Re Ansett Transport Industries (Operations) Pty Limited & Ors; Ex parte Australian Federation of Air Pilots

[1990] HCATrans 203

A,r	-!.i,,~USTRALIA,,i.=-
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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M27 of 1990

B e t w e e n

In the matter of -

An application for writs of

mandamus and prohibition

against THE HONOURABLE

KEITH HANCOCK, ANSETT

TRANSPORT INDUSTRIES

(OPERATIONS} PTY LIMITED,

AUSTRALIAN AIRLINES LIMITED,

EAST WEST AIRLINES

(OPERATIONS) PTY LIMITED AND

MAYNE NICKLESS

LIMITED (TRADING AS IPEC

AVIATION)

Respondents

Ex parte -

AUSTRALIAN FEDERATION OF AIR

PILOTS

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 30 AUGUST 1990, AT 2.16 PM

Copyright in the High Court of Australia

Pilots 1 30/8/90

MR E.W. GILLARD, QC: If it please Your Honour, I appear

with my learned friend, MR H. BORENSTEIN, for the

applicant. (instructed by Mahony & Galvin)

HIS HONOUR:	Yes, Mr Gillard.
MR GILLARD:	Your Honour, this is an application by the

Australian Federation of Air Pilots seeking an

order nisi for writs of mandamus and prohibition

against the Honourable Keith Hancock,

Deputy President of the Industrial Relations

Commission, and other parties who are applicants

before the Commission.

Your Honour, certain documentation has been

filed with the Court and I will assume that

Your Honour has read the affidavit.

HIS HONOUR:  Yes, I have read the affidavit and the

exhibits, Mr Gillard.

MR GILLARD:  Yes, if Your Honour pleases. Could I take

Your Honour then to the application which was made

before the Industrial Relations Commission and which is the first exhibit to the affidavit of

Mr Carpenter.

Your Honour will note that that was dated

14 May 1990 and that the applicant sought certain

relief which is set out in the first two paragraphs

and Your Honour will note that the relief was to

the effect:

That the Australian Federation of Air Pilots

shall not have the right to represent under

this Act the industrial interests of

persons - - -

HIS HONOUR:  That would be an order sought under

section 118(3)(c)?

MR GILLARD:  Yes, that is correct, Your Honour. And then,

so far as the second paragraph is concerned it is a

prayer for relief of a somewhat general nature, no
doubt seeking to give notice that other orders

which may flow from the first order should be made. Your Honour has no doubt read the grounds upon

which the application is made and they are set out

in that document and I wish to draw Your Honour's

attention to two parts of those grounds. The first

relates to ground 7 and Your Honour will note that

it is stated that:

Pilots employed by the applicants have

formed -

Pilots 2 30/8/90

and various associations are noted and, of course, they are not registered organizations, and then it

goes on to state -

have sought the assistance of a registered

organisation, the Australian Transport
Officers Federation ("ATOF") in this regard.

Your Honour, that is somewhat vague but one assumes that some evidence would be given that they

sought the assistance, whatever that might be.

Now the next point, Your Honour, is

paragraph 8. It is asserted that:

It is in the public interest that the

application be granted because -

and various arguments are put and if one goes over

to (c)(iii), it reads:

if the application is not granted:

there will be competition for membership as

between the AFAJ', the associations and -

the other registered organization, the Australian

Transport Offices Federation. Now Your Honour,

pausing there, can I just at this stage add one

further piece of evidence before the Court.

HIS HONOUR:  Yes.

MR GILLARD: Before the Commission was tendered the

registered rules of the Australian Transport

Officers Federation and Your Honour will have

observed in the judgment at page -

HIS HONOUR:	They do not have coverage, you say?
MR GILLARD:	They do not have any right to have, as members

of their organization, pilots and I place that

before Your Honour. It was before the

Industrial Commission and in clause 6 - - -

HIS HONOUR:  I might mark that as an exhibit. Do you want

to formally annex it to the affidavit of

Mr Carpenter?

MR GILLARD:  Yes, I do, Your Honour.

HIS HONOUR: Well that might be marked exhibit" RBCS".

EXHIBIT:	Exhibit RBCS ..... Rules
MR GILLARD:	Your Honour, in rule 6, under the heading of

Eligibility for Membership, it says:

Pilots 30/8/90

(1)	The following persons and classes of persons shall be eligible for membership
of the Federation, namely;
(a)	persons employed at an annual salary rate
in any capacity in the transport industry, whether by land, water, except
sea or air -

then there is a specific exclusion there, excluding

the piloting of aircraft.

