Dundee Fashions Pty Ltd v Clothing & Allied T/U of Australia

[1987] FCA 86

IN THE FEDERAL COURT OF AUSTRALIA	)
OUEENSLAND DISTRICT REGISTRY	) QLD Q1 of 1987
INDUSTRIAL DIVISION	)

BETWEEN: DUNDEE FASHIONS PTY. LIMITED

Applicant

AND: THE CLOTHING AND ALLIED TRADES UNION OF AUSTRALIA

First Respondent

AND:	ANGELA BURT, PATRICIA MANSFIELD, STEPHANIE
McFARLANE, CAROLYN WATSON and ESTELLE WESTAWAY

Second Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	2 MARCH 1987
WHERE MADE:	BRISBANE

-. THE COURT ORDERS THAT:

1. The appllcatlon be struck out.

NOTE:

Settlement and entry of orders 1s dealt wlth I n

Order 36 of the Federal Court Rules.

C A T C H W O R D S

INDUSTRIAL, LAW - award - applicatlon for interpretation - principally

a challenge to validity - no present intention to pursue -

whether should be struck out.

Conciliation and Arbitratlon Act 1904 ss.60,	110
Dundee Fashions Pty. Llmited

v. The Clothinq and Allled Trades Union	of Australla & Ors.
Qld Q1 of 1987

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 QLD Q1 of 1987
INDUSTRIAL DIVISION	)

BETWEEN: DUNDEE FASHIONS PTY. LIMITED

Applicant

AND: THE CLOTHING AND ALLIED TRADES UNION OF AUSTRALIA

First Respondent

AND:	ANGELA EURT, PATRICIA MANSFIELD, STEPHANIE
McFARLANE, CAROLYN WTSON and ESTELLE WESTAWY

Second Respondents

PINCUS J. 2 MARCH 1987

REASONS FOR JUDGMENT

The respondents ask for an order that thls applicatlon

__	for an lnterpretatlon of an award of the Australlan Conclliatlon
and Arbltration Commlssion be struck out. The applicant does not
oppose the appllcatlon's being ad~ourned sine dle, but reslsts an
order to strlke out. It is not clear to me that It makes much
practical dlfference whether or not the appllcation is struck out,
but since the respondents have pressed for that order, It 1 s
necessary to examine the matter in some detail.

In February 1986, the applicant dismissed a number of

its then employees. On 23 April 1986, Mr. Commissioner Neyland

varied the Clothing Trades Award 1982 in a number of ways, one of

which was the insertion of a new clause 51 relating to redundancy;

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it provided for severance pay. Mr. Commissioner Neyland's order

was expressed to come into force from the beginning of the first

pay period to commence on or after 16 October 1985, and to

continue in force for 12 months.

Subsequently, a dispute arose as to the entitlement of

certain of the dismissed employees to severance pay under the

order of Mr. Commissioner Neyland. A notification of that dispute

was set down for hearing in November 1986, and then was adjourned

to 18 December 1986. On 20 January 1987, the appllcant filed an

applicatlon In this Court clalmlng "an Interpretation of clause 51

- (redundancy) of Clothing Trades Award 1982". The applicatlon

did not speclfy the polnt of interpretation required to be

determined, although it was accompanled by an affidavit giving an

outline of the facts underlying the dispute.

On 2 2 January 1987, the matter came before Mr. Deputy

_. Presldent Rlordan who was mformed of the institution of

proceedings in thls Court. After argument, the declslon was

reserved and it was handed down on 11 February 1987. Mr. Deputy

President Rlordan decided to make an order in the form of a further variation to the Clothing Trades Award 1982, requlring

that severance payments be made in specified amounts to each of

the employees whose entitlements were in questlon, the variation being expressed to be retrospective from 1 February 1986. The decision concluded:

"The parties are directed to confer on the form of

the Order giving effect to this decision and report

the result of the conference to me wlthin seven

days hereof. If necessary, further argument will

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be heard so as to ensure that the order finally

made would not be misunderstood by either party."

Subsequently there were some communlcations concerning

the decision, one of which was a telegram from the Registrar of the Australian Conclliation and Arbitration Commission referring to the dlspute and advising the parties that "settlement of

decision", by which was meant determinatlon of the final form of

the order, is to take place on 4 March 1987.

