Re Australian Teachers Union & Ors; Ex parte The State of Victoria

[1993] HCATrans 33

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M8 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

Industrial Relations

Commission

First Respondents

THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Second Respondent

AUSTRALIAN TEACHERS' UNION

Third Respondent

THE STATE OF VICTORIA,

THE HONOURABLE MINISTER FOR

EDUCATION FOR THE STATE OF

VICTORIA

Applicants/Prosecutors

Copyright in the High Court of Australia 1 26/2/93

BRENNAN J,.

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 26 FEBRUARY 1993, AT 10.54 AM

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

my learned friend, MR B.J.F. MUELLER. (instructed

by the Victorian Government Solicitor.

Your Honour, this is an application for an

order nisi to review a dispute finding and an the State of Victoria.

interim award made by the Industrial Relations

HIS HONOUR: Before you proceed, Mr Tracey, I should say

that yesterday the Deputy Registrar, Ms Morris,

first learnt of the existence of two letters from

Holding Redlich which she drew to my attention,

with reference to these matters. One letter refers

to the desire of Holding Redlich to be informed by

the High Court if there should be an application

for a stay. Now, I understand no application for a

stay is being made?

MR TRACEY:	No, Your Honour.
HIS HONOUR:	The second letter, which is dated 6 January, reads as follows:

We represent the Australian Teachers' Union in of a Full Bench of the Australian Industrial
a matter relating to teacher redundancies in

Relations Commission on 24 December, 1992.

The Full Bench was Justice Munro,

Deputy President Williams and Commissioner

McDonald.

On Tuesday, 5 January, 1993 it was indicated

to President Maddern of the Australian hearing of another matter, that in relation to the teachers' decision the Victorian

Government was preparing documentation and expected to be in the High Court next week.

we therefore request notification should the

Victorian Government lodge any application in the High Court relating to the teachers' matter.

That, I take it, relates to the present application.

MR TRACEY:	I assume it does, Your Honour.
HIS HONOUR:	Now, you have made the application ex parte.
MR TRACEY:	Yes, Your Honour.
ATU	26/2/93
HIS HONOUR:	In those circumstances, I directed the

Deputy Registrar yesterday to inquire whether your

instructing solicitors were prepared for notice to

be given to Holding Redlich, and the answer was in

the negative. It appears to me that you are
entitled to apply ex parte without notice to the

other side but it occurs to me that if there were

any rights to be exercised on behalf of the

respondent in this matter, the problem could be

entirely met if an order nisi is made by ordering

that the order should not be taken out for seven

days and that notice of the making of the order

could be given to Holding Redlich so that if they

were minded to make any application, they would be

at liberty to do so.

MR TRACEY:	We would not oppose that course, Your Honour.
HIS HONOUR:	Yes, very well.
MR TRACEY:	Your Honour, this matter arises out of steps

that were taken by the Victorian Government at

about the end of October into November last year

with a view to securing, by voluntary resignation,

the reduction in the numbers of teachers in the

public system in Victoria of a number of

approximately 2000. I think the precise number was

2175 that were thought to be the desirable number

by which the reduction should occur. To that end,

offers were made to various classes of teacher with

a view to seeing whether they would be prepared to

enter into an agreement whereby, in return for

payments based upon length of service and various

other matters, they would agree to resign their

positions within the teaching service.

Expressions of interest were sought from

another group of teachers as to whether they too

might be interested in such a package but no formal

offer was made to them pending the outcome of the

first round of offers to see whether enough places

could be secured. In the event, a number of

teachers who had expressed interest in entering

into such an arrangement were made offers and did

aecept them and resigned.

The matter came before the Industrial

Relations Commission following the service of a demand upon the Ministers for Education in Victoria and Tasmania. That letter of demand was - I think

Your Honour has probably seen in the material - a very simple demand. It was that:

No teacher employed by you shall be terminated

from his or her employment whether by way of

voluntary redundancy or otherwise except with the consent of the Australian Teachers' Union.

3   26/2/93

It was upon the basis of that demand that a dispute

finding and subsequently an interim award were made

by the Commission.

We, in these proceedings, would seek to

challenge the dispute finding and the decision to

make the interim award for a variety of reasons,

and perhaps the most convenient way of dealing with

them is simply if I may take Your Honour through

the various grounds that appear in the draft order

nisi. Your Honour will see that it is divided into

two parts: the first dealing with a dispute finding; the second dealing with the award.

