Re Australian Teachers' Union and 19 Other Matters; Ex parte The State of Victoria & Ors (M8-93 &

[1994] HCATrans 240

~

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,

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No MB of 1993
In the matter of -

An Application for a Writ of

Prohibition, a Writ of

Mandamus and a Writ of

Certiorari against THE

HONOURABLE JUSTICE MUNRO,

THE HONOURABLE DEPUTY

PRESIDENT WILLIAMS and

COMMISSIONER McDONALD of the

Australian Industrial

Relations Commission

First Respondents

THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Second Respondent

AUSTRALIAN TEACHERS' UNION

Third Respondent

THE STATE OF VICTORIA, THE

Unions(3) 1 11/3/94

HONOURABLE MINISTER FOR

EDUCATION FOR THE STATE OF

VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne	Nos Ml0 and Ml6 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

KENNETH TURBET, A former

Commissioner of the

Australian Industrial

Relations Commission

Second Respondent

_AUSTRALIAN NURSING

FEDERATION

Third Respondent

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

Unions(3) 11/3/94

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne	No M14 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

THE HONOURABLE JUSTICE PAUL

MUNRO, THE HONOURABLE DEPUTY

PRESIDENT SIMON WILLIAMS and

COMMISSIONER McDONALD

Second Respondents

HEALTH SERVICES UNION OF

AUSTRALIA

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Unions(3) 11/3/94

Office of the Registry

Melbourne No MlS of 1993

In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondent

MR KENNETH TURBET, A former

Commissioner of the

Australian Industrial

Relations Commission

Second Respondent

HEALTH SERVICES UNION OF

AUSTRALIA

Third Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Unions(3} 4 11/3/94

Office of the Registry

Melbourne	No M17 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

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 M156 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

Unions(3) 11/3/94

Office of the Registry

Melbourne	No M12 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against Tim,

HONOURABLE SENIOR DEPUTY

PRESIDENT JOSEPH MARTIN

RIORDAN, A Member of the

Australian Industrial

Relations Commission

First Respondent

THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Second Respondent

AUSTRALIAN NURSING

FEDERATION

Third Respondent

HEALTH SERVICES UNION OF

AUSTRALIA

Fourth Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Unions(3) 6 11/3/94

Office of the Registry

Melbourne	No M13 of 1993
In the matter of -

An application for a Writ of

Prohibition against THE

HONOURABLE JOSEPH MARTIN

RIORDAN, A Senior Deputy

President of the Australian

Industrial Relations

Commission

First Respondent

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

Office of the Registry

Melbourne No M24 of 1993

In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondent

STATE PUBLIC SERVICES

FEDERATION

Second Respondent

Ex parte -

THE STATE OF VICTORIA,

THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA,

THE DOCKLANDS AUTHORITY and
THE GREYHOUND RACING CONTROL

BOARD (VICTORIA)

Applicants

Unions(3} 11/3/94

Office of the Registry

Melbourne	No M25 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, and THE

HONOURABLE JOHN WILLIAM

MacBEAN and THE HONOURABLE

COLIN GEORGE POLITES, Deputy

Presidents of the Australian

Industrial Relations

Commission

First Respondents

STATE PUBLIC SERVICES

FEDERATION

Second Respondent

AUSTRALIAN MUNICIPAL,

TRANSPORT, ENERGY, WATER,

PORTS, COMMUNITY AND

INFORMATION SERVICES UNION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR POLICE AND

EMERGENCY SERVICES FOR THE

STATE OF VICTORIA

Applicants/Prosecutors

Unions(3) 11/3/94

Office of the Registry

Melbourne	No M20 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE MICHAEL FRANCIS

MOORE. Vice President of the

Australian Industrial

Relations Commission

First Respondent

DAVID ROSS HALL, A former

Deputy President of the

Australian Industrial

Relations Commission

Second Respondent

AUSTRALIAN LIQUOR,

HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants

Office of the Registry

Melbourne	No M21 of 1993
In the matter of -

An application for a Writ of

Prohibition against THE

HONOURABLE JOSEPH MARTIN

RIORDAN, A Senior Deputy

President of the Australian

Industrial Relations

Commission

First Respondent

Unions(3) 9 11/3/94

AUSTRALIAN LIQUOR,

HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Second Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants

