Re Australian Liqour, Hospitality and Miscellaneous Workers Union; Ex parte Australian Hotels Association

[1993] HCATrans 95

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M38 of 1993
In the matter of -

An application for a Writ of

Mandamus and a Writ of

Certiorari against THE

HONOURABLE JUSTICE MADDERN,

President of the Australian

Industrial Relations

Commission

First Respondent

and

THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Second Respondent

and

AUSTRALIAN LIQUOR,

HOSPITALITY AND MISCELLANEOUS

WORKERS UNION

Third Respondent

Ex Parte -

AUSTRALIAN HOTELS ASSOCIATION

Prosecutor/Applicant

TOOHEY J

( In Chambers).

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 28 APRIL 1993, AT 10.15 AM

Copyright in the High Court of Australia

Hotels 1 28/4/93

MR R.R.S. TRACEY, QC: If Your Honour pleases, I appear with

my learned friend, MR A.L. CAVANOUGH, for the proceedings. (instructed by Clayton Utz)

HIS HONOUR:	Yes, Mr Tracey?
MR TRACEY:	If Your Honour pleases, these are applications for orders nisi for mandamus and certiorari
directed to the President of the Industrial
Relations Commission.  The matter arises in this
way: there was before the Commission, constituted
by a single member, Commissioner Fogarty, an application by the Union for award variation to
adjust relativities in the award.

That matter had proceeded to the end of the

conciliation phase and then the Commissioner

indicated that in his judgment nothing further was

likely to emerge from conciliation. At that point

our client applied to the Commissioner for the
matter to be referred to a Full Bench pursuant to
section 107 of the Industrial Relations Act. That
reference had to be approved by the President

pursuant to the terms of the Act.

The matter was sent forward to him by the

Commissioner and he rejected the application, and

it is that decision that is the subject of the
challenge that we seek to proceed with by means of

these orders.

The starting point in opening the matter, I

think, Your Honour, is exhibit GFS9 to the

affidavit of Dr Graham Smith. It is said to be

sworn on 23 April but he has filed a subsequent

affidavit indicating that that is a misprint and in

fact it was sworn on the 26th. Nothing turns on

that, Your Honour, but Your Honour will there see

the decision of the President in written form.

What he indicates is that the application was made pursuant to section 107. He then indicates

that he had read the transcript of the proceedings before Commissioner Fogarty and conferred with the Commissioner and then expressed his decision in

these terms:

Having regard to the subject matter and the reasons for the applicat~on pursuant to Section 107 of the Act, I am not of the opinion that, in the public interest, a Full

Bench should be constituted.

He refused the application.

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The short point of the application,

Your Honour, is that the learned President
misdirected himself when he made that decision. Section 107 of the Act provides for a different

test. What it provides is that an application can

be made pursuant to section 107(2)(b) for the

reference to occur:

because the industrial dispute or a part of

the industrial dispute is of such importance

that, in the public interest, it should be

dealt with by a Full Bench.

And then one comes to subsection (6)(b) which

provides that:

If the President is of the opinion:

..... that the industrial dispute or the part

of the industrial dispute is of such

importance that, in the public interest, it

should be dealt with by a Full Bench;

the President shall grant the application.

Your Honour will note the significant difference,

and it is that it requires the formation of an

opinion on the part of the President as to whether
or not the dispute or part of it is of such

importance that in the public interest the matter

should be dealt with by a Full Bench, and it is to

that aspect of the matter that we direct attention

because it is a matter that, on his reasons, the

President did not direct himself to.

HIS HONOUR: Well, you say that, Mr Tracey, and I suppose

that is really the point that you have to make

good.

MR TRACEY:	Yes.
HIS HONOUR:	The President has not adopted the precise

language of subsection (6) but it is hard to

imagine that he would not have been conscious of

the test required by the subsection.

MR TRACEY: Well, Your Honour, that prima facie one would

accept. However, there are a number of matters

that would tend to suggest that he may not have

done so. Our principal propo~ition is,

Your Honour, that when he stipulates reasons for

decision, they are to be accepted as his reasons
for decision, and it is not appropriate to engage

in speculation on what he might or might not have

done along the way. His Honour Mr Justice Dawson

so decided in a not dissimilar case - The

Australian Insurance Employees Union ex parte

Hotels 3 28/4/93

Academy Insurance Pty Ltd, (1988) 78 ALR 466 at
467.