HIS HONOUR:	Yes.
MR GILLARD:	So pilots are specifically excluded under the

registered rules of that Organization from being a

member of that Organization.

Now, Your Honour, perhaps if I could just

speak generally for the moment and indicate the

point in issue. When this matter ca.me on before the Deputy President, the point was taken by the

Pilots Federation that there was no demarcation

dispute within the meaning of the Act and

that -

HIS HONOUR:	As at the time of the application?
MR GILLARD:	As at the time of the application and

accordingly the Commission had no jurisdiction to

entertain the application. Now, we put that the

applicants were bound by the terms of their notice

as to the ambit of the dispute; in other words,

the notice defined the dispute.

HIS HONOUR:  But why has dispute got anything to do with it?

After all the Commission can act of its own motion

under section 30.

MR GILLARD:  Yes, but in the end result, Your Honour, what

is sought by the applicant here is an order under

section 118 and, we would submit, that you cannot

get to the point of making an order under section	118 unless there is a demarcation dispute,
irrespective of whether - - -

HIS HONOUR: Well, is that so? In terms the jurisdiction is

a jurisdiction to make orders of the designated

kind for a specific purpose.

MR GILLARD:  Yes.

HIS HONOUR: So, why is there any necessity to determine

whether a demarcation dispute exists before an

order is made?

Pilots 4 30/8/90

MR GILLARD:  We would say that flows from section 118(1)

that if, in fact, the applicants are coming forward

and are saying, "Well, this is what we're seeking

and we're seeking an order under section 118.",

then the power to make such an order is only given

to the Commission, in our submission, in relation

to demarcation disputes.

HIS HONOUR:  Yes, but in terms - the power under section 118

is not dependent upon making the application, it is

at large. It does not require an application to be

made in terms; it does not require any particular

form of application; indeed, as I pointed out, the

Commission itself can act of its own motion.

MR GILLARD:	Yes.
HIS HONOUR:	So, it has jurisdiction conferred on it by the

Act to make an order under the section for the

purpose of preventing or settling a demarcation

dispute. Surely, by necessary implication, that

carries with it the power to take all steps to
determine whether or not the power should be

exercised for that particular purpose?

MR GILLARD: Well, I do not dispute, Your Honour, that in

the end the Commission has to come to the view

whether or not it has got the jurisdiction and to

reach that point, of course, it may have to

consider evidence and a variety of other things

but, we submit, that where a party, such as the
applicants here, have indicated that they propose

to make application pursuant to this section and

give us notice, as indeed, we would submit, they

would be duty bound to do, then they would have to

establish that there was jurisdiction because there

was a demarcation dispute. In other words, at some

point in time it would have to be established that

there was a demarcation dispute.

HIS HONOUR: It is for the purpose of preventing. Among

other things, it is a power not only to settle a

demarcation dispute but to prevent one occurring.

MR GILLARD:  Yes, but Your Honour, it must follow then that

when we go to the definition of "demarcation

dispute", it means an actual dispute or something
that is inunediate or imminent proceeding or will

eventually lead to a demarcation dispute, so we

cannot be denied - - -

HIS HONOUR: Well, "eventually leads" is not the same as

"imminent" .

MR GILLARD:  I think I will confine it to "imminent",

Your Honour, and indeed, in our submission, if we are talking about preventing a dispute then, in our

Pilots 5 30/8/90

submission, the dispute must be imminent in the
sense that the Commission could say, "Based on
those facts a dispute is about to take place and we

will take steps to prevent it", but it cannot be

some concept and, indeed, we submit this tends to

come through in this judgment, some concept that

there may be some dispute which may arise in the

future depending upon a lot of facts that may or

may not occur.

HIS HONOUR:  But that is, surely, only as a discretionary

matter. If matters are put before the Commission

which they do not think warrants investigation,

then you would expect the Commission would not take

the matter any further, but surely the Commission

is entitled to say, "I've been informed of this, it

requires investigation to see whether the power

should be exercised under section 118".

MR GILLARD: Well, Your Honour, our argument really proceeds

on the basis that the parties having given us

notice and setting out the grounds, that even

assuming all those grounds are factually proven,

and then you add to it the terms of those rules

and, if that is in fact going to be the total of

the evidence placed before the Commission, then
there was no demarcation dispute and, in other

words, the Deputy President should have, based upon

those facts, come to one conclusion; namely, there

was not a demarcation dispute.