Office of the Registry

Melbourne	No M22 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against

BERNARD FRAWLEY A member of

the Australian Industrial

Relations Commission

First Respondent

AUSTRALIAN LIQUOR,

HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Second Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants

Unions(3) 10 11/3/94

Office of the Registry

Melbourne	No M23 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE PAUL ROBERT
MUNRO. THE HONOURABLE COLIN

GEORGE POLITIES and KENNETH

JOHN McDONALD members of the

Australian Industrial

Relations Commission

First Respondents

DAVID ROSS HALL, a former

Member of the Australian

Industrial Relations

Commission

Second Respondent

AUSTRALIAN LIQUOR.

HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR FINANCE

FOR THE STATE OF VICTORIA

Applicants

Unions(3)	11	11/3/94
Office of the Registry

Melbourne	No M26 of 1993
In the matter of -

An application for a Writ of

Prohibition against

MR ROBERT MERRIMAN, A Member

of the Australian Industrial

Relations Commission

First Respondent

THE PRINTING AND KINDRED

INDUSTRIES UNION OF

AUSTRALIA

Second Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR FINANCE FOR

THE STATE OF VICTORIA

Applicants

Office of the Registry

Melbourne	No M44 of 1992
In the matter of -

An Application for a Writ of

Prohibition, a Writ of

Certiorari and a Writ of

Mandamus against THE

HONOURABLE DEPUTY PRESIDENT

JOHN WILLIAM MacBEAN, A

Member of the Australian

Industrial Relations

Commission

First Respsondent

THE STATE PUBLIC SERVICES

FEDERATION

Second Respondent

THE STATE OF VICTORIA

Third Respondent

Ex parte -

JEFFREY GIBB KENNETT and

PHILLIP ARCHIBALD GUDE

Prosecutors

Unions(3) 12 11/3/94

Office of the Registry

Melbourne	No M45 of 1992
In the matter of -

An Application for a Writ of

Prohibition, a Writ of

Certiorari and a Writ of

Mandamus against THE

HONOURABLE DEPUTY PRESIDENT

JOHN WILLIAM MacBEAN, A

Member of the Australian

Industrial Relations

Commission

First Respondent

THE STATE PUBLIC SERVICES

FEDERATION

Second Respondent

THE STATE OF VICTORIA

Third Respondent

Ex parte -

HUGH DANIEL McARDLE

Prosecutor

Office of the Registry

Melbourne	No M46 of 1992
In the matter of -

An Application for a Writ of

Prohibition, a Writ of

Certiorari and a Writ of

Mandamus against THE

HONOURABLE DEPUTY PRESIDENT

JOHN WILLIAM MacBEAN, A

Member of the Australian

Industrial Relations

Commission

First Respsondent

THE STATE PUBLIC SERVICES

FEDERATION

Second Respondent

THE STATE OF VICTORIA

Third Respondent

Unions(3)	13	11/3/94
Ex parte -

DARLING HARBOUR AUTHORITY,

ELECTRICITY COMMISSION OF

N.S.W., FISH MARKETING

AUTHORITY, GREYHOUND RACING

CONTROL BOARD, HARNESS

RACING AUTHORITY, MARITIME

SERVICES BOARD OF N.s.w.,

N.s.w. LOTTERIES, ROADS &

TRAFFIC AUTHORITY, STATE

AUTHORITY SUPERANNUATION
BOARD, SYDNEY COVE

REDEVELOPMENT AUTHORITY,

SYDNEY MARKET AUTHORITY,

TOTALIZATOR AGENCY BOARD,

WASTE MANAGEMENT AUTHORITY

OF N.S.W. and ZOOLOGICAL

PARKS BOARD OF N.s.w.

