In the Matter of an application for a Writ of Prohibition and a Writ of Certiorari against Hodder, Errol Raymond, Commissioner of the Australian Industrial Relations Commission and Automotive, Food, Metals,...
[1997] FCA 811
•19 August 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - interstate industrial dispute - paper dispute - whether real and genuine dispute - onus - whether relevant to consider evidence of the motivation for service of log - whether extravagance of claims is evidence of a lack of genuineness - weight to be given to views of Australian Industrial Relations Commission
Attorney-General for the State of Queensland v The Honourable Senior Deputy President Riordan Full Court of the High Court of Australia, unreported, 5 August 1997
IN THE MATTER of an application for a Writ of Prohibition and a Writ of Certiorari against: ERROL RAYMOND HODDER COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION; Ex parte THE WESTERN AUSTRALIAN MINT
WI 1398 of 1996
MARSHALL J
MELBOURNE (HEARD IN PERTH)
19 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1398 of 1996 ) GENERAL DIVISION )
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
IN THE MATTER of an application for a Writ of Prohibition and a Writ of Certiorari against:
ERROL RAYMOND HODDER COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondentand
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Second RespondentEx parte
THE WESTERN AUSTRALIAN MINT
Applicant
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN PERTH) DATED: 19 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application is dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1398 of 1996 ) GENERAL DIVISION )
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
IN THE MATTER of an application for a Writ of Prohibition and a Writ of Certiorari against:
ERROL RAYMOND HODDER COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondentand
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Second RespondentEx parte
THE WESTERN AUSTRALIAN MINT
Applicant
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN PERTH) DATED: 19 AUGUST 1997
REASONS FOR JUDGMENT
This matter is an application by the Western Australian Mint (“the Mint”) for writs of prohibition and certiorari directed to the respondents, Commissioner Hodder of the Australian Industrial Relations Commission (“AIRC”) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”). On 23 April 1996 the Mint sought such relief in the High Court of Australia by notice of motion of that date. On 18 September 1996, Toohey J ordered that the application be remitted to the Industrial Relations Court of Australia (“IRCA”). See Re Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Ex parte Western Australian Mint (1996) 70 IR 52. On 12 June 1997, Toohey J ordered that the matter be remitted to this Court instead of IRCA pursuant to paragraph 65 of Schedule 16 to the Workplace Relations and Other Legislation Amendment Act 1996.
The application was heard by me on 27 June 1997 in Perth. Mr Cock, of counsel, appeared for the Mint and Ms Crawford, of counsel appeared for the Union.
Before the substantive submissions of counsel were made, it was agreed that the matter would be argued on the basis that the Mint was seeking writs of certiorari and prohibition rather than an order nisi.
FACTUAL BACKGROUND
On 9 March 1995, the National Secretary of the Union, Mr George Campbell, served a letter of demand and log of claims upon the Mint and a large number of other employers throughout Australia. The letter stated that Mr Campbell was authorised to serve the demand contained in the log which was attached to the letter. He requested that the claim be granted to employees of the recipients. He advised the recipients that he was authorised “to receive your reply and to confer in respect of this claim for the purpose of reaching a satisfactory settlement”.
The final paragraph of the letter was as follows:
“Failing granting of the claim or settlement within seven (7) days from this date it will be assumed that the demand has been refused and the Industrial Registrar will be notified in accordance with Section 99 of the Industrial Relations Act 1988 ........ .”
The accompanying log was headed “AMBIT LOG”. The log contained a detailed set of claims for wages and conditions dealing with a large range of industrial matters. On its face, the claim was not a bare claim that the AIRC determine wages and conditions.
The demands in the log not having been acceded to, Mr Campbell notified the AIRC of the existence of an alleged industrial dispute by letter dated 16 March 1995.
On 20 April 1995 proceedings commenced in the AIRC before Commissioner Hodder in Brisbane regarding the Union’s notification of an interstate industrial dispute. On that day, Commissioner Hodder made a finding that an industrial dispute existed pursuant to s 101 Industrial Relations Act 1988 between the Union and some of the respondent employers. The Union did not then press for any such finding to include any of the four Western Australian employers which had been served with the letter of demand and log of claims.
