Re Australian Bank Employees Union; Ex parte Illaton Pty Ltd

[1990] HCATrans 229

-!), AUSTRALIA,1i:-

-- -~)>$-«(({'-"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M32 of 1990
In the matter of -

An application for a writ of prohibition and a writ of

certiorari against MR DEPUTY

PRESIDENT MACBEAN (a Deputy

President of the AUSTRALIAN

INDUSTRIAL RELATIONS
COMMISSION) and the
AUSTRALIAN BANK EMPLOYEES

UNION

Respondents

Ex parte -

ILLATON PTY LTD

Applicant and Prosecutor

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Illaton 1 5/10/90

AT CANBERRA ON FRIDAY, 5 OCTOBER 1990, AT 8.45 AM

Copyright in the High Court of Australia

MR G. UREN, QC:  If Your Honour pleases. I appear with my

learned friend, MR L. KAUFMAN, for Illaton Pty Limited which is a company applying to Your Honour for an order nisi for a writ of

prohibition and for other relief.	(instructed by
Cooke & Cussen)

MR M.E.J. BLACK, QC: If it please Your Honour, I appear

with my learned friend, MR W. FRIEND, and we appear

to seek leave to be heard before Your Honour on

behalf of the employee party to the dispute before

the Commission, the Australian Bank Employees

Union. We seek leave to be heard in opposition to

the grant of the order nisi and if Your Honour

desires then I can advance the reasons why we say

Your Honour should grant us leave. (instructed

by Maurice Blackburn & Co)

HIS HONOUR:  Perhaps I will hear what Mr Uren has to say

first, Mr Black. Any objections to that?

MR UREN:  Yes, there is, Your Honour. The objection is not

addressed to my learned friend so much as to the

time. Your Honour, I understand, will only have an

hour this morning.

HIS HONOUR:	Yes, I will.
MR UREN:	If our learned friend is to be heard on the

question of whether he should receive this leave or

not and then also to be heard in opposition to the

application itself I cannot apprehend that we would
finish within the time that Your Honour would have

available. If, on the other hand, Monday's

proceedings were not to go on as envisaged - that

is the proceedings in the Commission - then, of

course, the time aspect would not become so

difficult.

HIS HONOUR:  But is there any suggestion - you mean by way

of some sort of interim stay?

MR UREN:  Yes, or if our learned friend would agree to the

course which had originally been proposed which was

that matters proceed by way of hearing the

jurisdictional issue and deciding it first - as at

this stage, in any event, without going on to the

substantive issues then, of course, the time

problem might be resolved but the difficulty is

every minute has got increased leverage when one

only has an hour to put one's case.

HIS HONOUR: Well, if necessary, I could sit during the

lunch hour between one and two, that gives us an

extra hour.

Illaton 2 5/10/90

MR UREN:  Yes, well I hesitate to ask Your Honour to do that

but if that time was available that would - - -\

HIS HONOUR:  I would do that if it is necessary to finish

the matter.

MR UREN: Well, if Your Honour would do that then, perhaps,

what I have said is of somewhat less significance.

HIS HONOUR:  Does that cause you to view Mr Black with more

benevolence than you would otherwise have done?

MR UREN: Well, unfortunately no, Your Honour, because

firstly, this is, traditionally, an ex parte

application and, secondly, I would ask in any event

that his application be deferred until after

Your Honour had heard what we had to say when
Your Honour would have at least then the benefit of

what we say the case is about and could then make a

decision as to whether our learned friend should be

allowed to appear or not on the basis of that

understanding of the case.

HIS HONOUR: There is a stay sought, of course, which

perhaps does put it in a slightly different context

to what might otherwise be the case, but that seems

a reasonable approach and does not put you at any

disadvantage, Mr Black, does it?

MR BLACK:	No, it does not, Your Honour.
HIS HONOUR:	Mr Martin?
MR MARTIN:	I have no objection to that proceeding,

Your Honour.

HIS HONOUR: Well perhaps you had better tell me what you

are doing here first.

MR G.C.MARTIN:  I appear for the Metway Group Staff

Association which seeks to make an application in

the same terms as that made by Illaton Pty Limited.
(instructed by Henderson Trout).	The Staff

Association is an unincorporated association which has been granted leave to intervene in the

Industrial Relations Commission and has taken part in the entire section lll(l)(g) application in

hearings.

HIS HONOUR:  You seem to be saying more than that you merely

wish to support Mr Uren's application. You speak of your own, or your client's. Is there any such

application before the Court?

MR MARTIN:  No, an affidavit from the president of the Staff

Association, in which the orders are sought, was

Illaton 5/10/90

only sent by facsimile to the Court yesterday and I

have the affidavit in Court with me today.

HIS HONOUR:  Perhaps I should ask Mr Uren what your attitude is to Mr Martin's application.

MR UREN: His Honour, I understand that what was happening

was that the Metway Staff Association was, in fact,

to apply to Your Honour, as we are doing, on the

same material but with a little bit of supplement

for the same relief but as an independent

application of their own.

HIS HONOUR: Well, if that were the case, then I suppose you

have really nothing to say about that.

MR UREN:  No, indeed not. And, indeed, we understood that

is what they are doing and, I think, that probably is what my learned friend is doing and, indeed, we

wish to rely on their affidavit in any event in our

affidavit.

HIS HONOUR:  Yes. Well, Mr Martin, what is the position

with the filing of that application?

MR MARTIN:  I would have to seek leave this morning to file

it.

HIS HONOUR:  But it is available?

MR MARTIN: It is available, I have it here.

HIS HONOUR:  And could I take it that you are seeking an

order in terms of the draft order filed by Mr Uren

or some other form of order?

MR MARTIN: In the same terms.

HIS HONOUR:  That is in terms of the substance as opposed to

the preliminary matters.

MR MARTIN: Yes, in the same terms as the draft order

already filed.

HIS HONOUR: All right, well I will take that. Has a copy

of that been served on Mr Black?

MR MARTIN:	No, it has not - I have a copy here.
HIS HONOUR:	Would you make one available please.
MR BLACK:	We have not been able to see any of the material,
Your Honour.  We sought access but it has not
been granted.
HIS HONOUR:	What, not even the affidavit in support of the

motion?

Illaton 4 5/10/90

MR BLACK:	No, indeed Your Honour, we were not aware that a
stay was being sought.  We assumed that it
probably would be.
HIS HONOUR:	Well I take that simply from the form of draft

order that accompanied the papers.

MR BLACK:  Your Honour, that is one of our principal

concerns, but it was on the basis of assumption other than any form of application. My learned

friends may have a spare copy and may now be happy

to give us a copy.

HIS HONOUR:  Mr Uren, is there any reason why Mr Black should not have a copy of all the papers?

MR UREN:  No, not at all, Your Honour. I do not think we

were asked that. In other words, I do not think

that it is due to us that he has not got a copy. I do not think we were asked, but we certainly do not

object to him having a copy, and if my instructing

solicitor has some spares, then they could be made

available.

HIS HONOUR:  It just seems to me that when there is a stay

being sought then perhaps different questions arise

from those which arise when merely an order nisi is

sought.

MR UREN:  Yes that certainly can be so. I would not agree

that it is so in this case, but I agree with

Your Honour that it certainly can be so.

HIS HONOUR: Well, I think we will just proceed and hear

from you 1 Mr Uren at this stage, and then hear from

Mr Martin and then hear Mr Black's application to

intervene.	I should say this that I have read the
affidavit in support of the application.	I have

read with some care the later exhibits; those that bear directly upon the decision units, the subject

of the application. I have only looked in a fairly

casual way at some of the earlier exhibits,

particularly where they involve fairly lengthy

transcripts that may, in the end, have not a great

deal to do with the case.

MR UREN:  Yes, Your Honour. A lot of the affidavit indeed

is history, which is useful as explanatory

background, but the substance of the application, I

think, falls into a short evidentiary compass and I

will take Your Honour to that momentarily. As a

matter of housekeeping, Your Honour, could I give

Your Honour two recently sworn affidavits which are

basically matters of tidying up, and also a

substitute for pages 2038 to 2101 in - no, I go

back, I think we are giving Your Honour an entirely

reconstituted exhibit 8, because there was some

Illaton 5/10/90

mistake in the compilation, I think, of the exhibit

which makes it difficult to follow on a page by

page basis. So if I could hand to Your Honour the

two affidavits which I have referred, each being

sworn by Kenneth William Whiticker, one on

4 October and one on 5 October. The one of the

fourth merely attends to certain small corrections

in the first affidavit.

HIS HONOUR:  That was the one of which we received some sort

of facsimile.

MR UREN:  Your Honour may have. Yes, that may well be

right. The second affidavit, the one of 5 October,

adopts the material which is contained in the

affidavit which was sworn by Michael Glenn Swartz

on 4 October and has been filed in the Metway

application. The substance of that affidavit,

without reading it Your Honour at this current stage, goes to the question of what industrial effect there may or may not be with respect to the

people who are employed in Metway if, in fact, the

proceedings in the Commission go on and a decision

is made which is in favour of the ABEU.

The reason for adverting to that is it goes to the question of whether it is desirable that there

be a stay or not. The purpose of the material is

partly to answer certain of the considerations which have been raised in other cases in which

stays have been refused and to put a different

complexion on the facts of this case in support of

the proposition that there should be a stay.

Could I, lastly, give Your Honour a document which I have entitled Summary of Commission

Proceedings which endeavours to make some tabular

sense of the various logs and disputes which

Your Honour will have read about in the affidavit

which is our major affidavit. It struck me it was

a little confusing to try to follow them as one

went through the various paragraphs and putting

them in a table form perhaps makes them a little

clearer.

The first log was a Federal Clerks Union log

and that was a basis of a dispute on which there

was an award made, I think, to which the Federal

Clerks Union was a respondent. Then we have the

first ABEU log which, in the Commission, was given

No C9001. That has been basically substituted by

the third matter which was referred to, the log in

matter C30101. The third log I think was a - - -

HIS HONOUR: Sorry, just before you leave that C9001, the

notation is that the matter is still proceeding but

Illaton is not a party but that is one of the

Illaton 6 5/10/90

matters that is the subject of the prerogative

relief.

MR UREN:  Yes. Our contention is that the log was not

served on Illaton or Metway and they are not
parties to that dispute and because they were not
parties to that dispute, I think when that was

realized, that was why the log in the third matter

was served. That, in effect, was served to meet

the deficiency in parties by creating another

dispute and so the Nos 2 and 3, I think, are

basically proceeding together with 3 as probably

the real technical battleground on which the matter

is proceeding. The Nos 4 and 5 are Clerks Union

logs and could really be ignored and No. 6 is the

matter relating to the Clerks Union log and that

could be ignored as well.

HIS HONOUR:	When you say ignored, Mr Uren, all these matters are the subject of the relief that is
sought, are they not?
MR UREN:	No, Your Honour, and I think, subject to being

corrected, Nos 1, 4, 5 and 6 are not the subject of

the relief which is sought.

HIS HONOUR: Well, that is not the way I read it. If you

look at your draft order it seems to me to

encompass five matters.

MR UREN:  Yes, Your Honour. I will get some instructions on

that, but it is a matter which I think is not a

matter of substance for the purpose of my argument.

But if I was wrong in my understanding of what I

put to Your Honour, then I will correct that. I
thought the application we are making to the Court

was with respect to the ABEU logs and the FCU

matters were not proceeding. It may be there is an

error in the draft, or maybe there is an error in

my understanding, but one way or another I

will - - -

HIS HONOUR: Well, for the moment then you are proceeding on

the basis that it is Nos 2 and 3 in the summary

with which the application is primarily concerned.

MR UREN:	Yes, Your Honour, if I could make that subject to any correction which I might make later on. But I do not think I need take Your Honour through the
history of what has occurred to the various logs.
I think that is not relevant for the purposes of explaining the basis on which the order nisi is
sought.
If I could, Your Honour, start off by going to the legal and factual basis on which the order nisi
Illaton	5/10/90

application is made, and then deal with the basis

for the granting of the stay of proceedings.

Your Honour, with respect to the order nisi,

the point that we base our application on is that

it is a matter of jurisdiction of the Commission as

to there being in existence an interstate

industrial dispute. The point that we wish to

raise with respect to jurisdiction in that regard

is that there either never was or is now no

industrial dispute which would be the subject of an

award. If that is the case, then there is no

jurisdiction to make an award.

HIS HONOUR:  Is that a matter you are asking me to

determine?

MR UREN:  No, Your Honour. I think that is - sorry,

Your Honour, as to whether that is correct in law

or correct in fact - I think it is undoubtedly the

law that the jurisdiction of the Commission depends

on there being an industrial dispute. The point

that we are moving the Court on is that there must
be an industrial dispute existing at the date on

which it is intended to make an award, and that

there is, in fact, in this case, as the evidence
clearly shows, no genuine industrial dispute, and
if there is no genuine industrial dispute then

there is no jurisdiction and the tribunal then

proceeding to hear the entire matter would be

exceeding its jurisdiction in so doing.

HIS HONOUR:  Then I repeat my question. Are you, perhaps in

a slightly more refined form, asking this Court to

determine that there is, in fact, no industrial

dispute in the relevant proceedings?

MR UREN:  Yes. Could I put our position on a twofold basis,

Your Honour? That is the prime submission that we

make. There is a fall-back submission which is

that the Court should prohibit the Commissioner

from proceeding to hear the substantive issue

without first determining whether there is or is

not jurisdiction.

HIS HONOUR:  Is it apparent that the Commission is going to

do that?

MR UREN:	We think so, yes.
HIS HONOUR:	It seemed to me that it was not all that clear

from the proceedings, or perhaps what did seem to

me to emerge from the transcript was that the
deputy president intended to deal with both matters
in running, as it were, leaving a decision as to

which he would dispose of first until when the

argument was concluded.

Illaton	5/10/90
MR UREN:	Your Honour, as to that I think we would say two

or three things. The first thing is he has no

jurisdiction even to hear the substantive matter

without deciding it if he has no jurisdiction, and

that the jurisdictional matter then is a threshold

matter which ought to be determined first; and

that if he proceeds without jurisdiction to hear
the substantive matter even without going to a

decision on the substantive question he is, by

entering onto the hearing itself, trespassing from

his jurisdiction.

The second thing we would say in that regard

is that it does appear likely, in our submission,
that he intends to make pronouncements on all

issues, and the third thing is that the proceedings

before him have really in substance not much left

to them than he is currently dealing with, and in

substance all that would be left to do if he made

findings that, let us say, there was jurisdiction,

and declined to exercise his powers under section

lll(l)(g), there is nothing really further in

dispute between the parties. The terms of the

proposed award are not disputed, and therefore he
would really have nothing further to do except make
an award consequent upon making any jurisdictional
and section lll(l)(g) findings.

So the situation has reached the stage where he is really proposing to go on with the substance

of the matter without having first determined

whether he has jurisdiction.