HIS HONOUR:  Yes. Well, can I tell you what my difficulties

are about the matter so that you can deal with

them?

MR GILLARD:	Yes.
HIS HONOUR:	The first is that at the moment I tend to the

view that your application is fundamentally

misconceived in the sense that this question of

determining whether there is a dispute or

demarcation dispute is not an issue that has to be

determined at all, at least before the making of

the order but, the second point is, that the

learned President took the view that in any event

the application contained facts expressly or by

implication which came within the section; so that

is the second ground so they are the two matters

which are troubling me, Mr Gillard.

MR GILLARD: Well, Your Honour, with respect to the second

matter, we would submit that on the facts that were

before him together with all implications and the

like that one can draw from the grounds, that he

should have come to only one decision and that on a

proper construction of the section the definition

was not a demarcation dispute and we submit that

Pilots 6 30/8/90

his reasoning was wrong with respect to what is

meant by ttdemarcation dispute".

Now, I accept, Your Honour, that we for our

purposes really have to establish that the facts

were there and he should have come to that

conclusion, and if there is any way whereby he can

consider further facts then we are out of court

because clearly, as he has indicated, he does not

think that he is in a position to make that

decision until the matter has been fully

investigated.

Now, that has to be accepted. But we say that

given that the notice does indicate the ambit of

the dispute, given those rules he could only come

to one conclusion.

HIS HONOUR:	Yes.
MR GILLARD:	And we would be submitting, Your Honour, on the question of those facts that the principles of
natural justice require that we are given notice of
the allegations that are made. Clearly that is why
the other side set out that form, though I do
concede there is nothing in the Act or rules as to
how one should go about it. But procedural
fairness would demand that they do give us notice.
We submit they have given us notice.

HIS HONOUR: Well, no doubt that is so and at different

stages questions may arise as to whether or not you

have been given proper notice of the facts.

MR GILLARD:  That is so, but no attempt was made at the

hearing to amend any of the grounds, and we said we

accept the argument given that they can prove all

those facts. We say it leads to one conclusion.

That is how we were putting it.

Your Honour, when notice is given of a

dispute - - -

HIS HONOUR: This is under the rules, is it?
MR GILLARD:	No, under the Act, section 99, and indeed this

starts out as an industrial dispute.

HIS HONOUR:	Yes.
MR GILLARD:	That, of course, can be given in any form. So

at section 99(1) you get a notification of an

industrial dispute. Then you go over to

section 101(1), and that does require the

Commission to:

Pilots 30/8/90

determine the parties to the industrial
dispute and the matters in dispute, and record

record its findings.

HIS HONOUR:	Yes.
MR GILLARD:	Now, Your Honour, that places some definition,

we would submit, with respect to what the matters

in dispute are between the parties before the

Commission and tends to support our submission,

Your Honour, that at some stage we have to be given

proper notice supported by proper grounds. Now, we

say that has been done and we say that given that

they can prove all those facts, it only leads to

one conclusion: there was no demarcation dispute.

HIS HONOUR:	Yes.
MR GILLARD:	And, what the Deputy President did was to - not

to go right through - he took the view that he

would have to have whole matter investigated and

before he could come to that - and a lot of the

matters that were asserted from the bar table by

the other side talk about matters that may or may

never occur - all to some extent, hypothetical. It

seems an extraordinary proposition that they can

talk about another registered organization which

may or may not, in the future, make some moves to

perhaps change their rules, which would require

certain things to be done - - -

HIS HONOUR:  But 118(3)(b) seems to contemplate that an

order could be made which would have the effect to
allow ATOF to represent these pilots even though

they have got no coverage.

MR GILLARD: But, Your Honour, with respect that surely

cannot be used to ground jurisdiction before you

even come to the point of considering whether or

not, in the circumstances of this dispute, that is

a proper order.	You have got to go back to step
one and determine whether or not there is a

demarcation dispute, and it is a bit like trying to

pull your boots up by your shoe straps-type

argument that you look at what the relief is and

then say, well, that clearly gives the Commission a

right to say, "Well there is that union over there

- now admittedly it cannot represent it all, but

nevertheless, if there is a dispute, I can make the

order so it can represent."