Your Honour, in that case, what the learned President had done was to apply a test that implied

that he was looking for some special or

extraordinary circumstance. Again, he said that he

was acting under section 107 and that did not save

the decision because, as His Honour says at

page 467 - and I am reading at line 30,

Your Honour:

Where reasons are given for a decision, it

would be wrong to speculate upon matters,

beyond those referred to in the reasons, which

may have motivated the decision ..... The

reasons given by the President are those which

I must accept and do accept as being his

reasons. The criterion applied by the

President was clearly that of "special or extraordinary circumstances".

Here, we say public interest, no more, no less,

and, in our submission, that is a different test

and it is important in the context of this

legislation to know that elsewhere in the
legislation the President, in performing other of

his duties as a member of the Commission, is

required from time to time to apply a straight

public interest test.

If I could just give Your Honour, by way of

example, references to the powers of the Commission

under section lll(l)(g)(iii) of the Act, which is a

power which permits the Commission to dismiss a

matter or refrain from further hearing it on the

ground:

that further proceedings are not necessary or

desirable in the public interest.

A straight public interest test. And similarly,

section 113(2B). That section deals with the power

to vary awards and, in subsection (2A) there is

reference to the implications of discrimination

legislation on awards and then, paragraph (2B) goes

on:

Subsection (2A) does not require the

Commission to take action that the Commission

considers would not be in the public interest.

So that there are elsewhere in the legislation

provisions which are of the kind the President

appears to have applied here, as distinct from the

sort of provision that is here in question which

has counterparts elsewhere in the legislation - in

Hotels 4 28/4/93

section 45(2) and in section 109(3). Again,

attention is directed to the importance of the

matter as distinct from pure matters of public

interest.

HIS HONOUR:  There is a difference, I think, Mr Tracey,

between the case that you have referred me to, the

Australian Insurance Employees Union, where the

President, on quick reading, at any rate, appears

to have used language that makes no reference to

public interest, but to have suggested a test

which, in the view of the Court, was a different

test. But what you are looking at here is a
statement by the President that, "Having regard to
the subject-matter and the reasons for the
application, I am not of the opinion that, in the

public interest, a Full Bench should be

constituted".

Now, there is an expression of opinion as to

what the public interest does or does not require

in this case. Now, you might argue, and no doubt

will, that the reference to the subject-matter and

the reasons for the application themselves do not

necessarily apply the test demanded by

paragraph (b) but are they not simply steps along

the way to the formation of an opinion or the

inability to form an opinion that the public

interest demands that this application be referred

to a Full Bench?

MR TRACEY:  Yes, Your Honour, they are steps along the way,

but we say that there is one step, and an important

step along the way that he has not taken before

getting to that conclusion, and it is the one to

which his attention is specifically directed by the

legislation, namely, an assessment of the

importance of the matter. Now, the matter may be important for all sorts of reasons, as His Honour

Mr Justice Dawson said in the Employees Union case.

It may not be important simply because there

is some special or extraordinary aspect of it. It

may be important simply because of the general

nature of the application. Here, for example, this

was an application for variation of an award that
was the parent award in the industry, so that the

flow-on implications were significant. It was, as

both sides contended at one stage, although the

Union subsequently resiled from it, a test case to

decide what the appropriate wage structure for the

industry as a whole should be. There are many

other awards that relate to this one in the sense

that this one is regarded as the parent award.

The other thing we would say on the point,

Your Honour, is this: the concept of public

Hotels 28/4/93

interest simpliciter is a very different matter
from public interest in a particular aspect to

which the legislation draws attention. It is trite

law that the concept of public interest is a very

wide and ill-defined concept and that relevant

aspects of it are not confined to strict or static

classes. The Court said as much in Sankey v

Whitlam and, in particular, I would simply give

Your Honour a reference to the judgment of

His Honour Mr Justice Stephen, 142 CLR 60. One is

then required to look in a particular case to the

legislative context and to the issues involved in a

particular case, with a view to deciding which

aspects of the public interest go into the balance.