Now, as a matter of what ought to be done, it

had been proposed to the Commissioner that he hears

the jurisdictional question first and not hear, or

give any decision on, the other aspects until he

determined that issue but he declined to take that

course, but has instead of necessity, because of
the decision he has made, entered on to the
jurisdiction to hear and possibly, or probably,

determine an issue which is of a substantive nature

his jurisdiction. If he is doing that, then he and in both hearing or determining, he is exceeding should be prevented from so doing.

HIS HONOUR: Is he precluded, as a matter of convenience,

from hearing argument on the question of

jurisdiction and, on the section 111 application,

reserving to himself a decision as to which he will

dispose of first?

MR UREN: In our submission, yes.

HIS HONOUR:  I address that particularly to the question of

argument. You appear to be saying that he cannot

even entertain argument on the section 111 question

Illaton 9 5/10/90

until he has determined the question of

jurisdiction.

MR UREN:  Yes. Your Honour, I think as a matter of logic,

it must follow that he can only hear argument on

the substantive issues if he has jurisdiction so to

do. If he does not have jurisdiction so to do,

then he cannot. I mean, I cannot decide to hear

something just on the basis of convenience in case

it may be later found that I have some

jurisdiction. One either has it or one has not and

even if he entered on to the argument itself, he

would be, of necessity, exercising a jurisdiction.

If he has not got it, then he should not do it.

Now, it may be in some cases that as a

matter of convenience nobody complains about that

course, but in this case it was not thought

appropriate that he do so, but he has opened the

jurisdictional door and is proposing to walk

through it. Whether he walks back out again or not

is another matter by declining jurisdiction but,

none the less, he is, as a matter of logical
necessity, entering on to a jurisdiction if he even

hears the substantial issues even for the purposes of later deciding that he will not make a decision

because his jurisdiction includes a decision both

to hear and to decide.

HIS HONOUR:  I take it you would not be here if the Deputy

President had said, "I propose to hear argument on and determine the question of jurisdiction before

proceeding any further."? ·

MR UREN:  That is ·SO, and after he had made his decision and

in that regard it was unfavourable to us, we would

have then asked for time to take the matter further

in whatever the appropriate tribunal was. But,

that is certainly so, we would not have been here

had he not done that and that, then, gives rise to

the two aspects I had mentioned at the beginning.

As one position, we would submit, that the Court	should ensure that he hears the jurisdictional	issue first and not trespass upon the issue in
which he may not have jurisdiction. The second, and perhaps higher ground that we take as an
alternative, is that - it may be the first and
higher ground that we take and the other one may be an alternative - he has no jurisdiction in any
event and the whole matter ought to be taken away
from him and dealt with by this Court - sorry, this
Court should deal with the matter of jurisdiction
and say that he has none.

HIS HONOUR: There is no reason, I suppose, why this Court

could not deal with the matter of jurisdiction once

it has been determined by the Deputy President?

Illaton 10 5/10/90

MR UREN:  That is correct, yes. There is no reason why the

Court could not do that.

HIS HONOUR:  And why should the Court intervene at this

stage?

MR UREN: Well, the reasons why the Court should intervene

at this stage, are the questions which relate to

the matters of a stay which was - the reasons why
the Court should intervene at this stage are the
same matters, I think, as the ones that we raised

with respect to the desirability of their being a

stay.

HIS HONOUR:  And the inconvenience that may result and the

industrial implications, even if the matter is

determined unfavourably to you, by the Deputy

President and ultimately determined favourably by

this Court.

MR UREN:  Yes. And, they are not insubstantial because -

could I say this to start off with? This is not

the normal situation where one has an industrial

dispute in which employees may or may not be

disadvantaged by what is occurring and the public

is being disrupted and so forth and so on. This

is, in fact, what I might, without tending any

offence, call a power dispute between the people

and organizations. The employees, themselves, have

got the protection of a State award, the terms of
which are the same in substance, if not entirely

the same, as those which are sought or acquiesced

in by the Union.

That State award was preceded by a voluntary employment agreement reached between the employer

and the employees in the similar or very same

terms. So, there is no fight about whether anybody

should get so many dollars per week, or what his

overtime should be, or what his redundancy pay

should be and there are no people marching in the

streets. Nobody in the ground, the field, the

employment field, wants anything changed

whatsoever.

However, the Union, for reasons which are

either good or bad, and are not of any concern at

this stage, see it should have coverage of these

employees and the evidence which was given and

which I will refer Your Honour to momentarily

establishes fairly clearly that the only interest

of the Union is in coverage. The interest of the

Union is not in a change of terms and conditions of

employment. That being the case we have got a
dispute which is, when it comes to the question of

asking for a stay, properly categorized is one in

which no employee is or will be subject to any

Illaton 11 5/10/90

disadvantage nor will any member of the public.

There is no industrial dispute of that sort which

has caused the court, on previous occasions, to say

it is unsatisfactory that industrial disputes be

held up while orders nisi are made and stays

granted and this Court deals with things.

There is nothing of that sort, there is

basically a barren but none the less important

dispute as to whether the Union should have

coverage of people who are basically quite happy as

they are at the moment. So, that is not something

which is of any great urgency. That point can be

decided today, tomorrow, next week, next year. It

will have a long-term effect when it occurs, if it
does occur, but there are no short-term
disadvantages of it not occurring at the moment
except such tactical short-term advantages or
disadvantages there may be if people are in or out
of the field for some period of time. But it is a

matter which has got no considerations of public or

employee welfare connected with it. And that is

what we thought distinguished this case quite

considerably from other cases where the Court has

been reluctant to grant a stay.

The second thing, which is of some

significance, is the evidence itself on which we

rely comes in fairly short passages in the

transcript and is all from the mouth of the

officers of the VDU. That being the case the Court

will not be asked to make any decision as to

whether competing versions of fact should be

accepted or not nor will the Court be asked to make

any decisions as to whether anybody should be

believed or whether we should not. We take the

evidence, as it stands and as it appears in its own

starkness, as being sufficient to make out our case

or not and we do not put it on difficult or

constructional inferences which may arise from

equivocal words but from plain statements that

really amount to three things.

One is that the Union's interest is in seeking

coverage of people who are not, at this stage,
covered by the Union; secondly, that there is no
complaint with the present terms and conditions and

thirdly, the Union has no agenda for any change in

terms and conditions but its attitude is that if it

gets coverage it will then see what the members

want before deciding what to ask for. But that

there is no agenda for change and the result of all

those things is that there is in fact, on clear

admission, a situation where the Union does not

really want the demands which have been made in the

logs which have been served and which started off

what was said to be a dispute. It does not really

Illaton 12 5/10/90

want what it demands; it is happy with what there

already is; the log itself has been served to

create a paper dispute as a vehicle for obtaining a

federal award to obtain coverage and nothing more

and that matter does not constitute industrial

dispute.

If those things are right then there is, as a

matter of clarity, no industrial dispute and

therefore no jurisdiction in the Commission. Now,

all of those things can be worked out from an
evidentiary basis in an hour or two's argument once
the Court sees what has been said and it either
stands for our factual propositions or it does not.

If it does stand for our factual propositions then

there is no dispute. So, the matter itself is one

in which the points that we make are, so far as the

law goes, we would think, not contested; so far as

the facts go, within a very short compass and come

straight from the mouths of the opposition.

HIS HONOUR:  Just excuse me a moment, Mr Uren. I notice in

the Citicorp case, the case which is on the list of

authorities - and I am looking at the report in

63 ALJR 602 at page 604 going over to page 605 ~

the Court said:

On a proper construction of s 4l(l)(d) of the

Conciliation and Arbitration Act and
s lll(l)(g) of the Industrial Relations Act,

Citicorp was entitled to put a case that it

was convenient and appropriate for its

application (as made under s 41(l)(d)(iii) of

the Conciliation and Arbitration Act) to be

heard and determined without a dispute finding

being made.

MR UREN:  There is an apparent but not a real similarity

between that case and this. I think the apparency

of the similarity caused the Commissioner to

consider that the case was relevant but in actual

fact it is not. All that that case decided was

that it is not necessary, as a matter of law, that

an acute finding be made before entering on to the

section lll(l)(g) hearing.

HIS HONOUR:  How does that square with the submission you

made earlier that the jurisdiction has to be

determined before entering upon any other aspect of

the matter?

MR UREN:  Your Honour, in this case it was not apparently

said that there was no jurisdiction. What was said

was that there should be a finding made as to

whether there is jurisdiction or not. It does not

appear from that case that there was any

Illaton 13 5/10/90

proposition put that the evidence in fact showed

there was no jurisdiction and therefore the
tribunal ought to be prohibited from proceeding on

the basis that it in fact had no jurisdiction.

HIS HONOUR:  Do you mean the passage means no more than it

is not incumbent upon the Commission to make a

formal finding of a dispute before it can embark

upon its section 111 application?

MR UREN:  Your Honour, if I could put it this way. As a

matter of the construction of the statute it is not

incumbent upon the Commission to make a section 24

finding before going as far as it was then going.

In other words the statute does not, as a matter of

construction, require it so to do.	Our point is
quite different.	Our point is that there is, in
fact - - -

HIS HONOUR: Section 24 on - - -

MR UREN: Section 24 is now section 101(1) of the current

Act, I think, and the reference to section 41 is

now a reference to section lll(l)(g). I think

actually all the Court was saying there was that

there is no statutory requirement to do one thing

before you do the other but our point is quite

different. Our point is, there is in fact on the

evidence which has been shown no dispute, therefore

no jurisdiction. It could not be possible, I

think, constitutionally for there to be any

jurisdiction to do anything if there was no

industrial dispute. If there is no industrial

dispute then the Commissioner could not enter into

an exercise of any of the powers under the

Conciliation and Arbitration Act because it is only the existence of an industrial dispute which gives rise to the Commission having any powers under the Conciliation and Arbitration Act at all.

HIS HONOUR: Yes, I understand the point. I am sorry, I

diverted you, Mr Uren.

MR UREN:  I am glad Your Honour did because I intended to

refer to that case later because I knew our learned

friends would but I think, with respect to the Commissioner and to those who submitted to the contrary, that its true nature has been

misunderstood. It is in fact a case on statutory

interpretation and does not say that the

Commissioner, if he has no jurisdiction, is still

entitled to proceed under lll(l)(g) or under any
other section of the Act itself.

When the matter comes to this Court it is, of

course, this Court which has, when it is properly
moved, the obligation to decide whether the

Illaton 14 5/10/90

jurisdictional fact exists or not and on some

occasions the Court has declined to do that at a

certain stage of the proceedings for various

reasons which, in our submission, do not exist in

this case but in other cases the Court has in fact

done so and it would have been appropriate for the

Commissioner to have decided his jurisdictional

point in this case. Of course, he may say, "I am

not obliged to.", to which we are then entitled to

say, "Well, look, if it sufficiently appears that

you are going to exceed your jurisdiction you,

having decided that you will not stop at the

jurisdictional question but will go further, even

if it is only a matter of hearing, then you are, if

we are right, in fact, exceeding the jurisdiction

and the High Court has got jurisdiction to stop an

officer of the Commonwealth from exceeding his

jurisdiction."

I wonder if I could take Your Honour, while I am on this very point, to a passage from Wade in

the sixth edition. At page 283, there is a

citation there from an old case but it does bear
the authority of Professor Wade so I dare say I can
read it. The learned author said - this was also
explained in the classic case and he refers to the

case which is the case of Bunbury v Fuller, decided

in 1835:

Suppose a judge with jurisdiction limited to a particular hundred, and the matter is

brought before him as having arisen within it,
but the party charged contends that it arose

in another hundred, this is clearly a

collateral matter independent of the merits;

on its being presented, the judge must not

immediately forbear to proceed, but must

inquire into its truth or falsehood, and for
the time decide it, and either proceed or not

with the principal subject-matter according as

he finds on that point -

In our submission, those are consequential matters.

He must inquire into the truth or falsehood of the jurisdictional issue and for the time decide it and then either proceed or not with the principal subject-matter according as he finds on that point.

And that is, in our submission, what he must do

also as a matter of logic because if he is to

decide to proceed on the substantial issue he is

then of necessity trespassing on the jurisdictional

field. He is not trespassing on the jurisdictional

field by deciding the facts which do not give him

jurisdiction, there is no difficulty with that

which is why we suggested he do that first. He has

jurisdiction to decide whether he should enter on

to the subject-matter or not.

Illaton 15 5/10/90

HIS HONOUR:  It almost suggests that the appropriate release

is by way of mandamus requiring the judicial

officer to determine first the question of

jurisdiction before proceeding any further.

MR UREN:  Yes. In fact that was one matter that we did give

some thought to. On the other hand, it could be

said to be - he could prohibited unless so it is a

question - - -

HIS HONOUR:  Yes, so it is a question of just different

sides of the same coin, I am not sure.

MR UREN: Yes, and, indeed, there was something that

Mr Justice Gibbs said in a case which tended to bear out what was said, I think, in that passage

from Wade. It was in Alley's case, 153 CLR.

HIS HONOUR:  Is that on your list, Mr Uren?

MR UREN:  Yes, it is, Your Honour. The case is Reg v Alley,

Ex Parte the New South Wales Plumbers and

Gasfitters Employees Union and others, 153 CLR 376.

The passage I wanted to refer to is at the top

of 382 and it reads as follows:

Where the jurisdiction of the Commission

depends on the existence of facts, it is

proper for the Commission to inquire whether

those facts exist, so that it may determine

whether or not it should proceed with the

matter before it. However, its decision on

that question is not binding, and when an

application for prohibition is made to this

Court, it is for this Court to decide as to

the existence of the facts which constitute

the condition of jurisdiction. This is well

settled -

and then His Honour cites a number of cases.	And
so when His Honour said:

it is proper for the Commission to inquire -

in our submission, what His Honour meant there was

that is what the Commission should do. It may

otherwise then be trespassing on a field in which it has no jurisdiction. And what His Honour said

there is, in our submission, of the same flavour as

what was said in the passage from Wade.

So, our basic submission, I think, is that on the evidence there is no jurisdiction. That should

have been dealt with as the threshold point. The

Commissioner not deciding to deal with it as a threshold point, but to go on, he is exceeding his

Illaton 16 5/10/90

jurisdiction and the Court should prevent him from

doing so.

HIS HONOUR:  Why did he take that approach, Mr Uren? As I

recall, it seems to have been largely on the basis

that to deal with that question divorced from the

section 111 application might simply fragment the

matter and allow it to drag on for sometime.

MR UREN:  I think the Commission acceded to a proposition

that the question of whether there was a dispute or

not depended on so much common evidence in the

entire case that, as a matter of convenience, he

could look at all of the things together. The

first thing we would say is that is, in fact, not

so. He was told that but it is not so. There are

few passages that relate to this issue, the issue

of jurisdiction, and we will give Your Honour those

in a moment. The second thing is the Commission

did not say that it would just hear everything and

then make up its mind what to do. In our

submission, the probabilities are that the

Commission does intend to make a judgment on both

the section lll(l)(g) and the jurisdictional issue,

all at once. I think that appears from page 10 of

the Commission's ruling, that ruling being in

exhibit KW12.

HIS HONOUR:  Let me get that please. Which page is it?

