Re Alcan Australia Limited & Ors; Ex parte Federation of Industrial, Manufacturing and Engineering Employees

[1993] HCATrans 84

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S13 of 1993
In the matter of

An application for a writ of

mandamus and writ of

certiorari against THE

HONOURABLE MICHAEL FRANCIS

MOORE, THE HONOURABLE COLIN

GEORGE POLITIES and BEVAN

ROSS JOHNSON, the

Vice-President, a Deputy

President and a Commissioner

respectively of the

Australian Industrial

Relations Commission

First Respondents

ALCAN AUSTRALIA LIMITED,

ALCOA OF AUSTRALIA LIMITED,

COMALCO ALUMINIUM LIMITED,

COMALCO ALUMINIUM (BELL BAY)

LIMITED, NABALCO PTY LIMITED,

BOYNE SMELTERS LIMITED,

PORTLAND ALUMINIUM, TOMAGO

ALUMINIUM COMPANY PTY LIMITED

Second Respondents

Alcan 1 23/3/93

Ex parte -

FEDERATION OF INDUSTRIAL,

MANUFACTURING AND ENGINEERING

EMPLOYEES

Prosecutor

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 MARCH 1993, AT 10.50 AM

Copyright in the High Court of Australia

MR J.W. SHAW, QC:  May it please the Court, I appear with my

learned friend, MR J. MURPHY, for the applicant.

(instructed by McClellands)

HIS HONOUR:	Yes, Mr Shaw.
MR SHAW:	Your Honour, this application raises the question

of whether a demand that an employer deduct union

fees from salary can be the subject of an
industrial dispute within the Industrial Relations

Act 1988. In the United States, this is called the

"check-off" system of dealing with union dues.

Your Honour, a Full Bench of the

Commission - - -

HIS HONOUR:  Now, I have read the papers. When I say, "I

have read the papers", I have glanced through the

papers. It is a labour of Hercules to read the

papers that have been filed here. I just wonder

how it is that people appearing in the jurisdiction

before the Commission managed to generate so much

written material and transcript. Has brevity of

thought and expression been discarded altogether?

MR SHAW:  Not altogether, Your Honour, not entirely. I

think the bulk of the paper might be somewhat

deceptive in the sense that, as I understand it -

and I was not involved below - there were other

proceedings before a single commissioner directed

to seeking to obtain a preference to unionist

clauses in the award and I think that that material

was simply tendered to the Full Bench as a large

bundle of material. So that I think the Full Bench

hearing, in fact, only occupied a couple of days.

HIS HONOUR:  Yes, I would have thought so. I cannot really

see that all that additional material throws any

light on the question in the present case.

Alcan	2	23/3/93
MR SHAW:	No.	In my consideration of the argument,

Your Honour, I think that there are only a couple

of brief passages in the evidence that we would

propose to refer to and, indeed, the bulk of the

argument is well crystallized in the decision of

the Full Commission which is exhibit - - -

HIS HONOUR:  Yes, I would have thought so. But I was going

to ask you: what chances have you got of success,

Mr Shaw?

MR SHAW:  We would optimistically assess those chances as

high, Your Honour.

HIS HONOUR:  I think you are quite right in using the word

"optimistically", but you cannot really distinguish

this case from Portus' case, can you?

MR SHAW:  I accept that there are difficulties in

distinguishing it, although there is one clear and

obvious basis of distinction, namely, Portus was

concerned with the definition of "industrial
matter" in the 1904 Act, and in the Shell case this

Court has said that the connection with employment needs to be less direct, having regard - - -

HIS HONOUR:  But the decision in Portus did not turn on it

being indirect rather than direct, did it, or

direct rather than indirect?

MR SHAW: That, with respect, is true, strictly,

Your Honour, but, in our submission, the Court in Portus did not appreciate - did not adequately find, we would submit with respect, what we say is the clear and direct impact of these union fee deduction schemes on the employment. It is true that the Court went on to characterize the

relationship demanded as a financial relationship

between the employee and the employer but, in our

submission, that characterization is put into

perspective once one appreciates the critical

connection between the union fee and the facility	that that provides for the recruitment of members
in the union and the employment relationship.

