R v Portus; Ex parte City of Perth

[1973] HCA 64

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Menzies, Gibbs and Stephen JJ.

THE QUEEN v. PORTUS; Ex parte CITY OF PERTH.

(1973) 129 CLR 312

21 December 1973

Conciliation and Arbitration (Cth)

Conciliation and Arbitration (Cth)—Industrial dispute—Claim of right to appeal to Conciliation and Arbitration Commission against dismissal from employment—Commission to determine whether dismissal harsh, unjust or unreasonable and make settlement it deems just—Whether claim related to industrial matter—Conferring of judicial power on Commission—Power to enforce award given to Commission—Jurisdiction of Commission—Conciliation and Arbitration Act 1904-1972 (Cth), s. 4 (1).

Decisions

December 21.
The following written judgments were delivered:-
BARWICK C.J. In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Menzies and those prepared by my brother Stephen. I agree that the rule nisi for prohibition should be made absolute for the reason that the failure of the prosecutors to agree to the demands of the respondent association made by its letter of 23rd March 1972 did not give rise to a relevant industrial dispute. In my opinion, it did not claim anything which pertained to the relationship of employer and employee within the meaning of s. 4 (1) of the Conciliation and Arbitration Act 1904-1972 (Cth) (the Act). The subject matter of the demands, in my opinion, was the capacities and functions of the Conciliation and Arbitration Commission, a matter regulated by the Act and not a proper subject for treatment by dispute or award. As well, the function sought to be given to that Commission included a decision as to whether or not a claimant employee fell within the terms of the proposed award, and in particular whether he was an officer whose employment had been terminated or an officer who had been dismissed. At least to determine that particular question would be an exercise of judicial power. To decide whether conduct fell within a statutory description of "harsh, unjust or unreasonable" would, in my opinion, be a judicial function. I see no reason why that should not be so in relation to such a description in an industrial award. (at p315)

2. Further, I think that, unlike some award provisions which provide machinery for the implementation of other provisions of the award, e.g. provisions for a board of reference, the proposed provision would do no more than provide machinery for the resolution of disputes between individual employees and individual employers as to the circumstances of the dismissal of the one by the other. Whether or not such a difference amounted in a relevant sense to an industrial dispute, a matter which I find no need presently to resolve, clearly it would not be a dispute extending beyond the limits of any one State. (at p316)

3. It will thus be seen that I agree substantially with all the reasons given by my brother Stephen for his conclusions and that, whilst otherwise agreeing with his reasons, I do not wholly share the reservations which my brother Menzies makes. (at p316)

McTIERNAN J. This matter is an application for a writ of prohibition pursuant to the Constitution, s. 75 (v). Each of the applicants is a local government authority and an "employer" as defined by s. 4 (1) of the Conciliation and Arbitration Act 1904 (Cth), as amended. The respondents in the application are a Commissioner appointed under s. 6 of the Act, and the Association of Professional Engineers, Australia, which is an organization of employees registered under the Act. The employees of the local government authorities include members of the Association. Each employee is an "employee" as defined by s. 4 (1) of the Act. The wages and conditions of employment of the employees are prescribed by awards made under the Act. There are in the awards conditions as to the termination of employment and as to dismissal from employment. The former provide for termination after the expiry of a notice of termination. The right of dismissal without notice upon grounds justifiable at common law is not taken away by the awards. (at p316)

2. On 23rd March 1972 the Association made a written demand on each local government authority, which reads thus: "The Association of Professional Engineers, Australia on behalf of its members and persons eligible to be members employed by your Council makes the following claim: (a) That officers, in the event that their employment is terminated or who are dismissed, shall have the right to appeal against such purported termination or dismissal to the Commonwealth Conciliation and Arbitration Commission provided any such appeal is made within 14 days of the purported termination or dismissal. (b) The Commonwealth Conciliation and Arbitration Commission shall determine whether or not the purported termination or dismissal was harsh, unjust or unreasonable and may make such settlement as it deems just in the circumstances. If your Council is not prepared to grant this claim by Friday 31 March, 1972 it is the intention of the Association to notify the Industrial Registrar of the existence of an industrial dispute within the meaning of section 28 of the Commonwealth Conciliation and Arbitration Act." (at p317)

