Industrial Law (Cth)—Conciliation and Arbitration—Industrial Relations—Conciliation and Arbitration Commission—Industrial Relations Commission—Power to dismiss or refrain from hearing matter if further proceedings not necessary or desirable in public interest—Whether exercise of power conditional on finding of dispute—Mandamus—Order of Commission not to be subject to mandamus—The Constitution (63 and 64 Vict. c. 12), s. 75(v)—Conciliation and Arbitration Act 1904 (Cth), ss. 24(1), 41(1)(d)(iii), 60(1)(c)—Industrial Relations Act 1988 (Cth), ss. 101(1), 111(1)(g)(iii), 150(1)(c).
Decision
MASON C.J., DEANE, DAWSON, GAUDRON AND McHUGH JJ. Citicorp Australia Limited ("Citicorp") was served with a log of claims by The Australian Bank Employees Union ("the Union"). Proceedings were thereafter instituted by the Union in the Conciliation and Arbitration Commission. In those proceedings Citicorp requested the Commission to exercise its powers pursuant to s.41(1)(d) of the Conciliation and Arbitration Act 1904 (Cth) to dismiss or refrain from hearing that part of the matter as it affected Citicorp without determining under s.24(1) of that Act whether Citicorp was party to an industrial dispute. The Commission, constituted by Commissioner Laing, held that the power conferred by s.41(1)(d) could only be exercised after the making of a dispute finding under s.24(1).
2. The Conciliation and Arbitration Act was repealed with effect from 1 March 1989 when the Industrial Relations Act 1988 (Cth) came into force. An appeal by Citicorp from the decision of Commissioner Laing was heard by a Full Bench of the Industrial Relations Commission and determined by reference to the provisions of the Industrial Relations Act. See Industrial Relations (Consequential Provisions) Act 1988 (Cth), s.14. The appeal was dismissed, it being held that the power to dismiss or refrain from further hearing a matter conferred by s.111(1)(g) of the Industrial Relations Act could only be exercised after the making of a dispute finding under s.101(1) of that Act.
3. Citicorp now seeks to have made absolute an order nisi for mandamus and such other prerogative relief (either by way of certiorari or prohibition) as is necessary to compel the Industrial Relations Commission to consider whether it will hear its application as initially made under s.41(1)(d)(iii) of the Conciliation and Arbitration Act.
4. Mandamus will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty. See, for example, Randall v. Northcote Corporation (1910) 11 CLR 100, at pp 105 and 114; R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, at p 242; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389, at pp 398-399; Reg. v. Bowen; Ex parte Federated Clerks Union (1984) 154 CLR 207, at pp 209-210. In view of the changed legislative regime and the terms of s.14(2) of the Industrial Relations (Consequential…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41
Case
[1989] HCA 41
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application by Citicorp Australia Ltd for a writ of prohibition against the Australian Bank Employees Union. Citicorp sought to prevent the Union from proceeding with an application before the Australian Conciliation and Arbitration Commission (ACAC) concerning the terms and conditions of employment for certain employees of Citicorp. The dispute centred on whether the ACAC had the jurisdiction to hear and determine the Union's application, given the nature of Citicorp's business and the employment arrangements in question.
The primary legal issue before the High Court was whether the ACAC had the constitutional power to make an award binding on Citicorp in relation to the employees whose employment involved the provision of financial services, particularly those involving interstate and overseas transactions. This question turned on the interpretation of section 51(xxxv) of the Australian Constitution, which grants the Commonwealth Parliament the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. The Court had to determine if the industrial dispute, as framed by the Union, fell within the scope of this constitutional head of power.
The Court reasoned that the constitutional power under section 51(xxxv) is engaged only when an industrial dispute extends beyond the limits of a single State. In this instance, the Court found that the nature of Citicorp's operations, which inherently involved interstate and international financial transactions, meant that the employment of the relevant staff, even if physically located within one State, was intrinsically connected to activities extending beyond that State. Therefore, an industrial dispute concerning these employees could, and in this case did, extend beyond the limits of any one State, thereby falling within the ACAC's jurisdiction. The Court applied established principles regarding the "extension beyond the limits of any one State" test, focusing on the nature of the employer's business and the interconnectedness of its operations.
The application for a writ of prohibition was dismissed.