Re Australian Nursing Federation; Re Health Services Union of Australia; Re Australian Nursing Federation; Re State Public Services Federation of Australia; Ex Parte The State of Victoria

....

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml0 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE JOHN WILLIAM
MACBEAN, a Deputy President
of the Australian Industrial
Relations Commission

First Respondent

and
KENNETH TURBET, a former
Commissioner of the
Australian Industrial
Relations Commission

Second Respondent

and
AUSTRALIAN NURSING FEDERATION

Third Respondent

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Ex parte -

THE STATE OF VICTORIA and THE
MINISTER FOR HEALTH FOR THE

STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No Mll of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE JOHN WILLIAM
MACBEAN, a Deputy President
of the Australian Industrial
Relations Commission

First Respondent

HEALTH SERVICES UNION OF

AUSTRALIA

Second Respondent

Ex parte -
THE STATE OF VICTORIA and THE
MINISTER FOR HEALTH FOR THE
STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No Ml2 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against
COMMISSIONER BEVAN JOHNSON
and SENIOR DEPUTY PRESIDENT

JOSEPH RIORDAN, members of
the Australian Industrial
Relations Commission

First Respondent

KENNETH TURBET, a former
Commissioner of the
Australian Industrial
Relations Commission

Second Respondent

AUSTRALIAN NURSING FEDERATION
AND HEALTH SERVICES UNION OF
AUSTRALIA

Third Respondent

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Ex parte
THE STATE OF VICTORIA and THE
MINISTER FOR HEALTH

Prosecutors

Office of the Registry

Melbourne No M13 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE

HONOURABLE JOSEPH MARTIN
RIORDAN, a Senior Deputy
President of the Australian
Industrial Relations
Commission

First Respondent

and
STATE PUBLIC SERVICES
FEDERATION OF AUSTRALIA

Second Respondent

Ex parte -
THE STATE OF VICTORIA and THE

MINISTER FOR HEALTH FOR THE

STATE OF VICTORIA

Prosecutors

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 MARCH 1993, AT 11.00 AM

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

learned friend, MR L. KAUFMAN, for the applicants
for this and, indeed, in the other four cases in
Your Honour's list. (instructed by the Victorian
Government Solicitor)

MR R.C. KENZIE, QC:

May it please Your Honour, I appear

with my learned friend, MR R.W. HINKLEY, and seek
leave to appear as an intervener representing the
Australian Nursing Federation in the matters
numbered Ml0 and M12, which are two matters that
directly affect our client. (instructed by Ryan
Carlisle Thomas)

HIS HONOUR:

Mr Uren, are you pressing the stay

applications?

MR UREN:	Yes, we are.
HIS HONOUR:	Mr Kenzie, I grant you leave to appear on the

stay application, not on the application for the
order nisis.

MR KENZIE:

Would Your Honour be prepared to hear submissions in relation to that?

I do not want to

canvass anything Your Honour has had to say
but - - -

HIS HONOUR:

Mr Kenzie, these matters are heard ex parte, ordinarily, quite frequently in chambers.

They are

not matters on which I think you would be of any
assistance. But if you want to shortly put some
reasons I will listen to them.

MR KENZIE:

Your Honour, in our respectful submission, these

are matters in respect of which the Court can
receive assistance from the parties. They are

history, and there are matters of subtantial

substantial industrial matters with a substantial

submission on the question of prematurity which the

parties, that we represent, would want to put

before the Court.

The authorities are clear in

relation to this matter and there are substantial

matters that we are in a position to put.

Your Honour, in a sense, the question of
whether there should be a stay is related to the
question of whether the rule nisi ought to be
granted. We would respectfully seek leave to put
some submissions to the effect that the rule nisi

should not be granted. The foundation for the stay
does not arise, and does not arise because the
applicants have entirely failed to exhaust their
internal remedies within the Commission, in
circumstances which we would seek to demonstrate to
the Commission.

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So, we would respectfully submit that this is
a case in which the respondents are able to provide
assistance on the question of whether the rule
should go, and, Your Honour, may we say that in
industrial matters it is a matter of frequent
experience that parties in the position of our
clients are heard, and I have knowledge of a large
number of matters - - -

HIS HONOUR:

In fact you have ..... appeared in front of me in

which I have heard matters.

MR KENZIE:

Yes.

HIS HONOUR:

But in this particular case order nisis have been granted and similar matters, both by

Justice Brennan and Justice Dawson.

Now, do you

seek to distinguish those cases?

MR KENZIE: Yes, Your Honour.

HIS HONOUR:

You do?

MR KENZIE:

We do.

We say that there are very powerful

reasons why rules nisi should not go in these cases
because, in these cases, the applicants have
determined to avail themselves of the internal
procedures of the Commission to an extent, but have
chosen to come to the High Court in circumstances
where those procedures have not been exhausted,
along the lines of the submissions that were put to
the Chief Justice in the Multiplex case. So, we
assuredly say that those cases are distinguishable,
and distinguishable in a manner which goes to the
question of whether the - - -

HIS HONOUR:

But distinguishable from the two cases in which

order nisis have been granted?

MR KENZIE:

Yes, Your Honour.

As we understand it, there

was no suggestion before the High Court in those
other matters that there was any prematurity in
relation to the applications, and that is the
matter which we - - -

HIS HONOUR: Well, they were heard ex parte I think, were

they not?

MR KENZIE:

Your Honour, one of the matters was the SPSF

case in 1992, where there was an argument for
removal of the stay in that case, and that is a
matter which we say is clearly distinguishable from
this case.
So, Your Honour, there are substantial matters of prematurity which we do seek to advance, and we
say that you do not get to the question of whether

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a stay ought to go because of the way in which the
applicants have gone about -

HIS HONOUR:

So, you say the question of the issue of an

order nisi is closely connected with a stay?

MR KENZIE: Assuredly, Your Honour.

HIS HONOUR: It is a matter for me, Mr Uren, but -

MR UREN: If Your Honour would let me say something more?

The question of what was going to happen with the
persons who are seeking leave to appeal - and there
are more than Mr Kenzie, of course - did exercise
our minds, and our minds are even more exercised
upon receiving this morning a bulky set of
affidavits.
Now, not all of the bulk is affidavit, a lot

of it is exhibits, but none the less there is
material to which we have scarcely had time to give
proper attention, especially as we have been - - -

HIS HONOUR:

I have not had an opportunity to read the two

bulky affidavits at all, I have just skimmed

through the smaller affidavit. I had other
business to attend to.

MR UREN:

What I was wondering, whether this would be an

appropriate course? If, our learned friends were
not allowed to appear at all, but, they could, if
Your Honour was minded to grant a stay, of making
application on proper notice next week to have the stay removed, and they could then, if they wished, also make an application to - - -

HIS HONOUR: There would be no way I would make a stay in

these matters ex parte, Mr Uren.

MR UREN:

If Your Honour would not do that then, of course,

I would certainly not object to our learned friends
having leave.

HIS HONOUR:	Yes. Well, it appears to me, and I have not - I will grant you leave, Mr Kenzie, generally in
relation to the matter.

MR KENZIE:

Thank you, Your Honour.

I should remind

Your Honour - Your Honour asked about the
Teachers' case - that that was a case in which

Justice Brennan heard the matter in chambers. It
was an application only for rule nisi, not a stay.

HIS HONOUR:

Well the stay was not pressed in that case,

obviously?

MR KENZIE:

No, but in that matter His Honour conditioned the order in this way: he ordered - - -

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HIS HONOUR: Well, I appreciate - he was on 7 days notice.

MR KENZIE: Exactly, Your Honour, he recognized the utility

of hearing from the respondent in relation to the
grant of the - - -

HIS HONOUR:

I am not sure about that, but I think the firm

of solicitors, Holding Redlich, had asked to be
heard. Yes. Mr North?

MR A.M. NORTH, QC: If Your Honour pleases, I appear with my

learned friend, MR R.W. HINKLEY, and seek leave to appear in relation to both the grant of the orders
nisi and the stay applications in matters 11, 12

and 13. Not the first one 10. (instructed by
Maurice Blackburn & Co)

HIS HONOUR:

Yes.

And do you seek leave generally, for the

same reasons that Mr Kenzie - - -

MR NORTH: Exactly, Your Honour, yes, precisely.

MR S.R. MARSHALL:

Your Honour, I appear in matter 13 for

the State Public Services Federation. (instructed
by Gill Kane & Brophy).
In that matter, Your Honour, it is my

contention that the issue of the order nisi is
closely connected with matters in relation to the stay, and on that basis I seek leave of the Court to appear in relation to both matters.

HIS HONOUR:

Yes, leave is granted, Mr Marshall, as leave is

granted to you, Mr North.

MR NORTH:	Thank you.
HIS HONOUR:	Having regard to what has been said, this

appears to me to be a matter that will take some
considerable time?

MR UREN:

It could, Your Honour, yes.

I do not know how

much Your Honour wants to go through all of the
material and the arguments relating to the question
of whether the order nisi should be granted,
bearing in mind this Court has granted order nisis
in a relatively large number of cases by now.

HIS HONOUR:

Having regard to the issues involved, I would have thought that, leaving aside questions of

prematurity, that there were arguable grounds in

favour of the grant of order nisis.

I might

perhaps ask your opponents whether they accept

that.

Do you accept that, Mr Kenzie?

MR KENZIE:

Yes, Your Honour.

The opposition to the rule

nisi is based on prematurity and not on the

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contention that the matters are not substantial or
arguable.

MR NORTH:

Yes, Your Honour, that is the same position at

the HSUA.

HIS HONOUR:	Mr Marshall.
MR MARSHALL:	Your Honour, there is a slightly different

issue in relation to my matter.

HIS HONOUR: Well, I think - you deal with section lll(a)

point.

MR MARSHALL:

Yes, I do have a prematurity point as well,

though.

HIS HONOUR:

I would have thought that the case for granting

an order nisi in your case is stronger than in
relation to the other two cases.

MR MARSHALL:

Your Honour, in relation to prematurity, I

contend the opposite because, in fact, while
Mr Kenzie said there had been some issues in
relation to the use of appellate procedures in the
Commission, there has been no indication of those
procedures at all in respect to me, so in my matter
on prematurity, I am stronger, but perhaps
Your Honour is rather referring to the
constitutional issue.

HIS HONOUR:

Yes, I was.

MR MARSHALL:

Yes.

Your Honour, there would be at least an

arguable case. I will say no more about that.

HIS HONOUR:

Yes.

Thank you, Mr Marshall.

Mr Uren, perhaps

you might proceed on the basis that your opponents

concede that you have an arguable case for an order

nisi. So perhaps you might put your submissions
then on the stay. That is the only outstanding
issue as far as you are concerned.

MR UREN:

Yes.

There is one matter I do not know whether I

need trouble Your Honour with or not. We did discern that we might have had an argument in
respect of the grant of the order nisi which is
somewhat different. Perhaps it went a little
further than the arguments which have been put to the the Court in the case which was heard in June

of last year. I do not know whether, in the
circumstances, I need trouble Your Honour with that

or not. It was merely an argument relating to the
proper way in which to distinguish between what I
might call State matters, broadly so-called, and in
relation to what State matters should properly be
the subject of the implication of protection.

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Our argument was that perhaps the proper
characterization is not that the matters are
administrative or ..... governmental or anything of
that sort, but went on a broader aspect which,
taking up something the Chief Justice had said in, I think, the QEC case, that where the State or its agencies were exercising a public function for a
public purpose and for the public benefit, and not
trespassing on what one might call a trading or
private area, then that was the State activity
which is the proper subject of the implied

protection. Now it may be that that argument was
put by the South Australian representative who
appeared before the Court.

HIS HONOUR:

Yes, but it really does not arise here, does

it, unless you want to change the grounds of the
drant order nisi in some way.

MR UREN:

No, it does not.

I think Your Honour is right, it

does not arise. The only reason why I mentioned it
is I understand that when His Honour
Mr Justice Brennan was hearing an application for an order nisi last week, that he indicated that that case would not be likely to be listed until the Court had given judgment in the case which it
heard in June.
Now, if there were, on a proper view of what

happened in June, arguments which were not put
which the State of Victoria would like to put in

these cases, then perhaps we would ask the Court to
reconsider that view and not leave these cases
until after the judgment in the other case, because
the judgment in the other case may well set the
general principles in what one might call concrete
or concrete for the foreseeable future and if there
was something new that we wanted to put, we would

one of these cases. seek the opportunity of doing so in either all or

HIS HONOUR: It is a matter for listing; it is not a matter

MR UREN: Yes, I agree with that, Your Honour. In that case

I need not trouble Your Honour with the first nine

pages of my notes. The difficulty with the
prematurity - - -

HIS HONOUR:

What matter are we dealing with first?

MR UREN:

Ml0.

I think that is the case involving the

Australian Nursing Federation and involving
community health centres.

HIS HONOUR:	You move on the affidavit of Mr McArdle.
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MR UREN:	Yes, I do, Your Honour. That case is one in which

I think the -

HIS HONOUR: Perhaps I should - are there any parts of that

affidavit to which anybody has got any objection?

MR KENZIE:	No, Your Honour.
MR NORTH:	Your Honour, we do not have a role to play in

that.

HIS HONOUR:	No, of course not.
MR UREN:	Your Honour, that is a case in which the log, I

think, was served on 4 March 1991. There has been
no award made as yet.

HIS HONOUR:	I thought it was issued on 4 March.
MR UREN:	Yes, I meant 4 March 1991. There was a dispute

finding made on 3 June 1991.

HIS HONOUR: There were hearings in 1991 and 1992, were

there not?

MR UREN:	Yes.
HIS HONOUR:	When did you seek revocation?
MR UREN:	We sought revocation finally on 19 February this

year, although we had indicated or signalled -

HIS HONOUR:	I think on 29 January you indicated
MR UREN:	Yes, we had given a signal on the 29th that

revocation would be sought. It was not until the
hearing of 19 February at which our application for
revocation was refused that an award was actually

produced by the Union, upon which it was sought

that the Commission make a decision. The
Commission set 1 March as the day upon which it would hear the argument relating to what award

should be made. On that day I think an application
was made for an adjournment on the ground that
these proceedings were, I think, almost issue.

That application was refused. I think this is

not in the affidavit, but I think I can tell
Your Honour that these things occurred. The
application was refused and then it was put that
the matter should be sent for a decision of the
Full Bench. After consultation with the President,
I think the Deputy President said that the
President wanted to have a good look at the matter,
and consequently there was no decision made as to
whether the matter would or would not be referred
to the Full Bench but the hearing with respect to

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what the award should contain was, I think,
adjourned pending the President's decision as to
whether there should be a Full Bench reference or

not. So at the moment there has been an award
proposed only fairly lately, but no award has been
made.

HIS HONOUR:	Has there been no award made?
MR UREN:	No award made in that case. Consequently, what

was sought was a stay of the proceedings in respect
of the finding of a dispute and in respect of the
making of an award.

HIS HONOUR:

Annexure HDM12 is the proposed award, is it?

MR UREN:

Yes, that is the proposed award.

In relation to

the question of a stay, there arises a number of
considerations relating to what the situation is in
Victoria at the present stage with the industrial
legislation reaching the stage at which it has.
The effect of the current industrial legislation in Victoria, I think, appears to that
the awards -

HIS HONOUR:	Which is the relevant piece of legislation?
MR UREN:	The relevant legislation is the

Public Sector Management Act and the
Employee Relations Act. If I could take
Your Honour firstly to the Public Sector Management
Act, and to Schedule 6.

HIS HONOUR:	Yes.
MR UREN:	And to clause 22(4), and then to clause 9.

Clause 22, perhaps in its entirety, provides the -

after the passing of that Act, the awards which are
made, I think, expire on 1 March 1993, and in
subclause (4), it is provided that:
On the expiry of the provisions referred to in sub-clause (1), each officer or temporary
employee to whom the expired provisions
applied immediately before then and his or her
employer ..... are, until the making of a
relevant award or employment agreement under
that Act, bound by an individual employment
agreement with the same terms and conditions
as those that applied to the officer or
temporary employee under the expired
provisions and with the benefit of all rights
accrued or accruing under those provisions.

HIS HONOUR:

So, the effect of that is to maintain the

status quo, in terms of - - -

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MR UREN:

Yes, and under clause 9, persons holding office in

the public service under the former Act hold their position on the terms and conditions with the same
classification accrued entitlements as applied
under the former Act, so that preserves their
positions as public servants.
So one has there the situation that there is in place a deemed, perhaps, individual employment
agreement, with the same terms and conditions as
previously applied.

I wonder if i could also refer Your Honour to the Employee Relations Act.

Your Honour, some of
the things I am saying I think may apply generally
to all of the cases and not particularly to one or
the other, because the industrial situation which I
am relating to Your Honour, I think applies in -
some of the Acts apply to some of the cases - I
will go back a square: the community health centre
people, not in fact being public servants, fall
more particularly to be considered under the
Employee Relations Act, but the people who are subject to the public service considerations, fall
under the Public Sector Management Act, so I was
perhaps really addressing Your Honour more to the
globality of the position at the moment, rather
than particularly to the community health centres
people.
Now, if I could take Your Honour to the

Employee Relations Act, section 172(1) and (6). On
subsection 172(1) provides that:
On the appointed day -
(a) any award or order of the former
Commission ..... then in force continues in

force and is to be treated as if it were -

HIS HONOUR:

The "former Commission" being the State

Commission?

MR UREN:

The State Commission -

as if it was an award or order of the
Commission under this Act -
and an order or decision of the former Commission
is to be treated in the same way, and then in
subsection (6), it is provided that:
All awards in force on 1 March 1993 expire on
that day. Section 24(3) applies to an award
that expires because of this sub-section.
Taking the Court to section 24(3), that

provides that:

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If an award expires, each employee who
continues to be employed by the employer and the employer are, unless a new award is made
or the employee and the employer make an
employment agreement, bound by an individual
employment agreement with the same terms and
conditions as those that applied to the
employee and the employer under the expired
award.
So the situation, with respect to both State public servants under the Act and those persons who are
not under that Act but are covered only by the
Employee Relations Act, appears to be that there is
now no award but there is an individual employment
agreement on the same basis.

HIS HONOUR:	Yes.
MR UREN:	Now, of course, that situation pertains only with

respect to those servants and employees who
continue to be employed, in other words to those
who were employed and were covered by the relevant

award. I think the situation is that new
employees, to such an extent as there are any in
the economic condition of the State of Victoria,
were not covered by the provisions that I read to
Your Honour and they would be people with whom
there would have to be individual employment

agreements. Now, the extent to which they do or do
not differ from what is currently in train, and
whether there are any of them, is not a matter of
which I am presently able to tell Your Honour
anything.

HIS HONOUR:	Yes.
MR UREN:	So, the situation, with respect to the people in

all of the categories with which the present

application is concerned, is that one or other of
these Acts apply to them with the effect being the
same or similar in both cases.
The basic reason for asking for a stay is that

it does appear clear from the material in this case
and also from the other cases when it is read to
Your Honour, is that the Commission will proceed to
exercise the powers it considers it has unless

there is a stay granted. Now, the effect of that
will be, except I think in those cases in which
there is an award already made, to alter the
status quo in a way which it is the purpose of the
application for the stay to prevent. So, one
reason for asking for the stay is that, at least in
the cases where there is no award yet made, the
status quo will be altered if there is in fact no
stay.