Prosecutors

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 1993, AT a.so AM

Copyright in the High Court of Australia

MR A.G. UREN, QC:  If the Court pleases, I appear with my

learned friend, MR L. KAUFMAN, for the prosecutors
in all of the cases except M46 of 1992. That is
the Darling Harbour matter, the New South Wales

case. (instructed by the Victorian Government

Solicitor)

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

learned friend, MR R.W. HINKLEY, for the respondent

unions in all of the matters, except for the unions

SPSF and Liquor Trades. I will give Your Honour a

list of those for whom we do appear as follows:

the HSUA, the ATU - - -

Unions(3) 14 11/3/94

HIS HONOUR:  These letters are no doubt familiar to those

who practice in the industrial jurisdiction, but

they are as a foreign language to me, Mr North.

MR NORTH:  If Your Honour pleases. The HSUA is the Health

Services Union of Australia (instructed by Maurice

Blackburn & Co); the ATU is the Australian

Teachers' Union (instructed by Holding Redlich);

the next union for whom we appear is the ANF, the Australian Nursing Federation (instructed by Ryan Carlisle Thomas); the next is the ASU, the
Australian Services Union (instructed by Ryan

Carlisle Thomas); and finally -

HIS HONOUR:  Is that the Health Services Union by another

name?

MR NORTH:  No, Your Honour. It is a different union and it

is concerned in - - -

MR UREN:  If I could interrupt my learned friend by giving

Your Honour a document which sets out a summary of

the matters and the unions involved which might be

of assistance.

HIS HONOUR:  That would be helpful. I will have to lock

myself up in a dark room before the hearing of this

case comes on so that I can understand who is

appearing for what.

MR NORTH:  Yes, Your Honour, that is perhaps the most

difficult part of the case. The ASU, Your Honour,

is concerned in matter M25, which also concerns the

SPSF, the State Public Services Federation.

Finally, Your Honour, we appear on behalf of the

PKIU, which is the Printing and Kindred Industries
Union (instructed by Maurice Blackburn & Co).

That means, Your Honour, we do not appear for

the SPSF, which is the State Public Services
Federation or the Liquor Union.

MR K. BELL:  If Your Honour pleases, I appear on behalf of

one union, the Australian Liquor Hospitality and

Miscellaneous Workers Union which is a respondent

in matters M20, M21, M22 and M23. (instructed by

Steve Masselos & Co)

MR S.R. MARSHALL:  May it please the Court, I appear for the

State Public Services Federation in matters M44 to

M46 inclusive of 1992 and M13 of 1993 and M24 and

M25 of 1993. (instructed by Gill Kane & Brophy)

MR G. GRIFFITH:  I appear for the Commonwealth intervening

on the discrimination and on the function issues.

(instructed by the Australian Government Solicitor)

Unions(3) 15 11/3/94

HIS HONOUR:  What is the first one?

MR GRIFFITH: Discrimination is the first one.

HIS HONOUR:  Yes. I tend to treat them as it were similar -

different aspects of the one - - -

MR GRIFFITH:  The constitutional issues. I see my learned

friend, Mr Uren, has divided them up. He gives

them No 1 and No 2 in the right-hand margin of his

table.

HIS HONOUR:  I see. I must say that the categories do not

altogether conform to my understanding of the

interpretation of the Constitution. I would have

thought some of the issues described as industrial

do have a constitutional element in them. But do

you go along with the differentiation in the two

categories that lies at the basis of the

distinction now put forward between constitutional

issues and industrial issues.

MR GRIFFITH:  I do not think we do, Your Honour, no. What

our interest is today is to admit that my learned

friend may file affidavit material, it seems, at
his leisure, notwithstanding that these matters

have been in the Court for years, in some cases.

We do wish to, as it were, put in a marker,

Your Honour, to be given an opportunity to consider

our position as to whether we would wish to answer

or contest that as yet unseen material.

HIS HONOUR:  Yes, I follow that. You would be able to make

up your mind fairly quickly on that issue.

MR GRIFFITH: Yes, Your Honour. What concerns us is there

may be some contentious modern economic theory and

the like which might remain a contentious issue,

and if we thought there was a running problem we

would desire an opportunity to mention the matter

again before Your Honour in advance of the hearing.

HIS HONOUR:  Yes, I will certainly give liberty to the

parties to restore the matter to the list on seven

days notice to other parties, to guard against the

possibility that some issue of fact will arise

which it may be desirable to determine in advance

of the hearing.