Now, with respect, you have got to go back to

step one. Is there a demarcation dispute? And if
one looks at the definition, the first thing you
note - and this is in section 4 - is that there

must be a dispute arising between two or more

organizations. Now, at the moment there is no

Pilots 30/8/90

dispute arising between two or more
organizations -

HIS HONOUR: That depends how you define dispute.

MR GILLARD:  Well, again I am prepared to concede actual or

immediate. In other words, that Federation has

come forward and said, "We're about to change our

rules and when we change our rules and get them

registered, et cetera, et cetera, we're going to

then invite pilots to be a member of our organization", but that has not happened.

HIS HONOUR:  I follow the force of this argument if it was

necessary to make a preliminary finding of the

existence, or to use your term, the imminence, of a

demarcation dispute. But all that the Commission

is doing at this stage is seeking to investigate

the matter to determine whether there is.

MR GILLARD:	Well, Your Honour, we say that if you take these as pleadings - let us look at the question of
whether it was a statement of claim. Now, of
course, you can ahead of time go to the court and
say, "Well, look, given all those facts they will not establish a cause of action".
HIS HONOUR:	It is very hard to rely on that sort of

argument in this jurisdiction where you have got

sections like section 110 and section 111.

MR GILLARD:  Yes. That is the thrust of what I am

attempting to get across to Your Honour. When you

think about it, if in fact they prove all those
facts and it does not give jurisdiction, then we

are many weeks, months, years down the track at

huge expense and, of course, it has been said - and

there is a reference to Gray's case there and it is

obvious common sense - that if, in fact, it is

clear there is no jurisdiction, then the court

should move.

Now, we submit that the way the matter was

account the document and the rules and what was	argued before the Deputy President, taking into
asserted from the bar table, he could only have
come to one conclusion, but given that all those
facts were proven, they still did not amount to a
dispute between two organizations, or even an
imminent dispute, because the fact is that you have
got to identify the - - -

HIS HONOUR:  You have got to look at the second limb as

well, of course, of industrial demarcation dispute.

MR GILLARD: Well, that raises the next question, "Is there

a dispute between an employer and an employee or

Pilots 30/8/90

employees as to the demarcation of functions?"

Now, we all know what a classic demarcation dispute

is, where an employer says, "Well, the electrician

will do this" and the boilermaker comes along and

he says, "No, you are not allowed to do it, I am

going to do it", and there is a huge fight. Now,

that is a classic example of a demarcation dispute.

HIS HONOUR:  Yes, but in the Containers case,

Mr Justice Menzies, and to a lesser extent I suppose Mr Justice Windeyer, rejected that.

Demarcation disputes are confined to - - -

MR GILLARD:  No, I accept they are not just confined to that

but that is a classic example. Let us then look at this one, what are we looking at, we are looking at the airline and a pilot. Now, the fact is they are

all pilots, that is all they do, we are concerned

with pilots not navigators and air hostesses or
anything else, just pilots, and they have one
function and that is to fly an aeroplane and if

they are employed to fly Fokkers they will fly

Fokkers.

HIS HONOUR: 

But supposing you have got two pilots employed

on an aircraft and one was one of those who went
back to work; another one was a member of your

client.

MR GILLARD:  Yes. But is that relating to a function. You

see, demarcation means a boundary; function, as I

understand it, means an activity.

HIS HONOUR:	Yes.
MR GILLARD:	Now, is there any dispute about the boundary of

what one can do with respect to the activity and

another. That is what, in our submission, it means
as to demarcation of functions; that is why I

talked about the classic example, that that is what

it is saying.	It is saying the boundary of the
activities of the employer and the fact that I

belong to one union and my junior belongs to

another and we both fly the same aircraft does not
appear, in our submission, to have anything to do
with a boundary between our activities or whether

my learned junior is told to go and fly another

aircraft because he and I do not get on because we

belong to different unions. Now, that is not - - -

HIS HONOUR:  Well, it may be that orders might be made that

your pilots, in your client's organization, can only

fly certain classes of planes and those in the other

fly other sorts of planes. So, what about routes?

Pilots 10 30/8/90

MR GILLARD: Well, but, Your Honour, that is a question of

employer and employee.	I would be employed to
fly 737's.

HIS HONOUR:	But, it is classes of employees.
MR GILLARD:	Yes.
HIS HONOUR:	Demarcation of the functions of classes of

employees.