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Now, the other side might say, "Well, why
should not the status quo be altered because our
people will be deleteriously affected if a stay is
granted", to which we point to the provisions of
the statutes we have already referred to
Your Honour, and say that in the vast bulk of the
cases that will not be so, and even if there are
some people who are not covered by the legislative
provisions that we have referred Your Honour to,
none the less they, in the circumstances, must be
considered to be of such a smallish number that the
consideration that the various employees are
already protected by, presumably, satisfactory
provisions.

HIS HONOUR:

Could I ask you this: you would have a right

of appeal against any award that is made, would you
not?

MR UREN:	Yes.
HIS HONOUR:	And you would also have the right to make an

application for a stay of the award both to the
Commissioner or Deputy President who made the award and also to the Full Bench.

MR UREN:	Yes.
HIS HONOUR:	In those circumstances, why should this Court

intervene?

MR UREN: Well, for two reasons. One is that I think in a

number, perhaps all, but certainly a number of the
cases, an indication has been made that either a
stay application has been held up pending an
application to this Court, or alternatively, there
has been an indication that the Commission would be

able to hear the matter if there was no stay

granted by this Court. So the first thing is the
Commission is likely to proceed to a hearing if
this Court does not grant a stay.
Now, the other reason for submitting that this
Court should grant a stay, notwithstanding the fact
that the Commission could if it wished, is that the
situation with relation to all of these cases is
quite different from the cases that sometimes come
to this Court when people complain about decisions
of the Commission. These cases are ones in which
the issue of substance is an important
constitutional issue which has exercised the Court
since at least the middle of last year.

HIS HONOUR:

Well, the point may be arguable, but I must

say, I do not know that you can put it stronger
than that. For you to succeed, you would have to
overthrow, would you not, 70 years of doctrine.

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MR UREN:

Not really, because the general rule that you

should go to the Commission first and exercise the
Commission -

HIS HONOUR:

No, I am talking about the merits of the

constitutional point.

MR UREN:

We do not think so.

I know what we have seen, I

think, through reading the submissions that were
made in the case that was heard in June, the
observations of certain members of the Bench as to
the effect of the Engineers' case, and whether that

would have to be overthrown. It is not our view
that the Engineer's case would have to be
overthrown or that 70 years of settled doctrine

would have to be overthrown at all. The Engineers'
case was a - this gets into the merits, of course
which related to the trading activities of the
- but a case which has, in one decision of this

State. The Engineers' case itself was such a case.

HIS HONOUR: Well, I appreciate that was that sort of case,

but what about a case like Lee; ex parte Harper and
the Professional Engineers' case?

MR UREN:

It may or may not be the case that the view of the

law that we would ask the Court to take would alter
the actual decisions in some of the cases that have
been heard by this Court, but it is not the view
which we take that any actual statement of
principle by the Court would have to be altered.
The difficulty, as I think members of the Court
have observed, is that views which were taken about
various principles, which views are now exploded,
tended to obscure or make unnecessary the
application of the principle which is now being
sought to be applied.

In other words, the question of what was or

was not industrial has for many years made the
point which now arises, either redundant or not
apparent, and in which case the activities of the
States have proceeded unimpaired, as it were, by
the actions of the Commission, because of the view
which was taken about what is meant by industrial.
Now, that log, having been taken off, as it

were, then, a number of things are exposed - - -

HIS HONOUR: Well, the Professional Engineers' case still

stands in your way, does it not? And there you
have the professional engineers of the States, and
those employed by Departments of Main Roads and so
on, and they were held to fall within
section Sl(xxxv) of the Constitution.

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MR UREN: That was the case, but none the less, there is no

statement of principle, as we are aware, in that
case which would deny the application of the
constitutional implication that we - - -

HIS HONOUR:	No.
MR UREN:	Now, it may have been that in that case the point

was not argued or not apprehended, but none the
less, it now being apprehended and being argued, it
cannot- be said that there are 70 years of decisions of the Court which make the point one which is, let us say, difficult to get up because all the court
has been doing in other cases is making decisions
with respect to facts on the basis of a view of the
law which was then taken. Well, if that is gone,
then a lot of cases may arise in which, had the
court perhaps in other cases been apprised of these
arguments, they might have come to a different
conclusion.
The point I am making is this: it is no

argument against the application of the principle
that we assert, that the principle's application
has not been needed in other cases or has been
discerned to be applicable in other cases.

HIS HONOUR: All I was putting to you was, on the question

of balance of convenience in relation to a stay,
you are really asking this Court to strike out in
new territory, and that there are existing
decisions in the Court which, whatever their course
of reasoning, could hardly stand if your argument
is correct.

MR UREN:

Your Honour, I do not at the moment, without

proper analysis of them, agree with that

proposition, but even if it - - -

HIS HONOUR:

The Professional Engineers case strikes me

immediately as a case that would be very difficult
..... The engineers employed by the State for the
purpose of constructing bridges, roads and other
matters, seem to me to affect the budget just as
much as the expenditure on nursing and public
hospitals.

MR UREN:

That may have been the case, but none the

less - - -

HIS HONOUR:

That is not to say that your arguments will not

be accepted and that those decisions are not wrong.
All I am saying to you is that both that decision
and the School Teachers decision would seem to be
very difficult to support if your argument is
finally accepted.

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MR UREN:

As against what Your Honour has put, we though we

had discerned in a number of decisions of the Court
more recently than that the possible flagging of a
change, or the reference to arguments which might
be put in favour of a change of view, in favour of
the application of our principle. It is true that
the Court has not actually said that one or other
thing is the case, but none the less, we thought we
had observed in the decisions what may well be a
significant breaking of the ice in that regard in
which members of the Court have said certain things and then qualified them, and said that other things

might be possible or might not be possible. In
that situation, it is not really able to be said that past decisions which proceed on a different
basis and under different considerations are to be
regarded as a bar to an application for a stay. I
do not deny it may be something that could be taken
into account.

HIS HONOUR:

It is certainly a matter that can be taken into

account. It is a question of weight.

MR UREN:

Yes, it may be taken into account, but the thing

about a stay is that once there is a stay in
respect of the arguable case in favour of an order
nisi which it seems that there must be, then
questions of a stay or not relate really to matters
of practicality rather than to matters of whether
or not some - what was previously perhaps
misapprehension, perhaps wrongly - thought to be a
settled position, now appears to be not so settled
as it was.
So, what we were addressing, Your Honour,

really on was not the extent to which we may or may
not be able able to succeed ultimately, because if
we are to do that we would take a long time, but

none the less, to the practical considerations
which would favour the granting of a stay rather
than not granting of a stay and if Your Honour took
the view that the chances of success are something
which is to be taken into account, then we would
all have to talk to Your Honour for a long time and
I think one could say without disrespect that
members of the Bench may or may not take different
views about the chances of success in this case or
other cases, but - - -

HIS HONOUR: Well, I appreciate that, but in one of the

cases, I think it might have been Pillar's case, I
thought Mr Justice Mason, in refusing a stay in
that case, did refer to the question of the
prospects of success on the prohibition.

MR UREN:

We do not deny the relevance of prospects of

success, but the point I am making is that this

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case follows a case in which the Court has already
granted special leave - not special leave, but
which the Court has already heard and are still
reserving on. There are other cases in which
orders nisi have been granted and other cases in
which stays have been granted by members of this

Court. Now, if Your Honour was to say that the
prospects of success are a significant ingredient
in the question of whether a stay should be granted
or not, then we would really have to address
Your Honour as to our arguments on the substance of
the matter for the purposes of persuading
Your Honour that we had quite a respectable case.
The other thing we would like to say too is

that the facts of this case and the other cases
with respect to practicality do not, in our
submission, give rise to the proposition that
chances of success are of great relevance. In
other words, if we had only a marginal case it may
be that - it may be that if the consequences to the
other side were so grave that the stay question
rested on the knife-edge, as it were, then there
may be something to said for looking at the merits
of the case to see whether the case was very good

or very bad. But that is not the case here.

HIS HONOUR:

The difficulty I have at the moment, Mr Uren,

is that there does seem to me to be any evidence as
to the respective positions of workers under both
sets of conditions. It seems to me to indicate why
it would be much better for an application for a stay to be dealt with by the Commission who have
far greater knowledge of the primary materials than
I do or possibly could get in the course of this
sort of hearing, and it would always be open at
some later stage to make an application to a judge
of this Court for a stay of those proceedings when

the Court would then be instructed by an analysis
of the issues and the materials by the Commission.

MR UREN:

What Your Honour says, as a matter of broad

principle, may be perfectly acceptable but, as a
matter of application to the particular cases here
is much less so, in our respectful submission,
because the situation has been that all of the
cases I think involve cases where there have been
State awards. In other words, there had been a
relatively happy situation swimming along for a
long time in which the terms and conditions of
employment have been fixed by either, let us say,
agreement or by adjudication of the relevant State
body.
Now, that being the case, the law has provided

for, let us say, what is thought to be basically

reasonable. Now, the mere fact that somebody wants

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to go to the federal Commission and get, let us
say, out of the State system, not to put it too
bluntly - - -

HIS HONOUR:

But that is not this case, is it? It may be

the situation in other cases but in this case a log

was filed on 4 March 1991. You have had long

hearings. Your client accepted that there was a

relevant dispute within the meaning of the Act. It
is perfectly open to you to take the view that you

now haye but it is not a case of somebody just suddenly invoking the jurisdiction. In a real
sense, the 1992 legislation seeks to change what
might be regarded as the then status quo.

MR UREN: Well, the status quo was always what was provided

for by the Victorian - - -

HIS HONOUR: Provided by the State.

MR UREN:

By the State, yes, by Victorian law.

And if

Your Honour would have regard to the dates in this
particular case in which the disput"e finding was on
3 June 1991 but none the less no award was produced
for consideration until 19 February 1993. Now, the
relevance of the State legislation to the
production of the award must be fairly obvious, or,

at any event, is certainly arguably obvious. One
would not need to be a Philadelphia lawyer to think
that the alleged earthquake which had occurred in
Victoria had produced the lifeboat, as it were,
into the federal system.

HIS HONOUR:

It was not until, what, December or something

like that, that the Nursing Federation sought a
conference, though.

MR UREN:

Yes, so it is very likely that what is currently

being done is, although it is the reviving of an
older position, the old position is over two years
and it is fairly clear that the status quo which
was, in our submission, the application of State
law to these employments, is sought to be altered by the current activity of presenting an award to
the Commission for its approval, even though there
may have been lying dormant, in the ground, as it
were, the previous possibility of that happening by

virtue of the earlier dispute finding. But the
point we make is that it would seem fairly clear
that the parties had proceeded happily along under
the State system and the State system had provided
terms and conditions which were acceptable until
the current situation.

HIS HONOUR:

What would ordinarily happen in the Commission

if the award was made and then you appeal to the
Full Bench? Would there be a stay of the award

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proceedings in the Commission until the Full Bench
appeal was heard?

MR UREN:

I doubt it, but I will see.

Your Honour, it

certainly would not be automatic; you would have to
apply.

HIS HONOUR:

I appreciate that but what is the usual

practice?

MR UREN:

Your Honour, I am told that there is no usual

practice; it depends on the nature of the case and
a whole lot of considerations. It may be, in this
case, in the circumstances, that there would be no
stay granted if the federal Commission took the

view that it was a good idea to be in the federal
system.

HIS HONOUR:

Can I just put to you what I have got in mind?

If you succeed and get a stay, then the making of the award is put back for some time if you
ultimately fail, and unless the Commission was to
make its award retrospective there would be real
problems about the rights of those engaged in this
particular industry and covered by the particular
award. On the other hand, if the matter at least
proceeds to the making of an award, the date for
the operation of that award is at least specified,
even if it is later stayed, either by the

Commission or by this Court. Why should this Court
intervene at this stage?

MR UREN:

Because there is a respectable argument for saying

that there is no power to make the award, and that
being the case then one just looks at the
consideration for practicality as to whether there
should be a stay.

HIS HONOUR:

The jurisdiction to stay in this Court is

exceptional, ordinarily used only to preserve the
subject-matter of the proceedings in this Court, or
in terms of the efficiency of the administration of
justice or whatever, as the case may be.

MR UREN:

The difficulty, Your Honour, is applying that

statement of exceptionality to all particular
cases. Now, Mr Justice Brennan in Griffin's case
referred to the general principle that this Court
will not grant a stay of a decision of the
Commission unless in exceptional circumstances, but
the considerations that His Honour mentioned in
that regard have got very little - I will go back
further - the reasons that His Honour gave for that
general principle have got very little to do with
the facts of this case, and in fact, in our
submission, nothing. His Honour mentioned matters
relating to the necessity to have industrial

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disputes quickly settled, where people need extra
money in their pay packet and have to budget for
things, and need to have an assurance of money and
not to be held up for some time, various things
like that, but none of those have -

HIS HONOUR:

I appreciate that. There is no criticism to

you, Mr Uren, but you say that does not apply in
this case but there is just no evidence before me
about·the matter.

MR UREN:

There is why we say it does not apply,

Your Honour, and the reason why we submit that the matters that Your Honour has mentioned, although relevant in other cases, are not relevant in this
one, is that this is a case where there have been,
presumably, acceptable conditions which still
govern the employment of the persons who are
seeking to come into the federal system.
Now, whether or not there are some differences

between the proposed awards and the old conditions
of a relevant minor nature is not to the point.
The point I am making is that, from a point of view
of practicality, everyone has been quite happy with
what there was until it turned out that the State
was going to alter its industrial system. But the
State has altered its industrial system by leaving
in place, in respect of currently employed people,
the things that everyone was happy with.
Now, that tends to allow the view to be taken

that you do not need a particular examination of,
let us say, an old award and the new proposed award
to see whether there is going to be any substantial
difference between one or the other, because the
Court could be assured that there is no real
likelihood that there will be a position of

material disadvantage or inappropriate disadvantage
by leaving things to be governed by the state of
law and the state of the awards, which still
pertains, with respect to everyone who is happy
with them, until they found out what the present
Victorian Government was going to provide with
respect to legislation. But none the less they are
still covered by what they were always covered by and they are covered by what they were happy with.

HIS HONOUR: Well, if they had new employees - - -

MR UREN:

New employees, yes, but the situation with respect

to new employees is that it is perhaps unlikely
that the length of time in which the stay would be
operative in the circumstances is such as to cause
there to be new employees of such numbers as would

give rise to countervailing considerations. Now,
if the Court was not going to make its decision in

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this or the other cases for many years and there
were then going to be hundreds of thousands of new
people who would be in a situation of disadvantage,
then one might say one thing, but if, on the other
hand, the situation is that this Court has had this
principle under consideration for some time then,
presumably, will give its judgment, in mind, I
think, from the necessity of things being settled
reasonably soon, then there are unlikely to be
teams, teams and teams and teams of new employees
knocking at the door and saying, "We are unhappy
with what we have got".
So it is really a question, in a sense, of

quantity. The quantity of disadvantaged people, if
there are any, is not likely to be sufficient to
prevent the granting of a stay. If there were
going to be millions it might be one thing, if
there were only going to be a few that might be
another, and the length of time over which the stay
is likely to be operative tends more to the
inconsequential, rather than to the very
consequential category.
So what we point to is the substantial

preservation of the current status quo with respect
to the workforce who are covered by the present
applications and we point to the uniqueness of the
situation which pertains here. That uniqueness, in
our submission, deprives the case of the
application of the reasons that have been given for
adopting the exceptional circumstances principle.
What Justice Brennan said in Griffin's case - - -

HIS HONOUR:	What is the reference?
MR UREN:	In the case of Re Griffin, (1988-89) 167 CLR 37.

That was a case which, as appears at page 39, the
nature of the application to this Court or the
reasons which caused the application to this Court

were quite different from the present ones. At the
bottom of the page, it appears that the
applications were made to this Court because the
relevant organization had said it had been:
denied natural justice in that the
Commissioner failed to provide it with an
opportunity to be heard -

Then at page 40 His Honour went on to say:

An application for the purpose of
securing or preventing the payment of an
increment to weekly wages is always attended

with some urgency. The dynamics of industrial
relations and the exigencies of household

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budgeting require early solutions to wage
disputes.
His Honour then went on to mention the
position of this Court with respect to the
supervision of the Conciliation and Arbitration

Commission. Then His Honour said:
The speedy resolution of the legal

aspects of industrial disputes is a desirable,
if not essential, element of an effective
conciliation and arbitration system.
Characteristically, the legal questions which
arise are of a familiar kind -

which His Honour then recited. After referring to
the difficulties of this Court deciding factual
matters, he went on to say at the bottom of that
paragraph and about an inch up from the bottom of
page 40:
But the resolution of this case will be
delayed inevitably to the possible detriment
of industrial peace.
Then, at page 42 His Honour said, at the top

of that page:
However that may be, there are more

substantial reasons for refusing a stay. A
stay of a Commissioner's decision is
exceptional ..... There are sound reasons for this rule. Decisions of the Commission are
made in a climate of industrial relations and
of economic conditions which presents a
multitude of considerations which the
Commission must evaluate in deciding where the
merits lie. This Court is concerned solely

with the legality of the exercise or purported
exercise of the Commission's powers and not
with the merits of the decision whose legality
is challenged. Exceptional circumstances need
to be shown to warrant the making of an order
by this Court, before it determines the
legality of an impugned decision, which
affects the merits of a problem in industrial
relations. In this case, it would be
inappropriate for this Court to attempt to
determine where the merits lie.
In the present case, in our submission, the

principles which His Honour referred to there which
gave rise to the self-denying ordinance, in a
sense, which requires the exercise of this Court's
jurisdiction to be only done where the case is
exceptional, do not really apply here. This is a
case where the point in issue, really, in substance

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in all of them, is whether the federal or the State
system should govern the conditions of employment
of employees of States or its agencies.
Now, the point is now whether someone should

get $10 more a week, or $5 less, or anything of

that sort. The substance of the case is the
constitutional one, it is a question of the
legality of the exercise of power, and the
constitutional legality. It is not a matter really
which goes to the merits of what I might call the
industrial dispute in the sense of the merits of
what the terms and conditions should be. It simply
goes to the question that, in substance, in the
case of all of them, the question is simply is
whether the attempted removal of certain workers to
the federal system is, or is not, something which
can be constitutional done.
Now, if that view of what is happening here is

right, then the reasons which caused
Mr Justice Brennan to say what he did clearly are not applicable and the case may be said to be exceptional in the sense that it is an exception from the usual run, the nature of the applications
which were made to the Commission, and the nature
of the application made to this Court.

HIS HONOUR: All cases that come here from the Commission,

almost without exception, raise a question of the
constitutionality of the Commission's order. There
may be cases concerning jurisdiction which do not
involve constitutional questions, but they tend to
be rare.

MR UREN:

That may or may not be so, but there are behind

all those cases, in any event, let us say,
industrial disputes about terms and conditions,

which then - - -

HIS HONOUR:

But there is ordinarily a question as to

whether there was a dispute extending beyond the
limits of one State.

MR UREN:

Yes, but the point I am making is that, in those

cases, I think they are cases where people want
something essentially different from what they have
already got, and then you have, rising from the fact that they want it, questions about whether there is or is not a dispute and whether it is
interstate or not, and other matters and whether it

is industrial or not. The present case, in our
submission, is not the same as those sort of things
because these cases are not really cases where
people want anything different in substance, except
to be under the umbrella of the federal system

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rather than be under the umbrella of a State
system.

HIS HONOUR:

With quite different conditions, I assume,

under the federal sphere than they do under the
present State sphere.

MR UREN:

If they say that there are substantial differences

between the awards which have been proposed or made
by the Federal Commission and the States, then I
suppose they will be able to say that is the case
and then these are cases where people want their
extra $10 a week, and things of that sort.