MR GRIFFITH:  We would only bother Your Honour in that way

if we thought it was essential.

HIS HONOUR:  Yes. I am prepared to go along with that

course, Mr Solicitor. Mr Uren.

MR UREN: Your Honour, if I could deal with the timetable

point first, as to the delivery of affidavits. In

Unions(3) 16 11/3/94

each case, Your Honour, there is a compendious

assertion which appears in the affidavit of the

person who swore it, Mr McArdle, as to the public

nature of the functions involved and things of that

sort and the effect of awards on them. I

understand from the submissions made in writing by

the union that they do not intend to file any

material in opposition to those bald assertions.

However, it was thought prudent for a number of

reasons that the matter not lie merely an

assertion, but that there be actual proof of those

matters and the affidavit material is largely

addressed to those points.

Your Honour, we have one substantial affidavit

which can be delivered next week and the balance of

them we would propose be delivered by the end of

the month, that is the 31st. Then if the various

interested parties had a further three weeks, that

is to the 21 April, to deliver their answering

material, if any, and there was a further two weeks

to respond to it, that would take one up to 5 May,

on the assumption that everybody needed that length

of time. Then the preparation of submissions which

would presumably be ongoing, in any event, could be

done, if the Court wanted written submissions to be

filed prior to the hearing, by 21 or 28 May, and

that then would, we would think, fit in with the

Court hearing the matter in the week commencing

6 June.

HIS HONOUR:  Mr Uren, can I take you to the timetable that

is proposed by the union respondents in paragraph 8

of their written submissions. It is on page 4. Do

I understand from what you have said that all your

other material would be filed by 31 March?

MR UREN: Yes, Your Honour.

HIS HONOUR:  And you are suggesting that, in effect, (a)

ought to be altered so as to read "31 March"?

MR UREN: Yes, Your Honour.
HIS HONOUR:	And you are suggesting that (b) should stand,

"21st April"?

MR UREN:	Yes, Your Honour.
HIS HONOUR:	And that there ought to be an additional

provision that the prosecutor should file

affidavits and material, if any, in reply by 7 May?

MR UREN:  5 May. That is a straight fortnight, yes.

HIS HONOUR: Stopping there, are those proposals acceptable

to everyone at the bar table?

Unions(3) 17 11/3/94

MR UREN: I do not know, Your Honour.

HIS HONOUR:	Why not?
MR NORTH:	Your Honour, we have not heard of them until now.

We would suggest, with respect, that the alteration

to (a) is unjustified because the Victorian

Government has been on notice, at least since

3 February when this matter was agitated before the

Registrar, of a potential hearing, at that time in

the middle of April, and at that time the Victorian

Government agreed - - - ·

HIS HONOUR:  I do not want to go into all this. What about

24 March?

MR NORTH:	That would be acceptable, if Your Honour pleases.
HIS HONOUR:	You ought to be able to comply with that,

Mr Uren. That gives you a fortnight from today.

You have got the not inconsiderable resources of

the Victorian Government behind you. They are not

as considerable as the resources that the Solicitor

for the Commonwealth's client, but still -

MR UREN:	I was going to suggest that, Your Honour.
HIS HONOUR:	24 March. What I propose to do is to make

orders giving directions in accordance with page 4

of the unions' submissions, altered as I shall

indicate on the way through.

So (a) will be 24 March. (b) will remain as

21 April. After (b) I shall put in a (ba) which

shall provide that the prosecutor to file and serve

any affidavits and material in reply by 5 May.

MR UREN: If Your Honour pleases.

HIS HONOUR:  Can I then ask whether paragraphs (c) and (d)

are acceptable to the parties? They are obviously

acceptable to the unions. What about to you,

Mr Uren?

MR UREN:  29 April, it is certainly before the end of the

evidentiary material. That would perhaps seem to

rule it out. The purpose of the written

submissions is presumably to - - -

HIS HONOUR:  I will substitute 5 May in (c) for

"29th April". That gives you the same time that

you have to file your material in reply, and you

ought to be in no difficulty about that. Now, 27

May is still suitable for the unions? I know it

imposes a bit of a burden on the unions. It cuts

you down by a week.· On the other hand, it improves

the situation as far as the Court is concerned

Unions(3) 18 11/3/94

because it gives the Court more time to consider

your written submissions.