MR GILLARD:  Your Honour, indeed, there is a reference in

the judgment, as Your Honour as seen, to perhaps a

degree of discrimination but, of course, this Act

has an express provision that you are not to

discriminate on grounds of union membership and the

like. Now, it seems to be an extraordinary

proposition that one might argue that you can

create a demarcation dispute because you belong to

a union or not belong to a union~

HIS HONOUR:  But section 118(3)(b) is quite an extraordinary

power.

MR GILLARD: It is an extraordinary power but, I think, it

is in that service that I was looking at yesterday,

as to an example of why that is in there. The

author - this is this Industrial Law - Federal,

Butterworths - a wider provision is there and it

seemed to be suggested it is there to pick up a

situation where there may have been de facto

representation over many years and then all of a

sudden it is found that that organization should

not have been representing and it was then
appropriate - there was a dispute between
organizations - appropriate to just say, "Well,

you've always done it, you're now going to continue

to do it". Now, that is an example that the author

puts.

HIS HONOUR:	Yes.
MR GILLARD:

I do not know enough about the jurisdiction to

put examples myself, Your Honour, but it still
comes back to the point that we say, of course that
provision is there, it is there to give them a

power to exercise but you have first of all got to

be satisfied that there is a demarcation dispute,

and this is our point, we submit that given the

facts before him, even what is asserted from the

bar table, and given those rules he could have only

come to one conclusion and to talk about what may

happen in the future, and there may be a dispute

later about certain events, does not answer the

question that there was a demarcation dispute.

Pilots 11 30/8/90

We submit that you do not wait weeks and

months and go through a whole lot of evidence to

eventually come to the point that there is not a

demarcation dispute if, on the face of the

documentation of what is asserted there cannot be a

demarcation dispute, then it is appropriate that

the Commission should at that stage take the step

of bringing it to a halt.

Your Honour, that is what we put to the Court

and we submit - and Your Honour has read the

judgment - that there are observations made in

there that are wrong and contrary to a proper

construction of demarcation dispute and that in

those circumstances he should be prohibited from

continuing with the proceedings or, alternatively,

a mandamus that he be compelled to make a finding

based upon what was before him.

HIS HONOUR:  What about the privative clauses? Section 118

is not quite the same thing as the question of an

industrial dispute because you can make orders

under 118, Demarcation disputes, even though there

is a purely intrastate contest. That is because it

depends on the incidental power under the

Constitution because you are dealing with organizations and it is incidental to the general

conciliation and arbitration power that define

their functions and so on.

I have not had a look at it but the thought

just occurred to me, just now, as to whether or not

a court would have any jurisdiction in respect of

this particular application?

MR GILLARD:  Your Honour, I am in the same boat as

Your Honour and if Your Honour wishes to follow

that argument through it might be appropriate to

stand down for a few minutes while we give a bit of

thought to that, Your Honour.	I must say that I
did not come prepared to argue that point.	I may
say there is already an order nisi - - -

HIS HONOUR:  Yes, there is an order nisi in Ironworkers'

matter, is there not?

MR GILLARD:  Yes, in Comalco v - and I must say we took the

view - and, indeed, the first ground in that order

nisi raises the same point as we have here except,

of course, in that case they heard it all.

HIS HONOUR:	The evidence was concluded.
MR GILLARD:	They concluded it,  I accept that, but the

first ground does raise the same issue as we have

here.

Pilots 12 30/8/90

HIS HONOUR:  In that case the allegation is that one of the

unions did not have coverage.

MR GILLARD:  Did not have coverage, yes, and, indeed, as I

say, the ground does raise precisely one view that

we have here but except I do accept, Your Honour,

that it was after hearing all the evidence. And

ground 1 is in these terms, that the Commission

exceeded its jurisdiction in that it determined there was a demarcation dispute between various

organizations, on the one hand, and others, on the
other, notwithstanding the incapacity of one

organization to cover the disputed class of

employees and to make demands or create an

industrial dispute on their behalf. Now,

Your Honour, for that reason we did not look into those other matters because we thought that - - -

HIS HONOUR: No, you need not trouble yourself with them.

MR GILLARD: Well, Your Honour, we do accept that what we

have to grasp here is that the Deputy President

should have, proceeding on the basis that all those

facts would be established, come to the view that

there was not a demarcation dispute, and that

accordingly he should have made that ruling and

brought the proceedings to an end, and that he

should be prohibited from continuing either until

he makes that decision, or alternatively prohibit

him on the basis that on a proper construction of

the Act he exceeded his jurisdiction.