MR UREN:  Page 10, Your Honour. There are some prior pages

as well, but I think page 10 encapsulates the
substance of the matter. It starts off "In what

order the Commission turns - - -"

HIS HONOUR:	But.KW12 is - no, I am sorry, I was being misled by the Court's own numbering.
MR UREN:	Yes, it is the Commissioner's decision of

27 September.

HIS HONOUR:  Yes I have that.

MR UREN:  Now, it is true that the Commissioner did say, at

the top of the page:

In what order the Commission turns its

consideration to ..... is not a matter the

Commission has to decide now. The Commission

will at the conclusion of proceedings have

before it all the evidence and decisions

stretching back over three years and the

evidence presented in the current proceedings,

a substantial amount will be common to both

sets of applications.

Illaton 17 5/10/90

Can I stop there and say the state of the evidence, be, in substance, no greater than I will give in our submission, on the jurisdictional point will

Your Honour in a moment and it is certainly not of

the description referred to there.	The
Commissioner then goes on to say:

It is at this point the Commission will

be in the best position to consider and

determine the issues in the most practicable

manner.

There is nothing in the operations of s.101 and s.111, nor elsewhere in the Act,

that would prevent the Commission from

following such procedure, so much was decided

in the High Court decision in the Citicorp

case.

In our submission that is not what the High Court

decided in Citicorp for the reasons we have given.

And later then the Commissioner went on to

say:

If, after a consideration of the

submissions on all matters, the Commission

comes to a conclusion that the revocation

applications should not be granted, there is

nothing in the Act which would preclude the

Commission determining the section lll(l)(g)

and (iii) applications and announcing

determinations that all applications in a
single judgment.

Now, Your Honour, the revocation application referred to was an application to revoke the

dispute finding and that is the jurisdictional

issue. So that is what that refers to.

In the light of the last paragraph that I have

read out to Your Honour, together with the prior

views of the Commissioner that delay should be

prevented and the case has taken too long and a

whole lot of other things, it would seem to us to

be fairly clear that there is a grave danger to say

the least, if not, as we would submit, a fair

degree of likelihood, that the Commissioner will do

what he has actually said, that he will, and he

certainly may well decide all issues in a single

judgment, in which case he will then have gone

further in trespassing on his jurisdiction than merely hearing the substantive points. He will

have actually gone further and decided the

substantive point.

Illaton 18 5/10/90

Now bearing in mind that, in this case, I

think the main battle ground is section lll(l)(g),

once that is over it will be all over bar the

shouting. The terms of the award themselves are

basically fairly common to the parties, he would be

able to make an award fairly swiftly after the

section lll(l)(g) application was over. But, in

any event, he should not even be deciding this

section lll(l)(g) and he certainly said that that

is what he may do and, in our submission, that is

what he may well do and indeed what he probably

will do in the light of the things which he said in

these reasons.

HIS HONOUR:  You mean without determining the question of

jurisdiction?

MR UREN:  No, with determining the question of jurisdiction

but he will determine it and then also go on to

make a section lll(l)(g) finding.

HIS HONOUR:  He presumably would only do that if he found

jurisdiction to exist?

MR UREN:  Not necessarily, Your Honour. A number of judges

have determined all issues before them even though

they have found against an issue which itself would

be sufficient to determine the application. He may

in fact -

HIS HONOUR: Well, that is true. I am not sure that that

approach has been carried through to questions of

jurisdiction.

MR UREN:  Your Honour, there is certainly a danger that he

would do that because he may well think, "Well,

this would cause things to go on more speedily if I

determine tfie jurisdictional point. Even if I

determine it against jurisdiction, I will say what

I would have said about the lll(l)(g) and then if it goes on appeal and I am_wrong on jurisdiction

and there is jurisdiction the whole thing will

already have been heard and things will be
circumvented".	And the Commissioner was fairly

keen, as it appears, to have matters proceed

speedily although it is not clear why in the
context of this case he should have been except as

a matter of wanting his list cleared up, perhaps.

But in any event he is certainly intending to

proceed to accept a jurisdiction which, if we are
right, he does not in fact have and he may even go

further and make a single judgment. Even if he decides that he has jurisdiction he would still

not, in actual fact in our submission, have

jurisdiction to make the section lll(l)(g) finding

because if our argument is right he has not got

Illaton 19 5/10/90

jurisdiction and there are good practical reasons

why we would not want him to do that because the

inevitable consequence of doing that would be a

practical advantage to, what I might call the other

side, and also the inevitable consequences in

making that finding would mean that an award would

follow unless a stay was granted which may well not

be the case and an award would follow which would

give rights, pending it being set aside by some

appellate procedure, and that then would cause an

unsatisfactory situation where rights would be

given by an award of coverage which the Union may

well not be entitled to.

There is, in the field at the moment, a Staff

Association which performs for the people who are

employed in Metway the same functions as a Union

and one would then have the very unsatisfactory

situation that one would have a Union insisting on

its award entitlements; a Staff Association is

already in the field; the award entitlements may

be ones that the Union is not entitled to because

there is no jurisdiction. These are the

unsatisfactory considerations which flow, almost of

necessity, from what I would call an unorderly

procedure of throwing everything in the one basket

and then when you pull it out again it is all

tangled.

The jurisdictional point is a threshold point

which it is more sensible, from a number of points

of view, legal and practical, to decide before
going on to take a course which will give
substantive rights to people who may well later on

not be entitled to.

HIS HONOUR: Putting aside the industrial implications of

the finding of jurisdiction and possibly the making of an award, I take it there is nothing that cannot

be resolved through the ordinary appellate

provisions of the Industrial Relations Act?

MR UREN: That is right, yes, Your Honour, there is nothing

which cannot be resolved in that way except it will

give rise to inevitable practical difficulties, the

ones that have been referred to in Mr Whiticker's

affidavit and also in Mr Swartz's affidavit. It

could be done that way but it is undesirable - I

will go back a square. It is not undesirable that

it be dealt with through the Commission if in fact

the Commissioner was going to start off with

jurisdiction - deal with jurisdiction - and allow
that to be determined in an orderly manner and

then, once it is determined, deal with the other matters which he then has remaining. That would present no practical or legal difficulty.

Illaton 20 5/10/90

If, on the other hand, everything is to be

popped in the basket and dealt with together, there
are large practical difficulties. And there is
also a legal difficulty in that if there is, in
fact, no jurisdiction then none of those things

should be done in any event, and the applicants

before this Court should not be oppressed by the

possibility that findings will be made against them

on the section lll(l)(g), which findings ought not

to have been made because of the fact that there is

no jurisdiction. And if we are right on that

point, then none of these things should have been

done in the first place.

Then one gets to the question of, "Well, what

is the best practical thing to do?" And that gives

rise to some of the considerations that Your Honour

has been mentioning. But in this case there is no

practical reason why the matter should not proceed
by way of a prior jurisdictional decision, and if

the Commission is not prepared to proceed that way

then we are entitled to say to this Court, "The

Commission is exceeding its jurisdiction and this

Court ought to decide whether it has jurisdiction

or not." I mean, the matter is, in a sense, in the

Commission's hands. If it is not going to deal

with the matter in what we submit is an orderly

manner, and if it is proceeding in the way it is

doing, is likely to cause problems, then that is a

good reason for this Court exercising its undoubted

jurisdiction to take the jurisdictional point to

itself.

HIS HONOUR:  Is it implicit in what you are saying, Mr Uren,

that the course proposed to be followed by the

Commission was one urged upon it by the Union?

MR UREN:  Yes, the all-in-together course was one urged on

it by the Union, yes. If I could run swiftly

through some of the stay points, Your Honour, and

then take Your Honour to the short evidence which,

we submit, justifies the jurisdictional point. If

I could just run through them fairly quickly

firstly with respect to the stay.

This is not the usual sort of industrial case

which comes before the Court on occasions when

stays are sought where there is industrial dispute

in the field, and there is something which it is

desirable not to be stopped from proceeding because
disruption may occur. This case is one where the

work-force is happy with what they have currently

got. There is no likelihood of industrial
disputation in the matter if the proceedings before

the Commission are stayed. They have gone on for

some years now without causing any difficulties

either with the public or with the work-force.

Illaton 21 5/10/90

There is a likelihood that there will be such

difficulties if the Commission proceeds and makes

an award. in favour of the Union. Those

difficulties I have adverted to and they are more
expressly put in the affidavit of Mr Schwartz. Next, the dispute itself is a power struggle

between the employer and the ABEU. Whether that is

a good thing or a bad thing is not to the point.

The point that we make is that there is no

disadvantage to their workers caused by what is

occurring, or by what is occurring being stayed.

But there may be a disadvantage if there is this

unsatisfactory interregnum where people can go in

with award entitlements to coverage, and then they are found not to have them. So nothing is, in our

submission, urgent in this case at all. The

workers are protected by a State award. The ABEU wants no greater benefit for the workers than the

State award already gives. There is, in fact, in

our submission on the evidence which we will take

Your Honour to momentarily, a strong likelihood

that the whole alleged industrial dispute is a sham

and that there is no jurisdiction, and that the

paper log which is said to create it, is in truth

no more than paper and does not evince an actual

desire to achieve the benefits in the log.

Next, the factual points in this case rests squarely on the effect of statements made by the

ABEU's own officers which are in small compass.

The controversy between the parties will not be more speedily resolved if the matter proceeds in the Commission than it would be if the matter

proceeds here because will happen is this, in all
probability: if the Commission decides against

Illaton on the jurisdictional point and goes to

make an award then Illaton will undoubtedly appeal
on the jurisdictional point. If it then fails the

matter will, I would have thought on the vast

preponderance of possibilities, come to this Court

again by way of application for an order nisi.

If our case is strong enough and it will not

be any stronger than it is now, in other words it

will not appear any different than it is now, an

order nisi will be granted; the matter will be heard by the Court and it will then, if we are

right, be decided that there is no jurisdiction and

what has occurred in the past is just as a breath

of wind so far as the Commission is concerned.

Now, all of those things, if one totted up the

times they would take, would take no longer and

possibly even less time, than the contrary which

would be that Your Honour grants the order nisi,

the matter is determined by this Court. If this

Illaton 22 5/10/90

Court, let us say, decides in favour of the employer that is the end of it. If this Court

decides in favour of the Union then all that

remains to be done is for the Commissioner to make

his section lll(l)(g) finding. The terms of the

award themselves are not a matter of, I think, any

or certainly of any substantial dispute and the
matter will then be resolved within a few weeks of

this Court's finding. So, there is no time saving

to be got by taking the course through the

Commission.

I am reminded also that there is another

practical effect of a finding which the Commission

makes if it makes one without jurisdiction either

on the section lll(l)(g) or on the terms of the

award itself and that is this: the affidavits show

that there is at this stage an application, I

think, before the State Industrial Tribunal with

respect to the State award which now covers the

people who are employed in Metway. The ABEU is

seeking respondency to that award and that

application is being opposed because there is in position a staff association which is adequately

dealing with the industrial matters so far as the

staff is concerned and, also, I might say, an

association which, as Your Honour will see from the

description from the way it was set up and so

forth, does in fact actually reflect the will of

the large majority of the members of the people who
are working in Metway and is not just some sham

organization.

There will be, in all probability, a moral and

a precedential effect on the application by the finding by the federal Commission and we ought not

to be - at least, both the employer and the Staff

Association ought not to have that, in fact, used against them on the State industrial hearing if, in

fact, it should not have been done in the first

place.	So all we are really doing is asking,
basically, for the status quo to be kept in place,

as it were, while the question of jurisdiction is

decided and if the Commission will not decide it as

a threshold matter then this Court should do so.

If I could take Your Honour lastly to the

passages of the evidence which, in our submission,

justify the three propositions which we put to the

Court which I will remind the Court of, which is

that the Union is really only seeking a coverage of

members. It has no complaint with the present

terms and conditions. The reason for saying that

is that means that it is not seeking any additional

terms which are contained in the log. If there is

no dispute as to the propriety of the terms and

Illaton 23 5/10/90

conditions which are currently in place then it

must follow that the rest of the log is not being

sought and not being actively pursued.

The third evidentiary point which follows from

the second is that the Union has no agenda for

change at all in terms and conditions and its

actual position is it will just wait and see what

the members ask for in future. And if any of those

things are made out it would appear that there is

no genuine industrial dispute within the terms of

what is said in the cases on this point. And if I

might give Your Honour a reference to two of them:

specifically in Reg v Cohen, 157 CLR 331, at 337

to 338, and also in Ludeke's case, 159 CLR 179.

The proposition which those cases establish is

that the demands in the log said to create the
dispute must be really wanted by the Union. If the

Union does not really want what it demands and the

log is not seriously propounded as a demand on
which the Union's result to insist, then there is

no dispute created by the service of the log and

the non-compliance with its demands. That is all

that is said to create the dispute in this case,

the service of the log and the non-compliance with

the demands.

Now, Your Honour, the particular passages, if

I can give Your Honour the pages, are

at 2050-2 - - -

HIS HONOUR:	Now, which exhibit are you referring to?
MR UREN:	Your Honour, they are sequentially numbered in any

event, so it is at exhibit KW8 at page 2050-2, but

I hope I am only taking Your Honour to the ones

which are most particularly germane, in the

evidence of Mr Ringley. That is on the question of

whether the Union really only is seeking coverage

of those who are employed in Metway. At page 2050,

in the second sentence up from the bottom, the

cross-examiner, I think - I think under
cross-examination - asks Mr Ringley, who is the

federal secretary of the ABEU:

Why is it that the ABEU have opposed the

making of that award that is proposed in the

State Commission?---An award with the ABEU?

No, the award that is being sought by the

employer?---The reason that it is opposed is

that we believe that we can provide the

resources and the proper logistics for an

independent representation of the people of

that fact.

Illaton 24 5/10/90

That encapsulates, I think, what appears at the rest of 2051 and also in 2052, down almost to the end. In other words, the reason why the State

award is opposed is not that there is anything

wrong with the State award, or its terms and

conditions, but that the Union believes it has the resources and the proper logistics for independent

representation of the people in the Bank. Perhaps,

if I did take Your Honour up to the top of 2051 in

the second question down from the top:

And you are aware also that the only reason

that that did not through almost a month ago

is that the ABEU may have blocked it by its

opposition to the award being made by the

ctate commission?---What I am indicating to

you is that we believe that we can properly

and independently represent those people.

If I can next take Your Honour to 2067, at the

bottom third of the page:

To sum up in relation to that state award

series of questions, is it true to say that

what emerges from a comparison of the two

documents is that the ABEU is not taking issue

with the existing rates and conditions as being appropriate rates and conditions to apply as from when the VEA ceases

on 30 September this year?---That is right.

Your Honour, VEA is a voluntarily employment

agreement which preceded the award:

And· the issue gets down to the fact that the
ABEU wants to be respondent to any award that

is made in the state commission to put those

existing conditions into a state award

framework?---That is right.

And likewise, in relation to the proceedings

that are before this commission, what is in

issue is the question as to whether the

coverage of the staff of the Metway

organization is to be under an award in which

there is ABEU respondency?---That is right.

