Printing and Kindred Industries Union ex parte: Nationwide News Pty Ltd t/as Cumberland Newspaper Group, the Honourable Paul Robert Munro, Errol Raymond Hodder and Robert Frederick Merriman

[1994] IRCA 3

C A T C H W O R D S

INDUSTRIAL LAW - Jurisdiction  of Industrial Relations Commission - Whether dispute before Commission is an industrial dispute extending beyond the limits of one State - Question turns on whether negotiations in different establishments all arise out of implementation of structural efficiency principle embodied in federal award.

PRACTICE AND PROCEDURE - Application for interlocutory injunction restraining hearing by Industrial Relations Commission - Matter remitted to Industrial Relations Court by High Court - Appropriate approach for Industrial Relations Court to application for interlocutory injunction against Commission.

Industrial Relations Act 1988, ss.4, 412 and 419

RE:  PRINTING AND KINDRED INDUSTRIES UNION
EX PARTE: NATIONWIDE NEWS PTY LTD t/as CUMBERLAND NEWSPAPER GROUP, the HONOURABLE PAUL ROBERT MUNRO, ERROL RAYMOND HODDER and ROBERT FREDERICK MERRIMAN

No. NI 142 of 1994

CORAM:    WILCOX CJ, VON DOUSSA and BEAZLEY JJ
PLACE:    SYDNEY
DATE:     3 JUNE 1994

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )

)No. NI. 142 of 1994

NEW SOUTH WALES DISTRICT REGISTRY )

RE:PRINTING AND KINDRED INDUSTRIES UNION

EX PARTE:NATIONWIDE NEWS PTY LTD trading as CUMBERLAND NEWSPAPER GROUP, the Honourable PAUL ROBERT MUNRO, ERROL RAYMOND HODDER and ROBERT FREDERICK MERRIMAN

CORAM:WILCOX CJ, VON DOUSSA and BEAZLEY JJ

PLACE:    CANBERRA
DATE:     13 APRIL 1994

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Application for interlocutory injunction be refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Act.

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )

)No. NI. 142 of 1994

NEW SOUTH WALES DISTRICT REGISTRY )

RE:PRINTING AND KINDRED INDUSTRIES UNION

EX PARTE:NATIONWIDE NEWS PTY LTD trading as CUMBERLAND NEWSPAPER GROUP, the Honourable PAUL ROBERT MUNRO, ERROL RAYMOND HODDER and ROBERT FREDERICK MERRIMAN

CORAM:WILCOX CJ, VON DOUSSA and BEAZLEY JJ

PLACE:    SYDNEY (HEARD IN CANBERRA)
DATE:     3 JUNE 1994

REASONS FOR JUDGMENT

THE COURT:  This case arises out of a difference between the prosecutor, Nationwide News Pty Limited ("Nationwide"), and one of the respondents, the Printing and Kindred Industries Union ("the PKIU"), upon the question whether the Australian Industrial Relations Commission ("the AIRC") has jurisdiction to determine an application made to it by the PKIU.  The AIRC, and three of its members, Justice Munro and Commissioners Hodder and Merriman, are also respondents to the application, but none of them has yet taken an active part in the proceedings.

The background facts

Nationwide is a newspaper publisher.  It has numerous operating divisions.  One of them trades under the business name Cumberland Newspaper Group ("Cumberland").  Cumberland operates only in New South Wales, wholly or mainly from premises at Parramatta.  It publishes 18 free suburban newspapers.  Each is distributed within a limited part of the Sydney metropolitan area or the New South Wales Central Coast.

Until 15 December 1993, Cumberland maintained at Parramatta a section called "the display advertisement make-up section".  The function of this section was to produce display advertisements for Cumberland's newspapers.  This type of work has, in recent times, been affected by technological change.  According to Nationwide, the new technology rendered Cumberland's operations uncompetitive and unprofitable.  By 1992 Cumberland determined that, if its display advertisement make-up section at Parramatta was to survive, it needed to use the new technology and overhaul its procedures.  Cumberland appreciated that this would require the co-operation of the employees in the section.  Those employees were members of the Cumberland Chapel.  They were usually represented in industrial negotiations by the Chapel executive.  The  executive was assisted, where necessary, by officials of the PKIU and a counterpart State union registered under a New South Wales statute.

In March 1993, Cumberland opened negotiations with the Chapel on the terms on which new technology would be introduced into the section and on associated changes to shift patterns and work practices.  The negotiations dealt only with the Parramatta display advertisement make-up section.  They did not involve Nationwide's operations elsewhere or persons employed away from Parramatta.  However, it appears from a letter of 2 November 1993 from Anne Hynes, Cumberland's Employee Relations Manager, to Mary Stuart, Senior Industrial Officer of the Australian Council of Trade Unions, that similar negotiations were contemporaneously being conducted by other Nationwide  divisions.  Some of those divisions carried on operations in other States.  Ms Hynes' letter explained the reason for this approach:

"We believe it is in the best interest [sic] of our employees and our publications that discussions be held at a local level.  We have successfully negotiated on a site by site basis in the past and there is no reason why this should not continue in the future."

From the material placed before us, it appears that Cumberland made some progress towards an agreement.  But many matters remained unresolved when, on 30 November 1993, a meeting of employees was held.  The meeting was addressed by Douglas Flynn, who is described in an affidavit of Ms Hynes as "the Managing Director of News Limited Suburban Newspapers".  According to a note of his address verified by Ms Hynes, Mr Flynn discussed "the situation at each other News Suburban site".  He referred to Adelaide, Melbourne and Brisbane.  The extent of agreement varied between sites; but it was a common feature of all the negotiations that they arose out of the company's wish to upgrade its technology.  Mr Flynn then turned to Parramatta and detailed the outstanding problems.  He said that the company needed to be able to take economic decisions that allowed full use of the technology and that, "if we cannot reach agreement we will have to either close papers or close this composing room down; either way, there will be substantial job losses throughout the company".  Other people spoke after Mr Flynn.  The meeting concluded with Ms Hynes asking the negotiators to continue their efforts to reach agreement.