3. On 5th April 1972 the Association pursuant to s. 28 (2) of the Act notified the Industrial Registrar of "the existence of an industrial dispute" with respect to the matters which form the subject of the demand. In proceeding upon the notification of the dispute which was heard in the Commission by the respondent Commissioner, a finding was made in the following terms:

"(1) That an industrial dispute exists between the Association of Professional Engineers, Australia and the following employers, the Cities of Stirling, Perth, Fremantle, Darwin and the town of Gladstone. (2) That the dispute relates to officers who are members of the Association and concerns the matter claimed in the letters of demand made to the abovementioned employers". (at p317)

The object of the writ of prohibition which the employers, the local authorities mentioned above, ask the Court to issue is to forbid the Commission to hear further submissions by the parties to the dispute as to the award which it would be appropriate to make in settlement of the dispute. The virtual rejection by the employers of the Association's demand for alterations in the conditions of employment in relation to termination of employment and dismissal, in my opinion, resulted in a dispute as to industrial matters which extends beyond the limits of any one State. The issue of a writ of prohibition should, in my opinion, be refused. (at p317)

4. "It is a cardinal rule of construction that all documents are to be construed ut res valeat magis quam pereat": In re Florence Land and Public Works Co. (1878) 10 Ch D 530, at p 544 . This rule is applicable to the Association's written demand sent to the employers to accord to its members in their employment a new right in respect of termination of and dismissal from employment. According to decisions in cases in this Court there is not the same precision required in a log of claims as, for example, in a conveyance. This principle is applicable to the writing containing the demand, refused by the employers. Giving the writing a beneficial construction, I arrive at the conclusion that the rejection of the demand resulted in an industrial dispute which the Commission has jurisdiction to settle by conciliation or arbitration. (at p318)

5. It seems to me from the words of the demand that the "Officers" to whom it applies are not persons between whom and their employer, there is no longer any employer-employee relationship. In my opinion the demand is made in relation to matters pertaining to the relations of employers and employees: Conciliation and Arbitration Act, s. 4 (1) - definition of "Industrial Matters", see also s. 4 (1) (k). I think that the substance of the demand is that an officer aggrieved by the termination of his employment or dismissal from it, although the termination or dismissal is in accordance with the terms of an award or otherwise lawful, should have a new right, to be created by an award made under the Conciliation and Arbitration Act 1904 (Cth), as amended, to complain in arbitral proceedings in the Commission that the termination or dismissal, as the case may be, is "harsh, unjust or unreasonable", that is unfair, and to ask the Commission to make a settlement by way of reinstatement as it deems just in the circumstances. This would not involve, in my opinion, an incursion into the judicial power of the Commonwealth under the Constitution. (at p318)

6. The dispute resulting from the rejection of the demand is not limited by the boundaries of Western Australia or Queensland. It is a two-State dispute. The fact that the termination of employment or the dismissal from employment may happen within the boundaries of a State does not prevent the dispute being an inter-State dispute. (at p318)

7. I would discharge the order nisi. (at p318)

MENZIES J. I agree with the reasons for judgment of Stephen J., which I have had the advantage of reading, with this one reservation that, as at present advised, I would not wish to commit myself to the conclusion that the review of a dismissal of a worker by an employer to determine whether that dismissal was harsh, unjust or unreasonable would inevitably involve the exercise of judicial power. (at p318)

2. It seems to me, however, that a claim by the Association upon three employers - two in Western Australia and one in Queensland - that the Commission should, in the event of an appeal by a dismissed worker, determine whether the dismissal by his employer was harsh, unjust or unreasonable and should order a settlement between the worker and the employer, cannot give rise to an industrial dispute extending beyond the limits of a state. Any dispute to which such a claim might give rise is about the way in which a difference which may happen in the future between an employer and a dismissed worker shall be settled. What is sought is an award by the Commission that the Commission should itself settle any such difference. Such an award would not be in settlement of an industrial dispute; i.e. a dispute as to matters pertaining to the relations of employers and employees. It would relate to the powers to be exercised by the Commission. Furthermore, the power of the Commission stems from legislation under s. 51 (xxxv.) of the Constitution and is not subject to extension by awards made by the Commission itself. The Commission cannot add to its statutory power to hear and determine industrial disputes. Still less can it give itself power to settle differences which are not of that character. (at p319)