In relation to the dispute finding, it is

perhaps convenient to group paragraphs l(a), (b)

and (e) for the purpose of the submission.

HIS HONOUR: Before we get to the paragraphs, I am

interested to note the reference to "disclose an

error of law on the face of the record", which is a

familiar phrase in the context of certiorari.	I
wonder if it gets you home in the case of
prohibition.

MR TRACEY:  Your Honour, the Court has held that -

HIS HONOUR:  That it will grant certiorari incidental to prohibition and mandamus, yes. But that is not

quite the same as saying that there was no

industrial dispute as a matter of fact for the

determination by this Court in its original

jurisdiction as distinct from this Court being

satisfied that that error appears on the face of

the document.

MR TRACEY:  Yes. Your Honour, we would have no hesitation

in varying that formulation.

HIS HONOUR:  I imagine that you do not but I thought that I

should draw your attention to it and allow you the

opportunity of doing so, Mr Tracey.

MR TRACEY:  I thank Your Honour for that indication and

p~rhaps my learned junior will look at that while I

ain addressing Your Honour, but it is probably

sufficient for our purposes to make the assertion

in the first ground that:

The decision ..... and the dispute finding -

was made in error -

in that there was no industrial dispute.

HIS HONOUR:  "Was made without jurisdiction in that", I take

it.

ATU 4 26/2/93

MR TRACEY:  Yes, "was made without jurisdiction in that",

and proceed.

HIS HONOUR:  Is it right to say that we can insert the words

after "finding" on the first line, "were made

without jurisdiction and" - - -?

MR TRACEY:  Do we need the "and", Your Honour?

HIS HONOUR:  You may. If you want the certiorari, you may.

MR TRACEY:  Yes, I think that is probably right,

Your Honour. Your Honour, those decisions are

challenged, as Your Honour will have seen, for a

variety of reasons on the next page and, as I say,

it is probably convenient to address (a), (b) and

(e) together.

Your Honour, our submission, in short, is this, that what was demanded was the acceptance by

the State of Victoria of the imposition on it of a

Union veto over any decision which it might wish to

make to terminate the employment of a teacher. Its

effect, if conceded, would have been to allow the

Union to prevent the dismissal of any teacher for
any reason unless the Union agreed. That veto

power could, of course, had the demand been acceded

to, prevented a teacher from leaving the service,

even in circumstances where the teacher wanted to

do that and the employer wanted that to happen. It

is in those circumstances that we would submit that

that demand was not a demand which touched on the

relationship between an employer, in his capacity

as an employer, and an employee, in his capacity as

an employee, in a way which is direct and not

merely consequential.

Your Honour, they will be words Your Honour

will recognize from the Manufacturing Grocers' case and, more recently, the authorities have been drawn

together in the Shell Company case, the

Superannuation case and, Your Honours, the

Manufacturing Grocers' decision was applied. I

w~ll give Your Honour a reference to two short

passages that bear that out. The first, in

Your Honour's judgment in the Shell Company case,

66 ALJR 645, and Your Honour at page 652,

opposite Din the left-hand column, said:

In my opinion, that relationship is confined to the obligations and duties owed by one party to the employment relationship to the other, albeit the performance of the obligation results in a benefit to third

parties.

ATU 26/2/93

And without reading, Your Honour will see a useful
summary of the relevant authorities in His Honour

Mr Justice McHugh's judgment at page 665 in the

right-hand column. Your Honour, what we would seek

to argue is that in substance what was being

demanded was not something that touched directly on

that relationship of employer and employee, rather,

what it sought to do was establish a right of veto

in the Australian Teachers' Union to interfere with

any arrangement that might be entered into between

employer and employee.

While that may touch indirectly on the

relationship, it did not have the necessary

directness that the authorities require and it is

for that reason that the grounds (a), (b) and (e)

are framed as they were.

HIS HONOUR: Paragraph (e) might be read in another way, may

it not, and that is to challenge the notion of a

paper dispute, which I gather is not intended?

MR TRACEY:  No, it is not intended to do that, Your Honour.

What it is intended to raise, perhaps in different

language, is the same point, namely, that if the

government decided, as it did, not to accede to the

demand, then what it is refusing to do is something

that does not touch on it qua employer, vis-a-vis,

its employees. It is not intended to take things

beyond that. I think the authorities have gone to

a stage now where it is very difficult to challenge

the notion that these disputes can - - -

HIS HONOUR:	At all events, that is not the basis of it?
MR TRACEY:	No, that is not intended, Your Honour.