There were, apparently, further negotiations but agreement was not achieved.  On 12 December, Nationwide terminated the negotiations.  Three days later, Laurie Coghlan, Operations Manager of Cumberland, wrote to each employee in the pre-press area at Cumberland's Parramatta premises advising that the company had decided to close its display advertisement make-up section.  Mr Coghlan explained the decision in this way:

"This decision follows the Company's inability to reach agreement on workplace change in the discussions that it has actively pursued with you and your representatives since at least May 1993.

During those discussions, and in the company's letters to you in which it drew your attention to the state of the discussions, the company has repeatedly pointed out that, unless agreement was reached as to the terms on which new procedures and technology would be introduced, jobs would go.

In the circumstances, the reasons for the decision are obvious, given the failure of the discussions."

Mr Coghlan said that the company "no longer requires anyone to perform the work for which you were employed, and your position is redundant with effect immediately".  He went on to refer to counselling and redundancy payments.

On the same day, Ms Hynes wrote to John Cahill, Federal Secretary of the PKIU, notifying him of the closure of the display advertisement make-up section.  She said that ten employees had been offered continued employment but there were "54 redundancies effective immediately".  Ms Hynes said that the "closure follows the Company's inability to reach agreement on its proposal dated 5 October 1993".  She added:

"(w)ithout securing such an agreement, contracting out was the only way the Company could service its customers cost effectively, compete in the market place and protect the jobs of all other employees."

Also on 15 December, Cumberland entered into a contract with Australian Rural Times Pty Limited, an unrelated corporation, for the production of its display advertisements.

The proceedings before the Commission

The PKIU immediately notified the AIRC of the existence of an industrial dispute. The AIRC arranged a hearing before Commissioner Merriman on Friday, 17 December. On that day, the PKIU was represented by Mr Cahill and Cumberland by counsel. Mr Cahill asked Commissioner Merriman to make an award reinstating the 54 retrenched employees. There was debate about the Commission's jurisdiction. Commissioner Merriman adjourned the matter until the following Sunday, 19 December. On the Sunday, both Cumberland and the PKIU were represented by counsel. They put submissions, including submissions on behalf of Cumberland to the effect that there was no existing or threatened interstate industrial dispute to support the making of a reinstatement award. Counsel also submitted that the Commission should dismiss the application under s.111(1)(g)(iii) of the Industrial Relations Act 1988, on the basis that "further proceedings are not necessary or desirable in the public interest".

On 24 December, Commissioner Merriman published a decision in which he rejected Cumberland's submissions on jurisdiction and in relation to s.111(1)(g)(iii) of the Act. He announced his decision to issue an interim award for reinstatement, to apply from 23 December 1993 and remain in force for three months.

In relation to jurisdiction, Commissioner Merriman referred to another proceeding within the Commission, C No. 20197 of 1993. He noted that two Nationwide divisions, one apparently based in Sydney and one in Melbourne, were parties to this proceeding. Cumberland was not referred to in the file. He said that the dispute finding made in that proceeding on 9 June "applies to Nationwide News Pty Limited and its divisions where the Company employs members of the Union or persons eligible to be members of the Union". He went on to refer to eight disputes at specified sites, in New South Wales, Victoria, South Australia and Western Australia, concerning "wages, hours of work, technological changes, conditions of employment and the implementation of the structural efficiency principle". He made formal findings, pursuant to s.101 of the Industrial Relations Act as follows:

"1.That there is in existence within the meaning of the said Act an industrial dispute between the Printing and Kindred Industries Union and Nationwide News Pty Limited and other employers not yet identified which are engaged or may be engaged in the newspaper or printing industry as defined in the Graphic Arts Award, 1977.

2.That the subject matters which are in dispute and the situation likely to give rise to the dispute is wages, hours of work, conditions of employment, introduction of technological change, security of employment and the introduction of the structural efficiency principle.

3.That the dispute exists beyond the limits of any one State of Australia."

Cumberland immediately appealed against Commissioner Merriman's decision.  On 31 December 1993, Senior Deputy President Riordan made an order staying the award made by the Commissioner.

The appeal came before a Full Bench of the Commission (Vice-President Moore, Justice Munro and Commissioner Hodder) on 20, 21, 24 and 25 January 1994.  Amongst other things, counsel for Cumberland criticised Commissioner Merriman's reliance on his knowledge of the eight disputes mentioned in his finding about jurisdiction.  Their complaint was that, in failing to notify Cumberland that he proposed to rely on that knowledge, he denied Cumberland procedural fairness.

During the course of the hearing, the Full Bench announced that, notwithstanding Cumberland's objection, it proposed to consider the eight industrial disputes and other matters on which Commissioner Merriman relied, but that it would make the Commission's files concerning those disputes available to the parties and receive any evidence they cared to lead in relation to them.  The Commission adjourned the hearing to allow this to happen.

Both parties filed affidavit evidence concerning the other disputes.  The essence of Cumberland's evidence was that neither it nor Nationwide was, or had been, a party to any of the eight disputes and that none of those disputes had anything to do with Cumberland or Nationwide or the negotiations at Parramatta whose breakdown precipitated the retrenchments.  Mr Cahill, on the other hand, gave evidence regarding "dramatic technological advances in the printing industry which have placed great demand on the participants in the industry in respect to negotiations for structural efficiency improvements and workplace reforms".  He said that negotiations on these reforms "have been widespread throughout the industry" and went on to discuss the detail of each of the disputes referred to by Commissioner Merriman.

On 16 March, the Full Bench took submissions on this material.  Counsel for each party handed up written submissions and addressed orally.  Their arguments were supplemented by further submissions later sent to the Commission.

The Full Bench decision

On 25 March 1994, the Full Bench published its decision. The decision is lengthy; so we will summarise it. First, the Full Bench refused leave to appeal against Commissioner Merriman's refusal to apply s.111(1)(g)(iii) to the case, holding that the Commissioner's exercise of discretion was unexceptional and there was no aspect of that matter justifying leave to appeal. Secondly, the Full Bench dealt with the Commissioner's decision to make a reinstatement award, holding that Nationwide had been denied procedural fairness in relation to that matter. The Full Bench accepted the company's claim that it had not understood the hearings on 17 and 19 December to be dealing with the merits of making an award; so it was precluded, in a practical sense, from putting submissions on that issue. The Full Bench thought Commissioner Merriman had misapprehended Nationwide's position. The Full Bench granted leave to appeal in respect of this aspect of the case, quashed the interim award and directed that the application for the award be dealt with by Justice Munro and/or his panel.