MR NORTH:  Yes, Your Honour, I follow that, and in order to

ensure a hearing date in June we would strive to

comply with that.

HIS HONOUR:  I can understand that you may have difficulty,

but I would strongly counsel you in your own

interests to get your submissions in by that date.

The efficacy of comprehensive written submissions,

I think, is impaired if the Court does not have

sufficient time to consider them.

MR NORTH:	Yes, Your Honour.
HIS HONOUR:	So (c) and (d) will stand, with the exception

that I shall substitute "5th May" for "29th April"

in ( C) •

That leaves you out of account, Mr Solicitor.

We obviously want to embrace you, if not your argument.

MR GRIFFITH:  Your Honour, we hope to have an embrace on a

floating basis, in that we would endeavour, if we

are able to answer the as yet unseen material, to

file within the same time. But if we thought there

would be - - -

HIS HONOUR: That would be 21 April.

MR GRIFFITH: Yes, Your Honour, but if we thought there

would be an outstanding difficulty, we would give

notice and tend to approach Your Honour within that

time. So as to whether Your Honour feels it is

necessary to include us in an order, or merely for

there to be an understanding that we will go

along - - -

HIS HONOUR:  No. What I should say: I expect the

Commonwealth to file any material on which it

proposes to rely, including affidavits, on or

before 21 April. But I will not make an order to

that effect.

MR GRIFFITH: Yes, Your Honour. And if there is a

difficulty, Your Honour can take it that we will

approach the Court and give notice before then.

HIS HONOUR:  Yes. What about written submissions as far as

you are concerned? You are covered by (d), are you

not?

MR GRIFFITH:  Yes, Your Honour.

Unions(3)	19	11/3/94
HIS HONOUR:	That covers the timetable.	I do take it, by

the way, that the estimate of three days is a
realistic estimate, if the issues to be debated on

the three days are confined to the so-called

constitutional issues.

MR UREN:  We think so, Your Honour. We notice the SPSF case

in June of last year, I think, took three days and

that involved both issues, the industrial and

constitutional issues.

HIS HONOUR:  Now, I see you are clucking down there,

Mr North.

MR NORTH:  Yes, Your Honour. I was indicating, in any

event, our disagreement with Your Honour's

formulation of our position. We estimated, before

the deputy registrar, three days for the completion of all issues on the assumption that there would be

comprehensive written submissions because, as we

see it, the issues that are described as industrial

in an abbreviated fashion are, in essence, largely

short and would not take a great deal of time.	The
best estimate we could give is that all of the issues would be finished within the three days.

HIS HONOUR:  Now, Mr Uren, what about these industrial

issues? I have read your submissions and I gather

that if I take the view that the hearing ought to

be confined to constitutional issues, you will not

press the industrial issues.

MR UREN:  Your Honour, that was not put, if I could

respectfully say, as an invitation to have those

points not put. They are regarded as important.

The reason why we made the offer that we did in the

submission was this: firstly, the points arise in

only three of the cases in total; that is MS, M24

and M156. So when the matters come before the

Court in June, there will be this sort of little

pimple, as it were, of things which, in our

submission, are irrelevant to the main issue, which

is the constitutional point, if I can so describe

it. It was thought that it would increase the

likelihood of it not finishing within the relevant

time with a proper degree of argument if the Court

had to examine logs of claims and the evidence in

the Commission in respect of them, and was to say,
well, we think this is, let us say, fanciful or
not, or form judgments on matters and have people

arguing about the effect of different parts of the

award on the total remuneration and things of that

sort; to be asked whether the claims are genuine or

not. The points are minor in the context of the

constitutional points.

Unions(3)	20	11/3/94
HIS HONOUR:	They certainly are minor.	That is the reason

why I am raising with you are you pursuing them.