HIS HONOUR:

It might not necessarily simply be money, there

may be other conditions, I just do not know.

MR UREN:

The point we make, is that in the situation

relating to the current cases, the point of
substance is the removal of the State employees to the federal system. The point of substance is not
whether terms and conditions should be different in

any, and if so, what respect. So this case is
exceptional in that, I think, it must be the only -
well this case is exceptional in that it is the
legislative position in Victoria was has engendered
the matters which are the subject of present
consideration and not the matters relating to the
conditions themselves, as a matter of looking at
the particular provisions of the awards which have
either been made or sought.

HIS HONOUR:

People seek to bring cases in the Federal

Commission for all sorts of reasons, other than
improved conditions, and indeed, one of the basic
principles of the Commission is that the first
award usually does not depart from the principles
that the people of the employees previously had.
In other words, the first award principle usually
gives effect to the existing State awards.

MR UREN:

Which I think is a point in our favour.

Presumably the first awards which are made will not
materially alter the terms and conditions which
heretofore apply. That being the case, then there
is no material advantage to be got.

HIS HONOUR:

That may be the case and it may not be, but I

will have to hear from Mr Kenzie on that to see
whether there is any real - - -

MR UREN:

So far as we are aware, Your Honour's observation

as to the first award principles is correct, with
respect, and that would have the effect that the
removal to the federal system would not produce the
extra $10 or any other material change in
conditions and that what is really being sought is

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to not alter terms and conditions as such but to
remove the employees to a different industrial
jurisdiction.

HIS HONOUR: That is the question of the first award, then

there are questions of variations of award and
questions of dismissal and matters of that nature.

MR UREN:

They may or may not arise in the future, but none

the less, from the point of view of the grant of a
stay which is mainly a temporary matter, the
observation that Your Honour has made about what
the first award is likely to contain is very
pertinent, because that then would show that there
are no reasons of material advantage to the
individual employees which would be denied them by
the preservation of the current status quo for what
hopefully will be a relatively short period of
time.
It is difficult perhaps for our learned

friends to assert in any sensible way that the
exigencies of the case are such that the federal

jurisdiction must be invoked at the earliest
opportunity, bearing in mind in the first case, the
community health centres one, nothing was· done of a
substantial nature from 3 June 1991 until an award
was produced on 19 February 1993. In case No 3
which involves the State nurses, the logs there go
back to 1983, three of them, and one of them in
1987. The dispute findings are 1984 and 1987.

HIS HONOUR:

I appreciate that, that no award has been made

between 3 June 1991 and what is now proposed, but
in paragraph 7 of Mr McArdle's affidavit in Ml0, he
says:
During 1991 and 1992 hearings in the
Commission took place in Brisbane, involving

respondents to the dispute in the State of

Queensland. The Commission has made an award
with respect to those respondents.

MR UREN:	But that is not us.
HIS HONOUR:	I appreciate it is not you, but in the ordinary

course of these events when you have got parties
seeking nationwide awards, one tends to deal with
it on a State basis.

MR UREN:

We had rather thought that the reason for doing it

on a State basis is if you are happy with what is
available in the State, you do not change things.

HIS HONOUR: That is certainly one reason.

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MR UREN:

That is why no application was made in Victoria.

But the point we are making is that this case is not the sort of case to which Mr Justice Brennan

referred in Griffin. The cases to which he
referred there are the cases which gave rise to the
requirement that there will only be a stay where
something is exceptional. This is an exceptional
case, for the reasons we have mentioned, and there
is no material harm done to anybody by the
preservation of the status quo. Preservation of
the status quo is the purpose for applying for a
stay, as is the purpose for applying for interim
injunctions.
One looks at the relative position of the

parties and says to each, "Look, what harm would it
do you?" In the current case, looking at the
workers, it does not do them any real harm at all;
in fact it would probably do them none except for
people who were newly employed. But whether they
are going to be of a sufficient number to cause
there to be a change of a view which might
otherwise be taken, in our submission, they are not
likely to be and therefore - - -

HIS HONOUR:	I am not sure that you can carry across the doctrine in relation to interim injunctions into
this particular field. For instance, there is no
undertaking for damages, for a start.

MR UREN:

The Crown would not give one, anyhow;

the Crown

does not have to give an undertaking.

HIS HONOUR:

No, but the fact that it does not is always a

relevant factor as to - - -

MR UREN:

Your Honour, with respect, it cannot be because

the Crown could scarcely be disadvantaged by the
granting of the privilege not to give an injunction
from getting an injunction where the public
interest required it, because the Crown does not operate for private interest. It applies in the interests of the community in general as we do

here. And it is the interests of the community in
general and not some private advantage that we
assert.

HIS HONOUR:

I appreciate that, but public interest has

sometimes got to be weighed against private
interest, and there are cases, if my recollection
is correct, in relation to interim injunctions
where an injunction has been refused simply because
the Crown will not be giving any undertakings.

MR UREN: Perhaps those depend on individual cases, but the

immunity of the Crown from giving an injunction

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could scarcely be used against it in a case where
it approaches a court in the public interest.
The other thing one might say too is that in

many of the cases to which His Honour
Mr Justice Brennan referred the public interest may
not have been able to be invoked, or may not have
been invoked. In other words, the application that
we make is to preserve a situation which is
provided for by Victorian law. Whether one likes
the law or not is not to the point. That is, in
fact, the law and that persons who move this Court
in support of it do so for a public interest, not
for a private interest. The persons who oppose it,
of course, do so for a private interest and not for
a public interest.

HIS HONOUR:

Yes, but their reply would surely be that if

they invoke federal law and federal law results in
the displacement of State law that is the result of
the operation of the Constitution. It is very
difficult to carry across notions of ..... in this
particular area in this federal situation.

MR UREN: In our respectful submission, no. It is a matter

to be considered that the court is asked to exercise a jurisdiction not in favour of an individual person, but for public considerations.
Whether that has a lot or a little effect would depend on a number of factors, one of which would

be the likely effect on the other side. If the
likely effect on the other side is either nought or
not much with respect to matters of materiality,
then the question of - - -

HIS HONOUR:

You may be right, but why, as a matter of

principle, should there be a distinction made

between the Crown and its employees and a private
employer and its employees when the Industrial
Relations Act provides for the Crown in right to the State being bound by awards of the federal

Commis.ion. The Act does not distinguish between
the Crown as an employer and a private employer.

MR UREN:

No, but I think we are putting a somewhat

different position which is that the federal Act
does not make such a distinction, but none the
less, the proposition that we put is that there is
a status quo provided by Victorian law.

HIS HONOUR: That is a different point though, is it not,

rather than relying on the Crown putting this
forward?

MR UREN: It goes to the nature of the interest which is
asserted, and that is a public interest, not a

private one. I do not put it any higher than

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saying that and, in our submission, that is a
consideration which is relevant.
Another thing is if a stay is granted and

ultimately the argument that we put succeeds, then
things will remain as they currently are, and that
would be properly so. If no stay is granted and a federal award is made with whatever conditions may
be in it, either on a first award basis or on a
variation basis, then there will be a substantial

change-which will have to be reversed. I hesitate
to say this is like a custody case where the
question is who should have the children until the

trial of the action. But none the less, the
principle which relates to those sorts of cases is
not irrelevant with respect to the current one,
which is that changes of a substantial nature ought
not to be made pending the resolution of a dispute
as to whether those changes should be made without
there being very good reason.

HIS HONOUR:

Yes, but you are seeking to intervene at this

particular stage of the proceedings, and the
efficiency of the administration of justice is not
helped generally by parties interrupting
proceedings in trial courts and similar tribunals
by sorties into appellate courts seeking orders and
overruling of orders made by trial courts and

tribunals. And whether it be criminal law, or
whether it be civil law or whether it be industrial
arbitration, the system will proceed much more
efficiently if matters which are started in those
bodies are carried on to the end, and then the
ordinary appellate processes are then relied upon.
But here, if an award is made, you have your
rights, and in this particular case, subject to the
question of prematurity, your jurisdictional

application can be heard while the matter is being
processed.

MR UREN: All I can say to what Your Honour says is, yes and

no. In some cases what Your Honour says is quite right and other cases it is not.

The principle
that Your Honour referred to is, of course, quite
right, but its application depends on cases and there are cases in the criminal area where this
Court has allowed the point to be raised even
though - - -

HIS HONOUR: There is no doubt about that.

MR UREN:

And so, what Your Honour says is not a bar.

The

question is, what does it mean in the context of
this case, and what does it mean in the context of

any other case. Now, these cases are cases where
if you were to close your eyes and just look at
what is happening, everyone has been happy until a

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short time ago and then they became unhappy and

tried to go north, as it were. Now that is not to
be regarded as being anything comparable to a
criminal case which a magistrate is hearing in a
magistrates court and somebody gets up and says I
want to take - you are wrong in that point of law;
I want to have the case stopped whilst I go off and have that determined through the multitude of processes which might be provided by an ADJR case,
or something of that sort - to go to a Federal
Court, then you might go to a Full Federal Court then you might go to this Court and by the time you come back to the magistrate three or four years
have passed.
This case is nothing like that. It just cannot be. The simple fact is this Court has reached a situation where it has heard a case
involving the same point; decisions will be made at
an appropriate time. The proceedings which will be
stayed, if a stay is granted, are not things on
which there is currently a hearing.on foot, in the
sense that there are courts which have been sitting
and hearing arguments for days, or upon which any
considerations of that relate - that nature apply. current industrial situation has caused some
relatively lethargic people to get off their
backsides, as it were, and do something about what
they have not done something about before and this
Court, if this Court makes a decision and people have gone through all the processes of having
awards made or not made, and the time of the
Commission taken up with making them and appealing
them and questions arise as to whether the Full
Bench should be involved or not and then ultimately coming up to this Court, the expense and the paper and time of the individual people, including the

tribunal itself is just very large.

HIS HONOUR: Well I understood that. This is the argument

that is always put, whether the case be criminal,
civil or arbitration as to why some superior court

should intervene. Now, if we are dealing with Ml0,
do you have any other points as to why a stay
should be granted?

MR UREN:

I would like to, whilst talking about that case,

refer Your Honour to what.Mr Justice Dawson said in
a case in which he gave judgment on 15 September
last year in the case involving the State Public
Services Federation. If I could have Your Honour
given a copy of His Honour's judgment in that case.
Now that was a case where, in fact, an agreement
had been reached between the State Government and
the relevant organization and an application had
been made to have it certified by the Commission

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4/3/93

and His Honour left in place the stay which he had
granted against the certification application. At
the bottom of page 7, after referring to a number
of considerations one way, His Honour said:
On the other hand, it is clear that until the challenge to Div. 3A and the jurisdiction of the Commission is resolved, there must remain uncertainty as to the status of the agreement

even if certified. The uncertainty would be
as to whether Federal or State legislation was
applicable in the determination of industrial
matters concerning a large number of employees
in a significant number of government
departments and instrumentalities. It was
suggested on behalf of the SPSF that most of
the members of the SPSF are in favour of
certification of the agreement, but not all
employees are members of the Union and, in any
event, the approval of the members would do
nothing to resolve the uncertainties to which
certification of the agreement would give
rise.

And His Honour then thought that in all the
circumstances the balance of convenience and the
public interest was best served by leaving the stay

in place. Now, a little of which His Honour said
there is of useful application to the cases before
Your Honour here.
The position of uncertainty which would exist

if the awards were made in the federal system is no
less acute and no less relevant and no less
important than the position of uncertainty that
Mr Justice Dawson observed would exist in that particular case. That goes back to the question of
change to which I was addressing Your Honour a

moment ago.

HIS HONOUR:	Yes.
MR UREN:	The current status quo is that there are

agreements by virtue of continued awards in force
with respect to the vast majority of relevant
people.

HIS HONOUR:

I notice in that particular case that the award

did not purport to make any alteration as to the
terms and conditions of employees.

MR UREN:

Your Honour, in that case I do not think it was an

award. I think what was - - -

HIS HONOUR: It was an agreement.

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MR UREN:	Yes, merely to have certified an agreement.	So

the terms and conditions would, of course, remain

the same. But the question of uncertainty of

status is of importance. I mean, we might be
prosecuted for being in breach, perhaps, and that
could give rise to situations of unsatisfactory
uncertainty. The uncertainty of the status of the
award is a matter which His Honour - sorry, I will

go back a square. The uncertainty of the status of
the agreement was really, it appears, so far as
His Honour was concerned, the crucial matter, and
it is not clear to us how there could be a
successful distinguishing of the situation before
His Honour - a distinction based on principle - and
the situation before Mr Justice Dawson or the
situation before Your Honour.

HIS HONOUR:

How many employees are involved in this

particular case? There was what, 103 community
centres served, I think, was there not, from
recollection in this Ml0, and how many employees?

MR UREN:

I am not able to say how many.

I cannot say.

There may be material as to that effect but I
cannot say offhand how many, but I dare say 35,000
Victorian public servants, which was what His
Honour was concerned with in the State Public
Services Federation case, is sufficient number to
make irrelevant any consideration of whether there
were somewhat more or somewhat less in the Community Health Centres case or any - - -

HIS HONOUR:

I was wondering whether or not there was only a

small number of employees. It is one thing to say
there is uncertainty involving 35,000 people; it is served but I take it that was throughout Australia.
another thing if you are talking about 20 people.

MR UREN:

None of them are very large organizations, so I

dare say there would be unlikely to be more than 10
people employed by each. But none the less, the
thing about uncertainty is that uncertainty is
important to all persons covered by an award, no
matter how many, and if a stay is sought and the
question of certainty or uncertainty arises, it is
just as relevant if there is only one person
involved as if there were 15 or 20 or 5000 or

10,000. The application of the award and whether
it is enforceable or not, and if so to what extent,
is a matter which ought not to be left to a
situation of uncertainty for any period of time if
that situation can be relevantly resolved.
Now, in the present case, if there is no stay

and if awards are made, as may well be likely in
the Commission because, if Your Honour refused a

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4/3/93

stay we would think it may be unlikely the
Commission would grant one, and the situation would
then be that if the awards were in fact made, then
their enforceability or otherwise and their status
would remain uncertain until some later time. If a
stay was granted there would be no uncertain
condition. There is no doubt that if a stay is not
granted, and the State system remains applicable to
these employees, there is no question of
uncertainty. That is without doubt a lawful and a
valid situation.
So, the points we make in favour of the status

quo being in favour of the stay, really, in our

submission, are quite compelling. Nobody, it
seems will be given any material disadvantage in
the sense of having conditions imposed on them
which are not those which have already pertained,
and secondly, the situation of uncertainty which
the making of an award would engender, would be
completely avoided if the stay was granted, and
also the time of the Commission will be preserved.
Another distinction between this case and the sorts that Your Honour was referring to before are that this is basically a one-stop situation. Instead of
whether - - -

HIS HONOUR:

Well, I understand what you mean by that. You

mean if you succeed, that is the end of the matter.

MR UREN:

Yes.

Put it this way, if we succeed it is the end

of the matter. If one looked at the situation like
it was a pen and there were 50 horses and if there
was a gate, we say the gate should be closed until
later.
On the other hand, if Your Honour says, "Open

the gate now", the 50 horses nick off down the hill
and a lot of time is wasted getting them back in

remain closed. That may not be a very appropriate the pen when the Court says the gate should always
analogy, but none the less the point I think is
relatively clear. This is a one-stop matter which
will hold things up momentarily until something
eventually happens. If what eventually happens,
happens one way, then everything can proceed in an
orderly fashion.

If it goes in another way, then a whole lot of things which have happened in the past, will have
to be upset, undone and rights which people thought

they had, they will not have, and they will get cross about that, and the situation in Victoria
will be worse because people, lets say, who thought
they were in one system and were happy about it,
may be now find they are in another system and they
will get - so the failure to grant a stay in the

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4/3/93

event that our argument succeeds ultimately, is
likely to engender more unhappiness and more
disputation than the granting of a stay which is
easily understandable on the basis that things
ought to remain in a, let us say, relatively
satisfactory state that they are, until this Court
makes a final decision.
We are really in favour perhaps, of order and

keeping expense down and not having people go to
unnecessary trouble in making awards, and then not
having people unnecessarily upset when the awards,
as we hope in due course, will be declared invalid.
Now, against those considerations, we are

unable, really, to see what could be put, except
the proposition that, "Well, you are already in the
Commission, so why not stay there?", and the
proposition that - - -

HIS HONOUR: Well, I think you should wait and listen to

your opponent's argument, and then you can reply.

MR UREN:

Could I observe to Your Honour that in the third

case which is the State Nurses case, I have
mentioned the dates which have been involved there,
the logs themselves were served in 1983 and 1987,
and the dispute hearings were in 1984 and 1987.

HIS HONOUR:

What is the State Nurses case? Is that

involved?

MR UREN: That involves nurses in public hospitals and

public health institutions. It is the third one, I

think, which must be Ml2, yes. Now that is
really a - - -

HIS HONOUR:

It started back in 1983, did it not? 16 May,

1983 and then you had the Hospital Employees'
Union, as it then was, issuing a log in July 1983.

MR UREN:

Yes, the point we make is that really the cases

divide themselves into two categories. There are
the old cases where people have not done anything
much for a long time, and that is number 1 and
number 3, and there are the cases where people
realized that they would be better off in the
federal system and did something very quickly very
recently and that is number 2 and number 4.
Now, in either case, we would say the obvious

things. The first one is that - - -

HIS HONOUR: Just remind me about Ml2. Is there any

explanation, in the material before me, as to the
delay between 83, 92 - - -

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MR UREN:

No, I do not think there is.

Our learned friends

will refer it to Your Honour if there is, but I am
not aware that there is, actually.

So, two of them seem to be engendered by the current situation.

No 2, which involves nurses in
psychiatric and intellectual disabled facilities,
engendered such interest in the organization
involved that the dispute finding, which was made
on 10 December 1992, then allowed them to persuade
the Commission to sit on the Friday and the
Saturday, the 11th and 12th December, to make an

interim award. So it is obvious that the State
situation was the reason for - - -

HIS HONOUR: That case concerned the - - -

MR UREN:

- - the redundancy package, the voluntary

redundancy package.

HIS HONOUR:

The voluntary departure fund.

What is it?

MR UREN:	The voluntary redundancy package.
HIS HONOUR:	Yes.
MR UREN:	The difficulty we would have with that is really

that one of the provisions of the award prevented
the State public servants, to whom it applied, from
having their employments terminated, except either
for fault or for incapacity. So, in other words,
it would then be not possible to terminate their
employment merely by virtue of giving the notice
which their employment contract provided for.
There is an argument, which somebody had put, that
even the acceptance of a situation where the
employment ceased, by virtue of affluxion of time,

would also come within the provisions of the award.
But none the less the effect of part of the award
with which we are particularly concerned, is that
it prevents the termination of the services of the
relevant employees by giving the appropriate
notice.

HIS HONOUR:	But supposing you got a stay order in that particular case and then you dismiss somebody for a
reason other than fault or incapacity - - -?

MR UREN:

I know what Your Honour means.

That is our

weakest point, weakest case, I think, with respect
to a stay, because that might engender in a
particular person's material change and condition.
But none the less it is fairly odd to have an award
which prevents you from terminating people's
employment in accordance with a period of notice
which the law allows, and to require you to keep
them on foot until either they drop or turn out to

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4/3/93

be incapable of carrying out their function or

commit some fault. Now, that is a situation which
is so extraordinary, but the very extraordinariness
of it goes far towards supporting a proposition
that there should be a stay of it until its
legitimacy, in the constitutional sense, is
resolved.