I have nothing further to say, Your Honour.

HIS HONOUR:  Yes, thank you.

This is an application for an order nisi for writs of mandamus and prohibition brought by the

Australian Federation of Airline Pilots ("the
prosecutor") directed to a Deputy President of the

Industrial Relations Commission and four airline

companies ("the respondents"). The object of the

application is to prevent the Deputy President from

proceeding: 

" ... further to hear and/or determine the

Application by the Respondents Ansett
Transport Industries (Operations) Pty Ltd,

Australian Airlines Limited, East west

Airlines (Operations) Pty Ltd and Mayne

Nickless Limited (trading as Ipec Aviation) pursuant to S118 of the Industrial Relations

Act 1988 filed in the Industrial Relations

Commission and numbered C No. 31317 of 1990 and dated 14 May 1990, which purports to

relate to a demarcation dispute between the

Ansett Transport Industries (Operations) Pty

Pilots 13 30/8/90

Ltd, Australian Airlines Limited, East West

Airlines (Operations) Pty Ltd and Mayne

Nickless Limited (trading as Ipec Aviation)

and the Prosecutor."

The application for the order nisi arises out of an application which was filed in the Industrial

Relations Commission on 14 May 1990, and by which

the respondents sought orders under section 118 of

the Industrial Relations Act 1988.

The relevant part of section 118 for present

purposes is subsection (3) which provides:

Without limiting the powers of the Commission

in relation to demarcation disputes, the

Commission may, for the purpose of preventing

or settling a demarcation dispute,but subject to subsection 202(3), make one or more of the

following orders:

(a) an order that an organisation of

employees shall have the right, to the

exclusion of another organisation or

organisations, to represent under this Act the

industrial interests of a particular class or

group of employees who are eligible for

membership of the organisation;

(b) an order that an organisation of

employees that does not have the right to

represent under this Act the industrial

interests of a particular class or group of

employees shall have that right;

(c) an order that an organisation of

employees shall not have the right to

represent under this Act the industrial

interests of a particular class or group of

employees who are eligible for membership of

the organisation.

"Demarcation dispute" is defined by section 4 to

mean: 

(a)  a dispute arising between 2 or more

organisations, or within an organisation, as
to the rights, status or functions of members

of the organisations or organisation in

relation to the employment of those members;

or 

(b)  a dispute arising between employers and

employees, or between members of different

organisations, as to the demarcation of

functions of employees or classes of

employees.

Pilots 14 30/8/90

The respondents sought two orders under

section 118:

1. That the Australian Federation of Air

Pilots shall not have the right to represent

under this Act the industrial interests of
persons employed as pilots by the applicants.

2.      Such further orders as to the

representation of the industrial interest of

pilots employed by the applicants as to the

Commission seems fit on the hearing of the

application.

Order 1 obviously relies on section 118(3)(c)

of the Act. Order 2 may rely on the provisions of
sections 118(3)(a) or (3)(b).

The grounds upon which the application was

made were:

1. The AFAP failed to comply with

recommendations, directions and decisions of

the Commission during the period from

February 1989 to at least the beginning of

March, 1990.

2.       On 24 August 1989 the vast majority of

AFAP members employed by the applicants

resigned from employment in pursuit of

industrial claims.

3. During the period from 30 August 1989 to

at least the beginning of March 1990 the AFAP

(a)	imposed employment bans on the applicants
(b)	encouraged other airline pilot

associations to impose such bans

(c) conducted a campaign designed to

humiliate and embarrass pilots accepting

employment with the applicants
(d)	threatened that pilots employed by the
applicants would be terminated from employment as a condition of any

settlement of the AFAP's claims against

the applicants.

4. During the period from 10 October 1989 to

at least the beginning of March 1990 the AFAP

boycotted pilot awards applying to the

applicants.

s. The AFAP claims to have 1300 members whom

it wishes the applicants to re-engage.

Pilots 15 30/8/90

6.      The overwhelming majority of pilots

employed by the applicants are vehemently

opposed to being represented industrially by

the AFAP.

7. Pilots employed by the applicants have

formed, respectively, the Ansett Airlines

Pilots Association, the Australian Airlines

Limited Pilots Association, the East-West

Airlines Pilots Association and the IPEC

Pilots Association (referred to collectively

as "the associations") for the protection and

advancement of their industrial interests and

have sought the assistance of a registered

organisation, the Australian Transport

Officers Federation ("ATOF") in this regard.