3. I agree that the order nisi should be made absolute. (at p319)

GIBBS J. This application is made by three local authorities, the City of Perth and the City of Stirling (both of which are situated in Western Australia) and the Town of Gladstone (in Queensland) ("the prosecutors") for a writ of prohibition directed to the Commonwealth Conciliation and Arbitration Commission, a member of the Commission (Mr. Commissioner Portus) and the Association of Professional Engineers, Australia ("the Association") prohibiting them from proceeding further in a matter which is at present pending before the Commission. (at p319)

2. The Association includes among its members professional engineers who are employed by local authorities. It claims that such professional engineers need protection against arbitrary and unjust dismissal from their employment, particularly since the municipalities by which they are employed are controlled by changing bodies of elected councillors whose varying policies may very well lead to difficulties in the discharge by the engineers of their duties. In New South Wales and South Australia legislation has been passed to give to municipal employees, including professional engineers, a right to an independent inquiry into a threatened dismissal and in some circumstances a right to compensation if the dismissal is carried out. There are, however, no such provisions in Queensland, and in Western Australia the statutory provisions that do exist apply only to professional engineers who hold the office of City or Shire Engineer and not to professional engineers employed by municipalities in other capacities. In the hope of securing, for professional engineers employed in Western Australia and Queensland, a protection similar to that available to engineers employed by municipalities in New South Wales and South Australia, the Association served on the prosecutors letters of demand by which it made the following claims: "(a) That officers, in the event that their employment is terminated or who are dismissed, shall have the right to appeal against such purported termination or dismissal to the Commonwealth Conciliation and Arbitration Commission provided any such appeal is made within 14 days of the purported termination or dismissal. (b) The Commonwealth Conciliation and Arbitration Commission shall determine whether or not the purported termination or dismissal was harsh, unjust or unreasonable and may make such settlement as it deems just in the circumstances." (at p320)

3. These claims not having been complied with within the time specified in the letters of demand, the Association notified the Industrial Registrar of the existence of an industrial dispute "with respect to the purported termination or dismissal of professional engineers as set out in the aforesaid letter of demand". When the matter came before the Commission, Mr. Commissioner Portus accepted the contention made on behalf of the prosecutors that it would not be within his power to make an award in the terms sought in the letter of demand because such an award would involve the grant to the Commission of judicial power. However, he was of opinion that an industrial dispute existed, and he suggested the terms of an award by which it might be settled. Before making a formal finding he adjourned the matter to enable further submissions to be made. At the adjourned hearing the Association tendered a draft award which in substance was the same as that suggested by the Commissioner. After hearing further argument the Commissioner said that he considered that an award could be made in settlement of the matter in the terms which he had originally suggested, subject to some amendments in point of form. He said:

"The order which would be an award would be binding on the following parties, the various councils concerned, the Association and the members of the Association. It would state (1) that except as provided in s. 5 of the Conciliation and Arbitration Act and by variations to this award an officer, who is a party to this award and who is dismissed from his employment or who has had his employment terminated shall have no right to reinstatement or to monetary compensation apart from such compensation that he is entitled to arising out of his contract of employment; (2) An officer, who is a party to the award, within fourteen days after the employer terminated the employment of or dismissed such officer, may make application to the Commission for a variation of the award to provide that the particular employer be ordered to reinstate the officer in employment or be ordered to pay monetary compensation in place of any rights to which the officer may be entitled." (at p321)

4. He then formally found that an industrial dispute existed between the Association and the prosecutors and that the dispute concerned the matter claimed in the letters of demand. He had not heard any submissions on the question whether an award ought to be made, and expressed no opinion on the merits of the dispute. (at p321)