Your Honour, I can deal shortly with (c) and (d).

We accept that on the authorities the position in

relation - - -

HIS HONOUR:  Can I just interrupt you for a moment? To make

that perfectly clear, would it not be desirable to

the prosecutor to accede to the demand cannot,	reframe (e) so that it would read, "The refusal of
having regard to the terms thereof, provide the basis"?

MR TRACEY:  Yes, Your Honour. Yes, I think that makes the

point, Your Honour. Paragraphs (c) and (d) raise

issues of the existence or otherwise of a genuine

interstate dispute. Your Honour, there was

evidence on both sides before the Commission on

this point and we would have to concede that if the

authorities remain as they are and the onus being

on us to establish the absence of genuineness, we would not, at the hearing of this matter, be able

to make good (c) and (d) on the material.

ATU 6 26/2/93

Your Honour, the reason they are there is to

preserve our position because we understand that

this issue has been agitated in front of the Court

in the State Public Services Federation matter that

was heard last June and is reserved and, as we

understand it, there have been submissions made to

the Court that may lead to some refinement of the

existing position in relation to genuineness. It

is against that possibility, Your Honour, that

grounds (c) and (d) are there.

So, if judgment in that matter is delivered,

as we expect it would be, before this matter comes

on and there is something in it that would assist

us, we would be able to avail ourselves of it.

HIS HONOUR:  Now, the relevant material which bears upon

that is not presently included in the affidavits,

is it?

MR TRACEY:  Your Honour, there is a short summary but the

full transcript is not there because it is so

voluminous.

HIS HONOUR:  Yes, and we are not wanting to encourage you to

put it there. It just occurs to me that it will be

necessary to make some provision contingently upon

the matter becoming live after the publication of

the judgment that you have referred to.

MR TRACEY:  Yes, Your Honour. What we would contemplate

doing, I think, Your Honour, is producing books for

the Court which would include the full extent of
the material that was before the Commission in

respect of any issues that we would wish to agitate

well before the hearing. The other side, of

course, is not prejudiced. They have got all the

transcript and, of course, were represented in the

Commission. They know what has occurred.

So that what we would, perhaps, undertake to

do without direction, Your Honour, is to follow

that course of putting together all the material	that is referred to in the supporting affidavits
t.nat is not, in fact, exhibited to them into
booklet form and filing them with the Court well in
advance of any hearing date fixed.

HIS HONOUR:  Yes. I just wonder whether it may not be

better to delete these groun:s from the present

proposed order nisi and give you leave to apply to

amend your grounds if the occasion should arise.

MR TRACEY: That would be a course that would not create

difficulty for us, Your Honour.

7   26/2/93

HIS HONOUR:  It is an unusual course, but it just seems to

me to be unfortunate if we have to load the record

up with a mass of material that is unnecessary.

MR TRACEY:	Yes, Your Honour.
HIS HONOUR:	In fact, it does not, as at present advised, appear to me that I would have jurisdiction to
grant an order nisi on these two grounds, in the light of your concession of the existence of a dispute which was resolved against you. Unless you
have something further to say, I would delete grounds (c) and (d), but I would be prepared to entertain any application you might make which
would protect your rights in the events that you
have referred to.

MR TRACEY: If Your Honour pleases.

HIS HONOUR:  Now, I do not know how that jurisdiction is

maintained. That is a matter for you.

MR TRACEY:  It may simply be that Your Honour gives us leave

to reagitate the matter and we take advantage of

that.

HIS HONOUR:  Perhaps your junior might set his mind .to

drafting an appropriate addendum to the proposed

order nisi which will protect you in whatever way

you think appropriate.

MR TRACEY:  Your Honour, the second set of grounds raise the

constitutional arguments that, again, we understand

were agitated at some length in the SPSF matter and

stand reserved and, really, what these two sets of

grounds seek to do is to rely on the principles

that have been repeatedly stated by the Court but

perhaps are most clearly expressed in the

Queensland Electricity Commission v The

Commonwealth decision, 159 CLR 192, and in

particular at page 217 in the judgment of

Mr Justice Mason, and at page 261, His Honour

Mr Justice Dawson. Those principles, as

Yqur Honour knows, expressed in two limbs: the

_ first, a prohibition on the Commonwealth from

· discrimination which involves the placing on the

States of special burdens or disabilities, and

secondly, from passing laws of general application

which operate to destroy or curtail the continued
existence of the States or their capacity to

function as governments.