Proceedings in the AIRC were reconvened on 4 and 5 July 1995 in Perth. Mr Blewett appeared for the Union and Mr King for the Mint. When proceedings commenced on that day, Mr King queried whether the Union’s demands were properly authorised. In response, Mr Blewett produced a document entitled “National Council Minutes from 13 to 16 December 1994”. That document became exhibit ‘WA Mint 2’ before Commissioner Hodder. The transcript regarding those minutes being admitted into evidence before the Commissioner was produced before the Court, but the exhibit itself was not tendered. The Mint’s submissions on “authorisation” were rejected by Commissioner Hodder in his decision on 5 October 1995. The Mint did not persist with those submissions when the appeal against Commissioner Hodder’s decision was heard by the Full Bench of the Commission on 20 February 1996.
On 4 and 5 July 1996 before Commissioner Hodder, the Union called evidence from the Assistant Secretary of its Western Australian branch, Mr Hodgson. Mr Hodgson’s evidence revealed the following matters:
there was a doubt in his mind as to whether the State award which was applied to employees at the Mint applied by force of law or by custom and practice;
he was concerned that even if the State award did apply as a matter of law, any new employees were able to be employed pursuant to workplace agreements under State law;
prior to the service of the log, the Union (as part of a single bargaining unit) had engaged in extensive enterprise bargaining discussions with the Mint which, as at October 1994, had not proved fruitful;
the Union members at the Mint formed the opinion that improved wages and conditions might be more speedily accessed in the federal jurisdiction and expressed a preference for federal regulation;
that desire for federal regulation was conveyed to the State President “who followed it up with National Council”;
the Western Australian branch of the Union requested National Council to serve a log on the Mint and other employers;
Mr Hodgson’s motivations in seeking the service of a log on the Mint was to improve the wages and conditions of the Union’s members employed at the Mint and to do so in the federal jurisdiction;
Mr Hodgson’s primary motivation was to improve the wages and conditions of his members;
a purpose for serving the log was also to achieve an enterprise bargaining agreement in the federal system, but that was not the sole purpose.
Commissioner Hodder was invited by the Mint to find that there was no genuine interstate dispute between it and the Union. In his decision of 5 October 1995, he determined to the contrary and amended the dispute finding which had been made on 20 April 1995 to include the Mint and one other Western Australian employer.
On 13 October 1995, the Mint sought leave to appeal against the Commissioner’s decision to a Full Bench of the AIRC. On 1 March 1996, the Full Bench refused the Mint leave to appeal. It found that there was a genuine interstate industrial dispute which involved the Mint and the Union as parties.
MR COCK’S SUBMISSIONS
Mr Cock acknowledged that before the Court the Mint carried the burden of establishing that there was no genuine dispute to which it was a party. He submitted that he was content to rely on the evidence of Mr Hodgson before Commissioner Hodder which, he contended, showed that service on the Mint was not genuine. He said that the failure of the Union to call any other witness showed that there was no other factor motivating it. Mr Cock agreed that the Union was trying to improve the wages and conditions of its members at the Mint, although later in his submissions he said that the Union’s only genuine desire was to have federal jurisdiction. As he put it, such improvements were not sought by reference to the demands in the log.
Mr Cock accepted that there was a genuine interstate dispute between the Union and other employers served with the log.
Mr Cock also submitted that, as the Union had demanded matters in the log within seven days, and given that the demands were extravagant, the demand should be seen as a joke. He relied on the absence of negotiations between the Union and the Mint after service of the log to reinforce his point that the demand was not genuinely made.
Mr Cock next submitted that the log was a cumulative one which could not be regarded as a catalogue of claims and that, even if it could be so regarded, there were elements of it which were ridiculous, although he did not press for their specific excision from the dispute if the Court were otherwise satisfied that one existed.
MS CRAWFORD’S SUBMISSIONS
Ms Crawford submitted that the Union’s purpose in serving the log was purely a question of fact. She contended that the letter of demand and the failure to accede to it, is evidence of a dispute and that the evidence of Mr Hodgson was only “marginally relevant”. In so far as it was relevant, Ms Crawford submitted that that evidence was to the effect that the Union served the log to improve the terms and conditions of employment of its members, and to secure those terms and conditions in the form of an award of the AIRC.
Ms Crawford submitted that the fact that a log is served with a view to obtaining a federal award is not evidence of a lack of genuineness but of a desire to incorporate improved terms in a legally binding document, which is evidence that a claim is sincerely made. Finally, Ms Crawford submitted that the log was not fanciful but, in fact, less extravagant than the “ETU log” which was examined in Re SPSF; ex parte Western Australia (1993) 178 CLR 249.
CONCLUSION
In my view, the service of the letter of demand and log of claims by the Union upon the Mint, and the Mint’s failure to accede to the Union’s claims, entitled the AIRC to find that the Mint was properly a respondent to its amended finding of dispute. I hold that view for the following reasons.