HIS HONOUR:

But its constitutionality does not depend upon

its terms, does it?

MR UREN:

Yes, because we have a discrimination argument

with respect to that one.

HIS HONOUR: Discrimination?

MR UREN:

Yes.

In other words, the State of Victoria is

treated differently from other employees by the
imposition of an obligation on them to keep these
particular employees on the books until particular
things happen.

HIS HONOUR:

That is not a result of any statute which

singles them out or discriminates against them, it
is the result of an order made in a particular
case, is it not?

MR UREN:

It is the result of an order made in a particular

case, but none the less the point that I think is
traditionally made is that that being the effect of
what is done, the power which is given should not
be interpreted as allowing that result to be
achieved because the result is one of
discrimination, and that is the way we put that.
So, we have other arguments but none the less, from
the constitutional point of view in that case, one
of the points which is made is that the award has a

discriminatory effect or operation, and the cases

on discrimination, as it appears to us, look to the
effect of what is done and not merely to textual
considerations. It does not have to single out the
State of Victoria providing it can be seen what is
aimed at and seen if it operates in a way which is
discriminatory.
Yes, I am reminded that the material I think

shows that the constitutional arguments which we
have put have been already rejected by the

Commission in various - I will go back a square. I
do not think this is the material, but it is the
case that - - -

HIS HONOUR:

I appreciate the Full Bench has rejected these

arguments.

MR UREN:

Yes, single Commissioners have and Full Benches

have too.

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4/3/93

HIS HONOUR:	Yes.
MR UREN:	So there is very little point in going to a Full

Bench and asking for a stay based on the
arguability of the constitutional points.
The great likelihood is that a Full Bench is

likely to say, "Look, there you are, no stay by the

High Court. Why shouldn't we just take the
position which we've already taken?" Stays have
been granted in - - -

HIS HONOUR:

What about the point that you ask for a stay

because you have got this challenge pending?

MR UREN:	I am sorry, Your Honour?
HIS HONOUR:	What about the point that you could apply for a

stay to the Full Bench or a commissioner on the
basis that you have got an appeal or these
Burgundy
proceedings pending? In civil cases, the a stay pending the grant of special leave to appeal
against an order, you go back to the Court of
Appeal or the Full Court and ask for the stay
there.

MR UREN:

But if our reason for asking for a stay remains

the same in the Commission as it is here - - -

HIS HONOUR:

But it does not, does it, because you have a

further factor. The further factor is that the
Full Bench knows a great deal more about the
background and the inter-relation between the two
matters than I do.

MR UREN:

Not relevantly, though.

The relevant factual

matters, in our submission, are those which we have

mentioned to Your Honour. There are no more so far as we are aware, and the situation will be that the

Full Bench will presumably consider that - let us put it this way: if we go back and ask for a stay
and get one, then we have got it. But if we do not
get one, we are in the same position as we are now;

in other words, we would approach this Court. Is
there any real benefit to be gained by - - -

HIS HONOUR:

There may well be, because this Court would

then have the advantage of a judgment of the Full Bench or a Commissioner who have been living with these matters for some period of time.

MR UREN:

What they have been living with is no more

peculiar to the industrial commission sphere than

it is to this Court. In other words, what they
have been living with, so far as the application
for a stay is concerned, is the proposition that

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4/3/93

what is being done is unconstitutional and there is
a case on foot in the High Court in which the
question of unconstitutionality or otherwise is
going to be resolved of certain things and that is
going to have an effect on the cases in the
Commission and therefore they should stop for the
time being.

HIS HONOUR:

No, but it is more than that, is it not,

Mr Uren? You would be operating against the
background where presumably you have got an order
nisi because if you have not got an order nisi, no·
question of a stay arises, and then it would be a
question for the Commission to weigh up the merits
of the case against the background of the fact that
an order nisi has been granted.

MR UREN:

Your Honour, I have a general feeling that - I was

about to say the getting of the order nisi is the
easiest part of the case, but what I really meant
by that was that in the circumstances that this
Court has already got under its consideration the
constitutional point that we are raising, the
getting of the order nisi in subsequent cases which
raise that very point is no big deal, if I might
say with respect.
In other words, the Commission is unlikely to

be impressed by the fact that an order nisi was
granted in a case which raised the same points as
the case which the Court already had under

consideration. So the currency of that
consideration possibly then would suffer a severe
devaluation by virtue of that consideration, so we
would scarcely be likely to want to put that as the
matter which is of prime consideration, that the
High Court has granted an order nisi raising the

same point.

HIS HONOUR:

Yes, but the point that is against you, Mr Uren

- and I think you have got to face up to this - is
that you have not sought to apply for a stay of the

body which s dealing with the matter. Then you
come up and ask this Court to grant a stay when the
Court at best can only have an understanding of the
outline of the issues and the consequences of any
award of the Commission.

MR UREN:

Your Honour, I am not too sure that what

Your Honour says is right with respect to all of

the cases in any event. I think in two of the
cases, in any event, the Commission has said that

it will go on. In one of the cases an application
was made for an adjournment, which was refused, and
that is the first one, and that was the one in
which an application was then made for a reference

to a Full Bench. Now, the application for

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adjournment was made on the basis that an
application was to be made to this Court and, no
doubt, the Commissioner had in mind also the fact
that the High Court has already got this
constitutional point under consideration.

HIS HONOUR:	Yes, but in that case you have got no award and one can understand that the Commission would want
to proceed on and hear the matter until an award,
but it is a different question as to whether the
Commission would then grant a stay as opposed to an
adjournment at an earlier stage.

MR UREN: There is no substantial differences between

granting a stay of the operation of the finding of a dispute and the adjourning of the matter pending the decision of this Court. I mean, the practical
considerations are the same. There is no award and

things could be left as they were. But that does
not seem to be the view which the Commissioner

took. I suppose it might be said that he would or
could make an award and then grant a stay of its
operation but that would mean that in all of these
cases we would - and indeed in other cases
involving the same point, because there are other
cases of a similar nature which are occurring - - -

HIS HONOUR: Well, in Burgundy Royale it was laid down that

ordinarily when you seek a stay in a special leave
application you should approach the court which had
given the decision from which special leave to
appeal is sought. There is no reason why that
doctrine should not apply in this field. Indeed, the reasons for it applying seem to me to be even stronger.

MR UREN:	I think the difficulty is that - - -
HIS HONOUR:	If you fail, then it is open to you to come up

here but the question arises as to why this Court
should be burdened with applications for a stay
when there are appropriate tribunals that can deal with the question and may or may not grant it, and
if the application fails, then it can be brought up
here.

MR UREN:

We understand the reasons of convenience on which

those principles apply but none the less these
cases are a group of cases which have got what we
submit, in any event, are exceptional
considerations attached to them. The likelihood is that the applications for a stay will be vigorously
opposed. There is certainly, anyhow, a possibility
that they will not be granted, and if they are not granted then we, let us say, come back here. Now,
one might ask oneself - I will go back a square.

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4/3/93

The reason for corning here was not in order to
circumvent the processes of the Commission but
simply because it seemed to us to be silly to have
these multitude of cases going through the
Commission when they could be stopped temporarily by the simple process which - - -

HIS HONOUR:

Yes.

I do not think you are answering what I

put to you about why you could not have done that
before the Full Bench.

MR UREN:

We would have had to have done it in all of the

cases, Your Honour.

HIS HONOUR:	Of course you would have.
MR UREN:	And that then involves considerations of time,

expense and convenience and also of appropriateness
because if the point which we would be urging on
the Full Bench as a reason for granting a stay is
the same as the one which we are urging on
Your Honour, which it is, then having got here,
there is no reason why, in the circumstances of
this case, this Court cannot give the view which it
gives about whether there should be a stay or not
based solely on the propositions that we have
mentioned.

HIS HONOUR:

Yes, I know that.

One of your basic

propositions is that there is no real alteration of
the status quo.

MR UREN:

No real alteration, and also there is a genuine

interest in there not being an uncertainty as to
what happens and so forth. Also the fact that
there is a genuine argument available for the
invalidity of what might happen if an award was
made. Those things being there, I get no greater

validity by being, let us say, put through the
processes of the Commission.

HIS HONOUR:

I think the status quo point does.

But you are

just going over old ground, Mr Uren, you will have
to move along.

MR UREN:

Yes.

Can I also mention the question of time.

There is no guarantee that the Commission will hear
applications for a stay with any particular degree

we have appealed against a decision and the appeal,

of urgency. There was one case, I think, in which or the day before been listed for hearing in April.
I cannot say what - - -

HIS HONOUR: That is the hearing of an appeal, is it not, as

opposed to an application for a stay?

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4/3/93

MR UREN:

I cannot say whether the Commission will or will

not give us urgent time for the purposes of
determining whether there should be a stay or not.
But on the assumption that the application for
stays will be opposed and they will be opposed in
all cases, then what the Commissioner will be
confronted with, and the Full Bench will be
confronted with, is a number of applications in
different cases for stays in which people will
oppose them and what we will assert is the same
thing_as we are putting to Your Honour. But when
these things will actually get on in the Commission
is another matter.
The question which really arises in going to

this Court is that if there are a lot of things in
the Commission which will require the Commission to
make time available to hear a number of cases, but
they none the iess, in the circumstances, bearing
in mind this Court's supervisory jurisdiction of
the Commission, involve one simple point which can be put just as well in one spot, namely here, then
there is very little to be said, in our respectful
submission -

HIS HONOUR:

You keep saying that it can be put just as well

here as it can there? It is a matter that I do not
accept, Mr Uren, I am afraid. I think there is no
doubt that this Court can make orders dealing with

the materials before it. But it seems to me
blindingly obvious that the Commission is much
closer to the matter than this Court is and is
therefore in a better position to make a judgment
as to whether or not the matter should be stayed.
If the Commission rejects an application for a
stay, then an application can be made to this
Court, which then has the benefit of the
Commission's reasons for refusing the stay.

MR UREN:

I understand what Your Honour says, but just by

way of winding up, that, in our submission,
although it may be the case in many cases, is not
so in this one.

HIS HONOUR:

I am not saying that it is against you in this

particular case - I am not saying it is decisive in
this particular case, but it does seem to me a
weakness in your case that you have not applied for
a stay of proceedings before the Commission.

MR UREN:

Yes, we understand what Your Honour says in that

regard. Could I, in conclusion, mention that the
Judges of this Court have granted a stay of various
sorts of proceedings involving the same

constitutional issue. Mr Justice Toohey, on
20 July 1992 in a matter which is number PlS of
1992, I will hand Your Honour copies of these

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4/3/93

orders, made an order in a matter in respect of
which the Australian Teachers' Union was one of the
respondents. It involved the State of West
Australia and His Honour ordered that the order
nisi operate as a stay of further proceedings in so
far as it related to the West Australian employer.
On 11 December 1991, in matter No P43 of that

year, the matter involving the State Public
Services Federation, and again the State of Western
Australia, I think, His Honour, on grounds which
involved a similar constitutional point, ordered
also that the order nisi operate as a stay of
further proceedings in respect of the matters
contained in the finding of a dispute and the
making of an award in so far as it involved the
State of Western Australia.
I understand, although I do not have a copy of the order, that Justice Gaudron made a similar
order in August 1992 in a matter which I think is
the New South Wales equivalent of the matter
involving the Australian Teachers Union, and also
in the matter in which Mr Justice Dawson gave
judgment on 15 September 1992. His Honour also
granted a stay and, in all of these cases, the
question of whether one should have gone first to
one tribunal or the other would probably have been
equally based.
Justice Gaudron's judgment was in S97 of 1992,

the case involving the Australian Teachers Union v
State of New South Wales and Her Honour ordered
that the proceedings in that matter be stayed. I
hand Your Honour copies of the orders in those
cases. Taking those together with the judgement of
Mr Justice Dawson, in our submission, the question

of whether one should or should not go to the lower
tribunal first seems not, perhaps, to have caused
those judges anyhow to decline to exercise
jurisdiction to make a stay and for the reasons we
have submitted, in each of these cases,
Your Honour, should be the same.

HIS HONOUR:

Yes.

They are the submissions you put in

relation to all the matters?

MR UREN:	They are, yes.
HIS HONOUR:	Thank you, Mr Uren. Yes, Mr Kenzie.
MR KENZIE:	Your Honour, we have filed, in the matters Ml2

and Ml0, an affidavit of Mr Gardner. Does the
Court that affidavit.

HIS HONOUR:

Yes.

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4/3/93

MR KENZIE:	I would imagine that the Court has not had the opportunity to become familiar with that.
HIS HONOUR:	No.
MR KENZIE:	Your Honour, could I take the Court to some

material parts of it?

HIS HONOUR: Well, you read that affidavit, do you?

MR KENZIE:

I read the affidavit formally,Your Honour, and

rely on it. There is a significant degree of
overlap, particularly in relation to Ml2
between ..... and the affidavit Mr Uren relies on.
That is explained by virtue of the chronology of
these proceedings, but I do not think that will
affect things. Could I take Your Honour to some of
the paragraphs and I will do so as briefly as
possible.
Ml2, which is, of course, the general award

matter, is picked up in paragraph 3. The
chronology of the proceedings, or some chronology
of the proceedings, is incomplete, is dealt with in
paragraph 3. Paragraph 3 provides that:
Since 1988 awards have been made in part
settlement of the disputes in the States of
Tasmania, South Australia, Western Australia
and Queensland.

That includes one of the matters that Your Honour
asked Mr Uren about. That Queensland matter was
the matter that was resolved finally in the months
immediately prior to the matters addressed in the

succeeding paragraphs of the affidavit. So what
you actually have then is a pattern of a national
application for award, processed over the years in
relation to different States and the Victorian
matter coming to a head at the end of 1992.

Paragraph 5 deals with the filing of the

application on 9 November for:
an application for an Award in partial
settlement of the 1983 disputes -

This all followed the proceedings that have earlier
been referred to. Paragraph 6 details the passage
of the Employee Relations Act and to perceived
concern as to ttconfusion and de-stabilizationtt,
which did impact upon the timing of the matter, but
of course not in a way that impacts upon the
genuineness of the dispute or its resolution.
Paragraph 7 is material. That details the

proceedings for Deputy President Riordan on

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8 December 1992. It is one of the matters that
Mr Uren adverted to. There submissions were made
by the Crown to Deputy President Riordan that in
light of the changed industrial regime Deputy
President Riordan should adjourn the proceedings:
in order to consider whether an application
might be pursued under Section lll(l)(g).

This was in circumstances where, as the materials
before the Court will disclose, there had already
been a substantial lll(l)(g) proceeding before the
Commission at an earlier stage which was resolved
against the interests of the Crown in favour of the

ANF. Paragraph 7 goes on to detail the matters
which were put to Deputy President Riordan,
including matters in relation to the effect of the
Employee Relations Act.
It was made clear to the Senior Deputy
President that the new Victorian industrial regime was in conflict with the terms of the
proposed award and the existing terms and
conditions of employees under the State
awards .....
8. On 23 December 1992 Senior Deputy

President Riordan published his decision.

That decision is exhibited. In that decision the fairness to both sides and he decided that an award
should be made without delay and:
determined that in the circumstances it should
operate from the date of his decision.

So he was acting in relation to submissions on
industrial matters which were put to him and
decided in the circumstances of the case that that
award should be made without delay. There was an
appeal from that and an application for a stay.
That application came on before the President of the Commission, ultimately after some toing and froing which had to do with the fact that an order
had not been made. Counsel for both the Crown and
the ANF put submissions to the President in
relation to the stay application and the President
was informed of the proposal to make application to
this Court.
Your Honour, could I direct Your Honour's

attention to the transcript of that proceeding,
briefly? At the conclusion of the debate before
the President in PJG 3, the President said at
page 39 of the transcript, Your Honour - does

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Your Honour have that - this was following full
submissions put on the stay.

HIS HONOUR:	Yes.
MR UREN:	His Honour said to Mr Kaufman, who was then

appearing, at 39 line 30:
I am considering whether I should not await

the results of your application to the - for
an order nisi to the High court before I make

a decision in relation to this matter. Do you
have any comment about that?

And then there was some discussion about that.
Mr Kaufman said:
the considerations ..... will be
different ..... The High Court would not be
interested in some of the matters with which

this commission should be interested. Some of
the other grounds of the appeal which do not
go to the constitutional grounds -

and, Your Honour, that is a reference to the fact
that the Crown was alleging that Deputy President
Riordan had not given the Crown natural justice and
other matters which remain extant in the
Commission; matters going to ambit and the like.
His Honour then said, and he was directing

these comments to Mr Kaufman alone, and not to my
learned junior Mr Hinkley, who appeared:
I had in mind, Mr Kaufman, if I refused to
grant a stay in this application, it might
prejudice your position before the High Court.

Mr Kaufman: Yes, it might, Your Honour.

His Honour: That is why I mentioned to you
the question of whether I should await the
results of those proceedings.

And he was invited then to resume the hearing
pending after a result is known from the High

Court. So that the election was then taken by the
Crown not to seek to press the stay application
before the President, and in those circumstances
and really in circumstances which did not involve a
debate between the Commission and Mr Hinkley, the
Commission then adjourned the proceeding.
So the situation in relation to the general

award matter is that an application for leave to appeal has been filed, an application for a stay

has been made. It has been put to the Commission,

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4/3/93 but the Crown has accepted that its position should not be dealt with in that case, notwithstanding the time and expense taken to get everyone to the door

of the court, and has elected to put its position

first in the High Court.

So that is the true

position in relation to the general award matter,

Your Honour. That is where it stands.

Now, paragraph 10 of the affidavit refers to
some matters of significance in relation to the

award.- I will come in due course to the
relationship between this and the State position,
but Your Honour can see in relation to the State things -
award that the federal award issued by Deputy
annual incremental advancement and a
classification and career structure for nurses
obtained by the ANF over some years in
proceedings before the former Industrial
Relations Commission of Victoria established
under the now repealed Industrial Relations
Act 1979 (Vic). The content of the federal
award reflects that contained in the former
State Awards of the Industrial Relations
Commission of Victoria ..... By reason of the
Employee Relations Act it would be open to employers in the absence of the federal award
to seek to negotiate individual employment
agreements that had no regard to incremental
advancement, or to a classification and career
structure. Of real significance to the ANF in
this regard is the potential jeopardy to the
application of the 1972 Equal Pay for work of
equal value principle -

and the like. And then paragraph 11 deals with new
employees:
The position of new employees ..... is not
subject to the protection of the ''roll over"
provisions -

which are the ones Mr Uren read in relation to

section 24(3). You need continuity of employment
to come in under that umbrella.
New employees would embrace any employees
changing their employer. I am aware as a
result of evidence in proceedings before the
AIRC of significant levels of intrastate and interstate mobility among nurses. I am also aware of the evidence of senior nurses before
the AIRC to the effect that mobility among

nurses was professionally desirable. The
position of new employees is that the employer

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4/3/93

would, in the absence of the federal award, be
in a position to offer any terms of employment
subject to certain safety net provisions -
set out in the Employee Relations Act which are very basic in nature. The wage provisions, for example, set out the base wage of pay applicable as
at the time of the introduction of the legislation,
so that the base is a constant and does not move,
and the like.
There is provision under the Act - Your Honour

has been taken to some provisions of the Act - for
variation of collective agreements, provision for
variation of awards, but only in circumstances
where that is necessary to resolve ambiguity and

the like. So there is a very restrictive regime of
variation permitted in relation to agreements or awards once they have application under the Act. Of course, the award has only had application until

1 March. Paragraph 12:
The federal award applies to both public
sector and private employers. The award
applies to the employment of nurses in named public hospitals, public nursing homes, bush nursing centres and community health centres. It applies to a greater number of private
sector establishments than in the public
sector including named private hospitals and
private nursing homes -

and I do not think I need to read the rest. It is
not in dispute, Your Honour, but in relation to the
general award it covers a very substantial number
of employees that bears upon the questions arising
in the debate as to Mr Justice Dawson's decision.
There are many thousands of nurses covered in a

public and a private context by that award. I
think, in fact, and I can be corrected if I am
wrong, a total number of about 40,000 with about
25,000 in the public sector in round terms.

