State.

DEANE J:  I was born in it, Mr Black.

MR BLACK:  It is a very important point in this State. I do not

want to stray from appropriate paths but it is important

to people. The worse thing that can happen to you, is

you ring up and say, "I've been sacked", worse but one

thing. The worst thing, even worse than that, is you

have been sacked when it is harsh, unjust and unreasonable.

Now, the 3 or 4 million people in Victoria, that can

happen to. Some of them are now excluded. We say

that is an important point.

McHUGH J:  But this legislation is amended almost annually, is

it not?

MR BLACK:  By Victorian standards, this one is hardly ever amended

at all and, Your Honours, that might be harder to answer

in the case of the work-care legislation. One just does

not know what will happen and, with respect, Your Honours,

that can be said, of course, of any statute, and there

MlTS/11/PLC	11	8/6/90
Downey

are rights of, it would seem, many, many people a~ai:i~- -

well, presently determined but, in our submission,

wrongly determined by the Full Court, and it is a

statute that runs to all corners of the State. It is

very important and in an intensely personal area for

people. But I cannot pretend it is important outsice

Victoria, I have to -

DEAL~E J:	Thank you, Mr Black.
MR BLACK:	May it please the Court.
DEAL~E J:	Yes, Mr Hayne?

TS MR HAYNE: If the Court pleases.

DEANE J:  Mr Hayne, we will hand you back your - - -

MR HAYNE:  I have my learned junior's copy. I am indebted,

Your Honours, in any event.

DEANE J: Well, make sure you get it back.

MR HAYNE:  I have a suitably Scottish approach to my books, if

Your Honours please.

Your Honours, as my learned friend says, there are two points in this case. A determination of ei~her

of those points in favour of Trans Waste is fatal to

the applicant's position.

If I might deal first with the so-called code

point, that is, that sections 34, 35 to 37 constitute

a code in the sense that anyone who wishes to seek

relief in connection with his dismissal can do so only

under and in accordance with these provisions and then
only if they apply according to their terms thus,

relevantly speaking, if and only if there is a board

having jurisdiction in the matter and here there is

none	but, also, of course, if all the other
conditions of sections 34, 35, 36 and 37 are met:

conditions as to time; conditions as to there being no

alternative remedy and a condition imposing a

limitation on the monetary remedy to be made available

to the dismissed employee, the limitation on the monetary

remedy being the amount of wages that he lost during the

time between dismissal and reinstatement.

The argument for the applicant amounts to saying

that notwithstanding the precise terms and the

particular limitations imposed by these sections, it is

open to a person dissatisfied with his dismissal to go

to the commission, regardless of the time limit,

regardless of his having alternative remedies, to seek

reinstatement whether or not he can bring himself
within the rubric "harsh, unjust or unreasonable" and
to seek compensation greater than the lost wages spoken

of by subsection (6). We would say, with respect, that

MlT6/l/PLC	12	8/6/90
Downey

that result is a remarkable construction of the

statute. We submit that the construction put on

the statute by the Full Court is right and that
these provisions do constitute a code and that it

follows that the applicant's case fails on this ground.

The argument against us proceeds from the

unstated premise that prior to the amendment introduced

by Act 10,000 it was open to a dismissed employee,

without attendant industrial disruption or threat of
disruption, to raise before the commission any kind of
case concerning the circumstances of his dismissal,

whether his case was harsh, unjust or unreasonable

dismissal or simply a case that he did not like his

dismissal. We submit that that premise is flawed

and when the flaw in the premise is seen, then the

argument that follows from it fails also.

The second point that is raised in the matter,

Your Honours, is whether there was, on the facts of

this case, an industrial dispute, for the applicant's

case depends on the proposition that regardless of

sections 34, 35, 36 and 37, the commission has

jurisdiction in the matter pursuant to section 12A(l),

that is, as an industrial dispute. The only facts said

to relate to whether an industrial dispute exists

are two: that Mr Downey was dismissed and, secondly,

that he made application to the commission asserting
that the dismissal was harsh, unjust and unreasonable

and sought reinstatement.

He was not a member of an organization of

employees, he was, as my learned friend points out,

the most senior employee in this company, the group

general manager, and there was no disruption, no

threat of disruption, no disharmony of any kind in

this case. All there was was dismissal plus

application in the commission.