(i) Onus
The Union, by proving to the AIRC that it had made a claim on a number of employers operating in more than one State and that such claim had been rejected, proved “the formal ingredients” which constituted available evidence upon which the AIRC was entitled to find the existence of a dispute of the requisite nature. As Kirby J said in Attorney-General for the State of Queensland v The Honourable Senior Deputy President Riordan, High Court of Australia, 5 August 1997, unreported, at 46-47:
“The proof of the ingredients of a ‘paper dispute’ will ordinarily be treated as some evidence that a real and genuine industrial dispute exists. Whether it is appropriate, in the context of the statutory duties of the Commission, to talk in terms of the onus and burden of proof is a matter upon which opinions have differed. Clearly, it is open to a respondent to such a demand to endeavour to prove facts which will displace the conclusion which might otherwise be drawn from the observance of the formalities of a ‘paper dispute’. The requirement to establish the existence of an industrial dispute is always the obligation of the notifier. On the other hand, if the formalities of a ‘paper dispute’ are properly established, it will ordinarily be the case that the evidentiary burden of demonstrating that the suggested ‘dispute’ is a ‘sham’, ‘pretended demand’ or a ‘mere device’ will rest upon the objector.”
Gaudron and Gummow JJ in Riordan at 25 proceeded “in accordance with long established principles which require that the service of a log of claims be viewed ‘prima facie as genuine and real’ and that the party who asserts the contrary bears the onus of ‘clearly [so] establishing’.” So much is also evident from Re Printing and Kindred Industries Union; Ex parte Vista Paper Products (1993) 113 ALR 421, 429.
Some support for the approach to onus taken by Gaudron and Gummow JJ and Kirby J and by the High Court in Vista can be found in the joint judgment of Brennan CJ and McHugh J in Riordan where their Honours said at 10:
“Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or ‘paper disputes’, it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand.”
Toohey J, with whom Dawson J agreed in Riordan, adhered to what he said in SPSF regarding the onus being on a union to invoke the Commission’s jurisdiction, but that it will be assisted in so doing by proving the formal elements of a paper dispute. Toohey J, nonetheless, cited with apparent approval the statement of Gibbs CJ in R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331, 338 that:
“A formal demand will prima facie be regarded as real and genuine, unless the contrary is established”.
Toohey J immediately added the following at 21:
“Nevertheless there must be a dispute and, in the language of the cases, it must be real and genuine. It must not be, for instance, a bare claim for increased wages and conditions; the Commission is not a general regulatory body.”
Having proved the formal elements of the dispute, and the claim not being for general regulation of employment conditions by the AIRC, it fell to the Mint to provide evidence of the union’s lack of genuineness. It failed to do so.
(ii) The Union’s motive
Although the minutes of the Union’s National Council were examined for the purposes of the debate on “authorisation” before Commissioner Hodder, the Mint did not seek to rely upon them on the issue of genuineness. It can be inferred that the minutes would not have assisted the Mint on that issue. The formalities of the dispute finding having been established there was nothing put forward by way of evidence from the Mint to establish that the demand was not genuine. The demand must be viewed as prima facie genuine, being on its face a demand for actual conditions rather than for general regulation.
Mr Hodgson’s motives or desires for wanting the log to be served are irrelevant. He was not a member of the National Council at the material time. It was not his log. He supported the service of it and agitated within the internal processes of the Union for it to be served but he had nothing to do with it being formulated or with the actual decision-making process to serve it on the Mint.
If, contrary to my view, Mr Hodgson’s motives were relevant, his evidence demonstrated a desire to improve the wages and conditions of the Union’s members at the Mint and to achieve that by federal regulation. As Ms Crawford submitted, such motives are totally consistent with a genuine demand being made. See R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 179, 182-183.
In considering the relevance of Mr Hodgson’s evidence, it is instructive to refer to the following passage of Kirby J’s judgment in Riordan at 62:
“Not much time should be spent in examining the subjective intentions, opinions and desires of individual union officials. Questioning them (often, it seems, at great length) should be discouraged. Their evidence is likely either to be irrelevant to the objective question to be determined or an attempt to usurp the legal conclusion reserved in the first instance to the Commission ...”
See also the joint judgment of Brennan CJ and McHugh J at 11, where their Honours said on the question of determining whether claims in a log are real and genuine:
“That is not an issue to be determined on extensive evidence given by union officials of their subjective intentions but by inference from the terms of the log and the general industrial situation known to or proved before the Commission.”
(iii) Intrastate dispute?