The Full Bench commented that it followed from its direction "that we are satisfied that Commissioner Merriman was dealing with a dispute that could sustain, in a jurisdictional sense, the Award".  They said the issue of jurisdiction was a matter of such importance that, in the public interest, leave to appeal should be granted.  They granted leave and set out their conclusions concerning jurisdiction.  They disagreed with Commissioner Merriman's reliance on the dispute found in matter C No. 20197 of 1993.  They thought that dispute related only to a particular log of claims made earlier in the year.  However, they agreed with the second basis of jurisdiction found by Commissioner Merriman.  They said it emerged from the material before the Commissioner:

"that Nationwide saw the negotiations it was undertaking in relation to its employees in the Cumberland Newspaper Group as negotiations that had to be viewed in a national context having regard to similar negotiations that had occurred elsewhere".

The Full Bench referred to Mr Flynn's address of 30 November.  They went on to note that the Graphic Arts Award 1977 governed the employment of the relevant Cumberland employees.  They pointed out that the changes negotiated for by Nationwide, if implemented, would probably have required a variation of this award or the certification of an overriding agreement.  They went on:

"While necessarily the subject matter of the discussions in relation to the operation of the Cumberland Newspaper Group directly concerned the operations of that division only and related to one aspect of its operations, they were nonetheless discussions of the type comprehended by the structural efficiency principle of this Commission.  The structural efficiency principle has operated in a way which has resulted in increases in the rates of pay in awards of this Commission where changes have been made to the terms upon which and the manner in which work is performed under those awards."

After quoting from a Commission decision of October 1991 concerning the operation of the structural efficiency principle, the Full Bench commented that "there is no necessary connection between the continued operation of the structural efficiency principle and wage increases generally available to be incorporated into awards of this Commission or embodied in certified agreements".  Nonetheless, they emphasised the continued operation of the structural efficiency principle.  They said:  "A feature of the structural efficiency principle, as it has evolved since 1989, is the introduction of facilitative clauses and award modernisation clauses into awards" of the Commission.  They pointed out that the Graphic Arts Award included such a clause.  That clause (cl.17) contains the following provisions:

"Commitment

(b)The parties to this award are committed to the implementation of a new wage and classification structure, classification definitions and in creating appropriate relativities between different employee skill levels within the award.  In making this commitment the parties:

(i)Accept in principle to move constructively and rapidly to the development of a single trade stream for the pre-press area leaving a new structure of three trade streams, pre-press, press and post-press allowing for the broadening of the skill and work of employees in the context of appropriate training provisions.  As part of this process employees in trade classifications are to perform work that is incidental or peripheral to their main tasks or functions.  This shall not mean that employees be required to perform work for which an employee has not been trained.

(ii)Accept in principle of new (sic) Graphic Arts Award structure in which descriptions of job functions will be more broadly based and generic in nature.

(iii)Undertake that subject to agreement at enterprise level, employees are to undertake training for the wider range of duties and for access to higher classifications.

(iv)Agree not to create barriers to advancement of employees through access to proper accredited training and the advancement of employees through the new structure.

(v)Will co-operate in the transition from the existing wage and classification structure to the proposed new structure to ensure that the transition takes place in an orderly manner without creating false expectations or disputation.

Award modernisation

(c)(i)       The parties to this award are committed to co-operating positively to increase the efficiency, productivity and international competitiveness of the printing industry and to enhance the career opportunities and job security of employees in the industry.

(ii)At each plant or enterprise, an employer, the employees and their union shall establish a consultative mechanism and procedures appropriate to the size, structure and needs of that plant or enterprise.  Measures raised by the employer, employees or union for consideration consistent with the objectives of paragraph (i) herein shall be processed through that consultative mechanism and procedures.

(iii)Measures raised for consideration consistent with paragraph (ii) herein shall be related to implementation of the new classification structure and the facilitative provisions contained in this award.

(iv)Without limiting the rights of either an employer or a union to arbitration, any other measure designed to increase flexibility at the plant or enterprise and sought by any party shall be notified to the Commission and by agreement of the parties involved shall be implemented subject to the following requirements.

.the changes sought shall not affect provisions reflecting national standards;

.the majority of employees affected by the change at the plant or enterprise must genuinely agree to the change;

.no employee shall lose income as a result of the change;

.the relevant union must be a party to the agreement;

.the relevant union shall not unreasonably oppose any agreement;

.any agreement shall be subject to approval by the Australian Industrial Relations Commission and if approved shall operate as a schedule to this award and take precedence over any provision of this award to the extent of any inconsistency.

(v)Any disputes arising in relation to the implementation of paragraphs (ii), (iii) and (iv) herein shall be subject to the provisions of clause 57 -             Settlement of Disputes."

The Full Bench went on:

"The view taken by Nationwide as to the scope and effect of the structural efficiency principle is, in our view, too narrow.

The following analysis of the material produced by the parties discloses that the negotiations about a range of specific matters concerning the workforce in Cumberland Newspaper Group were taking place in a context where similar issues were being raised more generally in the industry on behalf of employers bound by the same award as that applying to that workforce, namely the G.A. Award.  The same matters or similar matters were being discussed.  They are all matters of the type to which the structural efficiency principle was directed."

The Full Bench then detailed the course of proceedings before the Commission concerning the implementation of cl.17 of the Graphic Arts Award, commenting:

"it is apparent that throughout the complex history of negotiations about the implementation of the structural efficiency principle that preceded that variation, there had been a set of core issues pursued by The Printing and Allied Trades Employers' Federation of Australia ("PATEFA").  Nationwide and other employers in the industry are members of PATEFA.  Some items in that set of issues dated back to an application made by PATEFA in 1989 concerning the implementation of the structural efficiency principle in the industry regulated by the G.A. Award.  Among those issues are several which are substantially the same as those advanced by Nationwide in its negotiations with the PKIU delegates concerning the Cumberland Newspaper Group immediately prior to the dismissals."