5. Before us it was submitted on behalf of the prosecutors that the failure of the prosecutors to accede to the claims in the letters of demand did not give rise to an industrial dispute for four reasons, namely: (1) the claims, if met, would have the result that judicial power would be conferred on the Commission; (2) the claims seek the provision of machinery for the settlement of disputes which would not extend beyond the limits of one State but would be purely local; (3) the claims seek to give the Commission power to enforce its own awards; and (4) the claims, in seeking that the Commission should be given power or jurisdiction to hear an appeal, did not relate to an industrial matter. The prosecutors' submission was that the question was whether the failure to accede to the letters of demand created an industrial dispute, and that the draft award submitted at the adjourned hearing was of no relevance, but in the alternative it was said that the same objections would be open if the failure to agree to the draft award could be treated as giving rise to a dispute. (at p321)

6. On behalf of the Association it was strenuously submitted that it does not matter that it might have been beyond the power of the Commission to make an award in the very terms of the letters of demand. The letters, it was said, merely suggested a way of settling a dispute whose ambit could be determined, not only by looking at the letters, but also by considering the background of the matter, the purpose and object with which the demand was made, and what happened before the Commission. It was submitted that an award in the terms of the letters of demand could be supported but the real substance of the Association's claim - which was disputed - was that the professional engineers should have a new term of their employment in lieu of the existing terms pursuant to which they were liable to dismissal after having been given notice, a new term which would entitle an engineer, if dismissed, to have a review by the Commission, and, in appropriate circumstances, to be reinstated or compensated as a result of the review. In other words, the substance of the dispute was said to be as to whether the conditions of employment should include a provision qualifying the right of the employer to dismiss an engineer by subjecting any dismissal to a review. It was said that this dispute could be settled by a valid award and that if an award which provided for a review by the Commission after a dismissal was invalid an award should be made providing that an engineer should not be dismissed unless and until he had been given notice and, if he then referred the matter to a board of inquiry (or to the Commission), the board (or Commission) had confirmed the proposed dismissal. A further alternative suggested was that the dispute might be settled by an award which simply provided that the right to dismiss should not be exercised harshly, unjustly or unreasonably. (at p322)

7. In the present case, as in many other cases, it does not matter, so far as the result is concerned, whether the inquiry that is made is whether there exists an industrial dispute extending beyond the limits of any one State within the meaning of s. 51 (xxxv.) of the Constitution or whether there has arisen an industrial dispute within the definition of s. 4 of the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"). There is no doubt that there exists a real and genuine dispute; the question is as to its nature. So far as the evidence shows, a dispute extending beyonds the limits of any one State originated only when the letters of demand had been served and had not been complied with. Before that, it appears, there had been a dispute at Gladstone as to the dismissal of one engineer and a dispute at Stirling in relation to the dismissal of another, but these were local disputes; in other words, there had been two intra-State disputes rather than one dispute extending beyond the limits of one State. To determine the nature of the dispute that came into existence by the failure to accede to the letters of demand it obviously becomes necessary to look at the demands contained in the letters. However, I am prepared to assume that a future or different dispute could emerge during the course of proceedings before a Commissioner - see Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228, at pp 238, 246, 263 - although it seems to me that for this to occur it would be necessary to find that before the Commission a further demand was made with which there was no compliance. I am prepared further to assume that in the present case the Association, by suggesting that an award be made in the form of the draft, which was tendered to the Commission, either made a new demand or clarified its original demand and that the failure of the prosecutors to accede to this demand gave rise to a dispute whose ambit should be discerned from the draft award which the Association put before the Commission rather than from the original letters of demand. Whether the claims which gave rise to the dispute are to be found in the letters of demand or in the draft award, the question must be whether they related to an industrial matter and it is no objection to the jurisdiction of the Commission that it would be beyond power to make an award in the precise terms suggested in the claims - Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. (1972) 126 CLR 529, at pp 533, 559, 562-563 . (at p323)