I reject Mr Cock’s submission that the sole purpose for serving the log on the Mint was to settle an intrastate enterprise bargaining dispute at the Mint. There is no evidence to support that proposition. Even if Mr Hodgson’s evidence is of probative value, Mr Cock’s submission immediately evaporates upon one’s highlighting of that part of Mr Hodgson’s evidence which revealed that he wanted improved wages and conditions for his members. I also reject as absurd Mr Cock’s submission that Mr Hodgson did not want improved wages and conditions in the context of the log. One might rhetorically ask how else would the Union achieve such improvements in the federal jurisdiction as was Mr Hodgson’s desire.
(iv) Seven days to reply to a list of extravagant cumulative demands?
I further reject Mr Cock’s next submission that a demand for a response to the log within seven days is evidence of a lack of genuineness. As Dawson J said in Riordan at 15, claims “might be seen as genuine notwithstanding there was no expectation that the demands would be met immediately as they were expressed.” Kirby J in Riordan said at 65, of this precise issue:
“The complaint about the time-frame in the letters of demand (seven days) is as meritless as is the complaint about the size of the increases sought and the aggregate cost to industry.”
Additionally, Mr Cock’s allied contentions, that the claims in the log could not be regarded as a catalogue of claims but must be aggregated and then per se seen to be ridiculous, are without merit. As Kirby J said in Riordan at 65:
“True, a number of the clauses, including those dealing with wage rates, represent excessive demands, beyond those attainable in the short term. However, they present claims which it was open to the Commission to find amounted to a framework for further discussion, negotiation and ultimately, if necessary, arbitration.
(v) Fanciful claims
Mr Cock submitted that the fanciful nature of the claims indicated that they were not seriously advanced. This submission is baseless. The demands were, in most cases, if not all, extravagant. But it is well settled that extravagance in demands is not equivalent to a lack of genuineness. So much was confirmed in Riordan by all members of the High Court.
Brennan CJ and McHugh J held at 10 that:
“Apparent extravagance in the demands made is not inconsistent with the reality or genuineness of those demands...”
Dawson J observed at 14 -15 that where the demands were detailed but inflated it “was nevertheless open to the Commission to conclude they were put forward with the genuine intention of obtaining improved terms and conditions within the framework provided.”
Toohey J agreed at 17 that “the apparent extravagance of a claim does not of itself preclude the finding of an industrial dispute within the meaning of that term in the Act.”
Gaudron and Gummow JJ agreed at 24 that apparent extravagance in demands is not equivalent to a lack of genuineness. Kirby J held at 49 that “... if, despite the apparent excess of ambit claims, the demand and log of claims...represent the framework defining the demands of the notifier which are genuinely advanced, it will be open to the Commission to confirm that an industrial dispute has been created. That dispute is evidenced by the document. If the Commission so finds, it will only be in a clear case that the courts will disturb such a finding.”
No such “clear case” is established here. On the contrary, a “clear case” has been established that the claims were genuinely advanced and gave rise to an industrial dispute which included the Mint as a proper respondent.
(vi) Respect for the views of the AIRC
I am fortified in my conclusion that this application by the Mint should be dismissed by the views of Commissioner Hodder and the Full Bench on the issue as to whether there was a genuine dispute involving the Mint. As Riordan shows “considerable deference” (per Kirby J at 39) or “considerable weight” (per Toohey J at 19) or “particular weight” (per Brennan CJ and McHugh J at 6) must be given to the views of the AIRC. The AIRC is a specialised body comprising individuals who possess vast knowledge on matters relevant to industrial relations. They are usually better placed to determine whether demands are genuinely made than members of non-specialist courts. In coming to the view I have come to concerning the genuineness of the Union’s demands, I also rely, as I am entitled, upon the expression of these specialist views. The evidence before Commissioner Hodder and the Full Bench on appeal confirming his decision was substantially the same evidence which was before the Court on this application. Commissioner Hodder was a member of the relevant panel of industries which would deal with the claim by the Union. Great weight is appropriately given to his views and those of the Full Bench.
ORDER
It follows from the conclusion I have come to on all the issues raised before the Court that I should order that the application be dismissed, the Mint not having discharged its onus in making out its case for prerogative relief.
I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated: 19 August 1997
Counsel for the Appellant: R Cock Solicitor for the Appellant: Crown Solicitor for W.A. Counsel for the Respondent: Ms Crawford Solicitor for the Respondent: Derek Schapper Date of Hearing: 27 June 1997 Date of Judgment: 19 August 1997
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