After noting that Commissioner Merriman would have been aware of the similarities between the Cumberland claims and those of PATEFA, the Full Bench referred to "a significant coincidence between the interests being advanced by Nationwide in relation to the Cumberland Newspaper Group and by employers elsewhere in the industry".  They gave four examples.  In each case, the comparison was between a claim of Cumberland in the 1993 negotiations and a claim made by PATEFA on behalf of printers generally.  They commented:

"This comparison of four of the claims being pursued in relation to Cumberland Newspaper Group in the negotiations with the pre-press employees discloses a high degree of similarity between Nationwide's interests and those advanced by PATEFA in the preceding three years.  Some aspects of the Cumberland claims are not found in those made by PATEFA.  One instance is the Cumberland proposal that public holidays be worked as ordinary time.  However Cumberland's proposals for retraining, the introduction of electronic editorial layout and the acceptance of hard copy are almost identical to claims by PATEFA reflected in similar provisions in clauses 15A and 16 of the proposed award to replace the Country Printing Award which applies to employees engaged in the printing industry.  In this connection we note that as to the matters of disagreement at the Cumberland Newspaper Group, there are at least three instances of the same matters forming the subject of enterprise agreements (between PKIU and employers bound by the G.A. Award) certified by the Commission at around the same time as the negotiations and proceedings relating to the Cumberland Newspaper Group in 1993.  They were referred to in the decision of Commissioner Merriman the subject of this appeal and were also the subject of documentary evidence before us.

It is clear from this material that both Nationwide in relation to the Cumberland Newspaper Group and more generally other companies in the printing industry either through PATEFA or directly have been, are or are likely to be engaged in the process of workplace negotiations of the type comprehended by the structural efficiency principle in relation to broadly the same subject matter.  This is not surprising given that this industry is undergoing significant change.  ...

The circumstances confronting Commissioner Merriman were that Nationwide dismissed part of its workforce in circumstances where it was unable to reach agreement about workplace change.  It is at least arguable that it did so without giving effect to its award obligations arising under clause 9B of the G.A. Award in that it arguably failed to give PKIU and its employees notice of its firm decision to contract out the work which would give rise to redundancies.  Had it done so discussions could then have taken place of the type contemplated in clause 9B directed, inter alia, to try to avoid the redundancies.

Having regard to these matters we are satisfied that at the time the Award was made there was in existence an industrial dispute, as defined, and that the making of the Award was incidental to the settlement of that dispute."

The Full Bench likened the situation to that considered by the High Court of Australia in Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604, to which we will come later. They continued:

"It was open to Commissioner Merriman to make a finding of dispute, as defined, generally in the terms he did on 23 December 1993.  He thus had jurisdiction to make the Award in settlement of that dispute or as an incidence of the settlement of that dispute.  It is our present view the finding should be in the following terms:

'A dispute exists between Nationwide News Pty Limited, other employers and the Printing Trades Employers Federation of Australia on the one hand and the Printing and Kindred Industries Union on the other.  The subject matter of the dispute is the introduction of workplace change including the alteration of hours of work, payment for public holidays, pagination of copy, training and use of technology and the use of casuals.  The dispute exists in New South Wales and other states.'

However the parties to the appeal have not had an opportunity to address us on the precise terms of the finding though much of their submissions related to whether there was a dispute and the nature of it.  Further other employers who are or who may be parties to the dispute may have an interest in the final terms of the finding of dispute.  Accordingly and should it prove necessary, Justice Munro can consider what variations, if any, are appropriate to the precise terms of this finding."

The Full Bench concluded by discussing two other matters:  whether the award made by Commissioner Merriman was truly an interim award; and whether the fact that Nationwide  no longer had work for the employees meant that the Commission had no jurisdiction to require reinstatement.  As to the latter question, the Full Bench said:

"Clearly this issue may well be relevant to the issue of whether any award should be made.  It involves, however, too narrow a view of the nature of an award that might be made.  The jurisdiction of this Commission is not limited legislatively to making 'reinstatement orders' even assuming that such an order cannot be made in circumstances where the work that was formerly done is no longer required to be done or even capable of being done.  The intended effect of the Award was to restore the employment relationship and an employee's obligations in such circumstances is to be ready, willing and able to work whether or not the employer is able to find work for the employee.  We see no reason why, in the circumstances that confronted Commissioner Merriman, an award of this type could not be made within jurisdiction requiring the re-establishment of the employment relationship."

The present proceeding

Pursuant to the Full Bench direction, it was decided that Justice Munro would sit with Commissioners Hodder and Merriman on 14 and 15 April 1994 to hear the PKIU's application for a reinstatement award. Three days before the projected hearing day, on 11 April, Nationwide filed a Notice of Motion in the High Court for an order that the AIRC, Justice Munro and Commissioners Hodder and Merriman show cause why writs of prohibition and certiorari should not issue against them. As previously mentioned, the PKIU was also made a respondent. Nationwide sought that the matter be remitted to this Court: see s.412(2) of the Industrial Relations Act, which took effect on 30 March 1994.  On 13 April, Brennan J so ordered.  In view of the imminence of the proposed hearing, and Nationwide's contention that the AIRC had no jurisdiction and should be restrained from taking any further action pursuant to the direction, the matter was brought before us urgently on the afternoon of 13 April.