8. In my opinion, the substance of the dispute is as to whether a professional engineer who has been dismissed from his employment by a municipality should have the right to have the dismissal reviewed by the Commission and to be reinstated or to receive compensation if the Commission so decides. The difference between the claims as formulated in the letters of demand and those formulated in the draft award is that in the former case the power of the Commission to make an order would depend upon its determination that the dismissal was harsh, unjust or unreasonable, whereas in the latter case no criteria would be expressly specified as those by which the Commission's decision would be governed or guided. (at p323)

9. A claim, not acceded to, that an employer should not dismiss an employee harshly or unreasonably would give rise to a dispute as to an industrial matter and a Commissioner could validly settle the dispute by making an award in the terms of the claim: Reg. v. Gough; Ex parte Meat and Allied Traders Federation of Australia (1969) 122 CLR 237, at p 240 . The dismissal of an employee is something that pertains to the relationship between the employee and his employer and is an industrial matter. However, I am of opinion that the dispute in the present case was not as to whether employers should be forbidden to dismiss an employee harshly or unreasonably; it was as to whether an employee when dismissed should have a right to apply to the Commission for an order for reinstatement or compensation, or, put in another way, whether the Commission should have power to entertain such an application. It does not appear that it was ever suggested at any time before the submission was made to us in argument that the Association claimed that an award should be made providing only that employees should not be dismissed harshly, unjustly or unreasonably, and there is nothing whatever in the material before us to show that if no more than that had been sought by the Association the prosecutors would not have acceded to the demand. However, an award could not validly be made which provided, not only that an employer should not dismiss an employee harshly or unreasonably, but, also, that the Commission might order the reinstatement in employment of any employee so dismissed. It was so held in Reg. v. Gough; Ex parte Meat and Allied Trades Federation of Australia (1969) 122 CLR 237 . The reason given for that decision by Barwick C.J., Windeyer and Walsh JJ. was that the determination of a dispute as to whether a dismissal was harsh or unreasonable would involve the exercise of judicial power contrary to Ch. III of the Constitution. Menzies J. based his decision on the ground that an award of the kind there sought would not be an award made in settlement of an industrial dispute extending beyond the limits of one State, but would rather be a step in the enforcement of an award already made. Owen J. based his decision on the ground that an award of that kind would provide for the enforcement of the rights given by the award itself. (at p324)

10. The claims made by the letters of demand in substance are for a provision giving the Commission a discretionary power to award relief to an employee whose dismissal was harsh, unjust or unreasonable. I need not consider whether the Commission's functions under such a provision would be the ascertainment or enforcement of existing rights, and would thus involve the exercise of judicial power, because in framing the alternative form of award sought, which was embodied in the draft and, in substance, accepted by the Commissioner as being within his powers, the Association was at pains to provide that the employee should have no right to reinstatement or compensation, and to omit any mention of harshness, injustice or unreasonableness. In effect what was then sought was a provision giving the Commission an arbitrary power to order relief and leaving entirely to the Commission the determination of the matters to be considered in the exercise of the power. The exercise, by a body not a court, of a discretionary power of an arbitrary kind, not governed by any objective tests or standards, is not, in my opinion, the exercise of judicial power: see the cases cited in Cominos v. Cominos (1972) 127 CLR 588, at p 598 . (at p324)

11. The question however is whether a dispute arising from a claim that a power of that kind be conferred on the Commission is a dispute as to an industrial matter. I cannot accept that such a dispute would be rightly characterized as one as to the terms of the employment of the employees concerned; it goes beyond that, since what is sought is to confer power on the Commission. Looked at from one point of view, the dispute may appear to be as to the employer's power to dismiss or duty to reinstate in employment, but since it is intended that no criteria should be laid down by which the extent of the power or nature of the duty could be ascertained, it seems to me that what is in truth sought is an extension of the powers of the Commission. That this is so is indeed made clear by the affidavit filed on behalf of the Association, wherein it is stated that the aim of the Association is to obtain for its members employed in Western Australia and Queensland similar protection to that available to members employed in similar positions in New South Wales and South Australia. In other words, the Association seeks, by an order of the Commission, to assimilate the law of Western Australia and Queensland to that of New South Wales and South Australia. Such a demand is one which the employers themselves would have no power to grant, and it seems to me impossible to accept that a demand of that kind could give rise to an industrial dispute within the Act or within s. 51 (XXXV.) of the Constitution. An industrial dispute will only arise from the failure of employers to accede to the demand of their employees if the demand is for some change in the conditions of employment, or for something otherwise pertaining to the relations of employers and employees, which it is within the capacity of the employers to bring about. A demand for legislative action, for example, would not give rise to a dispute which the Commission would have jurisdiction to settle. Similarly the Commission cannot, by making an award, increase its own powers or jurisdiction and a demand that it should do so would not give rise to an industrial dispute. In short, a claim by employees upon their employers that the powers, functions or jurisdiction of the Commission should be enlarged is not a claim as to an industrial matter. (at p325)