Then, going on to page 2068, again in the

bottom third, in the passage which starts:

It has been said in the State Commission by

Miss Atkinson who is counsel for the ABEU that

as soon as the award comes into force the

Union will make application for variation.

That is, as soon as the ABEU State award comes into

force. I will read out to you what she said - and

Illaton 25 5/10/90

then something is read out and then the questioner

goes on:

Q. Now does your Union have an agenda for the

variations that were once made to the existing

terms and conditions that applied in the

Metway organisation.

A. I genuinely do not know the answer to that.

I do not have an agenda. I am not familiar

with the context in which it was put.

Q. Just to make sure you understood my

question.

A. I did understand the question -

that is always a fatal thing to say.

my answer is, I understand your answer -

and that is often more fatal. Miss Atkinson said -

as soon as the State award comes into force

the Union will make application for

variations.

Q. But you have said, if there is an agenda

you do not know what it is.	I am not familiar
with what that means.

After some argie-bargie, the witness - at 2070 in the middle of the page under the heading of "The

Witness'' - said:

A. I can volunteer, Your Honour, that there

had been no decisions made on anything like

that at a federal level.

Mr Murdoch:  To round it off then, it is clear

from what you have said that the federal-

variations to the existing rates and	organisation does not have an agenda for
conditions of Metway.
A. That is right.

If I could take Your Honours, in this context, to

page 2086, at the bottom of the page, the passage

starting:

Now, Mr Hingley, you were asked about the ABEU

having or not having an agenda for change in the State Commission and then you were asked

about the ABEU having an agenda for change

generally in relation to Metway. If a federal

award were made or, indeed, in the present

Illaton 26 5/10/90

circumstances, can you tell the Commission

what if any general view the ABEU has about

the terms and conditions of employment of

employees in what are called the "new banks" -

and I think, Your Honour, that is us -

by comparison with those of employees in the

Bank Officials Federal Award banks.

A. Well, our views on that are quite well

known to the Commission. It was the matter of

a quite detailed report and that is that we

regard these awards as amongst the most

contemporary in Australia; that they are

modern awards and have all the flexibility

requirements sought under the National Wage

Decision Structural Efficiency.

Q. Does the ABEU have any view about

improvements generally you want in relation to

the new banks awards by comparison with the

Bank Officials Federal Awards.

A. No. The way to variation is really in the

traditional area rather than in the new

banking areas.

Q. Comparing the two though the present

conditions in the Federal Award banks and the

provisions in the new banks, amongst them I

include Challenge, Advance and Metway, does

the ABEU have any general view about the

relationship between those two groups and what

changes it might want to make in the new banks

including the old building society banks?

A. I am not aware of any major change we would

want to make in the new bank area.

I am sorry, Your Honour, I am told that is

re-examination, not cross-examination. That,

perhaps, increases its significance.

HIS HONOUR: That is fairly unsatisfactory re-examination.

MR UREN:  Depending on the point of view you stand on,

Your Honour.

HIS HONOUR:  Well. yes, ..... examiner.

MR UREN: Put it this way: it may not have achieved the end

it was sought to achieve but re-examinations are

often dangerous because they do not.

HIS HONOUR: That prompts me to ask this question. In a

sense you have probably already answered it,

Illaton 27 5/10/90

Mr Uren, but the question is to be directed at the

time at which this question of jurisdiction arose.

I take it that the question jurisdiction had not

arisen until Mr Hingley??? was giving evidence.

MR UREN:  The answer, Your Honours, is yes and no. The

question of jurisdiction had arisen earlier when

there was a dispute finding made, but - - -

HIS HONOUR: Sorry, when there was a?

MR UREN: There was a dispute finding made under that

section of the Act that Your Honour has already

seen, at a much earlier stage, and that had in

fact, I think, gone to the Full Bench and back

again, but this evidence only cropped up after

that. This evidence was not available to us at the

time that we were originally making submissions

about jurisdiction.

HIS HONOUR:	Do you mean that there had been a finding of the existence of a dispute? That had gone on
appeal and what, unsuccessfully?
MR UREN:	Yes.
HIS HONOUR:	And so that, until Mr Hingley ??? was giving evidence, the situation was one in which a dispute
had been found to exist.

MR UREN: Yes, that is right, but the evidentiary, and I

think perhaps also the legal basis on which the

dispute was originally found is not the one which

is put to Your Honour. This is something which

cropped up only during the course of evidence on

the substantive issue and this material was not

available to the applicants at that original stage.

HIS HONOUR: Well, had the circumstances which had given

rise to the finding of the·dispute earlier on

changed significantly?

MR UREN:  Your Honour, in our submission, the truth had not

changed. Knowledge of the truth had changed. We

did not have available what the officers of the

Union now say.

HIS HONOUR: Well, on what basis had the dispute originally

been found to exist? Presumably some issue between

the employer and the Union as to the terms and

conditions of employment.

MR UREN:  Your Honour, I hesitate to summarize the terms of

it, but Your Honour will see them set out - - -

HIS HONOUR: Perhaps I should not have opened that

Pandora's box, but -

Illaton 28 5/10/90

MR UREN:  Your Honour, in exhibit 3, I think the

Pandora's box reduces itself to four ingredients.

The Commission's decision, Your Honour, at KW3 sets

out what I think, in paragraphs 1,2,3 and 4, what

were then the jurisdictional questions, which are

not this question - - -

HIS HONOUR:  This was to do with the banking industry, was

it?

MR UREN:  Yes, there are other - - -

HIS HONOUR: Whether these activities fell within the

banking industry?

MR UREN:  Yes. Now, Your Honour, I must go on and say as

matter of completeness that, when the matter got to

the Full Bench, the Full Bench, as Your Honour will

see from KW7, I think on pages 7 to 8, for reasons

which are not entirely clear, because it does not

appear to arise from the Commissioner's decision,

went on to refer to the question of genuineness of
the demands, which is a topic of the same nature as

we are raising now from the jurisdictional point of

view. At the top of page 7, "Thirdly, we refer to

arguments advanced from the appellants, which go to

the genuineness of the Union's demands". Now it

may be, I understand there were large written

submissions put into the Commission and it may be

that everyone put in everything they could think of

and it may be that the appellants did in fact refer

to genuineness as a ground going to jurisdiction,

when in fact that had not been dealt with by the

Commissioner and the Full Bench, pages 7 to 8,

dealt with the genuineness issue, but without

dealing with, it seems, the facts on which the

issue was based, but merely summarizing a number of

legal propositions, coming to some factual

conclusions, and then saying there was no

justification for regarding the demands as being

otherwise than genuine. ·

Now, that was back in November 1989, so there

had been a decision by the Full Bench at that stage

that there was a genuine dispute. Now, that does

not preclude us from raising the jurisdictional

issue if it appears on material which was not then

available because one either has jurisdiction or

one does not and if there is not and that becomes

apparent at any stage of the proceedings then all

that indicates is that there is now evidence as to

which there has been no adjudication between the

parties on a point of jurisdiction and, therefore,

no issue which has already been decided in that
regard. So, there has in fact been no decision

against jurisdiction on the factual basis that we

Illaton 29 5/10/90

now raise, this being material which was not then

available.

There has been a decision on jurisdiction on a

different factual basis. I hear my learned friend

possibly saying something like res judicata perhaps

or issue estoppel or something. If there is a

res judicata created by the decision of the

Commission, that might then preclude us from

proceeding again through the Commission on the

jurisdictional point. That would be an additional

reason for proceeding before this Court. In fact,

a conclusive reason for proceeding before this

Court because if the Commission could not deal with
the matter because it has already dealt with the

question of genuineness certainly nothing would

preclude this Court from so doing because it is

required as a matter of constitutional requirement

to.

HIS HONOUR:  If there is a State award in existence and a

federal Union with constitutional coverage seeks a

federal award in terms not, in any significant

respect, different from those in the State award,

does it follow that there cannot be an industrial

dispute?

MR UREN:  In our submission, yes. You must want something

other than is the subject of agreement.

Your Honour, that appears from two cases which, if

I could hand Your Honour the volumes, because we

only thought of dealing with this particular point

at a late stage yesterday. But it appears, without

taking Your Honour to the passages, from both Reg

v Blackburn Ex Parte the TWU, 88 CLR 125 and also

from some passages, I think particularly in the

Chief Justice's Sir Garfield Barwick's decision in

the Australian Federation of Air Pilots v The Flight Crew Officers Industrial Tribunal, 119

CLR 16. That once the parties come to an

agreement, or if they are in agreement - - -

HIS HONOUR:  The parties being whom?

MR UREN:  The people who are said to be in dispute. If the

people who are said to be in dispute are in fact in

agreement there is no dispute.

HIS HONOUR:  But do you include the Union when you say the

parties?

MR UREN:  Yes, yes, Your Honour. If the Union and the

employer are irt agreement then there is not an

industrial dispute between them.

HIS HONOUR:  You mean - yes, I just have some difficulty

with that because there is a disagreement, I

Illaton 30 5/10/90

suppose, as to whether the Union should obtain

coverage.

MR UREN:  Yes. I understand Your Honour, speaking from my

ignorance of industrial law, but what I have been

told that that is not an industrial dispute as to

whether a particular union should have coverage.

It is not a matter of industrial dispute as to

whether there should be an award because one cannot

pull oneself up by one's own jurisdictional boot

straps.	You can only have an award if there is a
dispute.	You cannot have a dispute about whether

there should be an award and, also, it is not an

industrial dispute as to whether a particular union

should have coverage because that does not relate

to terms and conditions of employment.

HIS HONOUR:  But is not one of the grounds upon which the

Commission can refuse to make an award under

section 111 the existence of the State award?

MR UREN: 

Yes, I am told that is so, Your Honour.

HIS HONOUR: 

Does not that seem to suggest that the

existence of such an award may not go to the
existence of the industrial dispute but rather be a
reason for not making a federal award?

MR UREN: 

Your Honour is, with respect, perfectly correct

there but the point we make is this: if, in fact
the Union is in agreement with the employer that it

does not want any further terms than the State

award provides for then there is no dispute because

it does not want more for the workers than they

have already got. So the fact, in that regard, the

question of whether there is a State award or not,
cannot go to the question of whether there is an

industrial dispute. It may under section lll(l)(g)

go to the question of whether in the public

interest an award should be made or not.

HIS HONOUR:  But you do not get that·far, do you, on your

argument?

MR UREN: Well, on our argument, that is right, one should

not get that far. I think the point that

Your Honour was adverting to was the effect which a

State award might have on the existence of an

industrial dispute. In our submission it does not

have any effect on the existence of an industrial

dispute by virtue of its character as a State award
but if, in fact, the Union and the employers are

not in dispute as to the terms and conditions of

employment then there can be no dispute. In other

words, if they are in agreement as to that there

can be no dispute and if the Union is happy with

Illaton 31 5/10/90

what is in the State award and so are the employers

then, of course, there is no dispute.

Now, the fact that it is a State award is

irrelevant to the question of whether there is an industrial dispute or not. It is relevant to the

question of whether the jurisdiction to make an

award should be exercised but if there is an

agreement about terms and conditions there is no
dispute but the fact that that agreement is also

reflected by the terms of the State award is

irrelevant to the question of whether there is a

dispute or not.

I hope I have put that clearly, but the

character of the terms and conditions as being

contained in a State award is irrelevant to the

question of whether there is an industrial dispute,

but if, in fact, everyone is happy with the State

award and the Union is not seeking any further

benefit for the employees, then, of course, once

everyone is in furious agreement, there can be no

dispute, and that seems to be what a logic would

indicate and also, in our submission, what these

two cases indicate.

HIS HONOUR:	Mr Uren, is that a convenient time?
MR UREN:	It would be, Your Honour, yes.

HIS HONOUR: Although it is unreal to speak of convenience,

I suppose.

MR UREN:  Yes. I have only got to look through a small

portion	more of the evidence and perhaps a slight
wrap up	and I do not think I would take more than
five or	six, or ten minutes.

HIS HONOUR:  Well, we will adjourn until 1 o'clock, if that

is not unduly inconvenient to counsel. By then I

will have some better idea of the progress of

matters in the Court but I am not unduly optimistic	because we are starting behind scratch, as it were,
this morning. In other words, if the list were
completed by lunch time then, of course, we have
got the balance of the afternoon, but I am afraid
we will just have to see how that works out and for
the time being I will adjourn the matter until 1
o'clock.

AT 10.12 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Illaton 32 5/10/90

UPON RESUMING AT 1.00 PM:

HIS HONOUR:  Yes, Mr Uren. I do not know whether to

describe it as good news or bad news but we have

finished our list.

MR UREN:  ! ..... describe it as good or bad but none the less

it at least it gives us - - -

HIS HONOUR:  We are a bit more relaxed as to time than we

were this morning.

MR UREN:  Mr Black wants lunch but we want to catch our

taxi.

HIS HONOUR:  I can not feel any great sympathy for him, I am

afraid.

MR UREN: Well, I will be very quick and no doubt Mr Black

will be as quick as he usually is. Your Honour,

could I say three things before I start off with the balance of the argument. I think I may have

said to Your Honour before lunch that there was an

award which was proposed. There is, in fact, no proposed award before the Commissioner but - - -

HIS HONOUR:	Now, are we speaking federally?
MR UREN:	Yes, federally, yes. There is certainly the State

award but before the Commissioner there is an

alleged dispute which he is proceeding to deal

with. There is in fact, but not before him any

proposed award, but the circumstances of the cases

are that if he finds that there is a dispute he

will be duty bound to make an award and in the

circumstances of this case it is almost impossible

that the terms of an award which he would make

would be any different from the terms of the State

award.

HIS HONOUR:  Is there no log of claims in existence?

MR UREN:  Yes, there is a log of claims in existence but the

Union no longer is seeking the terms set out in the log. They are seeking no more than the terms which are those set out in the State award and that is

the foundation of our jurisdictional argument that
the evidence shows that the Union is not any longer

pursuing the claims in the log but is - - -

HIS HONOUR:  Does that mean that the original log, at least

the log of claims in this matter, is different to

the terms of the existing State award?

Illaton	33	5/10/90
MR UREN:	Yes, I understand it is, yes.	I have not gone

through it to see what the differences are but I

understand that the log, I think that is right, is

different. But the point that we raise, the point
of jurisdiction is that although the log which

founded the paper dispute, as it was called, is

different from the terms of the current State

award, the situation which either now pertains, or
always pertained, is that the Union does not

genuinely want to obtain, for the employers, the

benefits claimed in the log. They are content with

the benefits which are contained in the State

award.

That being the case there is then no dispute

between the Union and the employer - or there is no

dispute as to any matter between them with respect

to terms and conditions and if that is the case

then the foundation for jurisdiction disappears and
the foundation for jurisdiction, which is the

existence of an industrial dispute, disappears

whenever it appears that there is, in fact, no

dispute and Cohen's case and Ludeke case explain

that even though a paper log may, in an artificial

sense, create a dispute by being not agreed with,

if in fact it turns out that the Union does not

want, and is not pursuing, the claims set out in

the log but that there is agreement on matters in

dispute, then there is no dispute. Once you reach

an agreement there is no dispute and there is

nothing further on which the Commission has any

jurisdiction in respect of.