When the hearing commenced, counsel for the PKIU indicated that they did not oppose the making of an order nisi; they did oppose any order that would have the effect of preventing the AIRC dealing with the matter in the period before the Court determined whether the order nisi should be made absolute.  But counsel for Nationwide pressed for such an order.  So we heard argument on that question.   At the end of the argument, we stated that we were not prepared to make such an order and would give written reasons in due course.  In the result, the only order that we made on 13 April was that the respondents: 

"show cause, before a Full Court of this Court, on a date and time to be fixed why: 

(a)a writ of prohibition should not be issued against them prohibiting them and each of them from further proceeding on:

(i)the finding of Commissioner Merriman dated 23 December 1993 in Matter C No. 22135 of 1993 as to the existence of an interstate industrial dispute;

(ii)the decision of a Full Bench of the Commission ('Full Bench') comprising Justice Munro and Commissioner Hodder, together with the Honourable Michael Francis Moore, who was formerly the Vice President of the Commission, dated 25 March 1994 in Matter C No. 22255 of 1994 confirming the existence of an interstate industrial dispute;

(iii)the decision of the said Full Bench dated 25 March 1994 that the Commission has jurisdiction in C No 22135 of 1993 to make an award requiring the re-establishment of an employment relationship between the Prosecutor and the 54 persons retrenched from the operations of its Cumberland Newspaper Group at Parramatta on 15 December 1993 in reliance upon the existence of the said industrial dispute; and

(iv)the direction of the said Full Bench of the Commission dated 25 March 1994 to Justice Munro to deal with the said industrial dispute in accordance with the Industrial Relations Act 1988 ('the Act'); and

(b)a writ of certiorari should not be issued against them and each of them to remove the said finding, decisions and direction to this Court for the purpose of the said finding, decisions and direction being quashed."

The appropriate test

This is the first case remitted to this Court under s.412(2). A threshold question is the test that this Court should apply in determining whether to grant interim relief, whether by staying the operation of an AIRC order or by granting an interlocutory injunction.

Counsel for Nationwide pointed out that the injunction power given to the Court by s.419 of the Industrial Relations Act is couched in the same terms as that given to the Federal Court of Australia by s.23 of the Federal Court of Australia Act 1976. Section 419 reads:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

Having regard to this identicality of wording, counsel submitted that the Industrial Relations Court should take the same approach as the Federal Court would take in determining whether or not to grant an interlocutory injunction; namely, to determine whether there was a serious question to be tried and, if so, whether the balance of convenience favoured the grant of interlocutory relief. Counsel for the PKIU, on the other hand, submitted that the Court should apply the test that had been developed in the High Court in connection with applications for interim orders against the AIRC and its predecessor, the Australian Conciliation and Arbitration Commission ("ACAC"). 

Counsel's comparison between s.419 of the Industrial Relations Act and s.23 of the Federal Court of Australia Act is helpful; but we think we should make the point that the Court's jurisdiction does not depend upon s.419. As previously mentioned, this matter has been remitted to us from the High Court under s.412(2) of the Industrial Relations Act. When a case is remitted under that subsection, the source of the Court's jurisdiction is s.412(3). The Court exercises the same jurisdiction as the High Court would have exercised if the matter had not been remitted. The jurisdiction that the High Court would have exercised is that conferred by s.75(v) of the Constitution; namely the jurisdiction in "all matters ... In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". This head of jurisdiction was informatively discussed by Morling and French JJ in David Jones Finance & Investments Pty Ltd v Commonwealth of Taxation (1991) 28 FCR 484 at 491-497. Of course, once the jurisdiction of the Court is invoked, the Court has its full powers including the power to make an interlocutory injunction under s.419.

It is clear that the High Court has an inherent power to preserve the subject matter of litigation:  see Tait v The Queen (1962) 108 CLR 620. In Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1981) 34 ALR 208 at 211, Mason J said that there was:

"no reason for thinking that in an appropriate case the court cannot exercise the jurisdiction so as to preserve the subject matter of the litigation when the litigation is an application for a writ of prohibition".

In Re Merriman; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1984) 53 ALR 440 at 443, Brennan J used the words "such an exceptional order" to describe an order sought by the prosecutor (apparently under the Court's inherent jurisdiction) staying the operation of an order made by the ACAC.

The power to stay proceedings commonly used by High Court Justices is that conferred by Order 55 rule 10 of the Court's Rules.  That rule reads:

"An order nisi for certiorari or prohibition shall, if the Court or a Justice so directs, operate as a stay of the proceedings in question until the determination of the application or until the Court or a Justice otherwise orders."

The circumstances under which it is appropriate for the Court or a Justice to make a direction under this rule have been described in various ways.  Speaking of an application under Order 55 rule 10 to stay proceedings before the ACAC, Dawson J said that "the jurisdiction to grant a stay is to be exercised with caution and in a case such as the present should be exercised sparingly":  see Re McKenzie; Ex parte Federated Liquor and Allied Industries Employees' Union (1985) 11 IR 297 at 298. Brennan J amplified the point in Re Griffin; Ex parte Professional Radio and Electronics Institute (1988) 167 CLR 37. Rejecting an application to stay a Commissioner's decision, his Honour said at 42:

"A stay of a Commissioner's decision is exceptional. ... There are sound reasons for this rule.  Decisions of the Commission are made in a climate of industrial relations and of economic conditions which presents a multitude of considerations which the Commission must evaluate in deciding where the merits lie.  This Court is concerned solely with the legality of the exercise or purported exercise of the Commission's powers and not with the merits of the decision whose legality is challenged.  Exceptional circumstances need to be shown to warrant the making of an order by this Court, before it determines the legality of an impugned decision, which affects the merits of a problem in industrial relations."

In Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177, McHugh J dealt with four applications for orders nisi directed to the AIRC and for orders that the orders nisi operate as a stay of various awards made by it. At 184-185, his Honour referred to Order 55 rule 10. He commented that the jurisdiction to grant a stay "is to be used sparingly and with caution. Ordinarily a strong case will need to be shown before a stay will be granted under that rule". Several weeks later, McHugh J rejected a second stay application in the same cases, made on a different ground. In giving his reasons, he acknowledged that the applicants had an arguable case for final relief, although he thought they were unlikely to succeed. However, considering balance of convenience arguments, he said the applicant's arguments "are not sufficiently strong, in my view, for this court to take the exceptional step of interfering with proceedings in the Commission".

It seems to us that, in considering what course this Court should take, we should bear in mind three matters.  First, it is a mistake to see the process customarily undertaken in the Federal Court, in considering an application for interlocutory relief, as being necessarily different to that undertaken by a High Court Justice in considering an application for a stay under Order 55 rule 10.  Although the Federal Court practice is to address two matters that are conceptually distinct, the strength of the applicant's case and the balance of convenience, those matters will often overlap.  Woodward J, with whom Smithers and Sweeney JJ agreed, pointed this out in Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 472. He said that "the two legs of the test" - that is, strength of the applicant's case and balance of convenience:

"need not be considered in isolation from each other.  Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even.  A more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it."