Your Honour, the award that was made in this

matter is a very short award and its operative

clauses are 3(b), (c) and (d). Your Honour will

find it as exhibit HDM9 to Mr McArdle's affidavit.

The clauses are (b), (c) and (d) on the second

26/2/93

page. Clauses (b) and (c) made provision whereby a

teacher who had accepted the arrangement under

which the teacher would resign, and if provided
with a payment, calculated in accordance with the

offer. If that situation had arisen, the agreement

had been entered into, the teachers concerned had

seven days in which to notify the government of

their intention to withdraw their acceptance,

whereupon they were to be treated as not having

resigned and to continue in the service of the

government.

The final clause, that is (d), in substance

prevents the government from terminating the

employment of any teacher during the currency of

this award for any reason other than disciplinary

reasons or reasons such as inability for health

reasons and so on to perform duties.

HIS HONOUR: 

Is the Crown's right to terminate the services

of a Crown employee qualified in the case of
Victorian teachers by legislation?

MR TRACEY: 

Yes, Your Honour. That legislation is called

the Public Sector Management Act 1992. It was

passed early in November last year and in

section 78 it provides a scheme wh~reby public
servants, including teachers, can be dismissed for

the reason that their services can no longer be

used. In short, what the scheme involves is that

the head of the department in which they work
declares them in excess of requirements. There is
then an obligation on the head of department to

report that fact to the head of the Public Service

Commission who is then under an obligation to seek

to find alternative employment elsewhere in the

Public Service. If the Public Service Commissioner

reports back that he has been unable to do that,

then the head of department is free to terminate

the services of the employee on the ground that

their services can no longer be used. Of course,

at paragraph (d), prevents the exercise of that

power.

Your Honour will note that clause 4 provides

for a duration of three months for this award but

there is provision in the Industrial Relations Act

in section 148 whereby it will continue in force

beyond that date if it has not been repealed by

that date. So that although it may appear at first

blush that it has only got another months life,

that is not the case and the Commission is, indeed,

presently seized of an application to extend the time of the operation of the award in any event.

HIS HONOUR:  If one looks at paragraph 2(a)(iv) on page 4,

there is a reference to the restriction of

9   26/2/93

executive authority and prerogative rights. Are there any prerogative rights which will fall for consideration?

MR TRACEY:  No, Your Honour. I think that was an excess of

zeal of drafting.	I think "and prerogative rights"
can come out.

HIS HONOUR:  I am not sure that it is necessary, but is it

desired to provide any particulars of the powers or

authority which is interfered with?

MR TRACEY: Certainly that can be done, Your Honour.

Perhaps we could do it in this way, Your Honour, by

saying in (a)(iv), "restricting its executive

authority pursuant to the Public Sector Management

Act 1992 ti.

HIS HONOUR:	Yes.
MR TRACEY:	And we should perhaps add, I think, just for the

sake of completeness, "and the Teaching Service Act

1981. ti

HIS HONOUR:	Yes.
MR TRACEY:	Your Honour, perhaps just a couple of additional

submissions. They do not add a great deal to what

I have already submitted but, Your Honour, the

authorities do tend to suggest that one does not,

in these matters, seek to assess the gravity of the imposition made on a State. Any imposition that is discriminatory or burdensome in the necessary sense

is enough. There is authority to that effect in

many places - - -

HIS HONOUR:	I do not need you to take me to that.
MR TRACEY:	Your Honour, there is also authority for the proposition that the case of the kind that we seek
to make here is always stronger where the law
affects only one State and does not apply generally
to the States.

w

HIS HOijOUR1 Mr Tracey, the amendment that we just made to

the ground on page 4 of the draft order, that is to

ground 2(a)(iv) should, I take it, be carried

through to ground B.2(iv) on page 6.

MR TRACEY:  Indeed, Your Honour.

HIS HONOUR: There is just one other ground I was going to

ask you about and that is ground A.(c) on page 5, a

misapplication and misinterpretation of the

decision in Queensland Electricity Commission.

That is a fairly broad sort of a ground to

ATU 10 26/2/93

attribute to it. That is more a matter of

argument, is it not?

