Public Service Assn of SA Inc v Industrial Relations COMM'NR of SA & Chief Executive, Dept of Premier and Cabinet - [2013] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
PUBLIC SERVICE ASSN OF SA INC v INDUSTRIAL RELATIONS COMM'NR OF SA & CHIEF EXECUTIVE, DEPT OF PREMIER AND CABINET
[2013] SASCFC 5
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice White)
28 February 2013
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL RELATIONS COMMISSION - JURISDICTION
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL INSTRUMENTS - ENTERPRISE OR INDUSTRIAL AGREEMENTS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - MANDAMUS - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF - FUTILITY
The PSA notified two industrial disputes to the Industrial Relations Commission: one on the issue of "security of employment for public sector employees"; and the second in relation to the entitlement of public sector employees "in respect of both recreation leave loading and long service leave entitlements" - a Commissioner ruled that the Commission did not have jurisdiction with respect to either notification on the basis that neither involved an "industrial dispute" or "any matter or thing arising from or relating to an industrial matter" as reqired by s 26 of the Fair Work Act 2009 (SA) - that ruling was upheld on appeal to the Full Commission - the PSA sought judicial review in relation to both rulings but acknowledged that its disputes concerning job security and recreation leave loading have become moot - the second defendant also submitted that the long service leave entitlement issue has become moot as a result of an amendment made to the Public Sector Act 2009 (SA).
Held by Kourakis CJ: (1) The dispute over long service leave entitlements subsists, despite the enactment of the amendment to cl 17 of Sch 1 of the Public Sector Act 2009 (SA) (at [1]).
Held by White J (Gray J agreeing) (dismissing the summons): (2) The dispute concerning long service leave entitlements notified to the Commissioner and the issues raised by it are now moot, having been superseded by the amendment to cl 17 of Sch 1 of the Public Sector Act 2009 (SA) (at [7], [42]).
Held by White J (Kourakis CJ and Gray J agreeing) (dismissing the summons): (3) Even if the PSA succeeded on its application for judicial review, any declaration or order in the nature of mandamus would lack utility - as such, the summons should in any event be dismissed on discretionary grounds (at [4], [6], [57]).
Public Sector Act 2009 (SA) Sch 1; Fair Work Act 1994 (SA) s 26, s 76A, s 77, s 82, s 83, s 92; Statutes Amendment (Budget 2010) Act 2010 (SA) s 60, s 61, s 62, s 63; Statutes Amendment (Budget 2011) Act 2011 (SA) s 16, s 17, referred to.
The Public Sector Association of SA Inc v Chief Executive Department of the Premier and Cabinet [2010] SAIRComm 11; Public Service Association of SA Inc v Industrial Relations Commission of SA & Anor (2011) 109 SASR 223; Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia & Anor (2012) 86 ALJR 862; R v The Industrial Commission of South Australia; ex parte Petersville Ltd (1978) 18 SASR 356; R v Commonwealth Conciliation and Arbitration Commission; ex parte Printing Industry Employees' Union of Australia (1964) 109 CLR 554; R v Portus; ex parte Transport Workers' Union of Australia (1977) 141 CLR 1; R v Bain; ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163; Re State Public Services Federation; ex parte Attorney-General for the State of Western Australia (1993) 178 CLR 249; Attorney-General for the State of Queensland v Riordan (1997) 192 CLR 1; R v Sunderland Juvenile Court; ex parte G [1988] 1 WLR 398; Ex parte Malouf; re Gee (1943) 43 SR (NSW) 195; Williams v Home Office (No 2) [1981] 1 All ER 1211; R v Williams; ex parte Lewis [1992] 1 Qd R 643; Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656; R v Industrial Commission of South Australia & Ors; ex parte Corporation of the City of Salisbury (1982) 31 SASR 51; Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; R v Registrar-General; ex parte Lange [1950] VLR 45; Lewis v Green [1905] 2 Ch 340; R v Epping & Harlow General Commissioners; ex parte Goldstraw [1983] 3 All ER 257; Kuru v State of New South Wales (2008) 236 CLR 1, considered.