MR UREN:  Your Honour, if the Court would not agree to them

being split in the way proposed, then we would drop

them. That is true, but we would ask the Court to

allow the split in the way proposed. Could I take

Your Honour to the summary of the cases and just indicate that - - -

HIS HONOUR:	What is this document?
MR UREN:	It is a document which I have prepared from the

grounds of the various orders nisi. It is the one

that was handed to Your Honour this morning. If

there was a split, for instance, in MS, the point

which is numbered 3, no dispute, would go. In M21,

point No. 3, I think I should say, has now been

rendered irrelevant by subsequent legislation, so

that point would not be argued in any event.	In
M24, we would include in what we would call the

industrial points point Nos 3 and 5, that is really

a point that the delivery of a new log ends the old

dispute finding and thus everything based on it.

It would seem that that is discrete from the

constitutional points and could be argued

separately, if necessary, as could the effect of

section 101(3).

so· those points, of course, would never be

argued if the constitutional point succeeded in all

of the cases or, indeed, in any of them. So we

would see them, first, as rather secondary and

minor points, not connected with the constitutional

argument which, if one was to debate them, would

take time and, perhaps even more importantly,

dissipation of attention, both in preparation and

in - - -

HIS HONOUR:  I am not concerned about that. What I am

concerned about is the impact on the Court.

Mr North, why should not the Court in the

first instance deal with the constitutional issues? There are so many parties in this case, there is so much material that, in my view, it will

inconvenience the hearing if everything is brought

before the Court on the one occasion. I have a

very distinct recollection of the kind of arguments

that were presented in the last case that the Court

determined relating to bona fide dispute, and I can

see it all arising again. Basically, it is

industrial tribunal material. It is material that

the Court should not be unduly concerned with and I

will not have, as I see it, an important

constitutional question bedeviled by this other

Unions(3) 21 11/3/94

material.	I mean, they are pettifogging arguments,
really.

MR NORTH:  If the position is, Your Honour, that the State

of Victoria will drop all challenges other than the

constitutional ones, if the matter is split, then

there is no issue because we would not stand in the

way of that.

HIS HONOUR:	That is obvious, is it not? How could you?
MR NORTH:	No, we could not, Your Honour, and we would not.
HIS HONOUR:	I would imagine you would immediately have your

brief withdrawn by those instructing you.

MR NORTH:  That may not be such a good thing, Your Honour,

but we would embrace the situation.

HIS HONOUR:  Of course you would.

MR NORTH: If, however, the matter is split - I am sorry,

Your Honour.	So that gets rid of the situation if
the Court determines to split the matter.	In our

submission, it is important that the matter go

ahead as one - - -

HIS HONOUR:  I follow your arguments. Rest assured I follow

why it is that you want the matter to go ahead as

one. Notwithstanding that I follow your arguments,

I still maintain a strong view that they should not.

MR NORTH:  If that is so, though, Your Honour, it seems that

there is no problem, because as we understand it,

Victoria then withdraws the non-constitutional

matters.

HIS HONOUR:  I follow that, yes, but the real question is, is Mr Uren going to do it. Now, I think he should,

but it is a matter for him and his client to

determine.

MR NORTH:  Yes. If he does not, then we have set out the

reasons why the High court should deal with these

matters as one -

HIS HONOUR:	I know; I am aware of the reasons.
MR NORTH:	Yes, Your Honour, but can I just emphasize them

in this way, that although Your Honour may

characterize them as pettifogging, the fact is that

we 
HIS HONOUR:  They are pettifogging in comparison with the

constitutional issuis.

Unions(3) 22 11/3/94

MR NORTH: Certainly, Your Honour, they are, although in

respect of the fancifulness one, it is really an
attempt to define the outer limits of the SPSF

decision made by the Court.

HIS HONOUR:	Yes, I know that.
MR NORTH:	And that is perhaps something that, in the

industrial tribunal, is a very important yardstick

to have established. So that in terms of practical

jurisdiction in the Commission, these questions are

of great importance and can be solved, should be solved in the short term, in our submission. We

have set it out, but the position is that all these

arguments are being agitated almost daily in the

Commission; unions are expending vast sums to argue

them; and until - - -

HIS HONOUR:  No one ever seems to worry about that,

Mr North.

MR NORTH:  Your Honour, with the greatest of respect, I can

tell you that it is a matter of real worry and that

is why the submission is being put. Until the High

Court determines the limits in fancifulness it will

be raised and reraised and reraised.