MR TRACEY:  Your Honour, it probably does not add anything

to what has gone before. In substance, what the

Commission seemed to hold was that it could not contemplate any circumstances in which an award

made by it, affecting the relationship between a

State and its employees, could be found to be

within the prohibition that was identified in the

QEC case and to that extent, what we would be

submitting is that it was just wrong about that,

that the QEC case contemplated that there will be

circumstances in which, for the reasons there

enunciated, something done by the Commission could

have that effect.

Now, Your Honour, as I say, I doubt that it

adds a great deal to what has gone before because

all the arguments in the preceding paragraphs (b)

and (c) in substance raise the correct approach and

if we are upheld on them, then of course (c) pales

into insignificance. So that is as much as I can

say in defence of (c), Your Honour.

HIS HONOUR: It is not a ground which, I think, is going to

illumine the debate to any extent.

MR TRACEY:  No, I think that is right, Your Honour, and we

would not press it in the light of Your Honour's

observations. And the same would apply on page 7.

There is a paragraph B.4, the top of page 7, that

is in substantially the same terms.

HIS HONOUR:  Mr Tracey, has your junior been able to come up

with anything in relation to the grounds (c) and

( d)?

MR TRACEY:  Yes, it is in these terms. He has drawn my

attention, Your Honour, to Order 55 rule 11 of the

Rules which allows the Court to make any amendment which it thinks necessary by leave in advance of a

hearing. So the formulation he has prepared reads

i:! this way:

"And it is further ordered that the

applicants/prosecutors have liberty to apply to

this Court on notice to each of the respondents to

amend this order nisi."

And, Your Honour, thereafter it could be done

in two ways: we could either specify the grounds

that have been taken out as reserved as grounds

that can be added, or we can simply say "as so

advised, if so advised, prior to the hearing".

HIS HONOUR:  I think we will specify the grounds.

11   26/2/93

MR TRACEY:  Yes, Your Honour. In that way, it would

continue:

"by the addition of the following grounds:"

And we would then set out the grounds that were

A.l(c) and (d). And following on that:

"if so advised prior to the return of this

order."

HIS HONOUR:  I think that is satisfactory, except that I

will add "on seven days notice to each of the

respondents".

MR TRACEY: If Your Honour pleases.

HIS HONOUR: Is there any other matter?

MR TRACEY:  No, unless Your Honour wants to hear me in

support of any of the other specific grounds.

HIS HONOUR:  No, I think you have covered what is necessary for our purposes. I will, however, add this

· further order:

"That this order not be taken out for seven

days from the date hereof and that the

solicitors for the third respondents be

notified forthwith of the making of this order

and that the third respondents have leave

within seven days to move in relation to this
order as they may be advised."

I think if it is necessary to protect any of the third respondent's rights, that order should

effectively do it but in making that addition to

your proposed order nisi, I do not intend to

indicate that there are any rights which the third

respondents have that the making of the order would

otherwise not pay due regard to.

MR TRACEY:  Thank you.

HIS HONOURt Very well. I will make an order in the terms

of the draft which has been submitted by counsel

for the applicants/prosecutors, subject to the

amendments that I have indicated on the draft and
that those amendments renumber paragraph (e) on
page 3 as paragraph (c) and delete paragraphs (c)

and (d) of that draft.

There is an amendment to paragraph (c) as

renumbered. There is an amendment on page 4 to

paragraph (a)(iv) as appearing on that page; an

amendment to page 5 by the deletion of

ground A.(c); an amendment to page 6 in

ATU 12 26/2/93

I'

ground 2(iv); an amendment to page 7 by the

deletion of ground 4 at the top of that page and by

the addition of two further orders. The first of

those additions reads as follows and should appear

immediately after the deleted ground 4.

"And it is further ordered that the

applicants/prosecutors have liberty to apply to

this Court on seven days notice to each of the

respondents to amend this order nisi by the

addition of the following grounds:

(c) At the time the third respondent made the

demand and at all material times thereafter there
was no industrial dispute extending beyond the

limits of any one State in existence.

(d) The demand was not a genuine demand.

prior to the return of this order."

The second amendment should appear at the end

of the order, after the certification of the matter

being proper for the attendance of counsel and

reads as follows:

"And it is further ordered that this o.rder not

be taken out for seven days from the date hereof

and that the solicitors for the third respondent be

notified forthwith of the making of this order and

that the third respondents have leave within seven

days to move in relation to this order as they may

be advised . "

There will be an order in those terms.

AT 11.40 AM THE MATTER WAS ADJOURNED SINE DIE

13 26/2/93