PUBLIC SERVICE ASSN OF SA INC v INDUSTRIAL RELATIONS COMM'NR OF SA & CHIEF EXECUTIVE, DEPT OF PREMIER AND CABINET
[2013] SASCFC 5
Full Court: Kourakis CJ, Gray and White JJ

KOURAKIS CJ. I would find that the dispute over the long service leave entitlements, of which the Commission was notified on 8 October 2010, subsists despite the enactment of the amendment to s 17 of Schedule 1 of the Public Sector Act 2009 (SA).
The dispute was a dispute between the plaintiff and the employer of its members. It is not necessary to resolve the question of the identity of the government entity which is the employer. However, the point I wish to emphasise is that the dispute concerned the terms and conditions of employment of the plaintiff’s members and in particular how those conditions might be affected by the enactment of the proposed Budget Bill.
The particular relief then sought by the plaintiff was that the executive government, which, directly or indirectly, employed its members, in its capacity as the leadership of the majority party in the Parliament, intervene to prevent the passage of the Budget Bill. However, I would not limit the parameters of the dispute simply because the plaintiff sought relief which might immediately and directly resolve the dispute in its favour. The scope of the dispute was the diminution of the long service leave benefits on which the Enterprise Agreement was premised. On the enactment of the amendment the initial relief sought was no longer attainable but the dispute remained. Indeed the dispute was made more concrete by the passage of the enactment even though the relief, for example, the conferral of additional benefits, must necessarily change.
I would dismiss the summons for judicial review on discretionary grounds. There is no utility in ordering the Industrial Relations Commission of South Australia to exercise its jurisdiction over the notifications of 6 October 2010 and 8 October 2010. The plaintiff accepts that that is so with respect to the former. As to the latter notification, there are more appropriate dispute resolution procedures available to the plaintiff having regard to the enactment of the amendments to clause 7 of Schedule 1 of the Public Sector Act 2009 (SA), the lapse of time, the expiry of the former enterprise agreement and the commencement of negotiations over a new enterprise agreement. The suggestion that there may be former employees who have resigned who might be affected by a resolution of the dispute is speculative. I agree with the reasons of White J in [57].
GRAY J.
This proceeding for judicial review should be dismissed.
Even if a valid dispute subsists, I agree with the conclusion of Kourakis CJ that there is no utility in ordering the Industrial Relations Commission of South Australia to exercise its jurisdiction over the notifications of October 2010. As a matter of discretion, the summons should be dismissed.
I also agree with the conclusion of White J that the debate concerning long service leave entitlements has been superseded by the enactment by the Statutes Amendment (Budget 2010) Act 2010 (SA). As White J observes, in this circumstance, the issues arising in this proceeding has become moot.
Having regard to the foregoing, it is not appropriate for this Court to determine the substantive issue raised in the proceeding.
WHITE J. These proceedings for judicial review have an extended history.
In October 2010, the Public Service Association of South Australia (PSA) notified two industrial disputes to the Industrial Relations Commission of South Australia (the Commission).
The first notification, of 5 October 2010, indicated that the PSA was in dispute with “the Government” on the issue of “security of employment for public sector employees”. The PSA was concerned by the statement of the Treasurer, when delivering the Budget Speech in the House of Assembly on 16 September 2010, that the Government would “reconsider its ‘no forced redundancy policy’” if it was unable to obtain its required reduction of public sector employees by redeployment and voluntary separations.
The PSA considered that forced redundancies would constitute a breach of the South Australian Government Wages Parity (Salaried) Enterprise Agreement 2010 (the Enterprise Agreement). It is a party to the Enterprise Agreement, which had been approved by the Commission under the Fair Work Act 1994 (SA) (FWA) and had come into operation on 14 January 2010. The PSA asked the Commission to convene a voluntary conference under s 200 of the FWA and foreshadowed seeking at that conference a recommendation from the Commission that the Government withdraw its threat to reconsider the “no forced redundancy policy”.
The second notification, of 8 October 2010, indicated that the PSA was in dispute with “the Government” in relation to the entitlement of public sector employees “in respect of both recreation leave loading and long service leave entitlements”. It claimed that the proposed reduction in recreation leave loading and long service leave entitlements announced by the Treasurer in the Budget Speech on 16 September amounted to another breach of the Enterprise Agreement. Again, the PSA sought the convening of a voluntary conference under s 200 of the FWA and foreshadowed seeking at that conference a recommendation from the Commission that “the Government not proceed with its proposed legislation to reduce recreation leave loading and long service leave entitlements for public servants”.