What it boils down to is this: there was the log that was put in; the log was not acceded to;

that was said to give rise to a dispute which in
the nomenclature of the jurisdiction appears to be

called a paper dispute and is said to be highly

artificial. If it turns out that what is claimed

in the log is no longer pursued and there is in

fact no dispute between the parties as to what the

terms and conditions of employment should be then

there is no dispute and therefore no jurisdiction because -

HIS HONOUR:	There seem to be two different notions wrapped up in that: one is that the original log of claims
has not been pursued; the other is that there is
no issue between the parties as to the terms and
conditions of employment, which are not necessarily the same thing.

MR UREN:  No, Your Honour is right, with respect. They are

not necessarily the same thing but they, in the

current case, get one to the same result. So one

has the situation where a number of claims are

made. One has the situation where a number of

Illaton 5/10/90

those claims are not pursued. The ones which are

not pursued are the ones which differ from the

State award; in other words, if one has agreement

on the terms and conditions of the State award and

the things which are not in the State award are not

pursued then one has a situation of agreement and

no dispute. And if there is no dispute then there

is no jurisdiction. But there is, in fact, no -

what I would call - "award" proposed before the

Commissioner but the circumstances of the case are

such that there is such a degree of agreement as to

the terms and conditions of employment that he is

not likely to make any federal award which differs

from the State award because the Union is happy

with the State award.

HIS HONOUR:  But an award may be made by consent, may it

not?

MR UREN:	Yes, it may.
HIS HONOUR:	I was looking at section 112:

If the parties to an industrial dispute or any

of them reach agreement on terms for the

settlement of all or any of the matters in
dispute, they may apply to the Commission for

the making of an award giving effect to their

agreement.

That seems to assume that there can be an

industrial dispute, at least up to the point where

the award is registered or whatever the

appropriate - - -

MR UREN:  Your Honour, I am told that is in settlement of

part of a dispute only. I am not too sure we would

say - I cannot answer that.

HIS HONOUR: It says:

for the settlement of all or any of the

matters in dispute - - -

MR UREN:  I wonder if Your Honour can give me that section?

HIS HONOUR: Section 112; it is on page 48 of the print I

have, Mr Uren. It may not be the same as yours.

MR UREN:  Yes, that section is certainly there. On the

other hand, there are clear authorities to which we

have referred Your Honour. It may be that one can

agree on terms of settlement whilst still wanting

what one has originally claimed.

HIS HONOUR:  The section assumes though, as I read it, that there has been a dispute but then allows the

Illaton 35 5/10/90

parties to translate that dispute into a consent

award without the Commission losing jurisdiction by

reason of the agreement between the parties.

MR UREN:  But one could have a consent award leaving

unsettled matters which the Union still wants.

HIS HONOUR:  Yes, certainly, but as I pointed out, section 112 speaks of settlement:

of all or any of the matters in dispute -

MR UREN:  Yes, I realize that, Your Honour. On the other

hand, there must still be dispute for jurisdiction. I do not know whether it is possible to agree - one could agree on terms for the settlement of all of

the matters in dispute whilst still being in
dispute as to matters which are not in the

settlement. I think that would be conceptually

possible. In other words, one might say, "Well,

look, I'll take the following 15 paragraphs of my

log; that will settle the matters in dispute

between us but we still do want the full claims

that we made in the log, even though - - -

HIS HONOUR:  Then the parties had not reached agreement on

terms for the settlement of all matters in dispute.

I am not setting section 112 up as a barrier to

your argument. I just wondered quite how it fits

into the scheme of the argument that you are

presenting.

MR UREN:  It may fit in in the following way: one can have

an award which, at the moment, settles all of the

matters-in dispute consistently with still wanting to achieve in the future matters which are not the

subject of the settlement but which are contained

in the log. One of the things which a paper log

usually does is contain claims of such width as to

allow one an extremely large degree of room to

manoeuvre both at the present and in the future so

that conceptually there is always a dispute in

which are made in the log. existence within the ambit of the ambit claims I appreciate what Your Honour is putting to me

and I think that may be the conceptual way around

it but none the less it may also be that

section 112 was not entirely satisfactorily drawn,

bearing in mind the fact that it is necessary to

always have a subject-matter of jurisdiction in

order that the constitutional jurisdiction of the

Commonwealth will not be exceeded. So, one must

always have a dispute which is settled by the

making of the award. If the parties are not in

dispute at some stage prior to the making of the

award then there is no jurisdiction; they would

Illaton 36 5/10/90

cease to be in dispute if at some stage, whether at

the beginning or during the course of the
proceedings, the claimant no longer desired to
obtain the benefits which it had put forward as
being the disputed matters.

That seems to be the effect of - I think, at least what I have said or submit, it seems to be

the effect of the two cases we referred the Court

to this morning:  Blackburn's case and ..... case

and also Cohen's case and Ludeke's case. There

must, at all times, be a genuine dispute and that

seems to mean that it must at all times be the

desire of the party claiming the matters which have

been denied it to, in fact, want the matters which have been denied and if at some stage they are not wanted but everyone is content with what they have

got or what they have agreed to, then it is

difficult to see; linguistically, how there could

be still a dispute and jurisdictionally there must

also be the same difficulty.

I think that is the only way I can put that.

The passages that we read to Your Honour this

morning were the bits of the evidence that we

thought gave rise to the view that the Union, in

the terms in which it was expressed in Cohen's
case, did not really want the terms which are
outside the State award and did not really want the

bits of the log which are not the subject - I will

go back a square: I put that rather awkwardly -

that the Union does not really want those portions
of the log which lie outside the benefits which

have already been achieved in the terms of the

State award and seeing that there is no dispute

between.the parties, that the workers ought to

obtain the benefits contained in the State award.

Then if both parties are in agreement on that

proposition and the Union is after no more, then

there cannot be a dispute.

If one was to ask what the dispute was,

bearing in mind the Union - if, in fact, the Union

has abandoned the bits of the log which exceeded

the benefits in the State award, it is happy with
the State award and if the employers are happy with

the State award and do not want to reduce its

benefits, there cannot be any subject-matter for a

dispute even though there may have been said to

have been a dispute prior to the stage of

agreement. We would even go further and say that

the material does indicate that in the event the Union did not really want the benefits which the log claimed in the first place.

The log is, in fact, although we do not have

to go far and show a motive for the presentation of

Illaton 37 5/10/90

the log, but the log is really a device to attempt to give jurisdiction to the Commission so that the

Union can obtain coverage of those persons who were

employed in Metway.

Your Honour, the second preliminary matter I

wanted to mention was the question of the terms of

the order nisi. Your Honour, I was, in fact, I

think right in submitting that it should be

restricted to the C numbers which are items 2 and 3

in the summary. The reason, I gather, why the

numbers appropriate to the Federal Clerks Union

logs were put in was because they seemed to be

always there when the Commissioner has been dealing

with items No 2 and 3 rather like Banquo's ghost or

something.

HIS HONOUR:  Well, certainly most of them have been there.

I just have it at the back of my mind that there is

one odd one out but I am not sure which one it is

at the moment, and perhaps it does not matter if

your - - -

MR UREN:	In any event, there is no reason
HIS HONOUR:	You are only seeking an order in respect of those two items, are you not?
MR UREN:	Yes, 2 and 3. There would be no basis for any

order being made with respect to the others in any
event.

The third thing I should mention is on the question of the Full Bench having made a decision

some time ago on appeal related to the dispute

finding. Under section 101 of the Act, the power

to find a dispute also includes the power, or at

least there is together with the power to find a

dispute also the power to revoke such a finding at

any time. The fact that the Full Bench had on some

prior occasion upheld a finding of a dispute by a

commissioner would not prevent a later application	being made to revoke the finding, and that is, in	fact, an application which was made to the
Commissioner after the evidence to which we have
adverted became available.

If I could continue referring Your Honour to

the portions of the evidence which we submit

supported our jurisdictional proposition.	I think
I would - - -

HIS HONOUR: Are we back to exhibit KW8?

MR UREN: Yes, Your Honour. I think I had finished reading

the passage at the bottom of page 2086 and the top

of page 2087 as to what the views of the Union were

Illaton 38 5/10/90

as to what it wanted for the persons who were

employed in Metway. I will not read out again what

I read out before lunch, but the substance seemed

to be that the Union was quite happy with the terms

and conditions which pertained in the non-

traditional bank area which included Metway, and

when asked specifically at the end of passage in

2087 -

Does the ABEU have any general view about the

relationship between those two groups and what

changes it might want to make in the new
banks, including the old building society

banks -

the witness says he was not aware of any major

change that was wanted to be made in the new bank

area.

Then I think the next passage is at page 2118.

That is exhibit 9.

HIS HONOUR: That goes beyond KW8?

MR UREN:  Yes, Your Honour. That is exhibit 9, Mr Peatie's

evidence, he being the state secretary of the

Union. I should go to the bottom of page 2017.

Mr Peatie is asked about Mr Hingley's evidence, and

at the very last sentence he is asked the following

question:

Yes. Do you remember Mr Hingley also was

saying that the federal union - the federal

office had no agenda for change in - in

existing - any existing conditions of

employment at Metway at the moment -

And I take it you agree with that?---In terms of any - of any definite position, yes.

And when you say that, you are saying that in

relation to the - the·state union, because he

has already spoken for the federal

union?---Yes.

HIS HONOUR:	Mr Uren, what is Mr Petie's position?
MR UREN:	He is the State branch secretary, yes, the

Queensland State branch secretary of the Bank

Employees Union.

And when you say that, you are saying that in

relation to the - the state union, because he

has already spoken for the federal

union?---Yes.

Illaton 39 5/10/90

Now, I take you to the passage I have just read to you, that is not much help without knowing what the

sentence was and I think that comes from a document

which is not before Your Honour. And then, without

reading to Your Honour the full extent of page 2118

if one were to look down that and then go to the

top of page 2119:

Now, are you saying any more in that sense

than this: for instance, in relation to

Metway, once'the ABEU is in there with award

coverage, you would have a look at the
circumstances of the Metway enterprise, and

having done that, then you would contemplate

improvements in line with the general

policy?---Well, that - well, that might either
apply when the award is in place, or in

negotiations to establish that award.

Yes, OK. And it may well be that once you

discover the circumstances of the enterprise,
either during those negotiations in leading up
to the award, or once the award is made, it
may well be that the union decides,
notwithstanding its general policy position of

equal pay for work of equal value, that it -

it does not proceed with any - any

change?---it could well be.

Go back to page 2081 and to Mr Hingley's evidence

and exhibit 8. He is asked at the bottom - two or

three inches up from the bottom:

I am talking about award matters where the

sub-branch is dealing with the employer and

saying we think the award should be amended in

this way and wishes to vary the award, and

there is an agreement between the employer and
the sub-branch as to variation. Will the

executive support that?---The sub-branch would

have every reason to expect that it would.

general policy, would that be supported?---It	If the variation arrived at is contrary to
may well be.
So that in each case it is a matter going to
depend on the policy in question and the
attitude of the executive to the proposed
variation?---The emphasis really is what the
membership or what the people concerned really
want. Greater emphasis will be given to that
than to anything else.

Now, there is only one other passage from the

evidence I would like to show Your Honour. It is

on a slightly different topic. It is in exhibit 8

Illaton 40 5/10/90

on 2064 in which there is an admission by Mr

Hingley, the Federal Secretary, at the bottom of the page, when asked the question:

That brings us back to the situation, does it

not, where the ABEU represents a very small

minority of employees in Metway and the staff

association represents the majority? That is

the case? You accept that?---My answer to the

former is yes. My answer to the latter is

that I do not know.

And the evidence on that topic in the affidavits of

Mr Whiticker is, I think, that there are five

financial members of the ABEU employed in Metway.

There is a greater number who are unfinancial but,

certainly, the vast proportion of the people

employed in Metway are not members of the Union.	I
think the applicant employs 1213 members of whom only five are financial members of the ABEU.

That piece of information goes to two issues:

one is to the desirability of there being a stay

which keeps things in status quo until the

jurisdictional point is solved because it cannot be

said there are large numbers of members of the

union employed in Metway who are thirsting to be

represented by the Union; and it also goes to the

question of genuineness because in the passage in

Cohen's case one of the features which was said to

go to genuineness was the number of persons in the

employer's employ who are in fact members of the

Union and I dare say what the idea there is that it

may be said that if there are not large numbers of

the Union's members employed by a particular

employer then different views may be taken about

the genuineness of the Union's claim to want to

obtain benefits for those persons, they not being

its members, although that may perhaps be a lesser

consideration in many cases than in some others.

Your Honour, the view that we ask the Court to

take on the evidence, the portions that we read

both after lunch and before lunch, is that
basically the situation is one where the Union is

seeking coverage for itself over the people who are

employed in Metway; it has served the paper log or

it is persisting in the paper log in any event only

for that purpose; it has no genuine complaint with

the terms and conditions on which the Metway people

are employed; it is not that it is just only

persisting at present with certain of the claims

and not with others and it may pursue the others in

the future.

The true view of the evidence, in our

submission, is that there is no complaint which it

Illaton 41 5/10/90

presently has with any of the terms and conditions

and the only extent to which it may be said that

there may be some complaint is that in the future

it might think of something after it has spoken to
the Metway people once it goes in. But it has no

agenda of its own for change in terms and

conditions.

That is a fairly significant thing because if

it has no agenda for change, what that means is it

has no proposal for there being any changes in the

terms and conditions on which the Metway people are

employed. If it has no proposal for those matters

then it cannot say that the log is a proposal for
those matters because it has admitted that there is
no proposal. And if the log is not a proposal for

those matters then it cannot be a genuine log, it

cannot be a genuine claim; there cannot be a

genuine industrial dispute founded on it because

they do not in fact want it.

In so far as the log differs from what is

presently in existence, there is no agenda to

obtain by way of benefit what those differences

are. In other words, all they really want is to go

in, obtain coverage and then have a look around and

decide what they will do after that if anything but

there is no plan or desire to obtain for the

employees any benefits claimed in the log which are

different from those which have already been

obtained.

This, in fact, takes one back to a portion of the evidence which was in existence when the matter

went to the Full Bench on appeal. I think

something which was relied on at that stage was

what appears in exhibit KW2 at page 145, I think,

and certain other pages that are referred to in

Mr Whiticker's affidavit, in the larger one, at

paragraphs 14 and 15. Looking at page 145,

Mr Hingley is asked - this is in examination

in-chief, I think. I keep forgetting everybody's

names. I think it is in-chief. He is asked:

Mr Hingley, what is the ABEU'S interest in

serving a log of claims, directed in part to
achieve a federal award, in relation to
employees providing the banking services that
the - you seem to be licenced until April next
year, the bank in Queensland .•.... ?

Answer:

Well, clearly we intend to preserve the are of

our eligibility as we see it which is

certainly, we would say, uncontestable

licenced bank areas and we intend to see that

Illaton 42 5/10/90

we give proper coverage to those people both

in terms of award and union membership.