So, it amounts to a contention that the dispute

came into existence when, on the day he was dismissed,

Mr Downey lodged his papers or, as Mr Justice Brooking	had it, "betook himself to the corrrrnission to lodge his
papers" at the commission. So that the facts are
that the lodging of his application at the commission
was the first and the only response to the fact of
dismissal. So, the contention amounts to saying that
an industrial dispute is to be found in what he did
in the corrrrnission, that is, that the corrrrnission's
jurisdiction is founded upon the fact, without more,
that he has made application to the commission. We
would submit, with great respect, that that argument
is a bootstraps argument and it ought fail.
We would submit, Your Honours, that no error is shown in the judgments below; we would submit,
leave ought be refused. If Your Honours please.

MlT6/2/PLC	13	8/6/90
Downey

DEA.1'1E J:	Thank you, Mr Hayne.	Mr Black?
MR BLACK:	Your Honour, might I put something over the fla,v·	t;-,.3:

my learned friend says he has identified, somethin~ of

more substance than sticky paper. In SLONIM V FEL[O~S,

154 CLR 505, a case decided on the Act before the

amendments, the Court held, admittedly in circumstances
where there was external agitation, that a claim for

harsh dismissal was within the jurisdiction of the

then board and even though the magic words then did

not appear in the Act, the Court had no doubt that a

board, under the general jurisdiction to hear

industrial disputes had power to entertain a claim

that the dismissal was harsh, unjust and unreasonable

and, if necessary, to order reinstatement.

Now, that was the decision of the Court and

that flows, in our submission, quite consistently

with the notion of what this Act is all about.	It is
about industrial disputes.	You have to have an

industrial dispute. It is no use to say, "Well, I

didn't like being sacked." There has to be some
element of harshness, unjustness or unreasonableness

about it. That, of course, gives its industrial

as opposed to personal flavour.	So, we say that is
not a flaw.

As to the attack on the code, the fact is, in

our submission, that the power under section 12A

carries with it a discretionary element so that if

the corrrrnission itself, or the president considered

that the matter was so much in disconformity with

what would be the situation were the employee subject

to a board, then he can simply refuse to exercise

the discretion and that would be on proper industrial

and legal grounds.

So that the disconformity is not nearly as greac as would at first sight appear. Similarly, if a person

came along with a claim for dismissal that was not

harsh, unjust or unreasonable, then there would be no
reason why that should be entertained at all.	It is

either not an industrial dispute or not a dispute

which the corrrrnission, as corrrrnission, ought to determine

by giving any remedy at all.

McHUGH J:	What about the four-day limitation?
MR BLACK:	The four-day limitation is a problem, Your Honour,

but we overcome it in this way:  if you go before the

president and you say, "I'm one of these people who

are not within the board and I've been harshly and

unjustly and unreasonably dismissed" and so forth,

and the president says, "But you've come a week later.

Why should you get special treatment that isn't availabl~

if you happen to be subject to a board, and the board

is going to be appointed next week?"

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McHUGH J:  But it seems extraordinary that the provisions o:

subsection (7) with its insistence that you can only

exercise the power of reinstatement if you have made

your application within four business days can be

subverted by appealing to the general authority of

the cormnission to settle an industrial - - -

MR BLACK: Well, two things, Your Honour: the first is that

it is discretionary and that would be, in our

submission, a relevant matter to take into account

and that, secondly, even if that is not the answer,

it cannot be right, unless the Parliament was very

explicit about it, that whole classes of employees

are simply deprived of apparent rights because a

board does not happen to be appointed in respect of

them, and the boards are not a compulsory part -

although they are an important part, they are not

a compulsory part of the Victorian industrial

relations process.

Your Honour, I cannot answer every point today

but, in our submission - - -

McHUGH J:	How about trying?
MR BLACK:	I am, Your Honour.  I cannot provide a conclusive

answer to everything, that the question is a difficulc

one but it is certainly, in our submission, strongly

arguable; it is very important and if I have to

answer it, we would submit that on balance, all the

questions can be answered. The ultimate solution

does have a problem with it, we concede that, but the

Full Court's solution has bigger and worse problems and not least of which is the wording of the Act, in our

respectful submission. If the Court pleases.

DEANE J:  Thank you, Mr Black. The Court will give its decision

on this application at 2 pm.

MR BLACK: If the Court pleases.

AT 11.17 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.10 PM:

DEANE J:  Mr Black, you may have your leave.

MR BLACK: If Your Honour pleases.

DEANE J:  The Court orders that the applicant have special leave to
appeal.

AT 2.11 PM THE MATTER WAS ADJOURNED SINE DIE

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