Commissioner McMahon called a voluntary conference at which he expressed the view, following the submission of the Chief Executive, Department of Premier and Cabinet (the Chief Executive), that neither notification gave rise to an “industrial dispute” and therefore that the Commission did not have jurisdiction to deal with them. On 15 October, he issued a written statement confirming his view that the Commission did not have jurisdiction with respect to either notification. Later, acting under s 202 of the FWA, the Commissioner referred both disputes for determination at a compulsory conference at which he would preside. On 22 October 2010 the Commissioner ruled formally that the Commission did not have jurisdiction with respect to either dispute. This was because neither notification involved an “industrial dispute” or “any matter or thing arising from or relating to an industrial matter” as required by s 26 of the FWA for the Commission’s jurisdiction.
On appeal under s 207 of the FWA, that ruling was upheld by the Full Commission.[1] The PSA then commenced proceedings for judicial review in this Court. These proceedings raised the effect of s 206 of the FWA which, on its face, purports to limit judicial review of decisions of the Commission to challenges brought on the grounds of excess or want of jurisdiction.
[1] The Public Sector Association of SA Inc v Chief Executive Department of the Premier and Cabinet [2010] SAIRComm 11.
This Full Court (then differently constituted) held that s 206 had the effect that the refusal by the Commission to exercise jurisdiction in relation to the notified disputes could not be judicially reviewed as it did not constitute an excess or want of jurisdiction.[2] The Full Court’s decision was an application of the decision of the High Court in Public Service Association of South Australia v Federated Clerks’ Union of Australia, South Australian Branch[3] (the 1991 PSA case).
[2] Public Service Association of SA Inc v Industrial Relations Commission of SA & Anor [2011] SASCFC 14; (2011) 109 SASR 223.
[3] (1991) 173 CLR 132.
The PSA argued before the Full Court that the 1991 PSA case was no longer good law given the decision of the High Court in Kirk v Industrial Court of New South Wales.[4] However, the Full Court held, in accordance with established authority, that it was not open to this Court to hold that the 1991 PSA case had been reversed by Kirk; only the High Court itself could take that step.[5]
[4] [2010] HCA 1; (2010) 239 CLR 531.
[5] Public Service Association of SA Inc v Industrial Relations Commission of SA & Anor [2011] SASCFC 14 at [6]; (2011) 109 SASR 223 at 226.
The High Court upheld the PSA appeal. It held that, on its proper construction, s 206 of the FWA permits review on the ground of jurisdictional error, and not merely on some species of jurisdictional error.[6] The High Court also held that if the Commission decides erroneously not to deal with a dispute notification on the footing that there is no industrial dispute as required by s 26 of the FWA, it would err in the determination of its jurisdiction, and would thereby exceed its jurisdiction.[7] That is to say, for the Commission to decide erroneously that it did not have jurisdiction with respect to the PSA notifications would exceed its jurisdiction, and therefore be a decision amenable to judicial review under s 206. Put more shortly, the High Court held that the Commission does not have jurisdiction to decide its own jurisdiction wrongly and that this Court had jurisdiction to hear and determine the PSA application for judicial review.
[6] Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia & Anor [2012] HCA 25 at [65]; (2012) 86 ALJR 862 at 877 (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[7] Ibid.
The High Court then made orders remitting the matter to this Court for determination of the PSA’s summons for judicial review, including any questions of costs in this Court.
At the hearing before the High Court, the South Australian Attorney‑General, who had intervened, contended that events occurring after October 2010 had the effect of rendering the PSA’s appeal “hypothetical”. The High Court chose not to resolve the factual dispute to which that submission gave rise, holding that it would be for this Court, on the remitter, “to determine whether there ever was, or, if so, whether there now remains, any relevant current industrial dispute for the resolution of which by the Commission an order of mandamus should issue”.[8]
[8] Ibid at [52]; 874.
Accordingly, it is now for this Court to hear and determine the PSA’s claim for judicial review, to the extent that that claim has not been rendered moot by subsequent events. Even if not rendered moot, this Court must consider whether, on discretionary grounds, it is appropriate to make an order requiring the Commission to deal with either of the disputes notified by the PSA in October 2010.
