Re Boulton; Ex parte State of Victoria
[1994] IRCA 110
•16 November 1994
C A T C H W O R D S
INDUSTRIAL LAW - Duty of Industrial Relations Commission to determine the parties to the dispute and the matters in dispute - Whether or not it is permissible for the Commission to make an interim award against a person found to be a party to an industrial dispute extending beyond the limits of any one State in advance of determining all the parties to the dispute.
PRACTICE AND PROCEDURE - Intervention by non-party - Relevant factors in considering application for leave - Leave granted.
Industrial Relations Act 1988, ss.4, 99, 100, 101, 102, 103, 110 and 111.
IN THE MATTER of an application for a Writ of Prohibition, a Writ of Mandamus and a Writ of Certiorari against:
THE HONOURABLE JUSTICE BOULTON, THE HONOURABLE DEPUTY PRESIDENT HARRISON AND COMMISSIONER FRAWLEY, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, AUSTRALIAN EDUCATION UNION, EX PARTE THE STATE OF VICTORIA AND THE HONOURABLE MINISTER FOR EDUCATION FOR THE STATE OF VICTORIA
NO. VI 597 of 1994
CORAM: WILCOX CJ, KEELY AND RYAN JJ
PLACE: HEARD IN MELBOURNE
DATE:16 NOVEMBER 1994
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) No VI 597 of 1994
)
VICTORIA REGISTRY )
IN THE MATTER of an application for a Writ of Prohibition, a Writ of Mandamus and a Writ of Certiorari against:
THE HONOURABLE JUSTICE BOULTON, THE HONOURABLE DEPUTY PRESIDENT HARRISON AND COMMISSIONER FRAWLEY, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
(First Respondents)
THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
(Second Respondent)
AUSTRALIAN EDUCATION UNION
(Third Respondent)
EX PARTE
THE STATE OF VICTORIA AND THE HONOURABLE MINISTER FOR EDUCATION FOR THE STATE OF VICTORIA
(Applicants)
CORAM: WILCOX CJ, KEELY & RYAN JJ
PLACE: MELBOURNE
DATE: 16 NOVEMBER 1994
MINUTES OF ORDER
THE COURT ORDERS THAT:
The matter be stood over to a date to be fixed.
Any party may apply on 3 days' notice to all other parties.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) No VI 597 of 1994
)
VICTORIA REGISTRY )
IN THE MATTER of an application for a Writ of Prohibition, a Writ of Mandamus and a Writ of Certiorari against:
THE HONOURABLE JUSTICE BOULTON, THE HONOURABLE DEPUTY PRESIDENT HARRISON AND COMMISSIONER FRAWLEY, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
(First Respondents)
THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
(Second Respondent)
AUSTRALIAN EDUCATION UNION
(Third Respondent)
EX PARTE
THE STATE OF VICTORIA AND THE HONOURABLE MINISTER FOR EDUCATION FOR THE STATE OF VICTORIA
(Applicants)
CORAM: WILCOX CJ, KEELY & RYAN JJ
PLACE: MELBOURNE
DATE: 16 NOVEMBER 1994
REASONS FOR JUDGMENT
THE COURT: This is a matter remitted to the Court by the High Court of Australia pursuant to s.44 of the Judiciary Act 1903 and s.412(2) and (3) of the Industrial Relations Act 1988.
The background facts
On or about 23 June 1993, the organisation of employees then known as the Australian Teachers' Union (now the Australian Education Union) ("the Union") served a log of claims on the following employers:
The Director-General of School Education, New South Wales, Dr K G Boston
Minister for Education and Youth Affairs, New South Wales, Ms Virginia Chadwick
The Hon Anthony Rundle, Minister for Public Sector Management, Tasmania
The Hon John Beswick, Minister for Employment, Industrial Relations and Training, Tasmania
Mr David Hawkes, Teaching Service Commissioner, Northern Territory
The Hon Fred Finch MLA, Minister for Education and Training, Northern Territory
The Hon P Comben, Minister for Education, Queensland
The Hon M Foley, MLA, Minister for Employment, Training and Industrial Relations, Queensland
Mr Don Hayward, Minister for Education, Victoria
Her Majesty the Queen in right of the State of Victoria
Mr Haddon Storey, Minister for Tertiary Education and Training, Victoria
Mr Wayne Berry, Minister for Industrial Relations, Australian Capital Territory
Mr Bill Wood, Minister for Education and Training, Australian Capital Territory
Mr Norman Moore, Minister for Education, Employment and Training, Western Australia
Her Majesty the Queen in right of the State of South Australia
The Hon Susan M Lenehan Minister of Education, Employment and Training, South Australia.