HIS HONOUR:

I see it is after 1.00 o'clock.

I will adjourn

these proceedings until 2.00 o'clock.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

HIS HONOUR:

Yes, Mr Kenzie.

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MR KENZIE:

I was taking Your Honour through some of the

salient aspects of the affidavit of Mr Gardner and
I will be able to be relatively brief in conclusion
in relation to it. While Your Honour has the
affidavit open, could I just direct Your Honour's
attention to one part of the transcript of the
proceedings before the President of the Commission,
PJG3, page 7, when the President raised with
Mr Kaufman, who then appeared, the question - this
is during the debate on the stay - as to what would
happen to new employees and at about line 12,
His Honour asked the question and Mr Kaufman said:
I would actually turn my mind to it,

your Honour. It is hard to answer with any

precision. My understanding is that at the
moment it is unlikely that they will be
employed on different terms and conditions,
but no doubt the situation is being looked at
for employers and employees to utilise the
Victorian legislation to have terms and
conditions different to those which existed in

the past. But I do not have any instructions
that would indicate that new employees will be
placed on a different footing to existing
employees ..... Those instructions are
essentially confirmed, your Honour. Because
there are upwards of 40,000 people covered by
the awards, it is unlikely in the majority of
instances that separate individual contracts
with different terms and conditions will be
entered into. But as one gets higher up the
salary and responsibility scale, the
likelihood of individual or different

contractual arrangements increases. I might
also indicate, your Honour, that on my
instructions, although there is a steady
turnover of employment, the incidence of that

has been reducing over recent times.

They are the matters, Your Honour.
Now, going back to the text of the affidavit,

one comes to Ml0, that is the community nurses
matter, paragraph 14 details the matters which took
place before Commissioner Turbet, as Mr Turbet then
was, and there were directions given in 1991
calling upon the parties to confer following the
outcome of the proceedings.
On 24 December 1992 the day after the decision of Senior Deputy President Riordan to make an award in the proceedings referred to in the
Commissioner's direction -

there was a letter sent to the Department of Health
seeking a conference. Paragraph 16, he says:

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By 15 January 1993 it was clear to me that the
conference sought was not going to occur -

and he wrote to the industrial registrar.

On 29 January 1993 the matter was heard before
Deputy President MacBean ..... Subsequent
hearings occurred on 9 February 1993 and
19 February 1993 ..... Counsel for ANF on
instructions urged upon.the Commission a
programme and directions directed to
expediting the matter and avoiding delay.
And the ANF says part of the reasons, of course, were the "destabilizing effect" of the legislation. Again, not matters which go to the genuineness of the dispute but matters which, during the course of the prosecution of a dispute which was genuinely
raised, impacted upon the processing of it and no
more.
So Deputy President MacBean then rejected the

single application that had been made in relation
to this matter. That was an application for
revocation of the dispute and there has been no
appeal from that decision but what followed from that followed in the proceedings on 1 March 1993 which is dealt with in paragraph 17. There are two

aspects of that, Your Honour. The transcript is
exhibit PJG5.
Deputy President MacBean refused the

application for an adjournment. Among the
matters taken into account by the Deputy the adjournment and to proceed to deal with the ANF's application for an award were: (1)
that the employees concerned would cease to

have any award coverage and be bound by
individual employee contracts; and (2) the
cessation of awards may result in the
detriment to existing conditions of employment

in the absence of an award of the AIRC. The
Deputy President in making these findings had
the benefit of submissions by Counsel for the
ANF ..... and those of the advocate from the
Victorian Hospitals Association -

in reaching that decision that it was desirable to
go on and not to adjourn the proceedings.
Could I just take Your Honour to a couple of aspects of that. If Your Honour goes to the
transcript, PJG5, there are two matters that appear
to be presently relevant. Firstly, the decision of
His Honour on page 755 sets out the matters that

His Honour took into account. Your Honour can find

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them conveniently set out on that page. I will not
read those.

HIS HONOUR:	I have read those.
MR KENZIE:	The other thing that is relevant, Your Honour,

is that what happened on that day is that
Mr Douglas made application to the Commission under
section 107 of the Industrial Relations Act, that
is an application for a reference bench, and that
application is referred to on a number of occasions
in the transcript but is dealt with by the
Deputy President at page 766, the final page, where he says:
The application under section 107 of the Act
by the Victorian Government in the VHA has

been referred to the President. The President
has stated the intention to read the
transcript -

et cetera. That is where the matter lies. So
there was an application for a refe~ence bench.
Presumably, Your Honour, that reference bench will
have other matters before it. I think there was a
suggestion in the transcript that the government
did not want the constitutional matter referred to
the Full Bench, but the balance of the matter has
all gone up to - at least there is an application
to go to the Full Bench. Presumably the Full Bench
will then be fully invested with the matter other than the constitutional question and will be then
empowered to make whatever determination it sees
appropriate in relation to the community nurses

matter. The government could presumably reactivate
the revocation application or make whatever application it saw fit in relation to those

proceedings. Your Honour, against that background could we
make some submissions generally. Firstly in
relation to the rule nisi, we oppose the granting
of the rule nisi, as we have said already, not
because we want to contend that the matters are not arguable or important, but because the applications

are in both matters manifestly premature. By
conceding the fact that the matters are arguable
and important, we do not wish to be taken in any
way to be conceding that the argument is anything other than that, an argument. We do go on to put
some submissions later as to the prospects of
success and we want to say something about that,
but it is arguable, we concede.
Your Honour, if I could just mention some

authorities briefly, could I hand to Your Honour
the, I think, unreported decision of the

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Chief Justice in the Multiplex case. I understand
that it is not reported, but we have the extract

from 34 AILR. I apologize; I understand it is
reported, Your Honour. It is 105 ALR 291. Could I
conveniently take Your Honour to the AILR
reference. I think it is just as convenient. In
that case the Chief Justice was considering an
application for an order nisi for a writ of
prohibition directed to a member of the Commission.
It was asserted by Multiplex that there had been
no:
interstate industrial dispute within the
meaning of the Industrial Relations Act 1988
sufficient to found jurisdiction -

That emerges at about point 8 of the last column on
the first page of the copy.
Multiplex sought leave to appeal against the decision to the Full Bench of the
Commission -

on a number of grounds. At the bottom of the page: Multiplex also applied for a stay of operation of Commissioner Grimshaw's decision - - -

HIS HONOUR:

But is not a case like Multiplex clearly

distinguishable here because the constitutional
issue which is sought to be raised in these cases
is raised in a number of cases where order nisis
have been granted by Justice Toohey,
Justice Gaudron, Justice Dawson and
Justice Brennan.

MR KENZIE:

Your Honour, that, if anything, really militates

against the grant of a rule nisi rather than in

favour of it in circumstances where the Commission
has not yet been given the opportunity to deal with
these matters.

HIS HONOUR:

But the Commission has.

The Full Bench has

made its view plain that it does not accept the
argument of the States that the making of awards in
cases like are involved in the present case
constitutes interference with State government
functions as such.

MR KENZIE: There does not appear to be any doubt about

that. There is reference in the materials to a
number of decisions of the Commission, reference in
the transcript of proceedings before
Justice Maddern that the arguments have been heard

many times. But in the present cases or, to take
the general award case first, there are a number of

matters which have been raised by the Crown. The

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constitutional matter is only one of them. The
Crown alleges that Deputy President Riordan did not

grant natural justice. The Crown says that the

award was made beyond ambit. The Crown says that
there was no constitutional basis for the whole
exercise.
Those are the matters that are sought to be

activated in the Commission. Now, true it is, that
you might say that the Commission has made its
position pretty clear in relation to the
constitutional aspect, but the significance of
these matters, of these authorities, is that they
tell you that where there is a prospect that the
proceedings might be resolved in a way in the
Commission which makes the whole question
redundant, then there is absolutely no basis for
taking, as a first step really, the journey to the
High Court.

HIS HONOUR: Ordinarily, one does not determine a

constitutional question u.nless one has to determine
it, but it seems to me that this sort of case is a
very different case from a case like Multiplex.

MR KENZIE: Well, Your Honour, may we put this. It is

different in the sense but there are a number of
other cases which raise the same point, but that,
we would respectfully submit, does not make it
relevantly different. Those cases will be decided,
the issue will be decided. The Crown will have the
benefit of the decision of the High Court in
relation to those matters.
At the same time, these matters are proceeding

in the Commission, and they are proceeding on
issues which include the constitutional issue that
transcended, and one does not know what the

Commission is going to do in relation to the
general award matter. For example, if the
Commission decides on appeal that
Deputy President Riordan's decision ought to be set
aside because it does not confirm properly to the
first award principle, well, that will be the end
of the matter, it will be resolved in the
Commission, that will be the end of the section,
and the fate of other proceedings before the
High Court will be irrelevant to these matters.

It is a demonstration, if you like, of the vice of taking this step first, Your Honour.

The
point is not met, with respect, by saying "Well,
the Commission has a position in relation to the
constitutional question."

HIS HONOUR: Yes, but it is always of assistance to the
Court in determining a constitutional question to

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see how a particular principle or statutory
enactment works out in a variety of circumstances or the big argument against the advisory opinion.

MR KENZIE: Well, Your Honour, in this case, all that we can

put, and do put, is that if the matter goes off in
a certain way before the Commission, the issue will die, and there will never be an occasion to examine
the constitutional point against a background of
the General Nurses Award in Victoria. But, one has
to anticipate how the other matters before the
Commission are going to turn out.
Unless you do that, then the High Court's intervention is being sought in relation to a
proceeding where that intervention may turn out to
be irrelevant. That is the vice, we respectfully
submit.
Your Honour, I will not trouble the Court with

has taken place in relation to the question of
a full reading of the passages from the
whether it is distinguishable or not. But, may we
respectfully submit that the Court in that case, in
circumstances where the applicant for prerogative
relief had instituted an appeal, sought a stay, but
in circumstances where those matters remained
outstanding before the Commission, expressed itself
in strong language and, Your Honour, may we add, in
circumstances where both Deputy President Moore in
the Commission and the Chief Justice himself
expressed real doubts about the jurisdiction of the
Commission, if you see that.

It is about the strongest case you could imagine, Your Honour.

I mean, the High Court was

saying, "Look, there are real problems about the
jurisdiction of the Commission here, but none the
less there is an active vice in coming here
prematurely". It is about the strongest case you
could find, in our respectful submission, and we do
submit that it is applicable here in the
circumstances relevant to both of the proceedings.

Your Honour, the language of the Chief Justice

echoes the language, really, of Justice Brennan in
Griffin's case, 167 CLR, which has been read by

Mr Uren. Your Honour, in that case, the discussion
about the rule nisi commenced at page 39 at the
bottom of the page, the paragraph where His Honour
says:
The P.R.E.I.A. seeks an order nisi

returnable before a Full Court -

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On page 40 in the passage that Mr Uren read
earlier, His Honour talks about the need for:
speedy resolution of the legal aspects of
industrial disputes is a desirable, if not
essential, element of an effective
conciliation and arbitration system.

And the language, we would respectfully submit, is
not language that is restricted to a question of
whether there is a claim for $10 a week, $5 a week,
or any other sort of claim in an industrial
context. It is language that is apposite to the
desirability of resolving industrial disputes in
the federal context.
Having made those observations, His Honour

then went on to deal with the question of whether
the rule nisi ought to go and page 41 is
instructive because at point 5, His Honour says:
Although this Court is bound to exercise the jurisdiction invested in it, it may be
premature to grant an order nisi to an
applicant who has abstained from applying to
the Commission for relief -

And there was then a discussion as to whether there was actually an avenue of relief available in the federal Commission to the applicants in that case.
His Honour says that there is some doubt as to
whether there is an avenue of appeal and it is
because of that doubt, and only because of that
doubt, that His Honour said it was appropriate in
circumstances where the applicant had not
endeavoured to appeal - it was appropriate in those
circumstances for the rule nisi to go. That is at
page 41.

That is completely in tune with the approach

of the Chief Justice to these matters. It is
completely in tune with an approach which does not
see this Court as a Court of first call when
questions of jurisdiction arise, but very much a
Court of last call. There are a number of cases of
which Your Honour will be aware and everyone at the
bar table will be aware, where the High Court has
expressed itself quite forcefully in relation to
the undesirable result of the Parliament having
taken the course that it has in relation to access
to this Court.
The sentiments are again echoed in the case of

Merriman, 53 ALR 440. Your Honour, and I will be
..... another decision of Mr Justice Brennan and in
that case at page 442, the bottom of the page,
His Honour said:

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I would say no more about the strength of the BLF's case than that an order show cause
should be made or a direction should be given
to apply for the writs on notice of
motion ..... In choosing between these two
procedures, a factor to be taken into account
is the jurisdiction of the Full Bench of the
Commission to entertain an appeal against the
Commissioner's decision, if it thinks the matter to be of such importance that, in the public interest, an appeal should lie. If the
jurisdiction of the Full Bench were invoked,
its decision may resolve (albeit not finally)
at least some of the issues more speedily than
the procedure of seeking writs of prohibition

and certiorari. No other court has been
invested with jurisdiction to deal with these
applications in industrial cases. In the
lists of this court, industrial cases must
compete with the mass of constitutional,
appellate and other cases awaiting hearing.
It is undesirable that the parties should be shut out from seeking an earlier hearing which may diminish or resolve their controversy.
That is the point I am making, Your Honour, in relation to the general award. It is quite
undesirable that this Court should intervene at
this stage in relation to the general award where
there are issues that the parties seek to activate,
where the lists of this Court indicate that with
the best will in the world there will be delay in
resolving, not necessarily just the SPSF case,
which was argued in June 1992, but this proceeding
which involves issues which transcend the SPSF case
itself.
We commend to Your Honour's attention the

judgment of Justice Brennan in Merriman's case.
Interestingly, the paragraph on page 443 concludes
with His Honour's recognition that the views of the
Commission on the appropriate way forward to settle
the industrial dispute are matters that carry

significant weight. Does Your Honour want to see
that?

HIS HONOUR:

Yes.

MR KENZIE: That is something which we attach particular

importance to in these proceedings, and we have
directed Your Honour's attention to
Senior Deputy President Riordan's view and the
proceedings before the President of the Commission which, we would suggest, does not give our friends
any comfort at all.

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So, could we also remind Your Honour that the
language in those cases is really reminiscent of
the language of the Court in the Citicorp case.
That is the case which deals with the availability
of section 4l(l)(d) or section 111, prior to the
finding of an industrial dispute. That is in
167 CLR 513, I do not think Your Honour needs to
open it. It is the same volume as Griffin.
Your Honour will know that in that case the Court
expressed, in quite clear terms, that there might
be very good reasons for denying an applicant a
rule nisi of relief, in circumstances where that
applicant has not availed himself or itself of the
opportunity to ask for a question of law to be
referred to the Federal Court. That, of course, is
an a fortiori case because what the Court is
talking about there is making an application which
may or may not be accepted by the Industrial
Relations Commission.
So, Your Honour, we do submit that in both

matters the applications are premature and the
position in relation to the general award case is
startling. There cannot be any basis for the
applicants coming here and seeking a rule nisi in
circumstances where they have actively elected,
whilst on their feet in the Commission in the
application for a stay, to seek to come here first.
It is totally against the thrust of those
authorities that that be permitted to happen,
regardless of how many constitutional cases there
are before the High Court in which this point is
activated.
In relation to the community nurses, the

Community Health case, the applicant has sought and
failed to get a revocation of the finding, but in

circumstances where that has happened there is an application for a reference to a Full Bench which is being pressed by the applicants as we speak.
That is still being considered by the President.

If that reference bench is granted it will have the capacity to take charge, and will take charge of
the whole proceeding, and it ought to be allowed to
do so. There is just no basis for halting those
proceedings at this stage.
The question has to be asked in circumstances

where a finding of dispute has been made, the
finding has not been the subject of any appeal,
work would then have to be done within the
Commission which Your Honour would be well familiar
with which would be substantial and possibly
lengthy in relation to the processing of the award,
the question that must be addressed is why should
that be stopped now. Even if our friends had the
best case in the world for a stay, at some stage in

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relation to this proceeding why should that happen

now. The best that could be said for their
position is that the Court felt that there was any
chance of further prejudice down the track, if
circumstances changed, if the SPSF judgment were
delivered by this Court, it contained
pronouncements which assisted our friends in
relation to these matters or something else, an
application could be reactivated and dealt with
then.
Your Honour, that approach is an approach

which commended itself to Sir Harry Gibbs in the
case of Re Ludeke and Builders Labourers'
Federation, 62 ALR 58. Could I take Your Honour to
that very briefly. This case is of significance,
Your Honour, because His Honour accepted that there
was going to be substantial prejudice to the
Builders Labourers' Federation if the stay was not granted. It was a stay sought in the face of a constitutional challenge to the validity of the
Builders Labourers' deregistration legislation in
the mid-1980s.
In that challenge the prejudice - in the stay application, the prejudice to the BLF was
acknowledged by His Honour at page 60, in the

middle of the page. I will not read it,
Your Honour, but there was a discussion as to how
there would be prejudice, that the proceedings were
going to be protracted and the Federation was going
to suffer prejudice, there was going to be expense
which would all be thrown away if the challenge was
upheld. His Honour went on to deal with the public
interest, and then over on page 61 His Honour said
this, in a passage which is of clear relevance to
the proceedings here, in circumstances where the
Building Industry Act in that case had a provision

which required the Commission to act with
expedition, His Honour the Chief Justice gave
effect to that statutory intention at page 61, line
32. His Honour says:
It seems to be that I should have regard

to the intention of the Parliament that
proceedings under the Act should be proceeded
with as quickly as possible. It would be
different if the Commission were able to make
a final declaration under s 4 before the
matter comes on for hearing in the Full Court;
had that been likely, I should have been
disposed to grant a stay, but only of the

making of a declaration. However, from the
estimates of time involved it is obvious that
that will not occur.

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So what His Honour said, in circumstances where
there was clear prejudice, even where there was
clear prejudice, it was overcome by the
desirability of allowing the tribunal which was
invested with the task and instructed to get on
with the job to ~et on with the job. His Honour
said that would ~nly be affected by other
considerations if there was some sign of immediate
and burning prejudice to the applicant. In that
case, of course, the prejudice would have been
clear because what the BLF was facing at that stage
was extinction, and that was the basis of
His Honour's comment there.
Your Honour, the relevance of that is that

was then in force, but like the present Industrial

unlike the Conciliation and Arbitration Act which active provision in it which expressed Parliament's
view that the proceedings ought to be undertaken
with expedition and, Your Honour, that is now found
in section 98 of the industrial relations
legislation. That has a nice succinct provision in
it which says it is the duty of the Commission to
conduct the proceedings with as much speed as is
practical in the circumstances. It simply provides
that:
The Commission shall perform its functions as
quickly as practicable.