Two Claims are Moot
Some two years have now elapsed since the Commission ruled that it did not have jurisdiction in relation to the notified dispute.
The PSA acknowledged that there is no longer a current dispute concerning two of the three matters which it notified to the Commission in October 2010. In relation to the issue of security of employment, the Treasurer announced on 4 June 2011 that “the Government” would “honour its pledge of a no‑forced redundancy policy for the remainder of this electoral term”.
The Government’s plan to replace the recreation leave loading to which certain public sector employees are entitled with two additional days of recreation leave per annum has also been abandoned. Originally effect was given to that planned replacement by ss 60, 61 and 63 of the Statutes Amendment (Budget 2010) Act 2010 (SA) (2010 Budget Act). However, those provisions were repealed by ss 16 and 17 of the Statutes Amendment (Budget 2011) Act 2011 (SA) (2011 Budget Act).
Accordingly, the PSA did not seek relief by way of judicial review in relation to those notifications.
Is the Long Service Leave Issue now Moot?
That leaves only the notified issue concerning the reduction in long service leave entitlements. The Chief Executive contended that that issue too is moot, but the PSA contested that submission.
The changes to the long service leave entitlements foreshadowed by the Treasurer in the Budget Speech were implemented by legislative enactment. Section 62 of the 2010 Budget Act amended cl 7 of Sch 1 to the Public Sector Act 2009 (SA). Prior to its amendment, cl 7(1) provided that, subject to certain qualifications, an employee accrued an entitlement to long service leave at the rate of nine calendar days for each completed year in the first 15 years of service, and 15 calendar days for each completed year of service thereafter.
The effect of the amendment, which came into force on 1 July 2011, is that long service leave now accrues at the rate of nine calendar days for each completed year of service during all service, and not just during the first 15 years. There has therefore been a reduction in the long service leave entitlements of eligible public sector employees. That reduction applies to service after 1 July 2011.
The PSA submitted that in these circumstances the dispute which it notified to the Commission on 8 October 2010 concerning long service leave entitlements remains current.
Counsel for the PSA acknowledged that the dispute is now about the consequences of the reduction achieved by the statutory enactment, rather than the proposal for the enactment. Counsel also acknowledged that the Commission could not issue a direction to the Government to repeal s 62 of the 2010 Budget Act. He submitted, however, that the dispute was still the same dispute as originally notified. Instead of making the recommendation which the PSA had foreshadowed originally, there were other options open to the Commission; for example, to recommend, or to provide by arbitration, some new or varied entitlement so as to offset the loss of long service leave entitlement. The Commission could, he submitted, deal with such a claim as part of the dispute notified in October 2010 in the same way in which it could deal with a dispute after the termination of a worker’s employment even though the dispute was notified when that termination was still pending.
There were two elements to the Chief Executive’s submission on this topic: first, the proper identification of the issue which the PSA had notified to the Commission on 8 October 2010 in relation to long service leave entitlements; and, secondly, the effect of the 2010 Budget Act as just summarised.
In relation to the former, the Chief Executive drew attention to the statement in the PSA’s letter of 8 October 2010 that it was in dispute with the Government in relation to the entitlements of public sector employees in respect of (relevantly) “long service leave entitlements”. As previously noted, the PSA concluded its letter to the Commission by indicating that it would seek from the Commission a recommendation that the Government “not proceed with its proposed legislation to reduce … long service leave entitlements for public servants”.
With the letter of 8 October, the PSA also provided to the Commission a copy of its letter to the Premier dated 5 October 2010, thereby incorporating the contents of that letter into its notification. The letter to the Premier drew attention to the existing long service leave entitlements, to the agreement in the Enterprise Agreement that existing conditions of employment would not be reduced, to the PSA’s view that the action foreshadowed by the Government would amount to a breach of the Enterprise Agreement, and concluded:
In view of all of the above, the PSA requests that your Government immediately withdraws the legislation which it has before Parliament to implement the changes to reduce our members’ entitlements as regards recreation leave loading and long service leave, as announced by the Treasurer in his Budget Speech.