In the context of this legislation, the

potential exists for a very wide range of matters

to go into the balance if one applies a public

interest test simpliciter. May I illustrate that,

Your Honour, by the few references to the

legislation. Firstly, in section 3 which sets out

the object of the Act, and in particular paragraphs

(ba) which refers to "facilitating access to

conciliation and arbitration for the prevention and

prompt settlement of industrial disputes" - - -

HIS HONOUR:	Sorry, did you say (ba)?
MR TRACEY:	Yes.

HIS HONOUR: Is there an amendment, is there?

MR TRACEY:  Yes, there were amendments in 1991 and 1992

which saw additional objects added.

HIS HONOUR: Well, the print I have is consolidated on

1 August last year and I have the amendments made

since then.	So presumably it came in in the 1992
amendments.

MR TRACEY:	Yes, Act 215 section 4.
HIS HONOUR:	Yes, I have that, yes, thank you.
MR TRACEY:	And Your Honour will there see the reference to

prompt settlement of industrial disputes.

Paragraph (c) says that one of the objects is:

to ensure that, in the prevention and

settlement of industrial disputes, proper

regard is had to the interests of the parties

immediately concerned and to the interests

(including the economic interests) of the

Australian community as a whole;

and paragraph (d):

Hotels 6 28/4/93

to facilitate the prevention and prompt

settlement of industrial disputes in a fair

manner, and with the minimum of legal form and

technicality;

And then, if one goes over to section 90 of the Act one finds that the Commission is told that:

In the performance of its functions, the

Commission shall take into account the public

interest, and for that purpose shall have

regard to:

(a) the objects of this Act; and

(b) the state of the national economy and the likely effects on the national economy of

any award or order that the Commission is

considering ..... on the level of

employment and on inflation.

HIS HONOUR:  Is there anything in the Act that points with

any sort of direction as to the circumstances that

might lead to the formation of an opinion that it

is in the public interest to refer a matter to the

Full Bench?

MR TRACEY: There is nothing more specific, Your Honour, no,

than 107(6) which focuses particular attention on

the importance of the dispute.

HIS HONOUR:  Could I just ask you this question: what does

that really mean? Importance presumably means

something beyond important to the parties,

otherwise it is hard to see how the notion of

public interest would intrude.

MR TRACEY:  Your Honour may derive some assistance in

answering that question from the last paragraph in

His Honour Mr Justice Dawson's reasons in the

Employees Insurance Union case, the last paragraph

on page 467. His Honour there says something about

the nature of the test:

it is plainly a narrower test, for an

application may involve circumstances which

are neither special nor extraordinary but

which are, because of their very generality,

of great importance in the public interest.

It is not to the presence or absence of some

special feature to which the President is

required to look before-he acts under

s 34(6)(b), although a special or

extraordinary circumstance may be of

sufficient importance in the public interest

to require a hearing by a Full Bench. It is
the whole of the circumstances which the

President is required to weigh in order to

Hotels 7 28/4/93

determine where the public interest lies in

the future conduct of the proceedings. If he

determines that the importance of the matter

is such that the public interest requires it

to be dealt with by a Full Bench then he

should grant the application and direct

accordingly.

In other words, Your Honour, it is an essential

part of the process of determining - and indeed,

one may even put it as high as determinative of the

process that has to be undertaken by the President

under section 107 - for him to form a judgment as

to the importance of the dispute, and importance in

a very broad way, not something that is

extraordinary necessarily but, indeed, as

His Honour says, mere generality. So it is

something he has got to focus attention on in the

process of coming to his decision.

On the other side, if he applies a public

interest test simpliciter, then there is a very

real risk that all these other factors that are of

importance to decision making in the broad under

this Act that do touch on the public interest will

go into the balance on the other side and may weigh

more heavily than the question of importance.

So it is not correct, in our submission, to

simply say, "He has applied a public interest test.

That must of necessity subsume the question of

whether the importance of the matter is such that

in the public interest a reference ought to occur",

because the balancing exercise of a test of the

kind that he did apply brings into account far more

factors and they are apt to outweigh the factor to

which the legislation directs particular attention.

Your Honour, it is our submission that

His Honour did err, and he erred by applying the

wrong test. As His Honour Mr Justice Dawson says,

he had to look at it in a far more specific way to
satisfy the requirements of section 107.	He did

not do it. In our submission, the consequence of

that is that the exercise of power is miscarried

and, accordingly, this is a case in which it is

appropriate for mandamus and certiorari to go with

a view to having the matter reconsidered according

to law.