Now, that is a provision which is very like the provision in the building industry legislation,
Your Honour.
So for all those reasons, Your Honour, we do

submit that the application is premature and ought
to be dismissed. There will be no prejudice

whatsoever to the applicants if they come back later and reactivate an application for a rule
nisi. For example, if the SPSF case, the doubt
about which is resolved in some way and the
Commission has been given an opportunity to conduct
its statutory functions, then everyone will be
further advanced, including the Court. Could I
come to the stay?

HIS HONOUR:	Yes.
MR KENZIE:	Your Honour, it is common ground that

extraordinary circumstances - well, we would think
it common ground that extraordinary circumstances

would need to be shown in this case. I have heard

Mr Oren's submissions. We do suggest that the
authorities are about as clear as they can be that
it is incumbent on our friends to demonstrate
extraordinary circumstances. In the SPSF case, the

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decision of Justice Dawson, His Honour looked at
the distinction between granting a stay in the
exercise of the inherent jurisdiction of the Court
and in granting of a stay on the basis of a
statutory jurisdiction, and also the distinction
between granting a stay when the stay was sought in
respect of a decision of the Commission and
otherwise. That is at page 4 of the print which I

have, Your Honour. Your Honour was given this

print before lunch by Mr Uren, I thought. Does
Your Honour have it? It is the decision of
Justice Dawson of 15 September 1992.

HIS HONOUR:	Yes, I have it.
MR KENZIE:	Page 4, His Honour, having set out order 55 rule

10, says:
The stay was, therefore -

that is, in this case -
ordered in the exercise of a statutory
jurisdiction, not in the exercise of the
inherent jurisdiction of teh Court. Greater
reluctance will be shown to grant a stay in
the exercise of the latter jurisdiction, as

was recognized by Mason CJ in Re Marks. Nor
does the stay operate upon any decision of the

Commission. To stay the operation of a
decision of the Commission must be
exceptional, for the reasons explained by
Brennan Jin Re Griffin.

No qualification of that language, Your Honour.
Not if it is one type of industrial case rather
than another, but the simple and general
application of the language of Justice Brennan in

Griffin's case, and His Honour was clearly saying
if a stay is designed to actually operate on a
decision of the Commission, and is not simply a
stay of further proceedings in the Commission, then
you will need to clearly show exceptional
circumstances.
The stay that is sought in respect of the general award, Your Honour, is a stay of that kind.
It has to be because if things are not altered by
order of this Court then Deputy President Riordan's
general award will remain in force and it is that
award that is sought to be directly attacked in

these proceedings and stayed. So we are in that
territory and our friends have to show an
exceptional case.
Justice Dawson went on to say that, of course,

even if you are not in case, but if you are looking

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at restraining the exercise of jurisdiction, you
ought to maintain the status quo. Well, it has
still got to be exercised sparingly and with

caution. So we say that here, in relation to the
general award, an exceptional case has to be shown against a background in which the Commission has a
statutory duty to act quickly. The Commission has
heard argument from the Crown as to whether it is
desirable that the proceedings be adjourned and has
consistently decided that it is undesirable to

adjourn the proceedings. We have taken Your Honour
to the references and we say that those decisions
are entitled to wait.
They may not be decisions on an application to

stay but they are a reflection of debate that has
taken place before the Commission as to whether or not the proceedings ought to go forward or not and the Commission has clearly resolved, when it has
delivered itself of the decision in these matters -
both of them - that it is desirable to go forward.

Those decisions are entitled to wait. They are
certainly entitled to wait in circumstances where
there has not been a stay application pressed to give rise to an opposite result, and we refer to the decision of Justice Brennan in Merriman's case
at 443 in that regard.
Now, Your Honour, that leaves me to address

questions of prejudice - the matters that were
identified by Justice Dawson as matters which were
legitimate or appropriate to be considered in the context of a stay application on the basis of the exercise of statutory jurisdiction, and His Honour
identified, at page 5, the issues:
as the likelihood of success of the
application, whether one party or the other

would suffer a detriment if the order were
made ..... and the public interest -

as relevant considerations. That language will not
surprise anyone, of course, and I need to say
something about those matters, Your Honour, and I
will again be relatively brief.
Your Honour, could I deal with prejudice or

detriment. First of all, we say there is detriment
to the Union if the stay is granted. If the stay
is granted the federal Union, for whom we appear,

will be deprived of its entitlements under the Act
to continue to prosecute the application for
federal award and, Your Honour, it may be deprived
of that right for a very substantial period of

time. One does not know. It does not matter
whether the SPSF case is imminent or not because
wider issues are, or may be, relevant.

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Your Honour, the prejudice that the Union will
experience in that regard will be experienced in
circumstances where the Victorian legislation will
be in force. That Victorian legislation contains
various provisions which have implications for our
client, and if I could remind Your Honour of some
of them: first of all, the ANF is not recognised as none of those transitional provisions have the
a union under the Employee Relations Act 1992.

effect of granting recognition to the ANF. I will

give Your Honour a reference. Your Honour has the
Act and I was not going to go through a detailed
statutory resume now, but I think it will be
sufficient if I develop what we have to say about
it in general terms, Your Honour. There are no
transitional provisions with respect to the

recognition of the ANF. We invite Your Honour's
attention to section 135 and 172(6).

MR KENZIE:

The ANF is, without recognition unable to process matters before the Victorian Commission and

even if recognized, even it has the capacity to get
recognized, it will be unable to process any

matters before that Commission without the

employer's consent, so it is a consent

jurisdiction. That appears from section 98(2).

Your Honour, the ANF would be unable to have the

Victorian Commission convene any proceedings in
matters other than unfair dismissal cases unless
the employer agreed and unless all parties to the
dispute agreed to accept the outcome of proceedings

and forego appeal rights and the like. That is

section 92(2). The provision that would prevent

the Union from bringing any industrial matter or
dispute before the Commission without recognition
is section 90(b). Similarly, the Union would not
be able to appeal in its own right without

recognition, and that is section 141.

So that all of those matters would be relevant

to the position of the Union for whom we appear.
In addition to the matters of detriment to the
Union, there are of course issues that affect its

members. The position in relation to the members

has been dealt with to some extent by Mr Uren, but

I will give Your Honour some references to the

statutory provisions. The Registered Nurses Award expired on 1 March 1993, section 172(6). Pursuant

to sections 8 and 9, employees including registered

nurses will be covered by individual or collective

employment agreements. Sections 8 and 9 of the Act

make provision for that.

Your Honour has been

taken to section 24(3) which provides that in the
case of existing employees:

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unless a new award is made or the employee and
the employer make an employment agreement,
bound by an individual employment agreement
with the same terms and conditions as those
that applied to the employee and the employer
under the expired award.

The award expired on 1 March. 24(3) applies to
existing employees, not new employees of course,
and it· provides that they will retain their old

conditions until some other agreement is made. So
the Act contains within itself the machinery to

change the status quo. Does Your Honour see that?

HIS HONOUR:	Yes.
MR KENZIE:	So what we have here is the applicant seeking to stay the proceedings in the Commission so that an
Act which entitles the applicants to change the
status quo can take effect in lieu of the certainty
of the provisions of the federal award, and we ask the Court to bear that steadily in mind.
Meanwhile, if a stay is granted, then collective
employment agreements and individual employment
agreements can be made with employees under
sections 8 and 9. Nice questions arise as to
whether those sections cover the field in the sense
that it is mandatory - - -
HIS HONOUR:	I noticed in reading the transcript of

proceedings at page 750 or somewhere round there,
that there was argument as to whether or not the
accrued entitlements - - -

MR KENZIE:	Yes.
HIS HONOUR:	What is the basis of that argument?

MR KENZIE:

There is a very clear basis.

I think it is a

reflection of the terms of section 24(3),

Your Honour, itself. One usually finds in the case
of industrial prescription, State or federal, a
particular provision that accrued entitlements,
when the - - -

HIS HONOUR:

Terms and conditions under the expired award,

things like annual leave, how are they dealt with
in Victoria; by legislation or by awards?

MR KENZIE:

They would normally be by award, on my

instructions, Your Honour. There are those at the
bar table who would be more familiar than I with
the actuality of the workings of the system in

Victoria. I think the point is really that 24(3)
covers the terms and conditions of the award but
says nothing about entitlements which have accrued

under awards in the past. I think that is the

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basis of the submission that was being addressed
there, Your Honour.
But of course our submissions go way beyond

the question of whether - our submissions transcend
that point. It is sufficient for us to say in
relation to that and a number of other provisions
in the Act that there are many, many arguments that one can foresee in relation to the applicability of

the provisions in the Act. The questions of
whether sections 8 and 9 are representative of a
code so that it is absolutely mandatory to have a
contract in writing are included amongst the
questions.
It is not appropriate to debate them now, Your Honour, but Your Honour would not be surprised
to understand that there will be a host of
questions inevitably attracted by this new
legislation. There is inevitably going to be
uncertainty in relation to the application of the

legislation, uncertainty on the ground. The whole
regime of industrial relations is being affected.

HIS HONOUR:

But looking at it from the other point of view,

what do you say to Mr Uren's submission, relying on
what Justice Dawson decided in the State Public
Service case?

MR KENZIE:

Your Honour, we are happy to respond to that.

We say this, that our friend relies on uncertainty.
Mr Justice Dawson's decision says that, if the
award is subsequently struck down, there will be
uncertainty affecting a substantial number of
people and, no doubt, the point can be made in
relation to the general award, having regard to the
numbers of persons involved. But, Your Honour,
with respect to that argument, the fact of the
matter is there will be uncertainty in any event.

Justice Riordan's award takes effect from

23 December last year. If a stay is now granted,
and that stay operates in respect of a substantial
period of time before the resolution of these
proceedings, but the proceedings are shown to be
misconceived, and in the meantime the Victorian
legislation has operated, permitting employment,
individual contracts and the like to be entered
into, with large numbers of people over a
protracted period of time; those contracts provide
for rates and conditions that are different from
the federal prescription, the one that has actually
been made; then, if the proceedings are shown to be
misconceived, then the confusion that will reign
does not have to be - enough has been said, we
respectfully submit. There will be problems of
whether there has been compliance with the award,

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whether there should be claims for back pay because
there will not be a question of retrospectivity -

the award will apply from 23 December 1992. So
that the prospect of confusion, in that
eventuality, is very real.
Your Honour, that brings us to the question of the chances of success. Because what we say in
response to our friend's submission is this. There
is going to be uncertainty anyway, and if we are
going to be talking about uncertainty and
industrial consequences affecting large numbers of
people, after what may be a protracted period of
time, let us look at who has go the barrow in front
of them in this case.
We respectfully submit that, without knowing

anything more than that the SPSF application has
been argued, that so far as the authorities of this
Commission are concerned, our friends do have a

substantial barrow in front of them. I will let
Mr North speak for himself, but in relation to the parties to these proceedings, they are community health nurses and they are nurses engaged in the general nursing industry within public hospitals in Victoria.
We respectfully submit that our friend will be

exceeding the parameters of the law if he gets a decision that the regulation by federal award of
persons who, in our respectful submission, are not
relevantly distinguishable from the sort of
teachers that were being talked about in Lee ex
parte Harper constitutes an interference with the
running of the State of Victoria in the relevant
constitutional sense.
We say that, Your Honour, conscious of the

fact that in Lee ex parte Harper itself, forget

what happened in the Professional Engineers in the late 1950s which is highly relevant, but in Lee ex
parte Harper itself, three members of the court who
expressed a view about the administrative services
of the State argument, in the context of classroom
teachers, actually went on and in turn addressed,
or mentioned, the question that is presently
raised.

The thrust of the judgement, I know Your Honour is familiar with it, is look, it is now
too late in the day to say that these people,
classroom teachers, cannot be covered by a federal
award, it is far too late in the day. That will be
permissible, constitutionally, unless there be
something about the award that is discriminatory.
So, Their Honours were conscious of the point, it
was not something that slipped by to the keeper.

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Their Honours' judgment actually focuses on this point and that judgment, we would respectfully
submit, is inconsistent with the proposition that
there is something innate about the employment.

HIS HONOUR:	Does not Mr Justice Gibbs' judgment also say something about it?
MR KENZIE: Yes, Your Honour, it does.	It is to similar

effect.

HIS HONOUR:	He talks about -
MR KENZIE:	Let us talk about who has got the barrow. And

let us talk about the question of uncertainty

against that background, Your Honour. We
respectfully submit that in circumstances where
there is going to be uncertainty the public
interest by far favours a consideration of allowing
the Commission to get on with the job of processing
these awards. There will be certainty as a result.
One will know what the prescription is if that prescription is made before the High Court relevantly decides this case or the SPSF case, and
if not, well, the position can be accommodated.

HIS HONOUR:

What do you say about the fact that a number of

Justices of this Court have ordered stays in not dissimilar proceedings?

MR KENZIE:

Your Honour, without having access to the detail

of each of those matters that Mr Uren dealt with,
it does appear to us that some or all of them
involved cases where the Commission has effectively
finished its task in relation to the proceedings.
They seem to involve cases in which the appeal bench had dealt with the matter.

HIS HONOUR:

No, I was really talking about judgments of

Justice Dawson, Justice Gaudron and Justice Toohey.

MR KENZIE:

Your Honour, without having seen them, I am not

aware as to whether the sorts of arguments that are
now being pressed on Your Honour were before
Their Honours or were considered, or whether those
matters were dealt with ex - one does not know in
relation to the decisions of Justice Gaudron and

Justice Toohey. I certainly do not, whether they
were ex parte or whether these arguments were
mounted and considered.
In the case of the decision of Justice Dawson,

His Honour did talk about uncertainty, but it was

uncertainty one way, if you like. There was an
agreement that had been made under the recently
introduced part of the federal Act. That had not

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yet gone to the Commission, but the Commission's
role in relation to assessing that agreement - - -

HIS HONOUR: Certification.

MR KENZIE:

Yes, the certification of that agreement was a

role that was de minimis, there was nothing really
left for the Commission to do, nothing of substance

left for the Commission to do in that case. So he
was faced with the situation in which he was able
to say, ttLook, there is uncertainty over there and
there is relative certainty here, and certainly no
one is suggesting to the contrarytt. That is not
this case. There will clearly be uncertainty if
this stay order is granted, and that will prevail
in circumstances where the Commission, which has
got the statutory charter to get on with the job,
is not doing it.
So we do suggest, Your Honour, that if one does come down to a choice like this, one has to

look at the prospects of success. One has to
approach it from this position, that the Victorian
Government is asking the Court to grant a stay so
that a situation can be created so that the status
quo can be departed from under the statute by the
creation of individual contracts with people,
collective or individual. If that happens and then
the federal award is made and upheld in its present
terms, there will then be a second movement, a

movement away from the present prescription. Then
there will have to be a second movement back,
possibly retrospectively, with potentially horrific
consequences, Your Honour. So we do submit that we
are more than happy to meet the argument on that
basis.
Your Honour, some observations were made about

the application of the first award principles in
the context of prejudice. There is no doubt from
the evidence now before the Court that the effect of Deputy President Riordan's decision was on the basis of first award principles, or His Honour's
of problems of ambit. But leaving aside
application of them, to introduce the former because
problems around the edges it was the Victorian
award that was introduced on a first award basis.
Your Honour, that does not assist our friends in this debate, in our respectful submission. It
assist our position. But the fact that the award
is not materially different from the former
Victorian award only demonstrates that the award
that will prevail, if an award is made under the
general award, will be an award in terms that the
Victorian Government has historically had, has not

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appealed, sought to change, and an award which the
Victorian Government in proceedings before the federal Commission has said, "Look, generally, we
don't think much will be changing."
So, there is no prejudice over there, we would

respectfully submit, but there is all the prejudice
in the world that is experienced by the Union,
which will lose all its rights under the Act that I
have enunciated, and potential prejudice to
employees, including a significant number of new
employees who will not have any rights, really, to
speak of at all.
Against that background, Your Honour, it is

not difficult to understand the approach of the
federal Commission when asked by the Victorian
Government to stop. It did not stop, it went
forward. This Court should not intervene in this
application, in circumstance where the federal
Commission has really expressed the desirability of
going on and has dealt with submissions that it
should stop.
Your Honour, finally, in relation to the

general matters of public interest, and I do not
want to repeat myself, but the other issue that was
raised by Justice Dawson, the public interest
question, we say that it is in the public interest
that the federal Commission be entitled to get on
with its task, and that is consistent with the Act
in general; section 98, in particular. That
approach is consistent with the Court's
understandable desire not to encourage proceedings
in the nature of interlocutory proceedings,
consistent with the language in cases such as
Burgundy Royale mentioned by Your Honour, and
consistent with the language of the High Court in

the cases to which I have taken the Court.
It is consistent with the Commission's

decision and we would respectfully submit that it
is consistent with the balance of fairness, as

things are constituted at the moment. They are our
submissions, Your Honour.

HIS HONOUR:	Thank you, Mr Kenzie.	Mr North?
MR NORTH:	Thank you, Your Honour.	Your Honour, in relation

to application Mll, we adopt the propositions of
law that our learned friend, Mr Kenzie, and my
learned junior, acting in his capacity as
Mr Kenzie's junior for the time being, put to
Your Honour a moment ago, and the general framework
of the submissions, and I do not want to repeat

them. I simply want to take Your Honour to a
number of particular aspects of Mll which fit into

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that framework and largely derive from the
affidavit of Mr Langmead, which I understand has
been filed, and Your Honour has.

HIS HONOUR:

Yes.

Do you want to formally read the

affidavit of David Cameron Langmead?

MR NORTH:

r do, Your Honour. Your Honour, before I get to

it in terms, can I just say this, that the matter
with which Mll is concerned is the employment
largely of Crown employees in psychiatric hospitals
and intellectual disability institutions, and the
original log was served back in July of last year.

HIS HONOUR:	22 July, I think.
MR NORTH:	Yes, Your Honour, and the matter was brought on

in about November of last year, and it was a
general log that was originally served, seeking
conditions across the board. It was brought on in
a particular context where there was seen by the
new Victorian Government a need to cut staff in
this area, and in order to do so, they offered what
are called voluntary departure packages - VDPs.
We applied as a matter of urgency to the

Commission for an interim award to regulate the
granting of those voluntary departure packages on
the basis that the circumstances in which they were
being offered were unfair and industrially unjust.
Now, Your Honour, what then happened was that the
Commission accepted those arguments, firstly made a
finding of dispute and secondly, based upon that
finding, made an interim award the effect of which
was to prevent the Victorian Government proceeding
to offer the voluntary departure packages and to
restore by award the permanency conditions of
service which had existed prior to the introduction

of the Public Sector Management Act which abolished that scheme.

An application was then made by the State of Victoria for a stay of the interim award - sorry, for a variation or setting aside of that award and
upon that matter then coming back on before the
Commission the dispute between the parties on that
narrow issue of redundancy was resolved by the
making of a consent interim award varying the
original interim award.
So what is before Your Honour in terms of the

stay are two issues. One is the dispute
finding - - -

HIS HONOUR:

That is the document that was made on

22 January. That is the consent.

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MR NORTH:

The consent award, Your Honour, yes, that is

correct. It is exhibit 14 to Mr McArdle's

affidavit. And Your Honour will see that what it
does is, instead of banning VDPs, it allows for
VDPs to be offered on a particular basis. That was

the difference. And it otherwise prevents
terminations except in accordance with the previous

system. So it is a real status quo award, and I
will take Your Honour to some considerations in
relation to its making in a moment, but at the
moment I am seeking to say to Your Honour this,
that we are not here talking about the Commission
down the track making a general award; we are
talking about a dispute finding, absolutely stage
1, and an interim award which was arrived at by
consent.