12. The Association in the present case is in something of a dilemma. If it asserts that the dispute arose from the failure to accede to the letters of demand, and that what was demanded was that the employees should be given a right that they should not be harshly, unjustly or unreasonably dismissed and that the Commission should be given power to enforce that right, the demand, in its second aspect, would clearly be one that the Commission would have no power to grant, having regard to the authority of Reg. v. Gough; Ex parte Meat and Allied Trades Federation of Australia (1969) 122 CLR 237 . On the other hand, if what is sought is that the Commission should have power arbitrarily to order that an employee who has been dismissed should be reinstated or compensated, the substance of the demand would be for an increase in the powers or jurisdiction of the Commission and it would not be a demand as to an industrial matter. (at p326)

13. If the Association were right in its contention that there has been raised a dispute as to whether a proposed dismissal should not become effective until it has been confirmed by the Commission (or a board appointed by the Commission) I would still consider that the dispute would not be as to an industrial matter. The conclusion I have reached does not depend upon the fact that the Commission is required to act after a dismissal has taken effect, rather than during the currency of the employment, but, as I have said, on the ground that what is really sought is an expansion of the Commission's powers. (at p326)

14. Since, for the reasons I have given, I consider that there was no industrial dispute which enlivened the Commission with jurisdiction I need not consider the other arguments advanced on behalf of the prosecutors. (at p326)

15. I would make absolute the order nisi. (at p326)

STEPHEN J. This is an application to make absolute an order nisi for a writ of prohibition directed against the Commonwealth Conciliation and Arbitration Commission and one of its members, Mr. Commissioner Portus, and also against the respondent Association, prohibiting them from proceeding further in a matter pending before the Commission and to which the Association and the prosecutors are parties. (at p326)

2. The proceedings before Mr. Commissioner Portus concern an alleged industrial dispute which has arisen out of the failure of the prosecutors and other local government authorities to agree to a demand made on them by the respondent Association and contained in a letter dated 23rd March 1972. By that letter the Association claimed: "(a) That officers, in the event that their employment is terminated or who are dismissed, shall have the right to appeal against such purported termination or dismissal to the Commonwealth Conciliation and Arbitration Commission provided any such appeal is made within 14 days of the purported termination or dismissal. (b) The Commonwealth Conciliation and Arbitration Commission shall determine whether or not the purported termination or dismissal was harsh, unjust or unreasonable and may make such settlement as it deems just in the circumstances." Following non-compliance with this demand the existence of an industrial dispute was duly notified and the matter came on for hearing before Mr. Commissioner Portus in April 1972. (at p327)

3. At that hearing counsel for the prosecutor submitted that the claim, if granted, would involve the conferring of judicial power on the Commission, that it sought to provide for the settlement of future disputes not extending beyond the limits of a single State, that the subject matter of the claim did not constitute an industrial dispute as defined by the Commonwealth Conciliation and Arbitration Act and that it contemplated the imposition by the Commission of penalties for breach of an award, a function no longer vested in the Commission. (at p327)

4. The Commissioner, in his decision of 21st June 1972, rejected these last two submissions, doubted whether any settlement of future disputes not extending beyond the limits of a single State was involved but concluded that the claim, if embodied in an award, might purport to require the exercise by the Commission of judicial power. He held that he was empowered to record the existence of an industrial dispute but not to make an award in the terms sought although it would be open to him, in settlement of the dispute, to make an award in somewhat different terms which he then outlined and which he described as avoiding any question of the purported exercise by the Commission of judicial power. (at p327)