The Chief Executive contended that the effect of these communications was that the notified dispute concerned the then foreshadowed reduction by legislative amendment of the existing long service leave entitlements of public servants, and only that matter. As the Parliament had passed the 2010 Budget Act including its amendment of cl 7 in Sch 1 to the Public Sector Act 2009 (SA), the dispute notified by the PSA had been superseded by subsequent events and had become moot. The enactment had the force of law and he, and the Executive more generally, were bound to give effect to it.
The resolution of this issue requires consideration of the nature of the dispute concerning long service leave which was notified by the PSA to the Commission. It is the substantive and practical effect of that notification which is pertinent. A technical approach is to be eschewed. As King CJ observed in R v The Industrial Commission of South Australia; ex parte Petersville Ltd:[9]
We are not dealing with carefully defined and formulated claims in a formal application and log of claims as in R v Hamilton Knight (1952) 86 CLR 283, where certain individual claims could be treated as separate matters and where the terms of the application might be decisive on the question of jurisdiction. The proper approach, in my view, is to consider the matter of the terms of the dismissal or severance, as delimited by the claims put forward, in order to determine whether that matter, considered as a whole and in substance, is an industrial matter.[10]
(Emphasis added)
Similarly, Windeyer J in R v Commonwealth Conciliation and Arbitration Commission; ex parte Printing Industry Employees’ Union of Australia[11] observed:
Whether or not there be a dispute is a question of fact. And that fact is not necessarily to be determined simply by construing, in terms of offer and counter‑offer, written claims and correspondence. Nor is it to be determined simply by examining competing logs as if one were searching for an issue defined by pleadings.[12]
[9] (1978) 18 SASR 356.
[10] Ibid at 379.
[11] (1964) 109 CLR 554.
[12] Ibid at 551. See also R v Portus; ex parte Transport Workers’ Union of Australia (1977) 141 CLR 1 at 24 (Jacobs J).
It is also appropriate to keep in mind that an industrial dispute may be diminished, ended, enlarged or altered during the course of the proceedings in the Commission.[13]
[13] R v Bain; ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 168. See also Re State Public Services Federation; ex parte Attorney‑General for the State of Western Australia (1993) 178 CLR 249 at 295; Attorney‑General for the State of Queensland v Riordan (1997) 192 CLR 1 at 23.
In the present case, there is nothing in the record of the proceedings in the Commission which indicates that the dispute concerning long service leave entitlements was expanded beyond that originally notified by the PSA. On its face, that dispute related only to the Government’s proposed reduction, by statutory enactment, of the long service leave entitlements. If anything, the written statement of Commissioner McMahon on 15 October 2010 tends to confirm that the dispute before him related only to the proposed legislative enactment. After quoting from the Treasurer’s Second Reading Speech in relation to the 2010 Budget Act, the Commissioner continued:
The PSA sought the Commission’s assistance in recommending to the government that they not proceed with its proposed legislation regarding these matters.
(Emphasis added)
The Commissioner then concluded:
[I]t appears to the Commission that it cannot interfere or attempt to direct the government on legislative matters. The jurisdiction of Parliament is superior to that of the Commission. As there is a Bill before the Parliament in relation to these matters it is the view of the Commission that it has no jurisdiction to act in these matters.
That too suggests that the matters canvassed in the Commission related only to the Government’s proposed legislative enactment.
In my opinion, even when the PSA notification is construed in a substantive and practical way, the proper conclusion is that the dispute concerning long service leave which it notified to the Commission on 8 October 2010 had a limited content. It concerned only the proposed enactment of legislation, in apparent breach of the Enterprise Agreement, to reduce the long service leave entitlements of long serving public sector employees. That is evident from the terms of the dispute as notified by the PSA and from the action which it sought from the Commission.
To the extent that it is permissible to have regard to the conduct of the PSA following the notification of the dispute concerning long service leave, it confirms the limited nature of its notification. When Commissioner McMahon announced his preliminary view that the Commission lacked jurisdiction on the basis that it could not interfere with, or attempt to direct the Government on, legislative matters, the PSA did not contend that its dispute went beyond the proposed legislation. If the dispute had a broader focus than the Commissioner’s preliminary ruling indicated, one would have expected counsel then appearing for the PSA to have asserted that fact. It would have been an obvious matter to emphasise in response to the Chief Executive’s challenge to the Commission’s jurisdiction. That counsel did not do so confirms, to my mind, that the dispute notified to the Commission was of a confined nature, and was dealt with as such.