This approach has often been applied by Federal Court Judges:  see for examples, Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 per Jenkinson J at 107; OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 at 272, Kevlacat Pty Ltd v Trailcraft Marine Pty Ltd (1987) 79 ALR 534 at 536 and Aboriginal Development Corporation v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159 at 163-164. The approach was endorsed by Mason ACJ in Castlemaine Tooheys Limited v State of South Australia (1986) 161 CLR 149 at 155 when he said that "in some cases the balance of convenience may be affected by the Court's perception or evaluation of the strength of the plaintiff's case for invalidity". The essence of the Federal Court's task, in determining whether or not to grant interlocutory relief under s.23 of the Federal Court of Australia Act, is to consider all aspects of the case, as they then appear, and to make a judgment whether it is appropriate for the Court to intervene or not; and, if so, in what way.  In undertaking that task, the Court considers both the strength of the applicant's case and matters of convenience.  The weight to be given to each aspect varies from case to case and may be strongly influenced by the Court's view of the other aspect.  The Full Court had this variability in mind when it said in Ralkon at 163-164:

"Everything must depend upon the circumstances of the case, including the extent to which the applicant has had an opportunity to present the facts to the court and the consequences of granting or of refusing relief.  This is what was meant by Woodward J when, in Bullock (at 472) and in Jungpradit v Hurford (unreported, Woodward J, 21 August 1985), he spoke of considering together the two tests of 'serious question' and 'balance of convenience'.  The overriding principle is that referred to by Dawson J in A v Hayden (1984) 59 ALJR 1 at 5 'that a court ought not to be misled by an overstrict application of verbal formulae to depart from its primary duty to do complete justice in the cause.'"

It seems to us that this task is not essentially different to that undertaken by High Court Justices pursuant to Order 55 rule 10.  That rule does not specify the relevant criteria; it merely refers to the Court's discretion.  But it would be natural for a Justice asked to make a judgment about the exercise of that discretion to approach the matter in the same way as if asked to grant an interlocutory injunction, considering both the strength of the applicant's case and the question of convenience and making an overall judgment as to whether it is right to intervene.  It appears from his stated reasons that McHugh J followed this course in determining the second Australian Nursing Federation application. 

Our second observation is that it would be undesirable for this Court to adopt criteria, in relation to applications for stay orders against the AIRC, differing from those applied in the High Court. Section 412(2) of the Industrial Relations Act does not deprive the High Court of first instance jurisdiction to make orders against the AIRC or the Coal Industry Tribunal. That would be constitutionally impossible: see s.75(v) of the Constitution. The subsection merely enables the High Court to delegate the exercise of that jurisdiction, in a particular case, to this Court. It will be for the High Court itself to determine the extent to which the subsection is used. This Court has no independent jurisdiction in such matters. It has jurisdiction only in such cases as the High Court selects. Moreover, it will be for the High Court to determine what criteria it should apply in considering the possibility of remitting a particular case to this Court. We do not presume to predict the criteria; but it does seem safe to suggest that several factors will be thought relevant. Some may point in one direction, some in another; the right course may not always be apparent. We say no more than that it would be regrettable if the issue of remittal, in any particular case, was rendered more contentious, and the High Court's decision more difficult, because of a belief by the parties that this Court takes an approach to interlocutory relief different from that taken in the High Court.

Thirdly, the High Court's cautious approach to stay orders against the AIRC does not depend upon considerations peculiar to that Court, such as the terms of its Rules or some aspect of its practice.  They arise out of the very nature of such applications.  Brennan J made this point in Re Griffin when he referred to the "multitude of considerations which the Commission must evaluate in deciding where the merits lie".  Although the ultimate question in such cases is a legal one, whether or not the AIRC has jurisdiction, its answer usually depends upon a matter of fact, whether or not there is an industrial dispute extending beyond the limits of any one State.  The determination of that question will often require evaluation of a "multitude of considerations".  The AIRC has special expertise in that task.  Its assessment is not lightly to be overridden. 

Section 101(3) of the Industrial Relations Act provides that:

"A determination or finding of the Commission on a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by the question".

Notwithstanding the width of its expression, this provision cannot exclude the jurisdiction of the courts to intervene, regardless of any determination or finding, in a case where the Commission clearly has no jurisdiction. However, s.101(3) does at least indicate a legislative intention that the courts accord great weight to the AIRC's determinations and findings on the existence of industrial disputes.

Moreover, there is a public interest in the AIRC proceeding expeditiously.  The Commission is instructed by s.98 to "perform its functions as quickly as practicable".  Section 110(1) provides that, where the Commission is dealing with an industrial dispute, it shall "carefully and quickly inquire into and investigate" the dispute and all matters affecting its merits and right settlement.  As a stay or an interlocutory injunction will almost always delay the finalisation of Commission proceedings, it is appropriate to recall the comment of Mason ACJ in Castlemaine Tooheys at 154:

"... where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction."

The three matters to which we have referred all point in one direction.  We think it is appropriate for this Court to adopt the approach taken by the High Court to stay applications, to make orders staying proceedings in the AIRC only in exceptional cases.  It is not desirable to specify those cases in exhaustive terms, but it is likely that they will mostly be cases where it is clear that the AIRC is acting outside its jurisdiction or otherwise unlawfully.  Where the question of jurisdiction depends upon a question of fact, as to which the AIRC has made a finding, that finding should be accorded great weight and overridden only if clearly shown to be wrong.

The AIRC's jurisdiction in this case

We turn to the ultimate question in the case:  whether it has been clearly shown that the AIRC lacks jurisdiction to entertain the proceedings instituted by the PKIU in respect of the reinstatement of Nationwide's Parramatta employees.  This question turns on whether it is correct to regard the Parramatta dispute as an isolated dispute, confined to a single establishment in one State, or as part of a wider dispute, extending interstate, between the PKIU and Nationwide, and possibly other employers as well.