HIS HONOUR:  Maybe, but I am concerned to order priorities

in the High Court and I do not regard that one as

measuring up to the priority that I am prepared to

accord to the constitutional questions.

MR NORTH:  Yes. Your Honour, it is certainly accepted that

there is a difference, but if Your Honour accepts

that the entirety of the matters will be dealt with

in the three days, and given the expeditious - - -

HIS HONOUR:  I do not accept that at the moment.

MR NORTH: Well, Your Honour, in our submission it is a

realistic assessment.

HIS HONOUR:  How long did the earlier case take on bona fide

dispute?

MR NORTH:	I am not sure, Your Honour, but -
HIS HONOUR:	It may be difficult to estimate because it was

threaded into other issues as well.

MR NORTH: Other issues, indeed, Your Honour, and I am not

sure if, in that case, there were written
submissions but when one lumps together the so-
called industrial issues, of which fancifulness is

probably the most important, they really amount to

a few pages in a written submission and a matter of

maybe 20 minutes or half and hour in submission

Unions(3) 23 11/3/94

time before the Court. Your Honour, it is true

that from the Court's perspective these cases

involve separate issues; from the litigants' point
of view they are discrete cases and they need

resolution at the end of the day for the purpose of

proceedings either going on or not. Of course that

is not achieved if - - -

HIS HONOUR:	I follow that, but after all, these questions are going to be related to a number of different
awards and a number of different logs of claims.
MR NORTH:	Yes, Your Honour.
HIS HONOUR:	I can just see what is going to happen,

Mr North.

MR NORTH:  As far as a number is concerned, fancifulness, I

think, is raised in three, and it is true, they are
three separate logs, they raise three different
fact situations. These litigants face real

injustice if the matters are not determined in a

final way because it just keeps going on and on.

We are already 12 months or 18 months into a lot of

this litigation - - -

HIS HONOUR: That is not the Court's fault.

MR NORTH:	It is not, Your Honour, but it is in the hands of the Court to draw a line and prevent the same thing
continuing for another 18 months by - - -

HIS HONOUR:  No one is suggesting it is going to occur for another 18 months. My concern is to see that

_issues that are brought before the Court are dealt

with in a way that is most efficacious and that is
what is motivating me in saying that I think that

the constitutional questions ought to be heard

first.

MR NORTH:  Your Honour, our submissions are there in

writing; I have added to them as far as I can and

all we can say is we stand firmly against that

proposition on the basis that the Court - - -

HIS HONOUR:	You have made it perfectly clear to me you are not making any concessions, and that comes with no
surprise to me in industrial matters, Mr North.
MR NORTH:	If Your Honour pleases, our concern is

HIS HONOUR:  I realize what your concern is. You have made

that plain.

MR NORTH: If Your Honour pleases.

Unions(3) 24 11/3/94

HIS HONOUR:  Now, Mr Uren, are you going to persevere with

these other questions?

MR UREN:  If the Court will not allow the industrial issues

to be heard separately and afterwards, then we will

drop them, as we have indicated.

HIS HONOUR:	If the Court will not what?
MR UREN:	If the Court will not allow them to be heard both

separately and subsequently, in other words if the

Court - - -

HIS HONOUR:  I cannot stop you from insisting on arguments

that you want to present.

MR UREN:  What I meant was this: if the Court would not take

the course of allowing only the constitutional

grounds to be argued in June, reserving the others

for later - - -

HIS HONOUR:	If the Court will not do that?
MR UREN:	If the Court will not do that, then we will drop

those points. But we would ask not to be put in

that position.

HIS HONOUR:  In other words, you are saying that if I insist

on the constitutional and industrial issues being

heard in June, you will drop the industrial issues?

MR UREN:  Yes, I would. Yes, in order not to clog and cause

impediments in the situation as it is in June. So,

in other words, our proposal was that the

constitutional issues be heard first and the others

be hived off and heard later.

HIS HONOUR:	I must say I do not follow at all.
MR UREN:	If the Court does not think that is an appropriate

course, then we will drop them, that is our

position.

HIS HONOUR:  You will drop them if I say that both issues

ought to be heard in June, as Mr North wants them

heard.