Your Honour, I might ju~t cite, by way of

authority, the decision of the Australian Bank

Employees Union; Ex parte Citicorp Australia

Limited, (1989) 167 CLR 513, for the proposition

that misconstruction and misapplication of power in

this way constitutes reviewable error for which

mandamus and certiorari will lie.

Hotels	28/4/93
HIS HONOUR:	Mr Tracey, I appreciate you not asking me to

substitute my own opinion for that of the

President, in arguing the case that the matter

should have been referred to the Full Bench, which

I appreciate is going beyond the basis upon which

the application is put, what is it about this

matter that might lead to the formation of an
opinion in accordance with subsection (6)(b), that

the matter should be dealt with by a Full Bench?

MR TRACEY:  Yes, the critical thing is this, Your Honour:

as I have indicated, this is the parent award for
the whole of the hospitality industry, and
decisions as to relativities and appropriate wage

rates for this award will inevitably carry over into an array of other Federal and State awards

that have traditionally been based upon it, and has

the potential to cover tens of thousands of

employees throughout Australia.

Therefore, it is important that a decision be

made at an early date, by a Full Bench, rather than

an individual commissioner, and then be subject to

appeal, because it is important that these matters

be resolved on a national basis as quickly as

possible. If it is done in the first instance by a
single commissioner, inevitably, whichever party is

dissatisfied, is going to appeal, it will end up in

front of a Full Bench anyway. In the meantime, it

is unlikely that other single members of the

Commission, State and Federal, who are approached

in relation to these matters, would enterta,in them,

pending the outcome of the Full Bench decision.

So, the whole process is delayed. The object

of this going to a Full Bench at an early stage is

for a pronouncement to be made that will not be

subject to appeal, and can immediately become subject to attention by single members of the

various State and Federal commissions, and

accordingly have this important question resolved

as a matter of expedition.

Your Honour, I am reminded by my learned

junior - and this appears in the transcript of

proceedings - that the number of employees covered

by these awards is somewhere of the order of

140,000. So that it is extremely significant,

although the decision in relation to this

particular award will only cover 5000 employers, it

has the potential to cover 140,000 employees.

HIS HONOUR:  You said something early in argument about the case having been described as a test case. I

understood you to say that your client had resiled

from that description. What did you mean by that?

Hotels 9 28/4/93

MR TRACEY:	What happened, Your Honour, was that in the course of the proceeding before the Commissioner,
at a number of places the advocate appearing on
behalf of the Union and the ACTU said that the case was a test case. There are extracts from the
transcript incorporated in Dr Smith's affidavit.
If Your Honour would go to paragraph 12, Your Honour will there see attributed to Ms Mathews
the acknowledgement by her that she had used the
words "test case" in various documentation in
relation to the case, and that had been the case at
various· points throughout the hearing. She had so
referred to it and she had tendered documents that
bore headings indicating that it was a test case.

When the application was made for a reference

under section 107, one of the bases on which that

was made on our client's behalf was that this was

indeed a test case. In responding to that, the

Union side then retreated from the proposition that it was a test case and sought to qualify what had

been said. Your Honour, that retreat is evidenced

in exhibit GFS6 to Dr Smith's affidavit, which is

the written response of the Union side to the

application made on behalf of the Australian Hotels

Association. Your Honour will see on page 2, the

first paragraph 1 on that page, the assertion that:

This is not a test case on the National Wage

Principles, it is just a normal case -

and there is a repetition and a development of that

submission in the course of that document.

Now, it is fair to say that what the Union

side was saying was, "We did use the term 'test
case, final minimum rates'", and Your Honour, they

accept that that was one of their documents.

Your Honour will see that right at the bottom of

the page there is a reference to the Union's

exhibit M3 carrying the title "Test case, final

minimum rates". And then at the top of page 3:

We explained that we saw this as something of a text case for the Hospitality Industry and the awards in this industry, in that this is the "parent" award for the industry and it

sets a broad pattern for the industry. It is

the award in which all the major restructuring

changes and decisions have been made so far,

and the other awards have, in different ways,

broadly followed the pattern set in the main

award.

And then the qualification:

Hotels 10 28/4/93

This is not, however, a test case for the

industry in the sense that there is any

automatic flow-on to any other award in the

industry.