8. It is in the public interest that the

application be granted because:

(a) the industrial interests of pilots

currently employed by the applicants

cannot be effectively represented by the

AFAP

(b) by its conduct the AFAP has disentitled

itself from representing the industrial

interests of pilots employed or to be

employed by the applicants

(c) if the application is not granted

(i)        disharmony and disaffection as between

pilots will grow and intensify

(ii)    there will be competition for membership as between the AF'AP, the associations

and ATOF

(iii)   the effective conduct of the applicant's

businesses will-be further disrupted
(iv)	industrial relations stability will not
be achieved for many years, if at all,
in the area of employment covered by the
application.

The Conunission has not made any orders in respect of the application. However, on

29 June 1990, Mr Deputy President Hancock heard

submissions on behalf of the prosecutor to the

effect that the terms of the respondents'
application and the grounds relied on in support of

it were insufficient to enable the Commission to

make orders pursuant to section 118(3).

Pilots 16 30/8/90

The Deputy President rejected the submissions

and concluded:

"I have come to the firm conclusion that I

should not now abort the proceedings by

finding that the Commission lacks jurisdiction

to deal with the application. Whether

jurisdiction exists is a question to be

considered further when the evidence is before

me.

The hearing will proceed in accordance

with the programme of which the parties and

others have been advised."

Mr Gillard, on behalf of the prosecutor,

relies on the grounds set out in support of the
order nisi which are as follows:

1.      The Respondent, the Honourable Keith

Hancock failed or failed properly to exercise his jurisdiction in relation to the

aforementioned Application C No. 31317 of 1990

in that -

(a) he failed or declined to decide whether

the said Application disclosed facts

which, if accepted would constitute a

demarcation dispute for the purposes of

S.118 of the Industrial Relations Act

1988;

(b) he decided on 30 July 1990 that there was a demarcation dispute within the meaning

of the said S.118.

2.      The Respondent, the Honourable Keith

Hancock exceeded his jurisdiction in relation to the aforementioned Application C No. 31317

of 1990 in that -

(a) he decided to hear the said Application

without first deciding whether or not it

disclosed facts which, if accepted, would
constitute a demarcation dispute for the
purposes of S.118 of the Industrial
Relations Act 1988;
(b)	he decided to hear the said Application

when there was no demarcation dispute for

the purpose of the said S.118.

3. The Respondent, the Honourable Keith

Hancock had no jurisdiction to exercise the powers conferred by the said S.118 because

there existed no demarcation dispute for the

purposes of the said section.

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The grounds relied on, however, seem to me to

misconceive the nature of the jurisdiction of the Commission under section 118(3). The jurisdiction

conferred by that subsection is a jurisdiction to

make orders of the kind described for the purpose

of preventing or settling a demarcation dispute.

By necessary implication, the Commission has power

to take all steps necessary to determine whether
the power under section 118 should be exercised.

That includes determining whether there is, or

there is likely to be, a demarcation dispute which

requires the making of orders under section 118.

However, the jurisdiction of the Commission does

not depend upon it making any finding as to the

existence, or the potential existence, of a

demarcation dispute before it makes orders.

Moreover, while the jurisdiction is created

for the purpose of conferring rights and benefits

on persons who may be affected by the existence of

an actual or potential demarcation dispute, it is

important to note that the jurisdiction of the

Commission, under section 118, is not dependent
upon any particular person making an application.

Indeed, section 30 of the Act permits the

Commission to act of its own motion and to make

orders under section 118.

Accordingly, independently of any application

before the Commission, it is entitled to take steps
to determine whether, because of any actual or

potential demarcation dispute, it should exercise

its powers under section 118. This fact shows that

the jurisdiction of the Commission is in no way

dependent upon the form of any application before

it.

Whether the Commission acts on its own motion

or embarks on an inquiry at the suit of a person

interested in obtaining an order, it has

jurisdiction to inquire whether facts exist which

make it proper to make an order under the section.

The Commission's jurisdiction does not and cannot

depend upon the form of the applicant's

application. Neither the Act nor the rules require

any application under section 118 to be in any

particular form. In any event section 110 directs

the Commission to act according to equity, good

conscience and the substantial merits of the case,

without regard to technicalities and legal forms

and to inform itself on any matter in such manner

as it considers just. Section 111 provides that

the Commission may correct, amend or waive any

error, defect or irregularity, whether in substance

or form.