Courts refuse to grant relief on grounds of futility arising from a change in circumstances before a court delivers judgment. For example, in R v Sunderland Juvenile Court; ex parte G,[14] the Court heard an application for judicial review of a decision to permit disclosure of a particular report. The judicial review grounds were made out but, by the time of the Court’s judgment, the report had already been disclosed. Balcombe LJ stated that “it does not appear to me that any useful purpose would now be served by granting … relief by way of judicial review” and did not grant relief.[15] Similarly, relief with respect to convictions since stayed on the institution of an appeal has been held to be without purpose;[16] declarations about the lawfulness of a prison unit which has since been closed were deemed “academic and of no practical value”;[17] and relief with respect to a decision to suspend after the suspension had expired was held “futile”.[18] In my opinion, that is the position in the present case.
[14] [1988] 1 WLR 398.
[15] Ibid at 409.
[16] Ex parte Malouf; re Gee (1943) 43 SR (NSW) 195 at 201.
[17] Williams v Home Office (No 2) [1981] 1 All ER 1211 at 1248.
[18] R v Williams; ex parte Lewis [1992] 1 Qd R 643 at 658.
I am not overlooking that in the previous Full Court decision, Doyle CJ said that it did not follow from the enactment of s 62 in the 2010 Budget Act that there would be nothing that the Commission could do, if the PSA notification did give rise to an industrial dispute.[19] However, this observation was made by way of dicta when Doyle CJ was considering the possible urgency of the application for judicial review, and not in the present context. Further, Doyle CJ went on to observe:
[The Commission’s] scope for effective action is significantly and perhaps decisively limited by the circumstance that the proposed changes have been enacted.[20]
This indicates that Doyle CJ was not expressing a final view.
[19] Public Service Association of SA Inc v Industrial Relations Commission of SA [2011] SASCFC 14 at [26]; (2011) 109 SASR 223 at 231.
[20] Ibid.
Accordingly, I would hold that the dispute concerning long service leave notified to the Commission on 8 October 2010 has been superseded by the enactment of the 2010 Budget Act. The consequence is that the issues raised by the PSA are now moot and that it is inappropriate for this Court to determine the application for judicial review.
Do the Proceedings Lack Utility?
In case I am wrong in my conclusion that the issues raised in the proceedings are now moot, it is appropriate to consider separately whether there is any utility in the relief which the PSA seeks by way of judicial review. I do so in the context that the matters which the PSA wishes to agitate in the Commission arise from the reduction in long service leave entitlements of public sector employees which occurred in apparent breach of the Enterprise Agreement.
The issue of utility arises because there are several other means by which the PSA can, if it wishes, invoke the Commission’s jurisdiction to seek the kind of relief outlined by its counsel.
First, the nominated term of the Enterprise Agreement expired on 30 June 2012. Despite that expiry, the Enterprise Agreement continues in force until superseded or rescinded (FWA s 83(4)). The Court was informed that negotiations between the PSA and “the Government” for a replacement enterprise agreement have commenced. It is open to the PSA in those negotiations to seek new or varied remuneration or conditions of employment to offset the detriments said to result from the reduction in long service leave entitlements. In those negotiations, both parties must use their best endeavours to resolve the questions in issue between them by agreement (FWA s 76A(1)). By s 76A(5) of the FWA, the Commission may, on application of a party to the negotiations, take steps to resolve the matter by conciliation.
Quite independently of the negotiations for a replacement agreement, the Commission’s powers to settle industrial disputes arising between the parties are preserved (s 82(1)). Before exercising that power, the Commission must first ensure that the procedures laid down in the Enterprise Agreement have been followed and have failed to resolve the dispute (s 82(2)).
Section 77(1)(c) of the FWA provides that an enterprise agreement must include “procedures for preventing and settling industrial disputes between the employer and employees bound by the agreement”. Clause 26 of the present Enterprise Agreement is such a provision. It contemplates a process of consultation, cooperation and discussion with more and more senior employees or officers becoming involved at each stage as becomes necessary. Clause 26.9 provides that if the process breaks down or is exhausted without the dispute being resolved, any party may refer the matter to the Commission. It is implicit that the Enterprise Agreement contemplates that the Commission may then exercise the powers available to it under the FWA to settle the industrial dispute.