Now, do you have any concern about the effect

of a consent award being made in these

proceedings on the view that you have just

expressed regarding ABEU'S interest in the

employees?---Yes. I have got very

considerable concern about it in that it runs

counter to our understanding of that position

and our ambitions.

And, at page 156, towards the middle of the page,

the witness, Mr Hingley, is asked, I think in

cross-examination, the question:

If the commission ratifies the consent award

and subsequently either because of a decision

in law or a discrete - or a decision in

discretion, refuses to make an award

favourable to the ABEU over Austman employees,

would the ABEU accept the FCU's membership

position?

Answer:

Once a licence issues in respect to this area, we will do all in our power to pursue the

proper coverage.

In other words, "all in our power to pursue

coverage for the ABEU over the employees". There

are similar passages appearing at pages 158 and

following, down to 170, which are referred to in

paragraph 15, Mr Whiticker's affidavit, which I

will not read to the Court in full.

The interesting thing about this, of course,

is that when asked, "What's your interest in

wanting the award?" what pops out first of all -

and, indeed, I think only - is, "Well, look, we

want to cover these people.	We want coverage over
the Metway employees".	Now, when the matter went
to the Full Bench of course the Full Bench said, as

it was perfectly entitled to do in law, "Well, the

fact that the Union wants to obtain coverage,

although that itself is not a matter of an

industrial dispute, does not mean that the log

which is being served is not genuine because it

doesn't mean that the Union doesn't also want to

obtain genuinely for the members the benefits which

the log claims".

That, of course, is quite true. The fact that

one wants coverage does not mean that one does not

want something else as well, but the point which

the Full Bench did not, in our respectful

Illaton	5/10/90 submission, seem to address very adequately, if at
all, is the question of what inference arises when
you ask somebody why he wants an award and instead
of saying, in order to get for the members the
benefits which the log claims, he says, we want coverage and we want to cover these people and we
will cover them better than anybody else. That is, inferentially, not only the first thing on his mind, but quite probably also the last thing on his
mind as well. In other words, there was never
really any genuine desire to obtain the award
benefits and there was some difficulty in proving
the negative by virtue of the fact that witnesses
had asserted positives in other areas.

But when one gets added to the material that I

have just read, the material which had been read

out before lunch and after lunch, it seems fairly

clear, in our respectful submission, that the

agenda is now, if it was not at all times, to

obtain coverage and not to obtain the benefits

which the log claims and even if that was once the

intention, it certainly is no longer now the
intention, because their witnesses have asserted,

in the light of the situation being that both

employers and employees are happy with the terms

which have currently been pbtained, that there is

no agenda for any change in those terms and if that

is the case then, of course, there is no dispute as

to terms, whatever the log may say, because the

log's claims are now no longer pursued or intended

to be pursued, if indeed they ever were.

I think, Your Honour, I have covered all of the points I intended to refer to, the

jurisdictional basis for the claim which we make

and the desirability of this Court dealing with the

matter and thirdly the reason why there should, in

this case, be a stay and why there is no practical

or political reason why a stay should not be

granted. If the Court pleases.

HIS HONOUR:  Mr Uren, just before you sit down, can I just

explore possible permutations with you. What the

applicant seeks is a writ prohibition and a writ of

certiorari and a stay.	Now if you have got all
those things, no doubt you would be content.	The

worst case is that the application is dismissed.

Is there anything in between? In other words, I suppose it is theoretically possible that there

could be a grant of an order nisi and no stay. I

am not suggesting that is necessarily a likely

outcome, but I just want to make sure I understand

what the options open are.

MR UREN:  Your Honour, if there was a grant of order nisi

and no stay, we would still ask Your Honour to

Illaton 44 5/10/90

grant the order nisi. The other option is that

there be an order nisi so constructed as to
prohibit the Commission from dealing with any point

other than the jurisdictional point until after

that point has been decided. In other words,

prohibiting it from going further than dealing with

the jurisdictional point until a decision has been

given on the jurisdictional point. That would be,

in fact, what Mr Douglas was asking for and which

the Commissioner had refused. I might say that the

Commissioner refused it on a number of bases, one of which was Citicorp which I hope we have

distinguished. The second was that there is an

awful lot of common evidence in the matter and it

would be a lot more convenient to deal with both

first. But in our submission there is no common

evidence, except to the extent that the portions

that we have read out to the Court may be said to

be common to the 111 issue, but there is a lot more

in the section 111 issue than there is in the bits that we have read out to the Court and there is in fact, in our submission, no time saving to be

obtained by dealing with them all together.

There is evidence of that, of course. I think

Mr Douglas has addressed the tribunal for less than

one day already on the jurisdictional point and he

will finish early on Monday morning, if the matter

goes on, and it is apprehended that the opposition

will then take the balance of the day.	In other
words, there will only be two days on the

jurisdictional issue and there is some three weeks

of submission on the section 111 point, so it just
cannot be the case that you need practically to
deal witn the jurisdictional and section 111 points

at the same time. That is just not right.

HIS HONOUR: Unless, I suppose, the Deputy President reached

a clear view on the question of jurisdiction, a

view that you have been advocating, and decided

that it was inappropriate therefore to continue

with section 111.

MR UREN:  Your Honour, if he did that well then that would

certainly be all right but the point we were making

is to deal with the jurisdictional point does not

require him to go through all the evidence on

section 111, as he seemed to be thinking he would

have to.

HIS HONOUR: Well, yes, that may be. If he is doing no more

than keeping his options open at the moment then a

clear view adverse to the Union as to the existence

of an industrial dispute might bring the matter to

a halt. But, again, that can only be speculation.

Illaton 45 5/10/90

MR UREN:  Your Honour, if somebody turned up to me with a

gun and said, "Look I might shoot you or I might

not", I think I would like to go to the court and

get an order that he does not do it because, if he

says he might, then there is a degree of

probability that he will whether he will in fact at

the end of the day or not. But until one does

something of course one cannot say that something

will inevitably be done. But the question really

is what is the degree of probability that there

will be an excess of jurisdiction and, in our

submission, there is a significant degree of

probability in this case which ought to be

prevented.

The Commissioner cannot prevent one from

asking the court's relief on the ground that he is

saying, "I am not going to tell you what I will do,

I might do it or might not do it. If I do it well

I have done it. Too late." Well, that is not very

satisfactory.

HIS HONOUR:  Yes, thank you.

MR UREN: If the Court pleases.

HIS HONOUR:  Thank you, Mr Uren. Mr Martin, I should hear

from you now.

MR MARTIN:  Thank you, Your Honour. May I start by saying

that I adopt, with respect, the submissions made by

my learned friend Mr Uren.	I only have a few
points to add.	The first is on the general

argument relating to the genuineness of the dispute
and the.effect, if any, of section 112 which

Your Honour raised.

Section 112 applies, in my submission, when

the claim or something which can be related to the

claim made in a log is persisted with and as a

result of that persistence there is a settlement by

which the terms and conditions of employment are

changed.

What is occurring in this proceeding is that

the Union has said, "We are satisfied with the
terms and conditions as they exist". It is not a

settlement of their claim; they have, in effect,

abandoned their claim as propounded in the log.

The problem that I will submit that will occur

if there is no stay is that there will be a severe

prejudice to the Staff Association and, by

implication, the members of the staff of Metway.

The Staff Association represents some 75 per cent

of the members, about 875 people. If the

Deputy President finds that there is a dispute, or

Illaton 46 5/10/90

that he has jurisdiction, and then disallows or

dismisses the section lll(l)(g) applications in the

one decision as he intimated was open to him to do,

the prejudice that is suffered is not one which can

be easily quantified but it results in the giving

of an unwarranted authority to the ABEU if there is

no jurisdiction to start with.

It means, in the circumstances of this case

where there is no dispute as to terms and

conditions, that consonant with his duties under

the Industrial Relations Act, the Deputy President

would move to the making of an award and could move

rapidly and could, in fact, make the award within a

day or two of the decision.

HIS HONOUR: Unless some proceeding were taken to challenge

that decision and a stay was sought.

MR MARTIN:  Yes, quite. If those proceedings were not taken

the immediate effect would be to strip the Staff Association of its authority, which it presently

has, by placing it outside the employer Union

relationship envisaged in a federal award because

the Staff Association has no right to instigate
anything in the Commission, it can only appear by

leave.

MR MARTIN:  The other reason for the order nisi to be

granted and for a stay to be granted is that there

is, in my submission, authority that the decision

must be made first on jurisdiction. I have some

authorities which I am not sure reached

Your Honour's list but I will hand them up. The

first is the decision Federated Engine Drivers and Firemen's Association of Australasia v Broken Hill

Pty Limited, 12 CLR 398.

That was a case stated by the President of the

Court of Conciliation and Arbitration for the opinion of the High Court and for the purposes of

this submission the question in issue appears at

page 401 of the report, question 4:

Is this Court -

that is the Court of Conciliation and Arbitration -

'bound by any rules of evidence' when evidence

is tendered to show or to negative

jurisdiction?

The court found that it need not answer that

question, it having disposed of the matter by

answers to previous questions, but

Mr Justice Higgins, who was the president and was

also a member of the bench which heard this case,

Illaton 47 5/10/90

pressed that all questions be answered for the

guidance of the Court of Conciliation and

Arbitration. And at page 415 in the

Chief Justice's decision the matter of duty of a

judicial officer is dealt with. At the bottom of

the page the Chief Justice said:

But the first duty of every judicial

officer is to satisfy himself that he has

jurisdiction, if only to avoid putting the

parties to unnecessary risk and expense. In

this respect a grave responsibility rests upon

the President, whose jurisdiction is limited

both by the Constitution and the Act. That was echoed by Mr Justice Barton at 428 where,

at about point 5 of the page, in the middle of the

large paragraph he says:

When a hearing is allowed to proceed without

jurisdiction, prohibition will lie. As

prohibition is not sought by way of appeal,
the superior Court does not concern itself

with the adequacy of the means which the

primary tribunal has adopted to test its

jurisdiction, or the technical admissibility

of the evidence which it has accepted for that

purpose ..... It is as wrong to accept

jurisdiction without sufficient inquiry as to

refuse it with precipitancy. Where the

jurisdiction is disputed, adequate and careful

inquiry is still the duty of the Court of

first instance, just as it may become the duty

of the superior Court.

That, in my submission, with what was said by the learned Chief Justice in that case, indicates that that is the first duty which must be attended to so

that where a proper objection is made to

jurisdiction that should be dealt with first,

resolved first, in order that the tribunal, being a

tribunal of limited jurisdiction, can satisfy

itself it should proceed.

HIS HONOUR:	That view does not necessarily determine the point at which some other court, such as this
Court, should intervene. That is part of the
difficulty with this case. The Deputy President
does not appear to have said positively, "It is my
intention to conduct this hearing through to a
conclusion without determining the question of
jurisdiction". And, indeed, as, I think, Mr Uren
explained to me a few minutes ago, the proposal is
that jurisdiction will be argued first, at the
beginning of next week.  Now, I am not suggesting
that the inference should be drawn that the Deputy
President will necessarily determine that question

Illaton 48 5/10/90

of jurisdiction but, at least it is alive in his

mind that the question of jurisdiction must be, at least, considered initially.

MR MARTIN:  The Deputy President, Your Honour, arrived at

that decision, after submissions on behalf of the

Union, that the question of jurisdiction and the

question of the lll(l)(g) application were

inextricably intertwined, that one could not hear

one without the other. And, on the final page of

his reasons he, I would suggest, intimates that he

was going to hear it all and then decided it all.

If that occurred and the decisions were contrary to

my client's interests, obviously if he finds he has

jurisdiction when, in fact, as I submit, he has

none, there would be a prejudice caused.

HIS HONOUR:  It would not be a prejudice of a legal nature,

as I understand it, but a prejudice of an

industrial nature as you have explained it to me.

MR MARTIN:  Yes, and it is a prejudice which cannot be cured

by appeal because it is not a matter such as, in a

civil case, handing back the money, for instance. force and by way of example in Mr Swartz'

affidavit, there is exhibit 3 which is a document

published by the Union following the making of the

State award and it is both mischievous and

misleading.

It is something which my client fears could occur within the industrial relations of the bank

should the Deputy President find he has

jurisdiction and dismiss the applications to

refrain from going further. It would be used to

the disadvantage of my client, notwithstanding the

avenues of appeal open, so that as I said earlier, it is a disadvantage which cannot be measured, but

it is a disadvantage which is, nevertheless, real.

For that reason, I submit there should be a stay

imposed.

Your Honour, the sentiments expressed in the

FEDFA case were followed through in the other

decision of R v Blakeley, 82 CLR 54.	I will not
take Your Honour to them in any detail.	They adopt

in Chief Justice Latham's decision at page 70 what

Chief Justice Griffith said and at page 90

Mr Justice Fullagar actually quotes the case

referred to by my learned friend Mr Uren, that of Bunbury v Fuller, which my learned friend read to

you. The most appropriate part and pointed part of

that is Mr Justice Fullagar says:

The position is very clearly put by

Coleridge J. in Bunbury v Fuller -

Illaton 49 5/10/90

At about half-way through that quote is the important part, in my submission - this is on

page 91:

the Judge must not immediately forbear to
proceed, but must inquire into its truth or

falsehood, and for the time decide it, and

either proceed or not proceed with the

principal subject-matter according as he finds

on that point.

So that Mr Justice Fullagar was of the view that

that clearly states the position and, as such, on

that view, Deputy President MacBean should hear and

determine that question first before going on. He

should not even hear it in an intermingle sense and

later make a decision on both points.

The other point of prejudice, of course, is that should all arguments be heard and decided at

the same time the Staff Association and the Bank,
of course, will be put to the expense of a further
two weeks. Possibly in the light of a proceedings

taking three years so far that might not seem like

a large amount but it is a measurable amount.

Unless Your Honour has something, those are my submissions.

HIS HONOUR:  Yes, thank you, Mr Martin. Mr Black.

MR BLACK:  Does Your Honour desire submissions as to why

Your Honour should hear me or in view of the events

that have happened is Your Honour content that I

should - will Your Honour permit me to - - -

HIS HONOUR:	What events have happened?
MR BLACK:	Simply the passage of the clock. My friend, I do

not think, has raised any further objection to

my - - -

MR UREN:

Your Honour, I have not dealt with but I had

intended to tell Your Honour that we do not object

to our learned friends appearing on the question of a stay but I think it would not really be proper to convert an ex parte application into a contested

one.

HIS HONOUR:  Where does that leave you?

MR BLACK: That leaves me, Your Honour, I desire to address

Your Honour briefly as to why we want to be heard

on the issue of whether an order nisi should be

granted. Your Honour, fundamentally it is because

we wish to place a matter before Your Honour by way

of a submission to the effect that my friend's

arguments are simply not supported by the

Illaton 50 5/10/90

authorities and are deficient when proper reference

is made to the evidence. Your Honour, I will not

develop it any further than that but we have

serious matters to advance before Your Honour.