HIS HONOUR:  I can understand facilities for, as it were,

enhancing recruitment, but what about the

employment relationship? You mean, greater union

representation in the workforce has a tendency to

improve conditions in the workplace and to, in that

way, enhance the relationship of employer/employee?

MR SHAW:  Yes, Your Honour, and within the statutory scheme

it is the registered organization which stands as

the representative of the workforce. So, anything,

whether it be preference to unionists or any

mechanism which enhances the union's strength and

Alcan 3 23/3/93

membership, in accordance with the objects of the

Act, in our submission, must impact quite directly

on the relationship between employers and

employees. If compulsory unionism and preference

are all matters which are within the definition of

"industrial matter", we would have thought this

falls within the same category.

HIS HONOUR:  The next difficulty you face is what about

Manufacturing Grocers? Portus seems to have been embraced in Manufacturing Grocers.

MR SHAW:  Only, in our submission, some of the formulations,

particularly, some of the tests in the judgment of

Mr Justice Stephen.

HIS HONOUR:  But also Justice Menzies.

MR SHAW:  Yes, that is so. In a sense, we can live with

some of those formulations as to what the test is
for an "industrial matter" and seek to fit union

fee deductions within it. I think in Manufacturing

Grocers it was said that the matter must pertain to

the relationship between the employer and employee and must not be of a political or social kind. We can, in our submission, succeed consistently with

those observations.

The actual decision in Manufacturing Grocers,

we would submit, assists us in the sense that it
was argued there that what was sought was to create

a new legal relationship between the employer and a

superannuation trust fund, but the Court focused on
the employment or the industrial ramifications of

the superannuation payment. Notwithstanding that,

in a sense, a new legal relationship, a

non-employment legal relationship, is required by

the award of superannuation, despite that, the

Court characterized the matter as an industrial

matter.

Your Honour, we would be supported by the

trend of decisions in this Court to take a broad

approach to these matters: to take into account

the view of the person in the street and to

emphasize the breadth of it.

HIS HONOUR:  But how does that help you? That is only on

the question of industrial dispute. I have never

been much impressed by arguments that precede from

a footing: there is a trend in decisions of the

Court from which you extrapolate to a very broad

conclusion. That is not the way courts reason.

MR SHAW:  No, Your Honour, I appreciate that.

Alcan 4 23/3/93

HIS HONOUR: That is a non-lawyer's way of presenting the

case, Mr Shaw.

MR SHAW:  I appreciate that, Your Honour. But if one were

to apply the test of what the observer would think of a dispute about the deduction of union fees, in

our submission, it is overwhelmingly clear that the
observer would not say, "That's a dispute about

financial matters." The rational observer would see that as fundamentally an industrial conflict

between the employers and the union, bearing quite

clearly on the industrial relationship.

In our submission, we would succeed if this

Court were to apply the early broad formulations in the Union Badge case and in Archer's case. There

was a turning away from those cases, a narrowing of

the approach in R v Kelly in 1950. But going back

to those early cases, the Union Badge case about

wearing a union badge at work, was really upheld on

the basis that this would facilitate union

membership and would therefore impact upon the

relationship.

Really, in our submission, it is a case of the

strength of the argument about the industrial

character of the dispute and balancing that against

this alternative formulation that it is really a

financial arrangement. We would submit that even

though there is an element of the financial

arrangement about it, when you look at the

substance and real impact of the arrangement or the

demand, it is industrial in its character.

HIS HONOUR:  And you do place very considerable reliance on

the fact that the payment is to the union. You would not be presenting a case that if it was a payment to someone outside the union except,

perhaps, in the case of superannuation, that it had

the necessary character of an industrial dispute.

MR SHAW:  We do, Your Honour, and we do need to join issue

with an observation in Portus which says that the	character of the payee is irrelevant but, yes, we
do.

HIS HONOUR:  Yes. You would have to join issue with that

statement, whatever view you took of Portus.

MR SHAW:  That is so, Your Honour, yes. The present stage,

Your Honour, is one of seeking a rule nisi, if the

Court is prepared to grant it.