Thus, there are three alternative means available to the PSA by which it can invoke the Commission’s jurisdiction in relation to its current concerns. Counsel for the PSA acknowledged as much. Two of the three means have been available to it ever since the enactment of the 2010 Budget Act.
Given these alternative means of recourse to the Commission, a real question arises as to the utility of the relief sought by the PSA in the present proceedings. Counsel referred to the possible precedential effect of the Full Commission’s decision should the same issue ever arise again in the future. That is not a sufficient reason for the determination of the present proceedings.
Another possibility is the matter of retrospectivity. There may be some public sector employees with more than 15 years service whose employment has ceased since 1 July 2011. Employees in that category would have received, in respect of their service after 1 July 2011, long service leave or payment in lieu at the rate of nine days per annum instead of the previous entitlement of 15 days per annum. It might be said that the Commission cannot now make any determination with retrospective effect which would restore their position.
There are limitations on the power of the Commission to give an award retrospective operation (s 92) but that may not preclude the power of the Commission to make an award, with prospective effect, requiring some benefit to be given to the former employees in the limited category outlined above.[21]
[21] Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656; R v Industrial Commission of South Australia & Ors; ex parte Corporation of the City of Salisbury (1982) 31 SASR 51.
When all these matters are considered, the present judicial review proceedings seem to raise issues which are of more theoretical or academic interest than practical importance.
The granting of relief in judicial review proceedings is discretionary. The Court may decline to grant relief even if it finds jurisdictional error.[22] The Court may also decline to grant relief if it considers that the relief would serve no practical purpose or is of insufficient utility.[23]
[22] Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16 at [95]; (2002) 209 CLR 372 at 415-6.
[23] See, for example, R v Registrar‑General; ex parte Lange [1950] VLR 45 at 54.
In Lewis v Green,[24] the applicant sought a declaration regarding the correct construction of a deed. Warrington J declined to make the order sought on the basis that there was insufficient utility in doing so. While such an order would have resolved the issue of construction between the parties, that resolution would not have any conclusive effect on the dispute between the parties. Regardless of how the construction issue was determined, the dispute between the parties would still have been afoot on other bases. This meant that there was insufficient utility in making the order.
[24] [1905] 2 Ch 340.
Relief on an application for judicial review may also be refused if there are alternative means by which the applicant may obtain redress. In R v Epping & Harlow General Commissioners; ex parte Goldstraw,[25] Sir John Donaldson MR said:
[I]t is a cardinal principle that, save in the most exceptional circumstances, that jurisdiction will not be exercised where other remedies were available and have not been used.[26]
[25] [1983] 3 All ER 257.
[26] Ibid at 262.
Thus, even when a ground of judicial review is made out, it is open to a court to decline to grant relief if to do so would not serve any sufficient purpose.
In my opinion, that is the position which would apply in any event in the present case. Even if the PSA succeeded on its challenge to the Commission’s refusal of jurisdiction, a declaration to that effect, or an order in the nature of mandamus, would lack utility. In my opinion, that makes consideration of the substantive issues raised by the PSA unnecessary and inappropriate, even if, contrary to my earlier conclusion, there is a current industrial dispute.
Summary
In summary, I consider that the industrial dispute concerning long service leave entitlements has now been superseded by the enactment of the 2010 Budget Act, so that the Commission’s decision concerning those entitlements has become moot. Even if that conclusion is incorrect, the grant of relief to the PSA in these proceedings would have no practical utility. Accordingly, on this ground alone, the PSA’s application for judicial review should be refused. In these circumstances, it is neither necessary nor appropriate for this Court to address the substantive issues raised by the PSA. That is so despite the general principle that this Court, as an intermediate court of appeal, should address all the issues raised on the appeal.[27]
[27] Kuru v State of New South Wales [2008] HCA 26 at [12]; (2008) 236 CLR 1 at 6.
I would dismiss the summons for judicial review and hear the parties as to the costs of the proceedings in this Court.