As to the more general matters, Your Honour,

our clients would be more than unusually prejudiced

were an order nisi to be granted and for this

reason this matter has had a very very long history

of delay and were Your Honour to be persuaded that
an order nisi should be granted further delay would

seem to be inevitable. Whether Your Honour granted

the stay or not the learned Deputy President would

undoubtedly pay great respect to what Your Honour

had said, or what orders Your Honour had made, and

it might be anticipated, Your Honour, that the

matter would then proceed in a very different way

to the way in which the Deputy President has, in

his discretion, determined, as a matter of

judgment, it should proceed.

Might I, Your Honour, to make those points

good refer Your Honour, if I may, to exhibit KW12,

the decision of Deputy President MacBean.

HIS HONOUR:  Mr Black, I think I should indicate with some

clarity what I see your position. On the question

of a stay I do not think there can be any doubt

about your entitlement to be heard. On the broader

question, although these applications are

ordinarily dealt with ex parte, I think this is a

case in which it may be difficult to untangle the implications of a stay from the grant of an order

nisi and I am anxious to have all the assistance I

can in the matter so I propose to hear it all.

MR BLACK:  May it please Your Honour. Your Honour, might I

then commence by asking rhetorically what the
matter before Your Honour is really about, and in

our submission, given that the Deputy President

undoubtedly has jurisdiction to determine whether

or not he should revoke the findings of dispute,

the case is really all about whether he should, at	the same time, consider submissions in relation to
the application under section lll(l)(g) that he should refrain from exercising jurisdiction anyway.

Your Honour, that must be, in our submission,

what the case is really about. There can be no

doubt that the Deputy President has jurisdiction to

do what he is apparently now doing, that is hearing

Mr Douglas's application to revoke the finding of

dispute. The real question, in our submission, is:

is the exercise of that jurisdiction in some way

tainted because he has indicated that he also wants

to consider the submissions about section 111(1).

Illaton 51 5/10/90

HIS HONOUR:	Mr Black, is that on the footing that jurisdiction already exists or existed at least up
until the time that the evidence was given to which
Mr Uren has referred?
MR BLACK:	Yes, Your Honour, on the basis too that the

dispute finding, having been made, having been appealed and being still in place remains as a

source of jurisdiction until it is displaced. I

will address Your Honour briefly in a moment as to

why we say that taken at their highest our learned

friend's arguments about the displacement of

jurisdiction should fail anyway. But assuming they

had substance, the Deputy President, having before
him, on the face of it, a finding of dispute, the

dispute being essentially the service and rejection
of a log and, unnecessarily but in fact, the
dispute finding having been challenged before a
Full Bench and having been confirmed, then in our

submission it would require much to satisfy this Court, far more than has been advanced, that the

Deputy President is without jurisdiction in now considering whether he should revoke the finding of

dispute.

So that, in our submission, were our learned hearing the matter further on the basis that, so they contend, they can show that there really cannot be any dispute, they are really asking the friends	to argue, as indeed they do, that this
Court to interfere in the exercise of power by the
Deputy President that he undoubtedly has.
Your Honour, were it otherwise, the case would have to be that the moment a doubt arose after a
dispute finding as to its validity then by reason of the bona fide making of the application for revocation the Commission would be deprived of
jurisdiction to determine the matter which, in our respectful submission, coulq not be right.

HIS HONOUR: Well, not necessarily deprived of jurisdiction.

I suppose Mr Uren would say the Commission ought

then to determine the question of jurisdiction

before proceeding - - -

MR BLACK: Unsullied by anything else?

HIS HONOUR:	Yes.
MR BLACK:	Your Honour, to the extent that he says that,

then I will seek to meet his argument. To the

extent that he goes further than that - as we

understood him to do so - and to say that this

Court should now, simply because it has been shown,

so it is alleged, that there is no jurisdiction

Illaton 52 5/10/90

interfere then we answer, "That can't be right

because the Deputy President has jurisdiction to

determine whether or not he should revoke the

finding of dispute."

That highlights, in our submission, the real

point in the case and the real point in the case,

in our submission, is: is there jurisdiction to

hear at the same time submissions about

the lll(l)(g) application? In other words, once

somebody raises, assuming it to be bona fide, a

point about the validity of the dispute finding,

does that operate to deny to the Commission any

ability to hear anything else?

That, in our respectful submission, is the short point in the application and our respectful

submission which we will seek to make good is that

it does not in these circumstances deny the power

of the Commission to proceed according to such

forms of procedure as it think appropriate in the

circumstances to deal with other matters, bearing

in mind - if we may say so, respectfully -

particularly that the Commissioner is not about to

make an award. The task he has embarked upon is

now twofold: one, to determine an application that

the finding of dispute be revoked; the other to

determine an application, not that he exercise

arbitral power, but rather that he decline to

exercise jurisdiction by using the powers conferred

on the Commission under lll(l)(g).

HIS HONOUR:  What would be the normal sequence of events,

Mr Black, that if this matter proceeded on the

footing that the Commissioner heard argument as to

jurisdiction and as to the section 111 application,

dealt with both matters at the end of the hearing,

decided that there was an industrial dispute, that

it was not an appropriate matter for dismissal

under section 111, what is the next step?

MR BLACK:  well, the parties, one imagines from the history of The next step, Your Honour, would be debate - this case, the unsuccessful parties would then seek
leave to appeal.

HIS HONOUR:  Yes, I rather took that for granted, but

putting that to one side - - -

MR BLACK: Putting that to one side, Your Honour, there

would then be a measure of debate about the

appropriateness of an award that the Commission

would then be bound to make, having decided that it

had jurisdiction and that there was no reason not

to exercise jurisdiction. That debate could either

be long or it could be quite short and formal.

That is, as I would understand it, Your Honour, as

Illaton 53 5/10/90

a matter of industrial practice. So that, it would

then proceed to the arbitrary step but there would,
of course, be times, as the Deputy President
himself pointed out, for parties to preserve their

rights of appeal to the Full Bench of the

Commission. So, that what would not happen is what
seems to be feared, that there would be an

immediate unstoppable making of an award. There

would have to be further consideration of it.

Your Honour, in our submission, the central

point in the application before Your Honour is

whether an objection to jurisdiction having been

raised is, as nevertheless, competent for the

Deputy President to hear submissions on the lll(g)

position and, in our submission, the authority in

this Court, to which I will come in a moment,

suggests strongly that he does have jurisdiction to

determine that matter.

But, Your Honour, before coming to that, might

we come to grips with the essential argument put to

Your Honour, to the effect that the finding of

dispute must, as it seems to be said, almost

inevitably be revoked. Now, a very similar

argument was put to the Full Bench, it appears,

because certainly the Full Bench deals with it, and

was rejected and I will take Your Honour very

briefly in a moment to authorities that, in our

submission, show that the argument is really

entirely misfounded and it has one fatal flaw.

Might I take Your Honour, however, first to what

the Full Bench said about it in this very matter?

The decision of the Full bench is exhibit KW7 and

the relevant passage is at page 8 of that exhibit.

On the question of genuineness, reading now from

the first complete paragraph on that page, the Full

Bench said this:

We are satisfied that both the ABEU and the

FCU were influenced by the goal of securing or

protecting award coverage.	The timing of
their services of logs of claims was affected
by the timing of developments in the Metway
group and also concerns held by both unions
about being pre-empted - the one by the other
- in the securing of federal awards. We also
accept that some of the services were
motivated by doubts about the validity of
earlier services. Finally, we do not doubt that services on Illaton were made in response
to the transfer of employees from Austman to
Illaton - a transfer perceived (accurately) by
the unions as an endeavour to escape federal
award coverage. These attributes ..... do not
render them a sham -

Illaton 5/10/90

I am paraphrasing a little, Your Honour:

They are all consistent with the unions'

wishing to move toward the benefits claimed

and regarding federal awards or certified

agreements as the best vehicle for doing so. It is relevant to note that the Commission's

first award principles normally preclude any

immediate advance on existing terms and

conditions -

and so, we would submit, Your Honour, they do even

at the present time:

A union which seeks federal award coverage

must therefore be presumed to look towards the

longer-term future. Its log of claims is not

thereby rendered non-genuine. We would add

the following. If a union serves a log of

claims on A and Band (the demands being

refused) notifies a dispute, it is not thereby prevented from subsequently serving demands on

A, Band C in identical terms and notifying a

dispute with the three recipients. A finding

that the union is in dispute with A, Band C

may be both correct and valid. There is no

necessary lack of genuineness on the union's

part if it serves its unmet demands on the

larger group of employers with a view to

securing the benefits more generally than

would otherwise be more possible.

They then went on to say that in their opinion, on

their judgment, the disputes were genuine. The

matter of paper logs and the genuineness of

disputes was indeed considered by this Court in the

two cases to which my friend has referred.	We
would, however, rather direct Your Honour's

attention to different passages in those cases. If

I could take Your Honour first and briefly to Reg v

Cohen, 157 CLR 331, and read, if I may, the

headnote which makes the point that we seek to make
and we submit is an accurate headnote.	It is in
these terms:

The existence of an industrial dispute extending beyond the limits of one State is not negatived by mere proof that the

organization that is making demands upon
employers is also seeking to increase or

retain its membership. That, with all other

circumstances, may be examined to determine

whether the demands for industrial conditions

are genuine or sham. A union may wish to

achieve two different objects by serving a

demand: to increase its membership and to

secure the conditions contained in the log.

Illaton 55 5/10/90

Provided that the latter purpose is genuine,

the demand will be real even though the former

purpose actuated the union as well. Failure

to comply with the demand will give rise to a

real dispute but, if the sole purpose of the

demand is to involve the employer in a dispute

in which he was not otherwise concerned and

the union does not really seek compliance with

its demands, the non-compliance with the

demands will not create a real dispute.

Then there is a footnote of Justice Wilson which I

might also read to Your Honour:

The fact that employees are not behind and

given no support to their union's demands does

not determine whether a dispute exists,
however relevant it may be to the exercise of
the Commission's discretion.

Then the question of whether one actually needs to want now what one seeks in one's log was dealt with

in Ludeke's case, the Court there saying that you

do not have to want today everything that you have

claimed in your log for the dispute to be a genuine

one and I will take Your Honour to the log in a

moment because the log is a typical ambit log and

the ambit, I think it would be conceded at the

other end of the bar table, has not been met.

There is still plenty of ambit in it. It is

$30,000 for those who start, 2500 increment per

year, the usual ambit log, Your Honour, and it

certainly would not - there is no suggestion that

the ambit has been exhausted.

On that very question, in Ludeke's case,

159 CLR 178, the Court - it was a judgment of six

members of the Court, and the Court said at

page 183 at about point 7 of the page:

As Evatt J. said in Australian Tramway

the question is whether the demand for the

conditions in the log is genuine or a sham.

The demand is genuine if it emerges that the

organization has put forward the log of claims with the intention of obtaining improved terms

and conditions of employment within the

framework of the claims made in a log,
notwithstanding that there is no intention of
obtaining immediately the claims as they have

been expressed in the log.

Now, in our respectful submission,

Your Honour, that has, of course, all the authority

of the six Justices of the Court but it is

consistent with the entire trend of industrial

authority and were it not so it would mean this:

Illaton 56 5/10/90

it would mean that when an employer and a union

comes to an agreement which the Act hopes that it

will about the matters presently in agitation

between them, were that doctrine not good then the

ambit of the log would run out and it would be

necessary to contrive it a new dispute every time

people wanted to adjust their differences through

the mechanism of conciliation and arbitration set

up under the Act.

So it must, in our respectful submission,

always be the case that unless you can say they

have utterly abandoned the claims that were in the

original log and it would be a very strong

inference that a union would not do that for

historical reasons of jurisdiction, unless one can

say that it is simply not right to submit, as our

friends have, that because there is some evidence
that people are content with matters as they are

that the dispute that has been found between the parties, that is to say a dispute constituted by

the log and its rejection, that that dispute is at

an end.

So, in our submission, the evidence to which Your Honour has been referred is of no assistance

in advancing the argument that there is no

jurisdiction. My friends would have been required

to produce evidence that the Union has abandoned

its log and it would have to be explicit, and there

is no suggestion that that has happened. So, in

our submission, even were the jurisdictional

arguments otherwise of concern they do not have a

proper foundation in any event.

Your Honour, before I pass to the - and again

I do stress shortly - to our answer to what we say

is the real question of the case, might we seek to

reply to what was said about the time that an

argument on jurisdiction would occupy this Court
were this Court to enter upon it. In our

submission, were the question of jurisdiction to be

entertained by this Court at this stage it would

require a canvassing of all the evidence in
relation to the dispute, including the log, because

for the reasons we have sought to make good,

Your Honour or the Court could not look only at the

passages to which reference has been made, the

whole context of the matter would have to be looked

at to see if the actual dispute as found, the log

and its rejection, was in truth a mere sham. And,

Your Honour, that was the view taken not only by

the Deputy President in his decision but it also

appears to have been a view which, it seems on the

material before Your Honour, was conceded by

counsel - other counsel then appearing for the

employer.

Illaton 57 5/10/90

If I can take Your Honour first to what

Mr Deputy President MacBean said - it is one of

Your Honour's exhibits - I have momentarily misplaced it. Yes, I now have it, it is KW12 at

page 8 of the Deputy President's decision, at point

4 of the page, the Deputy President said this:

It is clear to the Commission that to

adopt Mr Douglas' submission regarding the

proper procedure to adopt in dealing with the
s.101(1) applications in this case would, of

necessity, mean a further delay ..... What is also equally clear is that there exists, if

Mr Douglas' course is followed, the

possibility of a substantial amount of
duplication of submissions and references to

the evidence and the numerous events which

have occurred during the lengthy period that

the matter has been before this Commission.

The matter of some duplication occurring was

conceded by Mr Douglas during his submissions.

And so, indeed, it was. In the material before

Your Honour, exhibit KWl0, part of the transcript,

at page 2728, point 7 of the page, there is a

discussion between Mr Douglas and the

Deputy President. The transcript reads:

HIS HONOUR: Yes, but it is also a matter of

convenience, which I raised with Mr Hinkley,

in that - I am just taking this on the very

brief commencement of your submissions, which

seems to me your application -

that is to say, the revocation application, as I

would understand it -

will take us back to the commencement of the

dispute in 1987, and no doubt deal with some
of the events that have transpired since then,

including decisions of the commission, and no

doubt will deal at length with some aspects of	the evidence which has been put forward in the
section lll(l)(g) application which you have
made.

And Mr Douglas accepts that.

HIS HONOUR: Just by way of information, Mr Black, where, in

the chronology does this discussion take place in

relation to the evidence that Mr Uren points to?

MR BLACK: Afterwards, Your Honour; after the evidence.

This takes place last Wednesday, 26 September, and

the evidence, I think, was given a day or two

before that.

Illaton 58 5/10/90

HIS HONOUR:  Yes, thank you.

MR BLACK:  Most of the evidence to which he refers. There

was some, obviously, that must have been before the

Full Bench.