MR UREN:  I do not know whether that is putting our position

fairly, but none the less, I take it if that - - -

HIS HONOUR: All I can say, Mr Uren, is that if it is going

to result in the issues being dropped, I will say

that I will hear the constitutional issues - I

mean, anything, to restrict the issues in this

case.

Unions(3) 25 11/3/94

MR UREN:  Your Honour, I am tempted to say that if Mr North

finds it so important they be determined by this

Court, then we should certainly drop them so that

he cannot have what he wants.

HIS HONOUR:	Do you say anything about this, Mr Solicitor?
MR GRIFFITH:	I am just sitting here bemused, Your Honour.

I have nothing to say.

HIS HONOUR:  Perhaps I ought to invite you to come up here.

On the footing that Mr Uren has said if I insist on

both industrial issues and constitutional issues

being heard in June he will drop the industrial

issues, and they will disappear from these cases,

it seems to me that in the interests of clarity,

conciseness and early disposition of these cases, I

should indicate that both issues should be heard in

June.

MR UREN:  In that case, Your Honour, we would not persist

with the industrial issues.

HIS HONOUR: That means that, in a sense, the result that I

forecast earlier as the desirable result is now

going to ensue.	The hearing in June will be
confined to the constitutional issues.	Now, is

there anything else to be disposed of in this case?

MR UREN:	No, I do not think so, Your Honour. There is only one problem which I hesitate to trouble Your Honour
with at this time, but none the less, if I was to take everyone to the order nisi in M156, there may, for reasons which I cannot quite recall at the
moment, be some difference between grounds (d) and
(e) on pages 3 and 4. Ground (d) says:

no real and genuine industrial disputes

extending beyond the limits of any one state

existed at any material time.

And (e) says:	as the respondents to the alleged disputes are
state public servants only, the letters of
demand and logs of claims cannot create
industrial disputes extending beyond the
limits of any one state.

we would intend to persist, of course, with the

interstatedness point but in so far as ground (d)

involves what one calls fancifulness, then that

would not be the subject of the point.	The point
is really one of interstatedness.

HIS HONOUR:  Very well. Do you want to say anything,

Mr North?

Unions(3) 26 11/3/94

MR NORTH: 

Your Honour, just a question of how the position

of the State of Victoria can be clarified by
reference to the orders nisi so that we know how

constitutional issue is defined by them. We think

we understand but, in our submission, it would be

desirable for the State of Victoria perhaps to

indicate in writing what paragraphs of the orders

nisi it understands it is pursuing.

HIS HONOUR: 

Yes, Mr Uren, I think that would clarify,

clearly, for the purposes of the parties and the

Court. I mean we have a broad understanding now

that the constitutional issues are confined to the

three aspects of the constitutional implication,
but I think you ought to translate that into - not

at the moment, but in correspondence - into the

grounds in the orders nisi that you are relying on

that correspond to that category, and then indicate
the grounds falling outside that category that you

are not relying on.

MR UREN: Your Honour, we will do that. If I can indicate,

though, that I understood my concession to go to

dropping the points which could be described as "no

genuine dispute or fanciful dispute". Now,

everything else would still be argued, whatever it

would be.

HIS HONOUR: Everything else is?

MR UREN:  Everything else would still be argued, whatever it

might be.

HIS HONOUR:  I had not understood that and I do not think

anyone else had understood that.

MR UREN:  I follow what Your Honour says. There is, in

fact, a point which - No 3 on page - - -

HIS HONOUR:  I have got a fairly clear understanding that

you are confining your argument to the three

aspects of the implied constitutional prohibition.

Now, I want you to confirm that in writing so that	it is clear to the other parties, and to the Court,
and if there is any backing off from that, then the
matter will have to come back in the list.

MR UREN:  Yes, Your Honour. I think I got myself confused

with some extra grounds in one of the matters
which - - -

HIS HONOUR:  I am glad you got yourself confused, because

you certainly had me confused. I think I shall now

adjourn in case I become further confused. Court

will now adjourn.

AT 9.25 AM THE MATTER WAS ADJOURNED SINE DIE

Unions(3) 27 11/3/94