It will be noted that the respondents comprised representatives of all eight State and Territorial governments.
The log demanded that each of the employers accord a comprehensive set of wages and working conditions to persons employed in the industries in respect of which the Union is registered. None of the employers acceded to the demands. On 14 July 1993, the Union notified the Australian Industrial Relations Commission ("the Commission") of an alleged industrial dispute.
The case came before Senior Deputy President Riordan on 26 July 1993. He informed the persons present at the hearing that the Commission had received a letter from the Manager, Industrial Relations, of the South Australian Department of Labour written on behalf of the Crown in right of the State of South Australia. The letter stated that "this State consents to a finding that an industrial dispute exists in respect of the new log of claims from the Australian Teachers' Union". The Union representative then asked Senior Deputy President Riordan to make a finding of the existence of an industrial dispute, pursuant to s.101 of the Industrial Relations Act, in relation to the respondents in Victoria, South Australia, the Australian Capital Territory, and the Northern Territory. He asked that "the respondents in the other States be placed on a reserve list for consideration by the Commission at a time to be notified". Thereafter, the representatives of the respondents located in New South Wales, Tasmania and Western Australia withdrew from the hearing, reserving their right to oppose any later application by the Union for a finding of a dispute extending to those States. Counsel for the State of Queensland indicated that his client wished to be heard in opposition to any finding of dispute extending to it.
On various days in July and August 1993, Senior Deputy President Riordan heard evidence concerning the question whether there was an industrial dispute between the Union and the respondents in the four jurisdictions mentioned on 26 July. On 20 October 1993 he made a finding of dispute that was formally published in these terms on 26 October 1993:
THAT there is in existence an industrial dispute within the meaning of the said Act between the ATU and the employers in South Australia, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory as set out on the attached list of employers.
THAT the subject matter which forms the said dispute is in respect of salaries and other conditions of employment of teachers, including principals and vice principals as set out in the log of claims appended hereto.
THAT the dispute exists in the educational services industry in the States of South Australia, Victoria and Tasmania and the Australian Capital Territory and the Northern Territory."
In the course of his reasons for that finding, the Senior Deputy President observed:
"The circumstances of this case are such that there were two logs of claims served, the first one being modified by the second. Further the union does not seek a finding of the existence of an industrial dispute in respect of certain of the respondents who have been served but it does seek a finding in respect of others.
Indeed one of the employers against whom the existence of an industrial dispute was not sought was pressed later in the proceedings.
Certain of the employers against whom the claims were made assert that there is no industrial dispute in existence.
The claims about which this decision is concerned are made in respect of teachers in schools, including principals, employed by the relevant authorities in each of the States and Territories of the Commonwealth. An indication was given early in these proceedings that the relevant employers in the Australian Capital Territory and the Northern Territory and in the State of South Australia did not oppose the finding of the existence of an industrial dispute.
The allegation that there is in existence an industrial dispute is resisted by the employers in Queensland, New South Wales, Victoria and Western Australia. Later in the proceedings the Tasmanian employer adopted the same position.
The union does not press its claims at this stage against the employers in Western Australia, New South Wales or Queensland.
The employer in Queensland is not prepared to accept the suggestion that whether an industrial dispute exists between the AEU and the Queensland employer should be placed on a reserve list. Queensland wishes to be discharged from further proceedings. The argument in this respect has not yet been heard but will need to be heard at an early date.
During his evidence I asked Mr Robson, who is the Federal Secretary of the AEU, for the reason the AEU sought a federal award for Tasmania, South Australia and Victoria ahead of Queensland, New South Wales and Western Australia. His response was that the AEU believed that its "members will be best benefited in the immediate term and that was the purpose of the conference decision."