If I can, in that background, go to

Mr Langrnead's affidavit, Your Honour. If I can
start at paragraph 4 to pick up the proceedings on
11 January 1993 when the award was varied by
consent. In paragraph 5 there is an extract from
the transcript of that day where Mr Bromberg said,
on behalf of the Union:
It is agreed that the following matters be recorded on transcript in proceedings
C No 31467 -

which is these proceedings.
The consent variation is to be made by
Deputy President MacBean on 11th January 1993
to the -

and then there is a reference to the name of the
award as it was previously called -

are without prejudice to the rights of either
party with respect to any final award
including any right to contest the
Commission's jurisdiction to make a final
award which may be made in these proceedings;
(2) The State of Victoria makes the following undertakings and acknowledges that the making
of the consent variations to the award are
subject to and conditional upon these
undertakings:

(a) That that part of the appeal against the
interim award made by
Deputy President MacBean on 14 December
1992 -

that was the first version of it, Your Honour -

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will be withdrawn.
And secondly, Your Honour, and significantly:

(b) The Application for a stay of these
proceedings and the interim award made by
Deputy President MacBean on 14 December
1992 will be withdrawn.

And then it goes on:
subject to my learned friend's confirmation of
that, I believe those are all the matters I
need to deal with."

Mr Douglas, QC, appeared for Victoria then said:
I confirm that position ..... and those
undertakings and indicate that what my learned
friend has put to you in relation to the award
provisions are also acceptable to us.

And then the Commission, in making the award, said

that it was:
made on the basis of the various statements
made by each of the parties.

So that, Your Honour, in relation to the interim
award, which our friends come here and ask the High
Court to stay, it arose by consent, it arose in
circumstances where there was an extant application
for a stay of the proceedings, including the
dispute finding, which stay application was
withdrawn, although I freely concede, Your Honour,
that the right was maintained on behalf of the jurisdiction to the Commission to hear the matter.

Now, Your Honour, in our submission, those

matters go very much to the question of whether a
stay should be granted or not, namely, that the fact of the award was made by consent; the fact that nothing has been put by the State of Victoria
as to prejudice in the operation of that award; the
fact that the award reflected the status quo in
large part and, Your Honour, in addition what is in
paragraph 9 is that there is extant an appeal in
the Commission in relation to the dispute finding.
That is what Mr Langrnead says in paragraph 9. That
is to be heard shortly on 21 April and, in our
submission, that factual base is a strong reason
why the Commission should be left to deal with the
question shortly rather than this Court be
concerned about it.

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HIS HONOUR:

But the prosecutors seek a stay, not only of

the interim award but proceedings generally, do
they not?

MR NORTH:

Yes, Your Honour, they do, and the proceedings

generally are, of course, advanced to the stage of
a dispute finding, and what we put, Your Honour, is
there is absolutely no harm in the Commission
proceeding down the track towards a final award

because there may never be one. I mean it may be
that the Commission determines, on some public
interest grounds, not to make an award at all in
which case the High Court will have been troubled
needlessly.

HIS HONOUR:

Does the public interest ground apply?

MR NORTH: Public interest, yes, Your Honour.

HIS HONOUR: Is there a section lllA that has been

introduced?

MR NORTH:

Yes, Your Honour, but there is also section 90

which requires the Commission, in any case, to have
regard to the public interest.
Perhaps I should take Your Honour to

paragraphs 11 and 12. They deal with the matters
that Mr Kenzie has already put to Your Honour about
the effect of the new legislation in Victoria,
significantly for these employees, who previously
were governed by the Public Service Act and who
previously had recourse in the case of a dispute
about an industrial matter to an independent
arbitrator, namely, the Public Service Board,
unless they now have recourse to the Federal
Commission they will not under the State system
have recourse to a compulsory arbitration body, and

that is the gist of paragraphs 11 and 12.
Paragraph 13 is a reflection of that

understanding from the State of Victoria in a
ministerial briefing to that effect, and
paragraph 14, Your Honour, is the factual
foundation of the arguments in relation to new
employees. That new employees, in any event, do
not have the benefit of the roll over of the old
public service determinations, and the information
that the deponent has is that there are persons in
that category although numbers are not mentioned.
Now, Your Honour, I then go to the paragraphs

between 16 and 21 and these, Your Honour,
demonstrate some of the industrial considerations
which flow from the grant of a stay.

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4/3/93

HIS HONOUR:

Can I ask you about it? What relevance does

the Western Australian position have, because the
stay would only operate in so far as it affected
the Victorian Government?

MR NORTH:

If that is so, Your Honour, then the Western

Australian situation is irrelevant, but the stay
sought is in relation to the entirety of the
dispute finding and the dispute finding, as I
recall. it, goes to New South Wales, Western
Australia and Victoria -

HIS HONOUR: Perhaps I might - Mr Uren, do you seek a stay

in respect of the whole award proceedings?

MR UREN:

No, I thought we had, in fact - perhaps there may

be an error, but I thought we had restricted it to
the Victorian situation in our drafting, but if we
have not then we certainly intended to do so.

HIS HONOUR:	Does that dispose of that, Mr North?
MR NORTH:	Yes, Your Honour, it does. That leaves only one

other factual matter that I would like to take
Your Honour to. There are, in our submission,
particularly in relation to the interim award, very
good reasons why questions of a stay should be
dealt with initially by the Commission. That is
because of the nature of the interim award and the
nature of the reasons which led up to its making.
Your Honour, the decision of President MacBean

is exhibit 9 to the affidavit of Mr McArdle and at
page 15 the Deputy President commences to deal with
the application for the interim award, the initial
award, having dealt with the dispute finding before
that.

Your Honour, what he does at pages 25 to 27 is

to set out his fact findings, derived from
comprehensive evidence over three days, extensive
examination and cross-examination. As I recall it,
Your Honour, we sat on a Saturday and late into the
night on the previous Friday, I think. Very much,
Your Honour, of his determination arises from his
finding that - it is set out on page 27 at the top
in paragraph 10:
The total effect of the circumstances outlined
is to force employees into the VDP -

HIS HONOUR: I am sorry, what page is this?

MR NORTH:

Page 27.

HIS HONOUR: Finding 10. It is page 26 in mine.

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MR NORTH: I am sorry, Your Honour. It is 27 on mine. It

is finding number 10.
The total effect of the circumstances outlined
is to force employees into the VDP out of a
sense of fear that their failure to do so will
result in their ultimate termination without
compensation.

I ask Your Honour to look at the other

findings as well, but in particular his finding was
a determination of an industrial matter acutely

related to what was happening in the workplace
after hearing evidence of real live people
affected. That finding is a result of his analysis
of the evidence which appears on pages 18 of my
copy, that might be 19 of Your Honour's, or 17, or
15. Perhaps, does Your Honour have a page -

HIS HONOUR:

Small (ii) at the top?

MR NORTH:

Yes.

And the heading "Redundancy".

I am really

looking for the paragraph starting "During the
three days of hearings".

HIS HONOUR:	Yes, that is on page 17.
MR NORTH:	So there were three days of hearings, extensive

evidence, and he goes through the particular
witnesses and extracts, for instance, on the next
page some evidence from one of the employees and at
the end of the first paragraph of the extract there
is reference to the employee being horrified at
what he had heard at a meeting called by his
employer.
Then in the last paragraph of that evidence he was
asked whether he thought the package was voluntary;

he said "No", the reason being scare tactics that

have been put out. A bit further down into the
next quote, about three lines down, "Do you mean
there is great confusion or great concern?", -
"Total confusion at Lakeside Hospital", and so it

goes on, Your Honour. On the next page the
paragraph starting "Mr Elliott," who was a Union
witness - Mr Elliott said that advice received from
members was expressed as "great concern and
confusion over their futures; uncertainty as to

whether to express an interest in the VDP". A few
lines down, the general theme running through all
the meetings - and this was a large amount of
meetings at a large number of workplaces - - -

HIS HONOUR:

Mr North, I am sorry, but something urgent has

arisen in the Court's business; I will have to
adjourn these proceedings, only for 10 minutes or

so. The proceedings will be adjourned.

Unions	73	4/3/93
AT 3.15 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.27 PM:

HIS HONOUR: Sorry for that interruption, Mr North.

MR NORTH:

Your Honour, we were at a page that I do not dare

to mention. In my copy of the judgment it is 19,
but it was at the paragraph starting, "Mr Elliott,
the HSUA Senior Industrial" - - -

HIS HONOUR: It is 18 in mine.

MR NORTH:

Then I was referring to that finding,

Your Honour, or the recitation of the evidence of fear in the workplace at these workplace meetings
based on a belief arising from views expressed by
local management that if they did not accept the
VDP, their future job security would be in
jeopardy. There is a further extract a little
further on in the next paragraph from a
Mrs Karewana's evidence expressing real diffidence about the consequences of the change in legislation
and how vulnerable people felt they were as a
result of it.
Indeed, her evidence about six lines further

down is that she understood that she could in a
context of previous permanency of employment be

sacked on four weeks notice. On what is page 29,
Your Honour, of my copy, the Deputy President, in a
paragraph starting, "For the reasons set out, I
have decided to grant the interim award", he goes
on to say that he is doing so:

because the circumstances are so special and
extraordinary and almost without precedent.
Not to act would be grossly unfair to many employees who look to the Commission to
provide some degree of fairness and equity in
the difficult circumstances they now find
themselves.

Your Honour, that is a context which, far from making this case distinguishable from Griffin on
the analysis our learned friends made, does the

very reverse. The principle there referred to was
that the Court should be reticent to upset what are
matters of industrial judgment. That is exactly
what this case is. Sure it does not deal with an
immediate question of $10 more in the pocket; it
deals with the very fundamental issue of, "Am I
going to have a job or not?", and the fear about

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4/3/93

that circumstance. Your Honour, in our submission
it is a fortiori to Griffin's case. It is a case
in which any application for a stay should first be
made to the Commission so that it can, with its
knowledge of the entire fact circumstances,
determine what the right thing to do is
industrially.
Finally, Your Honour, in terms of detriment in

relation to the interim award, I think our learned
friends conceded it was their weakest point because
obviously if a stay is granted, those people who
previously would have been protected from
termination would be subject to termination, and
that would be irretrievable because in 12 months
time or whenever it is that this Court determines
the issue, they will have been long gone.
Your Honour, those are the only additional

matters to which I seek to refer in relation to
Mll. If Your Honour pleases.

HIS HONOUR:

Thank you, Mr North.

Yes, Mr Marshall?

MR MARSHALL:

Your Honour, this matter arises from

proceedings before Senior Deputy President Riordan,
where His Honour was asked to hear an application
under section lll(l)(g)(iii) of the Act prior to a
dispute finding. His Honour found such an
application was not available but, in any event, in
his reasons for decision, stated that on the test
in Citicorp, there had been no good reason advanced
to require section lll(l)(g)(iii) to be heard
before a dispute finding exercise was entertained.
Your Honour, that particular decision is

annexure 4 to Mr McArdle's affidavit. It is

print K6811. At page 16, at about point 5, after

referring to the Citicorp case, the
Senior Deputy President stated:
It is appropriate to observe, however, there
was no good reason advanced in these
proceedings to require a consideration of an
application made pursuant to
section lll(l)(g)(iii) prior to an inquiry
being undertaken about the existence or
otherwise and ..... circumstances of the alleged
industrial dispute.

Your Honour, that was in response to an alternative
submission of mine in writing put to His Honour
that in any event absent section lll(lA), the
question then became in the language of Citicorp,
at the bottom of page 520, 167 CLR, to the top of
page 521:

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4/3/93

whether it is convenient and appropriate to
entertain Citicorp's application that the
Industrial
powers under s lll(g)(iii) of the dispute finding being made.
So, Your Honour, His Honour the Senior Deputy
President found that section lll(lA) barred the
application under lll(l)(g)(iii), which my learned
friend, Mr Kaufman, said was available before a
dispute finding, but not after. His Honour said
"No, it is not available before a dispute finding
because section lll(lA)", but in any event, in
dealing with my alternative submission, agreed that
there was no good reason advanced to require the consideration of section lll(l)(g)(iii) prior to the ordinary course which is the finding of
dispute.
The ordinary and usual course is referred to

in the long excerpt from the Full Bench's decision at page 16 of His Honour's decision. That is, the Full Bench that occurred after the High Court's
decision in Citicorp because what happened, the
matter went back to the Commissioner Laing who
found it was more convenient and appropriate that
there be a hearing about the finding of dispute,
and then there was an appeal from that to the
Full Bench in Citicorp Australia (No 2), if I could use that expression, and the Full Bench found that
there was nothing wrong with the usual course being
adopted.
So, in one sense, Your Honour, in a real

sense, Your Honour, the issue under lll(lA) does
not arise because Senior Deputy President Riordan
has dealt with the alternative submission, and

found against my friends on that. Your Honour, there has been no appeal from the
decision of Senior Deputy President Riordan.
His Honour, on Tuesday last, adjourned the
proceedings that he called back on after having

handed down his decision on the Friday last. He
adjourned the proceedings on Tuesday, when
Mr Douglas of senior counsel asked him to do so on
the basis that the Crown was coming here today, and
His Honour did that and has adjourned the
proceedings until 9 am next Thursday 11th, at which
stage my learned friend, Mr Bromberg, who appears in the matter for the HSUA which is an intervener in the proceedings, and myself appearing for the
SPSF, will hand His Honour consent directions, for
His Honour to programme the hearing of an issue
between us, that is, the HSUA's allegation, but the relevant employees in Victoria. I formally read

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4/3/93

the affidavit of Mark Damian Perica, which is a
short affidavit, evidencing that fact.

HIS HONOUR:	Has that been filed?
MR MARSHALL: Yes it has, Your Honour.	Mr Perica refers to

his attendance on the 2nd, instructed me, and the
agreement between myself and Mr Bromberg that we
would ask the Commission to make consent directions

to deal with that discrete issue. Now, we will
only be doing that, of course, Your Honour, if
there is no stay, because if there is a stay the
proceedings before the Senior Deputy President, of
course, will be cancelled.
But, Your Honour, in light of that background,

and in light of the fact that no appeal has been
made against the decision of His Honour Senior no application for leave to appeal and, of course,
no stay application has been made, and under
section 45(4) of the Act, the Crown can apply to
stay the decision, and Your Honour, unlike the
past, section 45(4) has been amended to provide
that a single deputy presidential member, or the

President can hear a stay application. So that no
Full Bench is required anymore, and it is easier to get a single member, a senior deputy president or a deputy president, or a president to hear a matter
such as that at a relatively short time, compared to the previous situation where the President had to assemble the Full Bench.
Your Honour, so, in my respectful submission, given those circumstances, it is not appropriate

that a stay be granted. I have handed, through
Your Honour's associate, a copy of the report in
Jennings v Burgundy Royale, 69 ALR 265 and,

Your Honour, the particular passage is at page 267
from line 30 down to line 40, and the situation is
analogous to that here, and there His Honour
Justice Brennan said, and I quote:
When an application for special leave to
appeal is made to this court, a jurisdiction
to stay may be exercised by the court below
and it is to that court - the court in which
the matter is pending and which is familiar
with the matter - that an application to stay
should first be made. In this case the
Court of Appeal, not wishing to pre-empt the
view that may be expressed in this court,
tailored its order accordingly. In future,
there should be no inhibition on the court in
which the matter is pending framing a stay
order, if a stay be appropriate, to avoid the
necessity for application to this court.

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4/3/93

In my respectful submission, that reasoning is
apposite to this case. Having made submissions in
relation to the background of this matter and being
inevitably led into the question of the
inappropriateness of a stay, Your Honour, I will
make some more submissions about the stay first
before dealing with the order nisi.
Your Honour, there is detriment to the SPSF if

the Commission cannot deal with the proceeding at
all; the SPSF is unable to advance its claims
before the Commission on behalf of its members and

persons eligible to be its members. The persons
referred to in paragraphs 11 and 12 of
Mr Langmead's affidavit that Mr North referred to
also are eligible to be members of the SPSF and
they are persons who are covered.by or were covered
by the Public Service Act and who now have no
recourse to a system of conciliation and
arbitration where there can be compulsory
arbitration.
Leaving aside the question of which of them

are eligible or not eligible, the fact is that they
are public servants who were under the regime of
the Public Service Act in any event and now have no

access to a system of compulsory arbitration. I
adopt the submissions of Mr Kenzie and Mr North in
relation to detriment and say that they apply
equally to my client and its members and also
persons eligible to be its members, because that is
who the log goes to and not members only.
Your Honour, I adopt Mr Kenzie's submissions in
that regard in relation to Re Griffin and also Re
Ludeke.

Your Honour, there is a lack of prejudice to

Victoria, to the Crown. The Commission can deal
with matters other than matters affecting Victoria

and that will take some time. On the directions
that Mr Bromberg and I would propose to His Honour
that would involve a hearing on that issue some
time after Easter, unless there can be some
agreement about that matter. And a real lack of
prejudice arises also because we are not even to
the stage of a finding of dispute.
Even if the Commission ultimately determines

that section lll(l)(g)(iii) is not open to the
Crown, as Mr North has made clear, section 90 is
available to be invoked because in exercising the
discretion that the Commission has in dealing with
a dispute finding, and perhaps ultimately an award

if we get that far, section 90 must be available.

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4/3/93

Your Honour, can I deal also with the question

of consequences of a stay and a consequence of this
stay for an efficient operation of the Commission

will be that every time a finding of dispute is
sought before the Commission, parties attempting to delay those proceedings will assert a right to make
an application under lll(l)(g)(iii) and rely on
stay in this matter, if granted, to have those
proceedings adjourned and the effective operation
of the Commission will thereby be frustrated.
I have already made submissions to the Court

in relation to the Citicorp issue being dealt with
by His Honour. In other words, section lll(lA) can

be put aside for that purpose. But if the Court
was to grant a stay simply because the
constitutional validity of section lll(lA) was
challenged, that is really tantamount to
determining unconstitutionality in the interim,
assuming against validity and, in my respectful
submission, that is not a result that ought to
ensue.
Your Honour, the question of non-exhaustion of

remedies in the Commission has been dealt with by
Mr Kenzie in dealing with the Multiplex case and
Griffin's case. Could I also give a reference to

Re McKenzie, 11 IR 297. Your Honour, at page 298,
in the second last paragraph, His Honour
Justice Dawson said:
Moreover, the jurisdiction to grant a

stay is to be exercised with caution and in a
case such as the present should be exercised
sparingly.