Then an attempt is then made to qualify what was

said.	So that it was to that I was referring,
Your Honour.	The argument before the Commissioner

on the Union side was put on the basis that, yes,

this was a test case. When the AHA tried to rely

on tha_t for the purpose of getting a reference to establish the importance of the matter, the Union said, "Well, yes, we did say that, but we did not

really mean it in the particular sense that the AHA

understood us to have meant it."

HIS HONOUR:  Mr Tracey, is the decision of the President

itself subject to appeal within the framework of

the Act?

MR TRACEY:	No, it is not.
HIS HONOUR:	You mean it is specifically excluded or there

is simply no provision within which it is included?

MR TRACEY:  It is not expressly excluded but, Your Honour,

the right of appeal from single members of the

Commission is provided for in section 45 of the Act and there is a list in subsection(l) of the types

of decision which are subject to appeal; this is

not one of them.

HIS HONOUR:  I notice under paragraph (d):

a decision of a member of the Commission under

paragraph lll(l)(g) -

is subject to appeal.

MR TRACEY:  Yes.

HIS HONOUR:  Is there anything else you wish to add,

Mr Tracey?

MR TRACEY:	No, thank you, Your Honour.
HIS HONOUR:	Could I just discuss this with you for a

moment. If I decide to refuse the application,

that is all that need be done. If I decide to

grant it, I just look with you for a moment at the

form of the draft order.

MR TRACEY:  May I hand up, Your Honour, a revised draft.

There were some ':ypographical errors in the one

that was filed. For that we apologize,

Your Honour.

Hotels 11 28/4/93

HIS HONOUR:  Just as a matter of interest, what happened to

that matter in which Justice Dawson granted an

order nisi.

MR TRACEY:  Your Honour, what we understand happened was

that it went back to the - no, it did not. I was

going to say it went back to the President and he

made a decision - that is right, it went back to

the President. He reconsidered the position; he

applied the - - -

HIS HONOUR:	Do you mean by force of the order nisi?
MR TRACEY:	Yes, it was made absolute on the spot,

Your Honour.

HIS HONOUR:	I see.
MR TRACEY:	His Honour made it absolute on the spot and it

went back, and the President reconsidered the

matter in accordance with His Honour's directions

according to law, and came to the same conclusion.

HIS HONOUR:  Yes. I had not appreciated that the order was

made absolute then and there.

MR TRACEY:  Yes. That was done, Your Honour, because

although the application was made ex parte, the

other side turned up and His Honour gave them the

opportunity to address him. Perhaps I should just

indicate where that appears in the judgment.

HIS HONOUR:	I can pick that up myself.
MR TRACEY:	It is on the last page of the judgment,

Your Honour.

HIS HONOUR:  The only order made in that case was for

mandamus.

MR TRACEY: Yes, it was.
HIS HONOUR:	You are asking for certiorari as well.

MR TRACEY:  Yes, Your Honour. Your Honour, we would be

content with mandamus standing alone in this

matter, but it did seem to us a more tidy solution

to quash the decision, in aid of mandamus, because

that really would then give rise to the situation

in which there had not been an exercise of power

and the basis would exist for the issue of a writ

of mandamus.

HIS HONOUR:  Yes. Thank you, Mr Tracey.

MR TRACEY: If Your Honour pleases.

Hotels 12 28/4/93

HIS HONOUR:  I propose to consider my decision in this

matter.	I should let you have it with a minimum of
delay.	Mr Tracey, as far as the handing down of

the decision, I do not want to bring counsel back

just for that purpose because no questions arise,

on either view, no question of costs or so far as I
can see any reason why counsel need attend on the

handing down of judgment.

MR TRACEY:  I thank Your Honour for that indication. Our

instructors do have agents in Canberra and

arrangements can be made for an attendance from the

firm.

HIS HONOUR:  Just a slight question of timing involved to do

with my own movements over the next two or three

days. If it so happened that the matter was to be handed down in Sydney, I suppose there is no

problem there?

MR TRACEY:  That would not create any difficulties for the

same reason.

HIS HONOUR:	What about Perth?
MR TRACEY:	Nor in Perth, Your Honour.

HIS HONOUR:  In that event, there is no problem. Thank you,

Mr Tracey.

AT 10.51 AM THE MATTER WAS ADJOURNED SINE DIE

Hotels 13 28/4/93