In considering this issue, we will confine ourselves to the findings and reasoning of the Full Bench of the Commission.  Consistently with our observations as to respect for the Commission's decisions, it would be inappropriate for us to place reliance on those findings of Commissioner Merriman that were rejected by the Full Bench.  Accordingly, we disregard Commissioner Merriman's reference to proceedings C No. 20197 of 1993. 

Although the Full Bench cited disputes between the PKIU and other employers (and their representative organisation PATEFA) in elaboration of their view that the dispute at Parramatta was not an isolated incident, they fundamentally based their decision on jurisdiction on their conclusion that the Parramatta dispute was part of a wider dispute between the PKIU and Nationwide, extending interstate, concerning the implementation of the structural efficiency principle contained in cl.17 of the Graphic Arts Award.  In reaching that conclusion, the Full Bench placed weight on the fact that Nationwide itself saw its Parramatta negotiations "as negotiations that had to be viewed in a national context having regard to similar negotiations that had occurred elsewhere".  They referred to Mr Flynn's address to the Parramatta employees on 30 November 1993.  It seems to us that, in making the sometimes difficult judgment whether a particular dispute is an isolated one or part of a larger dispute, it is legitimate to take into account the way the parties themselves saw the matter, especially at a time before legal considerations affected their posture.  The evidence in this case is particularly telling.  First, it comes from the party denying that the Parramatta dispute had wider ramifications, so it is not self-serving evidence.  Secondly, it takes the form of a considered utterance by a senior executive of Nationwide.  Thirdly, the statement was made at a critical time, only two weeks before the retrenchments.

The Full Bench was not content to refer to Mr Flynn's statement.  They examined the context in which it was made.  In effect, they asked themselves how anyone could say that the seemingly isolated negotiations at Parramatta had a wider significance.  As we understand their reasoning, it was this inquiry that led the Full Bench to talk about the structural efficiency principle embodied in the Graphic Arts Award.  The Full Bench thought that the negotiations, if successful, would have resulted in award variations, but they did not tie their conclusion to that belief.  They saw the discussions at Parramatta, and at other places, as being all "matters of the type to which the structural efficiency principle was directed".  They were discussions in which the parties sought to work through the detail of that principle.

We have already stated the terms of cl.17.  The clause provides for on-going negotiations about movement towards "the development of a single trade stream for the pre-press area", this involving broadening of the skill, work and trade classifications of employees.  In recognition of the fact that these negotiations might prove contentious, cl.17(v) provided a dispute settlement mechanism.  In the view of the Full Bench, the dispute that led to the Parramatta retrenchments arose out of the negotiations between Nationwide and its employees for implementation of the agreed structural reforms; so also did the disputes that occurred in other Nationwide premises.  The high degree of commonality of issues in the various disputes supports that view of the facts.  But can it properly be said that disputes in a number of individual establishments in different States, even concerning identical or similar issues arising out of the implementation of an agreed structural change, constitute an industrial dispute extending beyond the limits of any one State?

We think that the High Court's decision in Vista shows that this question must be answered affirmatively.  The similarities between that case and the present extend well beyond the fact that the PKIU was involved in both of them.  The employees dismissed by Vista were employed under a federal award, the Pulp and Paper Industry (Production) Award 1973.  In 1989 the AIRC ruled that wages payable under that award (amongst others) could be increased pursuant to a structural efficiency principle the purpose of which was to increase flexibility in the industry.  It was thought that the changes negotiated pursuant to this principle might involve award variations.  Following the AIRC decision, negotiations took place between the PKIU, on the one hand, and Vista and Associated Pulp and Paper Mills Ltd ("APPM") on the other.  Vista operated a mill at Emu Plains in New South Wales; APPM had mills at Wesley Vale and Burnie in Tasmania.  As in the present case, the negotiations were conducted separately but involved common issues.  The APPM negotiations achieved some success, but the Vista negotiations broke down when the employer unilaterally changed the working hours.  The Vista employees stopped work for one day.  As a result, many were dismissed.  The PKIU sought a reinstatement award.  But Vista challenged the jurisdiction of the AIRC to deal with the matter, arguing that the dispute was limited to its mill at Emu Plains and had no interstate element.  The High Court unanimously rejected this submission.  Gaudron J, with whom Brennan, Dawson and Toohey JJ agreed, analysed the situation in this way at 609:

"The industrial situation with which this case is concerned is one in which negotiations were taking place in the pulp and paper industry in Tasmania, between APPM and its employees, and in New South Wales, between Vista and its employees.  In both cases, the employees were members of the PKIU, a federally registered union, and the negotiations concerned wages and conditions governed by the Award, albeit that the negotiations may also have involved over-award matters.  And even if the negotiations were about different conditions, they were directed, in both instances, to securing award wage increases in return for changes negotiated pursuant to a principle adopted by the Commission in relation to federal awards generally and in respect of which agreement had been reached 'on a national basis' as to the procedures to be followed for its implementation in the Award.  It was in that context - a context which itself is interstate in character - that the dismissals occurred on 4 March.

Even if the matters involved in the 1991 negotiations were outside the ambit of an earlier log of claims, there may then have been an actual interstate dispute as to the matters with which those negotiations were concerned, being a dispute between Vista and APPM, on the one hand, and the PKIU and its members employed at Wesley Vale and at the Vista mill in New South Wales, on the other.  In any event, it seems unlikely that negotiations would be taking place if there were not some underlying difference as to wages or employment conditions.  And as already indicated, the circumstances in which the negotiations were being conducted were themselves interstate in character. ...

Prohibition is granted only if the prosecutor makes 'a clear case' that the Tribunal or authority concerned lacks jurisdiction.  So far as Vista asserted a want of jurisdiction on the basis that the Tasmanian evidence was not sufficient to give an interstate aspect to the dismissals in New South Wales, it has failed to make a case of that kind.  On the contrary, in my view, the industrial situation in which the dismissals occurred on 4 March, involving, as it did, negotiations in two States with respect to the implementation of the Commission's wage fixing principles in the Award which governed Vista and its employees as well as APPM and its employees, tends overwhelmingly in favour of the finding made by Riordan DP."