Could I pause there to say that Mr Justice Dawson
said, in the SPSF case decided last September, that

that was so irrespective of whether the inherent jurisdiction was sought to be invoked or whether

Order 55 rule 10 was relied upon. I continue the
quote:
As Brennan J pointed out in Re Merriman, it is
ordinarily desirable that matters such as this
should take their course before the Commission
up to and including the prosecution of any
appeal if in the public interest an appeal
should lie. This is not only because the
Commission is the more appropriate forum for the initial determination of the issues, but
also because in the event that proceedings in
the Commission are decided in a particular
way, proceedings in this Court may be
obviated and delay avoided. Furthermore, whilst the question before this Court may
ultimately be a question of law, is a question

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4/3/93

which can only be determined in a factual
setting and it is desirable that this Court
have the benefit of the findings of the
Commissioner in making any decision.
I end the quote there. Your Honour, having read
that reminds me of the point that it is possible that Mr Bromberg in the HSUA will succeed on the
submissions in relation to its ..... eligibility and
the matter need go no further than that which we
seek to programme by consent before Senior Deputy
President Riordan and not affect the Crown one
ioata.
Your Honour, I would formally repeat, without

actually going to in great detail, and actually
reciting the point about exhaustion of remedies in

relation to the order nisi. The second point,
Your Honour, is that the Court could entertain in
relation to whether to grant an order nisi, is that
the prosecutor conducted its case before Senior
Deputy President Riordan on the basis that section
lll(lA) was a valid enactment and that is
specifically referred to by the learned Senior
Deputy President in the very last paragraph of his decision.
Thirdly, Your Honour, can I adopt what I have

said about the fact that the Citicorp test was
undertaken in any event and decided against my
learned friends. Fourthly, I concede, as I have
before, in initial submissions in answering a
question Your Honour put, that the argument of my
friends in relation to section lll(lA) is arguable
but, in my respectful submission, none the less, is

a challenge that is unlikely to succeed. Can I
just shortly say why.

The law in question is not directed at a State or the States as such. It is a law that is imposed

on persons generally. They cannot invoke section
lll(l)(g)(ii) or (iii) in the circumstances
referred to section lll(lA). Unions, other than
the notifying union, and private employers in any
State are all equally affected, along with State

governments. None of those participants in the
system of conciliation and arbitration provided for
in the Act can invoke section lll(l)(g)(ii) or
(iii) in the circumstances provided by

section lll(lA). They cannot prevent the exercise
of jurisdiction in such circumstances, although, in
exercising its jurisdiction, which is incapable of
being prevented, the Commission must have regard to
section 90.
The law is not directed at a State or intended

to place any State in a position of disadvantage as

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4/3/93

an employer compared with other employers. It is

in stark contrast to the QEC case. As was said in
QEC v The Commonwealth, (1985) 159 CLR 192 at
page 215 by Justice Mason, a State:
must accept the general legal system as established, except in so far as it has
legislative power to alter it.

And as was referred to by His Honour, the now
Chief Justice, Sir Anthony Mason, at page 217, the
State is not isolated from the general law
applicable to others including other States and
other employers, if I may interpolate.
Your Honour, my fifth point in relation to the

order nisi is that the Commission was correct, in any event, in holding that section lll(l)(g)(iii) is not available prior to a finding of dispute if
section lll(lA) is valid. The whole point of the
submissions by my learned friends before
Senior Deputy President Riordan was that there are different proceedings; proceedings for a dispute finding and proceedings under section lll(l)(g).
One only has to observe the language of the

Court in Citicorp to determine that proceedings -
at the very start of the decision, at the bottom of
page 514 - are the proceedings that are commenced
with the failure of the employer to exceed to the
log of claims, the notification of a dispute and
that matters involving section lll(l)(g) and the
like are procedural matters within the general
proceedings.

HIS HONOUR:

What is the reference to Citicorp? Is it

167 CLR?

MR MARSHALL:

It is 167 CLR 513, Your Honour. The Court, at

the commencement of the decision, at the bottom of
page 514, said:
Citicorp Australia Ltd was served with a

log of claims by The Australian Bank Employees
Union. Proceedings were thereafter instituted
by the Union in the Conciliation and
Arbitration Commission. In those proceedings
Citicorp requested the Commission to exercise
its powers pursuant to s 4l(l)(d) -

et cetera. The whole judgment is redolent with
that concept that section 4l(l)(d) and now
lll(l)(g) applications are applications made within
the proceedings, "the proceedings" being the
proceedings identified by the C number arising from
the failure of the employers to accede to the
demands, and the hearing for a finding of dispute.

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4/3/93

Your Honour, the final point in relation to the order nisi is the finding of dispute itself,
let alone proceedings being able to continue to
allow it to happen, cannot in any way inhibit the
State of Victoria's capacity to function or to

continue to exist. So on that basis, Your Honour,
the SPSF vehemently opposes a stay and strongly,
for the reasons advanced, opposes the order nisi.

HIS HONOUR:	Thank you, Mr Marshall.
MR KENZIE:	Your Honour, before Mr Uren responds, could I

just mention one matter. I did remind Your Honour
that the general award in Ml2 covered private
employees as well as nurses who, whilst they are

not public servants, are Crown employees. The
language of both the rule nisi and the stay
application is sufficiently general to suggest that
there is an intent to cover the proceedings in
general. If all our other submissions were
rejected, we would submit that it would be entirely
inappropriate for orders to be made in general
terms in relation to Victoria. If the contrary is
contended, of course, that would be another reason
and another powerful reason for not granting a stay

or doing anything at all. But we do not think
there is likely to be any dispute about that,
Your Honour.

HIS HONOUR:	Yes, Mr Uren.
MR UREN:	Your Honour, my learned friend, Mr Kenzie, is

quite right in that regard. I think one of the
orders sought is appropriately restricted, but it
may be that all of them are not. In relation to
the matter that Mr Marshall mentioned, it is not
desired, of course, to restrict any proceedings
which may be in train between his Union and another

union.
I will start off with Mr Kenzie's matter and
make a number of points without developing them at
any great length. On the question of prematurity,
it was said that we have elected to go - - -

HIS HONOUR:	I do not want to hear you on that, Mr Uren.
MR UREN:	Could we take up a point that Your Honour had made

some mention of which is the fact that these cases
give the Court the opportunity of seeing what
occurs in a large number of matters prior to the
Court making its decision in the case which it has
currently under review.
That consideration is one which I must say I am glad Your Honour mentioned because I should have

mentioned it myself. It is one of the matters

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4/3/93

which inclined us to take the proceedings that we
did, and I think is going to incline us to take
some more proceedings of this nature next week or
the week after, because there are other awards to
which similar questions of constitutionality could

be raised. So this is not the usual sort of case
and it raises the question that Your Honour
mentioned, and it raises the question of the
assistance to the Court which a review of the way
in which the current situation is working gives it;
and it also would give us the opportunity if, in
fact, it does finally appear that there is an
argument which has not already been put to the
court which should be put in the case the Court has
already got under review, to actually make a
submission that our cases should be listed for the
purpose of doing that.
So, there are very good reasons for corning to

this Court in the way that we have done. I think
actually I trespassed on prematurity there so I
might go and argue simply the matters relating to
the question of the stay.

HIS HONOUR:	I do not want to cut you off in relation to the matter that Mr Marshall raised.
MR UREN:	Yes, Your Honour.
HIS HONOUR:	His point is that the lll(a) point does not

really arise in these proceedings.

MR UREN:	Because we abandoned it or something of that sort.
HIS HONOUR:	No, because the Citicorp point was dealt with.
MR UREN:	I do not see how the section lll(lA) point does

not arise, because what was sought to be put by us
was reliance on section lll(l)(g)(iii), and it was
put against us that there was the new provision
(lA), and that then was said to expunge, so far as
we are concerned, that provision. That must leave
the question of, on the assumption there is not any
case which says that section lll(lA) is invalid,
must that not leave the matter open and
undetermined, and thus allow us to raise the point
of its constitutional validity in respect of a
matter which is alive before the Commission.

HIS HONOUR:	But I thought that Mr Marshall's point was that really there was no reason put forward to require a consideration of an application made under
lll(l)(g) until the question of the dispute or no
dispute had been determined. Is that your point,
Mr Marshall?

Unions	83	4/3/93
MR MARSHALL:	Yes, Your Honour.	It was put as an

alternative submission because my friend,
Mr Kaufman, then appearing before His Honour, said
that you have to deal with it before the final

dispute because you cannot deal with it after. My
reply was you cannot deal with it either way, but
in the alternative, under the Citicorp test, he
applied Citicorp and no good reason has been
advanced - that was in written submission - and it
was upheld.

MR UREN:

I may have misread the judgment.

The proposition

was put to the Commission that section (lA) did not
apply, that it only applied where there were
proceedings which may affect terms and conditions
of employment.

HIS HONOUR:

I appreciate that, but if I understood the

argument that is put against you, it is premature
here because you may never reach these issues. case because the case may go off for other reasons.

MR UREN:

I think the Commission rejected our argument on

that point and said that section (lA) did in fact
apply to dispute hearings.

MR MARSHALL:	I do not dispute that, Your Honour. His Honour dealt with both points.
MR UREN:	He certainly dealt with that point, and the result

of that is that His Honour seems to have taken the
view that (lA) applies to a dispute hearing and,
presumably, the purpose of him coming to that
conclusion was for the purpose of saying that for
that purpose section lll(l)(g)(iii) was not

available. I may have misunderstood - - -

HIS HONOUR:

I will have to read the material more closely

because I have only skimmed over this vast lot of
material that has almost being dumped on me.

MR UREN:

Our view is, in any event, that it is true, at

page 15 of His Honour's reasons, I see he said:
I should add, however, that as I understand
the reasoning of Citicorp, the Commission is
not required to find that an industrial
dispute exists prior to considering whether to
exercise a discretion contained in
section lll(g) of the Act.

I am not to sure if that helps my learned friend.
And then on 16 he went on to say, in the second
paragraph:

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4/3/93

It is appropriate to observe, however, that
there is no good reason advanced in these proceedings to require a consideration of
application being made pursuant to
section lll(g)(iii) prior to an inquiry being
undertaken about the existence or otherwise
and or the nature and circumstance of the
alleged industrial dispute.
Perhaps that is my learned friend's point.
There would be no special burden or onus on either party to satisfy the Commission that
an application pursuant to section lll(g)
should be considered prior to the finding of
the existence or otherwise of an industrial
dispute.

However, none the less what is before the Commission is an application that a dispute be found and what we said was we wanted to utilize the
provisions of lll(l)(g)(iii) and what was said
against that was that (lA) prevents you.

HIS HONOUR:

Yes, in any event, there is authority in Wade v

Burns, 115 CLR for saying that when a body says it
has got no jurisdiction to deal with a point,
whatever it says it would have done if it had
jurisdiction is of no relevance.

MR UREN:

Yes, well we will gratefully adopt what

Your Honour says.

HIS HONOUR:

That was dealing with a question of discretion,

as a general principle.

MR UREN: Actually, while we have got Mr Marshall and got

that part of Deputy President Riordan's decision
open, it seemed to have been put that in some way
the question of the validity of lll(lA) had either
been abandoned or not put. However at page 17, in
the last paragraph in His Honour's reasons it said
that:
This matter has been argued and decided on the
basis that lll(lA) is a valid enactment -

although reference was made to a challenge having
been made to its validity, and on page 2 of the
print, Mr Kaufman, in the second-last paragraph,
argued that if the new section lll(lA) represents a
valid enactment, which he did not concede, he would
be prevented from making an application
under lll(l)(g) once the Commission found there was
an industrial dispute was in existence.

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4/3/93

So, all that seems to have happened is that
before the Commissioner the point was not argued,
because the point was being taken in other
circumstances - presumably a reference to the
application to be made to this Court.
I think on the questions of a stay, the

arguments which have been put, both by ourselves
and by our learned friends, really indicate the

desirability that there be a stay. The questions
which seem to arise are: what is going to be the
situation if something either is done or is not
done? And the situation is that is something is
done, in other words a stay is granted, then the
situation will be clear, subject to what is meant
by the legislation.
If the stay is not granted and awards are

made, then the situation will be unclear as to
whether the awards have any validity or not, and it
will be quite unclear as to whether any offences
are being committed by not complying with the
provisions of awards, whether people are entitled
to rely on those awards for the purpose of
receiving benefits and if benefits are not granted
and proceedings are taken on awards, then
presumably the same defences will be raised with
respect to constitutionality as are being raised
here, and they will inevitably be raised; cause
arguments to be delivered and cause appeals to be
made against them to the extent that they go the
other way.
In order to avoid that degree of chaos it is

probably better, in our submission, as a matter of
balance and convenience that what we submit is in
fact the status quo remain.

HIS HONOUR:	But there is no status quo in respect to the general award, is there? In Ml2 the status quo at the moment is that there is a federal award. You
want to stay a federal award which has superceded
State legislation.
MR UREN:	Yes, that is true, but what we would characterize

as the status quo is the current legislative
situation - - -

HIS HONOUR:

But the current legislation is inoperative by a

combination of section 109 of the Constitution, the
Act and the Award.

MR UREN:

Yes, I suppose it is a question of to what extent

the existence of an impugned situation can be taken
into account for that purpose. So perhaps the word
status quo is not entirely appropriate. Perhaps
what I should have said is this: at least our

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4/3/93

situation is unimpugned as to its validity and
unimpugnable, one would have thought, and it is
also practically acceptable in the sense that it is
not leading to ghastly results. There are the
protections that the Court has had mentioned to it.
If no stay is granted, then there will be the
situation of uncertainty that I mentioned before.
That is perhaps really a better way of putting the
proposition that we were wanting to raise.
I do not know if the Court wants me to say anything about the question of chances of success
but the -

HIS HONOUR: Well, it seems to me that, as I said to you

this morning during your argument, you are in a
position where it seems to me that you want to
extend the frontiers of the doctrine of State

immunity. You have got against you, at least by
analogy, the statement of three members of the think what Justice Gibbs said in the same case
assists you.

MR UREN:

I wonder if I could ask Your Honour, I will not

read these pages out, to read particularly
pages 442 to 443 and 450 to 452. It appears to us

that what the Court deliberately did there, taking
the argument that was put to it, was to go no
further than to decide what they call the second
point, which is whether teachers were within the
possible exception of the persons who provide

administrative services. The Court seemed to us to
be very careful to do that and to raise, as a
serious consideration, the question of what the
immunity meant and what it did not mean.

But, none the less, for the purposes of that

case, all they had to decide and all they expressly
decided - and when I say expressly I mean
deliberately expressly decided - was that the wages
and conditions of employment of teachers were not a
matter which fell within the possible
administrative exception if it existed, but said
nothing about the question of whether there was an
exception. They may have said they did not like the idea of the exception if there was one being
based on a categorization of administrative or
otherwise for obvious reasons. But it does not
appear to us that the Court said anything which
would cause it to be considered that our views
would have been rejected.

It seems to us also that the Court

deliberately decided not to say anything in
particular which would mean that the point was
rendered less arguable. That is a view that we

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4/3/93

take of Lee's case and the submission we make about
that case.
I think that is all I wanted to say, if the

Court pleases, except as to the terms of the order
if Your Honour was inclined to make one, because
some of them need a little trimming up, I think.

HIS HONOUR:

Yes.

You are proposing to bring further

applications, I take it.

MR UREN:

Yes.

As I understand it, that is the current

view.

HIS HONOUR:

When are they likely to be brought?

MR UREN:

There is a possibility of next week.

I know there

is one which is almost prepared that relates to

firemen, if my memory serves me right. Yes,
Your Honour, it is possible there might be some
next week.

HIS HONOUR:	Having regard to the general importance of the matter and the material involved and the fact that
further cases are to be brought, I think I will
reserve my decision on these matters. Are any of these matters corning back before the Commission before the date of next Thursday that was
mentioned?
MR MARSHALL:	9 o'clock on Thursday the 11th is when

Senior Deputy President Riordan will sit. That was for the purpose of taking a direction hearing.

HIS HONOUR:

I will try and give a decision in this matter

by 2.15 on Monday afternoon. The Court will now
adjourn.

AT 4.12 PM THE MATTER WAS ADJOURNED SINE DIE

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[1993] HCATrans 43

Key Legal Topics

Areas of Law

Administrative Law

Constitutional Law

Employment Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Stay of Proceedings

Statutory Construction

through the smaller affidavit.	I had other
business to attend to.

and 13. Not the first one 10.	(instructed by
Maurice Blackburn & Co)

concede that you have an arguable case for an order
nisi.	So perhaps you might put your submissions

I need not trouble	Your Honour with the first nine
pages of my notes.	The difficulty with the
prematurity - - -

produced by the Union, upon which it was sought
that the Commission make a decision.	The

Employee Relations Act, section 172(1) and (6).	On
subsection 172(1) provides that:

able to hear the matter if there was no stay
granted by this Court.	So the first thing is the

was filed on 4 March 1991.	You have had long
hearings.	Your client accepted that there was a
relevant dispute within the meaning of the Act.	It
is perfectly open to you to take the view that you
now haye but it is not a case of somebody just suddenly invoking the jurisdiction. In a real
sense, the 1992 legislation seeks to change what
might be regarded as the then status quo.

Commission or by this Court.	Why should this Court
intervene at this stage?

substantial reasons for refusing a stay.	A
stay of a Commissioner's decision is

the same.	But the question of uncertainty of
status is of importance.	I mean, we might be

remain closed. That may not be a very appropriate	the pen when the Court says the gate should always
analogy, but none the less the point I think is
relatively clear. This is a one-stop matter which
will hold things up momentarily until something
eventually happens. If what eventually happens,
happens one way, then everything can proceed in an
orderly fashion.
If it goes in another way, then a whole lot of things which have happened in the past, will have
to be upset, undone and rights which people thought
they had, they will not have, and they will get cross about that, and the situation in Victoria
will be worse because people, lets say, who thought
they were in one system and were happy about it,
may be now find they are in another system and they will get - so the failure to grant a stay in the

Commission in various - I will go back a square.	I
do not think this is the material, but it is the case that - - -

we have appealed against a decision and the appeal,	of urgency. There was one case, I think, in which or the day before been listed for hearing in April.
I cannot say what - - -

and Ml0, an affidavit of Mr Gardner.	Does the
Court that affidavit.

a decision in relation to this matter.	Do you
have any comment about that?

Mr Kaufman:	Yes, it might, Your Honour.
His Honour: That is why I mentioned to you
the question of whether I should await the
results of those proceedings.

your Honour.	It is hard to answer with any
precision.	My understanding is that at the

contractual arrangements increases.	I might
also indicate, your Honour, that on my

aspects of that, Your Honour.	The transcript is
exhibit PJG5.

them conveniently set out on that page.	I will not
read those.

grant natural justice.	The Crown says that the
award was made beyond ambit.	The Crown says that

It is about the strongest case you could imagine, Your Honour.	I mean, the High Court was
saying, "Look, there are real problems about the

circumstances where that has happened there is an	application for a reference to a Full Bench which	is being pressed by the applicants as we speak.
That is still being considered by the President.
If that reference bench is granted it will have the capacity to take charge, and will take charge of
the whole proceeding, and it ought to be allowed to
do so. There is just no basis for halting those
proceedings at this stage.

was then in force, but like the present Industrial	unlike the Conciliation and Arbitration Act which active provision in it which expressed Parliament's
view that the proceedings ought to be undertaken
with expedition and, Your Honour, that is now found
in section 98 of the industrial relations legislation. That has a nice succinct provision in
it which says it is the duty of the Commission to
conduct the proceedings with as much speed as is
practical in the circumstances. It simply provides that:

whatsoever to the applicants if they come back	later and reactivate an application for a rule
nisi. For example, if the SPSF case, the doubt
about which is resolved in some way and the Commission has been given an opportunity to conduct
its statutory functions, then everyone will be
further advanced, including the Court. Could I
come to the stay?

would need to be shown in this case.	I have heard
Mr Oren's submissions.	We do suggest that the

have, Your Honour.	Your Honour was given this
print before lunch by Mr Uren, I thought.	Does
Your Honour have it? It is the decision of
Justice Dawson of 15 September 1992.

effect of granting recognition to the ANF.	I will
give Your Honour a reference.	Your Honour has the

conditions until some other agreement is made.	So
the Act contains within itself the machinery to
change the status quo.	Does Your Honour see that?