On 24 February 1986 there was filed In this Court an

affldavit annexlng partlculars of the application, the detalls of

whlch are set out below. Each slde was on that day represented by

counsel and contended for the outcomes to which I have referred: that is, the respondents asked for an order that the application

be struck out and the applicant opposed that but sald it would not

oppose the applicatlon's being ad~ourned slne dle.

Sectlon 110(1) empowers "the Court" to qlve an

interpretatlon of an award; by reason of the terms of s.l18A, this Court has the ~urlsdiction In question. The partlculars of the

appllcatlon I have referred to above are rather long but may be

summarised as follows:

1. The order of Mr. Commissioner Neyland could not (as it

purported to do) operate retrospectively from October 1985.

2 . The terminations of employment which occurred in February

1986 are not subject to the variatlon f April 1986.

4.

, . *

3 . "That in the event that the variation is not enforceable at

law for determinations that occurred prior to 2 3 April 1986"

the applicant is not liable to make severance payments to the

relevant employees.

4. If the variation 15, so far as it operates retrospectively,

enforceable at law, the applicant 1s not liable to make the severance payments claimed to the relevant employees because It was not possible for the appllcant to hold discusslons

wlth employees as contemplated by the award.

5.   The provlsion of clause 51 (inserted by Mr. Cornmissloner Neyland) are "vague and uncertain and ... are unenforceable because of their vagueness and uncertalnty".

In qlvlng "Detalls of thls vagueness and uncertainty" In

seven numbered sub-paragraphs, the appllcant says o r implles that

__ in a number of respects It deslres clarlflcation of clause 51.

Counsel for the respondent questloned whether the Court

should entertain an appllcation for Interpretation of clause 51

after the handmg down of the declsion of Mr. Deputy President

Riordan the practlcal effect of which is, or will shortly be, to

resolve the dispute, leaving no llve questlon of interpretation.

Counsel for the applicant dlsclaimed any intention of pursuing the

application as presently formulated, but said that the application

should not be struck out but left on foot; he asserted that the

applicant might later desire to raise certain questions of

interpretation, even given the effect of Mr. Deputy President

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Riordan's declsion and the order proposed therein. It should be

added that on 16 February 1987, solicitors for the applicant

informed Mr. Deputy President Riordan that the applicant intended

to appeal against his decision under s .35 of the Act.

Counsel for the respondents argued that, insofar as the

application had sought to raise matters other than validity, it

was not appropriately brought under s.110. He also argued that

this Court had no right to consider the questlon of validity. On

the former point counsel argued that there is an important

difference between enforcement of an award and its Interpretation and that 5.110 glves this Court power with respect to the latter only. It does not seem to me necessary to say anythmg concluslve as to the questlon whether any point of interpretation, m the sense in whlch the word "interpretation" 1 s used In the section, is ralsed by the applicatlon as presently partlcularlsed. That 1 s

so because it is not, in that form, bemg pressed.

Counsel for the respondents' polnt as to valldlty relled

of course upon 5.60 of the Conciliation and Arbitration Act 1904,

sub-s.(l) of which reads as follows:

"Sub~ect to this Act, an award (includlng an award

made on appeal) -

(a) is f m a l and conclusive;

(b) shall not be challenged, appealed against,

reviewed, quashed or called in question in

any court; and

(c) is not subject to prohibition, mandamus or

injunction in any court on any account."

6.

That provislon has been read down: see E. v. Coldham

and Others; Ex parte The Australian Workers' Union (1983) 153

C.L.R. 415 at p.418, but counsel for the respondents contended

that none of the three conditions constituting, in effect,

exceptions to the rule that validity ma not be challenged applies

here. That appears to me to be so, but apart from that there is

the more fundamental point that s.110, which is the ~urisdiction

invoked, is not concerned with questions of validity.

As the particulars disclose, the principal purpose of

Institution of the proceedings was to challenge the validity of

the award variation of 2 3 April 1986. To brlng such proceedings

under s.110 was In my vlew entlrely misconceived and may properly

be characterlsed as an abuse of process. I also take into account

that there 1 s no present lntentlon to pursue the application.

The order will be that the application be struck out