5. Following an adjournment to permit the parties to consider the form of award suggested by the Commissioner, the hearing was resumed in August 1972 whereupon the Commissioner rejected contentions urged by counsel for the prosecutors and stated that should he, after hearing the merits of the matter, find in favour of the respondent Association he would consider himself empowered to make an award in the terms earlier outlined by him. He then recorded a finding as follows:

"1. That an industrial dispute exists between the Association of Professional Engineers, Australia and the following employers, the Cities of Stirling, Perth, Fremantle, Darwin and the town of Gladstone. 2. That the dispute relates to officers who are members of the Association and concerns the matter claimed in the letters of demand made to the abovementioned employers." (at p327)

6. The dispute in this case was created solely by the service of the Association's demand and its non-acceptance by those employers to whom it was addressed. As was said in Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71, at p 79 :

"... the industrial dispute depends entirely on the delivery of the logs by or to the organisation followed by non-compliance with the claims they contain. It does not arise out of any actual conduct of specific employees or groups of employees."

This is, then, an instance of a dispute such as Barwick C.J. and Menzies J. conceived to be involved in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 ; it is a dispute the definition or extent of which is to be found in the written demand and in it alone and it is to its terms that attention must be confined in determining whether the Commission now has jurisdiction to proceed with the hearing and to make an award in settlement of this alleged industrial dispute. (at p328)

7. The Commission's jurisdiction depends upon the existence of an industrial dispute, a dispute "as to industrial matters which extends beyond the limits of any one State" - s.4; and what is claimed must relate to an industrial matter in the sense defined in s. 4, failing which the Commissioner can make no award - Reg. v. Hamilton Knight; Ex parte Commonwealth Steamship Owners' Association, per Dixon C.J. (1952) 86 CLR 283, at p 295 . (at p328)

8. In my view the Association's claim is not as to any industrial matter; it is, rather, a claim to the exercise by the Commission, in the future, of a new jurisdiction involving the exercise of judicial power and this for the purpose of the settlement of future industrial disputes necessarily lacking any inter-State quality. (at p328)

9. It is true that what is claimed involves, as a possible outcome of an appeal, the employer's duty to reinstate in employment, a matter specifically referred to in par. (k) of the definition of "industrial matters" in s. 4; but the Association's demand cannot, even if liberally construed, be interpreted as giving rise to an inter-state dispute as to that matter. (at p328)

10. The demand no doubt contemplates that "settlement" by the Commission may involve the making by it of an order for reinstatement in employment; this does not, however, mean that rejection of the demand creates a dispute as to the right to reinstatement. The subject matter of the dispute must, I think, be characterized not as one concerning the employer's duty to reinstate in employment but, rather as a dispute as to a proposed new function or jurisdiction to be conferred upon the Commission. The remedy sought by way of reinstatement cannot control the characterization of the subject matter of the dispute as it emerges from the terms of the Association's demand. (at p328)

11. As the Commissioner's findings record, the dispute concerns "the matter claimed in the letters of demand" and what is there claimed is a right of appeal to the Commission and the conferment upon it of a power to adjudicate and to effect a just settlement. (at p329)

12. If, then, the dispute cannot be said to fall within par. (k) of the definition of "industrial matter" merely because reinstatement is, perhaps the principal remedy sought by the demand it is also clear that the dispute is not about the right to dismiss, the only other relevant subject matter of par. (k) of the definition of "industrial matter"; on the contrary the demand makes it clear that the right to dismiss is to remain unaffected, indeed dismissal, or other termination by the employer, is made a condition precedent to the operation of the proposed right of appeal to the Commission. (at p329)