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Thus the form of an application by itself

could not prevent the Commission from proceeding

under section 118, even if the Act required an

applicant to set out the grounds upon which he

relied in seeking an order.

In the present case, the Commission, in my

view, would have had jurisdiction to inquire

whether it should exercise its powers under

section 118, even if the application contained no

grounds. Questions of natural justice aside, the

jurisdiction of the Commission to proceed does not

depend in any way upon the grounds relied on by an

applicant. On this ground alone the claim of the

prosecutor must fail.

But in any event, the Deputy President found

that the grounds of the application expressly and

impliedly included assertions which, if established

by evidence, would authorize the making of orders

under section 118. The Deputy President said:

H The grounds of the application include

assertions about the respective roles of the

AFAP and ATOF. There is an assertion that the

overwhelming majority of pilots do not wish to

be represented by the AFAP. The applicants

also claim that pilots, having formed various

associations, have sought the assistance of

ATOF - a registered organisation. If these

statements are true, there may be a real

prospect of pilots wishing to become members

of ATOF. The airlines assert that if their

application is not granted, 'there will be

competition for membership as between the

AF.AP, the associations and ATOF'.

All of these contentions raise for

consideration the question whether there is an

actual or likely demarcation dispute between

the AFAP and ATOF such as would fall within

paragraph (a) of the definition. Must the

disputing organisations envisaged by the

definition both have the constitutional

capacity to enrol the employees to whom their

dispute relates? If they must, the
requirements of paragraph(a) are not met; if

not, those requirements may well be satisfied.

The former construction appears to deprive

s.118(2)(b) of all or most of its content.

This lends weight to the alternative view.

Moreover, I agree with Mr Giudice that the

'dispute' to which paragraph (a) refers is

about the arrangement which ought to obtain

rather than the existing legal situation.	An
organisation not currently able to enrol certain employees might wish to change its

Pilots 19 30/8/90

capacity to enrol and, as a consequence, find

itself in dispute with another organisation.

To be a party to an industrial dispute an

organisation must be able to enrol the

employees whose interests it purports to

represent. The question of representation,

however, is of the essence of a demarcation

dispute and to rely upon the existing facts of

eligibility may be to pre-empt the resolution

of the dispute. For these reasons, I lean to

the view that the AFAP and ATOF could be or

become involved in a demarcation dispute as

defined in paragraph (a). This is a tentative
opinion only and the matter may be argued

further.

The applicants also make assertions about

the past and present state of industrial

relations in their industry. These assertions

manifest a perception of the state of affairs

which may cause the employers to attempt demarcations in the work of pilots. For example, they may seek to differentiate

between members of the AFAP and non-members;
between pilots who resigned on 24 August 1989

and pilots who did not then resign; between

formerly-employed pilots who offered

themselves for work before March 1990 and

those who offered themselves subsequently; or

between pilots who belong to the associations

mentioned in ground 7 and other pilots.

Having regard to the authorities cited by

Mr Giudice, I think that all demarcations of

work based on criteria such as these would be

'demarcations of functions of employees or

classes of employees'. The impact of s.334 on

demarcations of this nature may, of course, be

argued in due course as a factor affecting the

credibility of evidence and assertions about

their occurrence.

It is true that the grounds set out in

support of the application do not include

explicit assertions as to the existence or the
likelihood of demarcation disputes; but the

assertions which are made imply real

possibilities of demarcation disputes.

Whether those assertions are true and whether

demarcation disputes actually exist or are

likely to arise are matters to be determined

when the evidence has been heard."

I agree with the reasons of the Deputy

President for thinking that the assertions made in the grounds of the application, at least by

implication, show a real possibility that

Pilots 20 30/8/90

demarcation disputes either exist or at all events

may exist in the future.

Indeed, I do not think that the submissions

made on behalf of the applicants, or the grounds

relied on in support of the order nisi, are

arguable. The Deputy President did not exceed or

refuse to exercise or misconceive his jurisdiction

by refusing to find whether the grounds set out in

the application were sufficient to enable him to

exercise the powers conferred by s.118. It follows,

therefore, that I must refuse this application.

AT 2.58 PM THE MATTER WAS ADJOURNED SINE DIE

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