HIS HONOUR:  Yes. Well, I would not grant you a rule nisi

but, I think, having regard to the importance of

the question, I would direct that you present a

motion to the Full Court.

Alcan 23/3/93

MR SHAW: If Your Honour pleases. Your Honour, there are, I

think, two procedural matters I desire to raise.

One is that my understanding is that since the

Full Bench decision, Commissioner Johnson has resigned from the Industrial Relations Commission

and I would not have thought that made any

difference in relation to his being named a party in so far as the writ of certiorari was concerned

but there is, as we apprehend it, a difficulty

about the writ of mandamus.

I do not know that the Court has ever resolved

these sort of problems, at least in the industrial
area, Your Honour, but it occurred to us that as
has been the case in many of the industrial cases,

it might simplify the matter if the Court were to

allow the Australian Industrial Relations

Commission -

HIS HONOUR: Exactly, that is what I was going to suggest to

you. That would not preclude you from joining, of

course, the named individuals as well but as long

as you have the Commission itself as a respondent

to the proceedings, that, I think, would overcome

the difficulty.

MR SHAW: If Your Honour pleases.

HIS HONOUR: That has been done from time to time.

MR SHAW:  I had a look at it. It has been done from the

very early years where the old arbitration court

was named.

HIS HONOUR:	Yes, that is right.
MR SHAW:	Your Honour, we would then propose to add the

Australian Industrial Commission as a respondent,

if we may.

HIS HONOUR:  Yes. Well, you can do that because it is for

you to take out a motion now returnable before the

Full Court.

MR SHAW:  Indeed. Thank you, Your Honour. The other point

concerned the need for section 78B notices.

Although the argument is, in one sense, essentially

statutory, it might -

HIS HONOUR:  I think you ought to give a 78B notice.

MR SHAW: If Your Honour pleases. That is the view we came

to and we shall do that.

HIS HONOUR:  Yes, I think that is correct. Now, the other

thing I was going to take up with you, Mr Shaw, is

I do think it is a case in which some advantage

Alcan 6 23/3/93

would be gained from your filing and serving a

comprehensive written argument and, likewise, I

would expect the respondents ultimately to be

required to file a comprehensive written argument.

The question is whether I should direct that at

this stage or whether I should have the matter

listed, in effect, on a summons for directions and

give directions of that kind at a later stage.

MR SHAW:  We have no objection to such a direction being

made, Your Honour. If Your Honour thought it

appropriate, we could contact the second

respondents to see if they, likewise, agreed with

that course.

HIS HONOUR: All right. If you were prepared to do that - I

will not give a direction at the present stage, but

if you would do that in due course, notify the

Registry whether they assent to that - you might

indicate to them that I have said on this occasion

that I propose to do it in any event - if you and

the respondents' legal advisers can come to some

agreement on time frame, then I would be happy, at

a later stage, to give a direction in accordance

with a procedural time frame that you and your

opponents can agree upon. ·

MR SHAW: If Your Honour pleases.

HIS HONOUR:  And if you would notify the Registrar

accordingly.

MR SHAW:  Thank you, Your Honour. Perhaps I should also

mention that, as at present advised, I have in mind

the desirability of putting on some material in

affidavit form - some further material for the

applicant - which would deal with the international

position of this question and whether it is

regarded as pertaining to employment in other

countries.

HIS HONOUR:  Yes. Well, again, that is a matter for you.

You are at liberty to file such affidavits as you wish to file in support of your motion to the Full

Court.

MR SHAW: If Your Honour pleases.

HIS HONOUR:  But do what you can to avoid filing affidavit

material that is likely to give rise to some issue

of fact.

MR SHAW:  Yes, indeed, we will bear that in mind,

Your Honour.

HIS HONOUR:  But I should not imagine, in this area, that that is very likely.

Alcan 7 23/3/93

MR SHAW:  No, quite unlikely.

HIS HONOUR:  Yes. I think it is sufficient if, at this

stage, I direct you to file a motion before the

Full Court under the rules.

MR SHAW: If Your Honour pleases.

HIS HONOUR:  The Court will adjourn sine die.

AT 11.05 AM THE MATTER WAS ADJOURNED SINE DIE

Alcan 8 23/3/93