Counsel for the PKIU, in the present case, pointed out that each of the features of the negotiations identified by Gaudron J in the first paragraph of this extract was present in this case.  Nationwide and the PKIU contemplated wage increases in return for the agreed changes.  The negotiations took place pursuant to a principle adopted by the AIRC following agreement of the relevant parties on a national basis.

It is true, as counsel for Nationwide said, that in Vista logs of claim were served.  But this circumstance played no part in Gaudron J's reasoning.  Indeed, at 613 her Honour deprecated what she called "an over-emphasis on the 'paper dispute'", saying that its consequence was "a tendency to concentrate on the detail of the written demand at the expense of the actual industrial situation".

Counsel for Nationwide submitted that, in order to constitute an interstate industrial dispute, something more was required than that the AIRC had included in an award a broadly-stated principle and the parties were negotiating about the implementation of that principle in more than one State.  We agree that there must be a limit to reliance upon a principle such as the structural efficiency principle in cl.17 of the Graphic Arts Award.  No doubt there will always be room for improvement in workplace efficiency and employees' conditions.  It would be going too far to see all negotiations about improved work practices and employees' conditions as negotiations pursuant to a structural efficiency principle, regardless of the time that has elapsed since the principle was inserted in the relevant award and the subject matter of the negotiations.  But to acknowledge this is simply to say that the question is one of fact. 

The question that needs to be determined, in any particular case, is whether the differences that led to the various negotiations arose out of differing views as to the manner in which the structural efficiency principle should be implemented, in which case those differences may constitute an interstate dispute concerning the manner of implementation of the award, or whether they sprang from a different source.  Sometimes the answer will be obvious.  Sometimes it will not.  Vista suggests that where the situation is not clear, but there is no evidence relating the negotiations to a different source, substantial commonality of issues may be evidence that the negotiations concern the implementation of a structural efficiency principle.  We add the comment that this will not be so if the evidence shows that the parties had previously agreed that they had fully implemented the principle, so that its operation was exhausted.  Nor will it be so if the structural efficiency principle is so remote in point of time, or the issues under discussion so trivial or unrelated to improved efficiency, that it could not rationally be concluded that the parties were still attempting to determine how to implement the objectives stated in the structural efficiency principle.

In the present case the factual situation was not obvious.  So the AIRC examined the nature of the issues under negotiation in the various Nationwide establishments and found a high degree of commonality.  Clause 17 was not remote in point of time.  It was common ground that the various issues were directly relevant to the objectives stated in cl.17.  They were not peripheral to efficiency; on the contrary, according to Nationwide, they were critical to the company's continued participation in display advertisement make-up. Particularly in the absence of evidence of any other source of the negotiations, it seems to us that the AIRC was entitled to conclude that the various negotiations reflected a continuing interstate dispute as to the implementation of cl.17.

Counsel for Nationwide put two additional submissions.  First, they said that, if there ever was an interstate industrial dispute, their client was no longer a party to it; they had dismissed all their relevant employees and terminated the operations of the display advertisement make up section.  This submission is untenable.  The employees were dismissed, and the section closed, because of a breakdown in negotiations for workplace changes.  If there could be any doubt about that fact, it is resolved by the letters from Mr Coghlan to the dismissed employees on 15 December and Ms Hynes' letter to Mr Cahill on the same day.  The dispute did not disappear because Nationwide dismissed its employees; on the contrary, it was thereby intensified.

Secondly, counsel say that it would not be open to the AIRC to make a reinstatement award as a means of settling the type of dispute identified by the Full Bench; that is, a dispute whose subject matter is:

"the introduction of workplace change including the alteration of hours of work, payment for public holidays, pagination of copy, training and use of technology and the use of casuals".

But this submission treats a dispute as a static thing, never changing, enlarging or contracting.  As Gaudron J pointed out in Vista at 613, that approach is wrong:

"... it may be noted that an industrial dispute is not necessarily fixed and definite, either in terms of its subject matter or in terms of the parties to it; a dispute 'may be diminished or ended or enlarged or altered during ... proceedings in the Commission' (The Queen v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, per Murphy J at 168) or, for that matter, at any stage during the course of the dispute itself."

Her Honour went on to say that, "although the Commission's powers are confined by the matters in dispute, they are not limited to the precise claims made but ... extend to the making of an award which is 'relevant',  'reasonably incidental' or 'appropriate' to the matters in issue" or has a "rational or natural tendency" to dispose of them. 

A dispute concerning wages or other conditions of employment may be enlarged by dismissals of employees.  The dismissals being part of the enlarged dispute, the AIRC may deal with the dismissals by making an appropriate award; thereby at least reducing the dispute to its original dimensions.  If the original dispute between Nationwide and its employees was within the AIRC's jurisdiction, it clearly has jurisdiction to make a reinstatement award.  The question whether it should do so, having regard to all the circumstances including the time that has now elapsed, is something for the AIRC to determine; it is not a matter for us.

Counsel for Nationwide referred only briefly to the balance of convenience.  They did not contend that the continuation of the AIRC hearing imposed any significant burden on their client.  But they expressed concern about the possibility of the Commission making a reinstatement award that would require their client to re-engage employees for whom it had no work.

We appreciate that a reinstatement award may place a burden on Nationwide.  On the other hand, it is likely that the dismissals have caused financial hardship to some (if not all) the dismissed employees.  Whatever course is taken, there is a cost to someone.  For this reason, in considering the proper exercise of our discretion, we preferred to focus on the strength of Nationwide's claim to relief.  Having reached the conclusion that Nationwide failed to demonstrate a clear case, we decided the application for interlocutory relief on that basis without attempting to measure the balance of convenience.

I certify that this and the preceding thirty-nine (39) pages
are a true copy of the Reasons for Judgment
of the Court.

Associate:

Dated:     3 June 1994

APPEARANCES

Counsel for

Nationwide News Pty Limited:                  R J Buchanan QC and I M Neill

Solicitors for

Nationwide News Pty Limited:                  Minter Ellison Morris Fletcher

Counsel for PKIU:  F L Wright QC and M J Walton

Solicitors for PKIU:  Turner Freeman

Date of hearing:  13 April 1994