Your Honour, might I now come to what we

respectfully submit is the real question before

Your Honour and that is whether the Commission is

deprived of jurisdiction to continue to hear, in

the sense of to continue to hear submissions about

and presumably to make a decision about, the

section lll(l)(g) application because, and for the
sole reason that - let us assume a bona fide

assertion is being made that the dispute finding

should be revoked.

Now, before answering that question,

Your Honour, might we say this, that there is no

suggestion, in our submission, that

Mr Deputy President MacBean will deal with the

matters in any way that would attract criticism;
there is no suggestion that he has made up his
mind; there is no suggestion, in our submission,

that he is going to deal with them in the wrong

order. In fact, such indications as there are in

his decision suggest that he will deal with - in

terms of his intellectual processes when he hands

down the decision, he will examine the

jurisdictional point first and then go on to
deliver judgment were it then appropriate in the

section lll(l)(g) matter.

HIS HONOUR:	Now, the way you put that, Mr Black, does not a decision on the question of jurisdiction before suggest	that you are contending that the
going to the section 111 application.

MR BLACK:  Your Honour, on the basis of what he is doing at

the moment one might infer·that he could, but

certainly I would have to say that on the basis of	his decision it indicates that the process will be	submissions on both issues, consideration of both
issues with rights of reply, and so forth, then the
Deputy President going to his chambers and sorting
it out in his own mind, then delivering a decision, but a decision being delivered in logically the
correct order, that is to say the jurisdictional
point first and then if jurisdiction is found, then the section lll(l)(g).

So that in our submission the critical point

is really simply this: is the fact that an

application for revocation is before the

Commission, does that utterly deprive him of

jurisdiction to even hear and consider a matter

Illaton 59 5/10/90

which involves him being asked not to do something,

that is not to exercise jurisdiction, on some other

basis.

Now that, in our submission, is the short and

critical and true point in the case and, in our

submission, there are two answers to it: the

first is a general answer of principle and it is this, that given that there is before him at the

moment extant an apparently valid finding of dispute on a log that was not acceded to and irrelevantly, but perhaps not, a finding of dispute

that has been through the examination of the full bench. Given that, we would say there is no lack

of jurisdiction to deal with the matter, the case

generally, and certainly nothing that would

preclude him whilst giving proper prominence to the

application to revoke, nothing that would preclude

him as a matter of discretion, and certainly not as

a matter of power, from dealing with something
that, in his view, could conveniently be dealt with

at the same time.

HIS HONOUR:  Would you maintain that argument in what I

must acknowledge is a hypothetical situation, but

in fresh proceedings - and I do not mean involving

these parties, but just in some proceedings

commenced - where there is a challenge to

jurisdiction and an application under section 111

that a commissioner or deputy president would be

entitled to proceed to hear and determine both

matters together?

MR BLACK:  Yes. We would say, Your Honour, that as a

matter of power, yes, and Citicorp supports that conclusion for the reason that the nature of the exercise of the jurisdiction under

section lll(l)(g) is really a jurisdiction not to

exercise jurisdiction and that is its critical

feature. Your Honour, I suppose we would say that

ordinarily one would expect the jurisdictional

argument to be dealt with first, but as a matter of

power the two could be dealt with together and we

say that the decision of this Court in Citicorp

supports that by reason of the peculiar nature of

the power under section lll(l)(g), the power not to

exercise rather than to go on and make an award.

Can I indeed, Your Honour, then come straight

to Citicorp and seek to make that point good?	I
think Your Honour has it - it is reported in
63 ALJR 602 and the point was whether the

Industrial Relations Commission was bound to make a

dispute finding before hearing a, what is now,

section ll(l)(g) application or whether it, in
fact, might acting properly hear a

section lll(l)(g) application before making a

Illaton 60 5/10/90

finding of dispute. and the Court, the learned

Chief Justice, Justices Deane, Dawson, Gaudron and

McHugh, in a joint judgment, held that there was

nothing in the Act to preclude the Commission from

exercising its powers under lll(l)(g) without first

having made a finding of dispute.

In our submission, the case goes further than

my learned friends would concede. Our learned
friends put it on the basis that, really, it was

only concerned with the, as it were, procedural

niceties and requirements of the Act, but might we

take Your Honour to page 603 of the Court's

judgment in the second column at the foot of the

page. There, the Court said, if I might read from
about half-way - or might I read the whole

paragraph:

The power conferred by section 4l(l)(d) -

which is the predecessor -

if exercised, would defeat a prima facie right
to have the jurisdiction conferred by the
Conciliation and Arbitration Act exercised.

it may therefore conveniently be described as

a "power to refuse to

exercise ... jurisdiction": Re Queensland

Electricity Commission -

case:

However, the exercise of the power would not

affect substantive rights and liabilities as

would the exercise of the power in

paragraph (b) to make an award. Accordingly,

the purpose attending section 24(1) -

which Your Honour will recall is the old section

that required you to make a finding of dispute

would not serve to indicate an intention

precluding the power from being exercised -

and these are the words upon which we place

particular reliance, Your Honour -

on the basis that, if jurisdiction were to

exist, it should not be exercised -

not precluding the power from being exercised on

the basis that, if jurisdiction were to exist, it

should not be exercised.

Now, in our submission, that notion can be

imported - not only can be imported, should be

Illaton 61 5/10/90

imported - directly in these circumstances. If it

is proper, as the Court held, for the Commission to

proceed on the basis that if there was jurisdiction

it should not be exercised, then it must also be

within power to proceed on the basis that if there

is doubt about the validity of the finding of

dispute, nevertheless the Commission can consider

that it should not exercise jurisdiction

irrespective of that doubt.

It is, in our submission, the same species of point and, therefore, if the Commission is urged,

as in Citicorp, to hear a lll(l)(g) application to

decline to exercise jurisdiction, it may do so even

though it has not found a dispute, so too, it

follows, in our respectful submission, that if the

Commission is told, and particularly after a

lengthy hearing at the last minute, that there is a

doubt about jurisdiction and people want to revoke

the finding of dispute, similarly it may go on to

determine simultaneously whether it will decline to

exercise jurisdiction if, indeed, it has any. In

our submission, the proposition just advanced

follows logically from the decision of the Court in

Citicorp.

The position here is better than that, because

in terms of jurisdiction, the Deputy President is

in fact busily and properly determining the

revocation matter. It is just that at the same
time, in his view, as a matter of convenience, he

is hearing, as it were, the final end of the

section lll(g) matter. So, Your Honour, for those

reasons we say that the issues have not been

correctly identified by the applicants. In so far

as it is said that the Court should interfere with

what the Commissioner is presently doing, what

really is sought to be done is to ask this Court to

act as a court as almost first instance, which it

never does in these matters. What the real

objection is, is an objection to the Commissioner

exercising powers in two ways at once and in our	submission, he has a secure foundation for doing	so, one because of the existing finding of dispute,
which we say is unlikely to be displaced anyway, and secondly, because, on the authority of what
this Court said in Citicorp, he is allowed to
consider whether he will decline to exercise his
jurisdiction, if he has it.

Your Honour those are our principal

submissions. On matters of discretion, we submit

that if Your Honour is otherwise of the view that

there is about to be an excess of jurisdiction on

the part of the Commission, Your Honour should nevertheless not interfere at this stage. The matters raised by the Staff Association and to some

Illaton 62 5/10/90

extent by the employer about the problems of the

Staff Association are at the very heart of

industrial relations and they are at the very heart

of the argument which, under section lll(l)(g) is

being advanced to the Commission to say that it

should not exercise its jurisdiction, if it has

any, to make an award. That is the very stuff of

industrial relations; these disputes between small

Staff Associations and larger Unions. It happened

in the Queensland Power Worker's matter and it no

doubt will happen again, but it is quintessentially

an industrial matter, Your Honour, and in our

submission its existence provides no reason why

this Court should interfere with, in our

submission, the perfectly appropriate and sensible

processes of the Industrial Relations Commission.

No rights will be lost. According to the

Commissioner's considered view he is proceeding in

the way that is most likely to achieve an

expeditious settlement of this very, very long

running dispute. If anyone is aggrieved, they have

rights of appeal and indeed at the appropriate time

they have rights to come to this Court. May it

please Your Honour, those are our submissions.

HIS HONOUR:  Thank you, Mr Black. Mr Uren, do you wish to

reply?

MR UREN:  Yes, very shortly, Your Honour. Firstly, with the

last matter that my learned friend mentioned, as to

this being quintessentially an industrial matter

and that disputes between Unions and

Staff Associations being quintessentially of that

sort, Your Honour, it is much better to avoid heat,

where it is possible to do so and where the

causation of that heat may be unnecessary. It

would be undesirable, from a discretionary point of

view, if something did occur which caused this

industrial problem between the Union and

Staff Association, in the field, unless it is

absolutely necessary to do so.

It will not be necessary to do so if there is,

in fact, no jurisdiction which, in our submission

is the case, and that matter can easily and

sensibly await resolution in the way which we

proposed. And the way in which our learned friends
propose that it may be determined will allow a

fairly significant avenue for unnecessary heat and

unnecessary industrial problems to occur, problems

which may in any event be unnecessary.

Can I go back to our learned friend's first

points and deal with them very shortly one by one,

or the significant ones of them. Your Honour,

there has been a long history of this case -

Illaton 63 5/10/90

whether it is a history of delay or not is another

matter. All I could say here is that what will

ensue hereafter would, if the relief we sought was

granted, .be that there would not be any redundant

steps taken as a result of Your Honour granting any

relief. The steps which would be taken would be

those which would be taken in any event if

Your Honour refused the relief. So the granting of

the relief will not contribute to any unnecessary

delay in the conduct of this case. What will be

done would be done in any event anyhow, but just on

a different time scale.

we agree substantially, of course, with the

passages of the law that our learned friend has

referred to from Cohen and Ludeke's case because,

of course, they are the law. But reciting these matters of law is no substitute for dealing with the facts of the case and applying them to the law.

It is, of course, significant that all our friends

did was read out some agreed on principles of law
but did not take the trouble to relate them to the
circumstances of the case in the light of the

provisions of the evidence that we referred

Your Honour to.

Our submission basically is that this is one

of those rare cases where it is, in fact, shown

that a paper log is, in fact, not genuine. It is a

sham. The reason why one usually fails in this

sort of application is that it is not possible in

many cases to prove the negative because it will

not be admitted by those people who put the log

forward. One must ask oneself, "How can you get

evidence that some organization in its heart of

hearts does not actually want the terms and

conditions which it puts forward in its log?" And,

of course, in many cases you say "Well look, but

they have said they want something else", to which
the tribunal that you go to on the question of

jurisdiction says, "Ah, but the fact that they also

want two icecreams does not mean that they do not
want chocolate cake as well.	If they said they

want the chocolate cake in their log and then later

on told you they want two icecreams, that does not

exclude them wanting the chocolate cake."

But here they have said they do not want the

chocolate cake. They have said they are happy with

the bit of the cake that has already been the

subject of agreement, and that was said more

particularly than anywhere else, I think, perhaps

at 2086 and 2087, when asked what changes were

desired in the new bank conditions, the federal

secretary said:

Illaton 64 5/10/90

I am not aware of any major change we want to

make in the new bank area.

Those are not the words of somebody whose

organization genuinely desires to pursue those

portions of the log which are not already contained

in the terms and conditions which the workers have

got. It is not that they do not have any problem with them now, but they may have a problem in the

future. There is no problem. There is no major

change that is wanted to be made in the new bank

area.

Now, this case is unique in many ways if our

view of the evidence is right because you do not

often get, you may never get, union officials

saying that, and those admissions though, if they
go as far as we submit that they do, are the

reasons why it is said that given everything that

was said by the Full Bench in the passage at page 8

of its decision that Mr Black read out, and given
everything that was said in Ludeke's case and
everything that was said in Cohen's case, this is a

case where we are not just asking the Court to

infer that something is not wanted because other

things are wanted, but we are asking the Court to

say that the evidence that we have shown

constitutes, on a proper analysis, admissions that

the claims made in the log, in so far as they differ from those in the terms and conditions presently obtained, are in fact, no longer on the

agenda.

Now, our learned friends did not go through

the evidence to persuade the Court that there

should be any different view taken, nor, whilst

adverting to the fact that there was lots of other
evidence which might have to be looked at at the

same time, nor did they provide the Court with any

inkling of what that evidence might be. This is

not a case where the point is, as our learned

friend said, "Is it competent to hear submissions

on the section lll(l)(g) matter if the jurisdiction

is raised, and is it simply a case of when you

raise the jurisdictional issue must everything stop

at that particular stage?".

This is a case where (a) it was proper to take

that course in any event and indeed the law may

compel it, and does compel it, for the reasons
advanced in the cases that Your Honour has been

referred to, but it is also a case where there is a substantial ground - in our submission a compelling

ground - for saying that there is, in fact, no

jurisdiction and saying that in respect of a body

which is under the supervision of this Court and so

provided by the Constitution.

Illaton 65 5/10/90

If someone does not have jurisdiction, he has

not got it. If he has not got jurisdiction it does
not matter how convenient it is or how satisfactory

it might be if he entered on to the jurisdiction

and did a whole lot of spade work in anticipation

of someone working out the final problem later on.

If he has not got jurisdiction he should not be on

the ground with the spade and our proposition is
that the facts show that there is now, and perhaps

never was, a jurisdictional fact.

If the Court thinks that that has been

sufficiently shown for the purposes of granting an

order nisi, then that really is all we need to

show. If there is a sufficiently strong case that

there is no jurisdiction, then the Commissioner

should not be tilling the ground on which he should

not be treading until that point is determined and

the reason why the Court is empowered to grant the

order nisi is because it vets cases where that

allegation is made, desides which are sufficiently

strong for the purposes to require the Court to

look at and if it is sufficiently strong grants the

order nisi.

Now, it is true there are reasons given in

some cases as to why the Court, when it grants the

order nisi, will not go on and prevent the tribunal

from continuing to deal with the matter on a

discretionary basis, but none of those factors are

applicable to the present case. The course that we

have proposed would prevent industrial disruption,

would not involve any greater delay and would

ensure that the Commissioner does not trespass on a

jurisdiction which he may well not have and in our

submission does not and does not cause anybody any

harm if it is made, and with all those blessings,

Your Honour, we are in doubts to see why our learned friends do not support our submission.

But in any event, with all those blessings

available and no detriments, Your Honour, in our

respectful submission, could not refuse an

application in which there were no downs and

everything was up. If the Court pleases.

HIS HONOUR:  Thank you, Mr Uren. Mr Martin, do you wish to

say anything by way of reply?

MR MARTIN:	I do not wish to add anything, thank you.
HIS HONOUR:	I thank counsel for their assistance in this

matter. I have reached a firm view that this is

not a case in which there should be an order nisi

for a writ of prohibition or a writ of certiorari;

both applications are therefore refused. To do

justice to the range of argument that I have heard

Illaton 66 5/10/90

I propose to reduce my reasons to writing.	The
Court will now adjourn.

AT 2.44 PM THE MATTER WAS ADJOURNED SINE DIE

Illaton 67 5/10/90