13. If the subject-matter of the dispute is not within par. (k) it will not otherwise be within the general opening words of the definition of "industrial matters", which refer to "all matters pertaining to the relations of employers and employees". Because the demand does not seek to deprive an employer of its power to dismiss or terminate employment but seeks instead to legislate for what will only occur thereafter and then only because of an effective dismissal or termination, it follows that it is the relations of a former employer and its ex-employee that are in question rather than the relations existing between those occupying an existing employer-employee relationship. What was said in this regard in Reg. v. Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association in relation to the demand for pensions, by the Chief Justice (1952) 86 CLR, at p 294 , by McTiernan J. (1952) 86 CLR, at p 301 , by Williams J (1952) 86 CLR, at pp 305-306 , and by Fullagar J. (1952) 86 CLR, at p 319 , is equally applicable here. Nor does the dissenting judgment of Kitto J. in that case afford any comfort to the respondent Association; his Honour concluded (1952) 86 CLR, at pp 329, 332 , that the claim for a pension, like that for compensation for injury, was no more than a claim for an addition to the rewards of the employment, although its receipt might be delayed until after the employer-employee relationship was at an end. In the present case the right or advantage sought by the Association is in no real sense the fruit of employment; what gives rise to it is the employee's dismissal from employment and the employee who is not dismissed never has occasion to enjoy it. Moreover it is not some event occurring during employment, such as an industrial accident or the rendering of years of service, that gives rise to the right; instead it is the termination of employment, combined with a subsequent election by the ex-employee, that would operate to vest in him for the first time the proposed right of appeal. (at p330)

14. I accordingly conclude that the demand in the present case is incapable of giving rise to an industrial dispute. This obstacle to the acquisition of jurisdiction by the Commission cannot, of course, be overcome by any moulding of the proposed form of any award which, were there jurisdiction, the Commission might make. (at p330)

15. There are, moreover, narrower and more specific grounds for denying to the claim the character necessary to give rise to an industrial dispute. It seeks to create machinery for resolution of future disputes, disputes which will inherently involve, on the one hand, an individual ex-employee and, on the other, his former employer. Such disputes will not be ones extending beyond the limits of any one State and, as was said by Menzies J. in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR, at p 256 :

"... when the award sought is, in reality, for the provision of machinery for the settlement of local disputes, the demand for an award cannot, in my opinion, give rise to an industrial dispute for the purposes of s. 51 (xxxv.) of the Constitution." (at p330)

16. Again the task sought to be imposed upon the Commission in settling individual disputes between an ex-employee and his former employer appears to me clearly to require the exercise by the Commission of judicial power. The demand claims for the Commission the function of determining, in each individual dispute, whether the ex-employee was an officer whose employment had been terminated (presumably by his employer and not by him) or who had been dismissed and whether that action was harsh, unjust or unreasonable; having made findings on these aspects the Commission would then make such settlement as it thought just. This process appears to me to involve the exercise of judicial functions no less than was said to be involved in Reg. v. Gough; Ex parte Meat and Allied Trades Federation of Australia, per Barwick C.J. (1969) 122 CLR, at p 241 , with whose reasons Walsh J. agreed (1969) 122 CLR, at p 248 , and per Windeyer J. (1969) 122 CLR, at p 245 . It would involve "the ascertainment of existing rights by the judicial determination of issues of facts or law" and thus fall exclusively within judicial power - Reg. v. Davison per Dixon C.J. and McTiernan J. (1954) 90 CLR 353, at p 369 . (at p330)

17. No doubt an award need not adhere to the particular remedy proposed in a log of claims so long as the relief which it affords is relevant to matters in dispute and is reasonably incidental to their settlement - Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section (1952) 86 CLR 34, at pp 40-41 , and Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR, at p 242 . In the present case the Commissioner sought to avoid, by his proposed form of award, the conferring upon the Commission of the exercise of judicial power and accordingly departed very substantially from the claim made in the demand. In the present circumstances it is unnecessary to determine whether he was successful in that attempt; I would only say that where, as here, a demand seeks a specific remedy, so that the substantial grievance may be described as the absence of that remedy, it may be open to doubt whether an award which provides for quite a different remedy can be said to be made in settlement of the dispute created by the rejection of the demand. (at p331)

18. In my opinion the order nisi should be made absolute. (at p331)

Orders

Order that the order nisi for prohibition be made absolute. Prosecutor's costs to be paid by the respondent Association.