Mr Robson said the members in Tasmania believed that "with the current difficulties in Tasmania it would be better for them to pursue a federal award". A similar answer was given in respect of a question about the reason for seeking an award for Victorian members. The answer was as follows: "They (the members) simply advised that in their judgment and with the current circumstances in Victoria it would be better for them to seek a federal award."
It is very clear from Mr Robson's evidence that the AEU wishes to obtain a federal award in Victoria as quickly as possible but that the objective is to obtain a federal award for all of its members throughout Australia." (Original emphasis)
It will be noted that the finding extended to the Tasmanian employers. There may have been a misunderstanding between Senior Deputy President Riordan and the representative of the Tasmanian employers concerning their position. It seems that, after the publication of the finding on 26 October, the representative of the Tasmanian employers contacted the Commission, with the result that, on 1 November 1993, Senior Deputy President Riordan varied his finding to delete the references to the Tasmanian respondents. However, after a further hearing, the Tasmanian respondents were restored to the finding on 29 November. On that same day the Senior Deputy President added an additional paragraph to his finding:
"4.The extended dispute exists in South Australia, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory with respect to the salaries and other conditions of employment of persons employed in or in relation to the provision of educational services and in Victoria and Tasmania with respect to salaries and other conditions of employment of persons employed in or in relation to the provision of early childhood education services."
On 15 December 1993, Senior Deputy President Riordan made an interim award having relevance only in Victoria:
"1 - TITLE
This interim award shall be known as the "Teachers (Victorian Government Schools - Interim) Award, 1993".
2 - TERMS AND CONDITIONS
In respect of persons eligible to be members of the Australian Education Union, other than school principals and deputy principals, who are employed by the Minister for Education for Victoria in or in connection with education services in Victoria, the Minister accord to each and every employee all terms and conditions of employment applicable as at 20 October 1993.
3 - OPERATION
This interim award shall come into force from 15 December 1993 and shall continue in force for three months."
The Victorian respondents (the State of Victoria and the two Victorian Ministers) appealed to a Full Bench of the Commission against the finding of dispute made by Senior Deputy President Riordan and his decision to make an interim award. The Full Bench (Justice Boulton, Deputy President Harrison and Commissioner Frawley) gave its decision on 25 March 1994. The Full Bench confirmed Senior Deputy President Riordan's finding of dispute, except in relation to school principals, but varied the interim award by appending to it an Appendix containing detailed terms and conditions to be accorded to teachers employed by the Minister for Education for Victoria. The reason for that variation was explained by the Full Bench at p. 22 of its decision:
"On the submissions presented in the appeal, we recognized the need for clarification of the scope and effect of the Interim Award. This is appropriate because of the uncertainty which has arisen regarding the meaning and operation of the Interim Award with respect to various important matters about which the parties were in dispute. It is also appropriate having regard to the history of detailed regulation of employment conditions for teachers in the Victorian education system and the advantages of having these matters dealt with in the Interim Award with precision. In these circumstances we have concluded that the terms and conditions of employment which are to be maintained by way of interim order should be specified with greater precision."
The Full Bench went on to say that it had decided:
"that the Interim Award should provide for the terms and conditions which applied under the State Teachers Award to be maintained pending the outcome of the arbitral proceedings. The Interim Award should therefore be varied to include the provisions of the State Teachers Award."
The present proceeding
On 26 May 1994 the State of Victoria and the Minister for Education for that State made application to the High Court of Australia for writs of prohibition, mandamus and certiorari directed to the persons who had constituted the Full Bench of the Commission and Senior Deputy President Riordan. The Australian Education Union, as it had become, was also named a respondent. The matter was remitted to this Court for determination. It came before Keely J for directions on 20 June 1984. After discussion Keely J directed that the applicants apply by Notice of Motion for the relief they sought. They did so. On 29 July they filed a Notice of Motion in which they sought the same relief as that sought in the Application for an Order Nisi lodged in the High Court, and on the grounds there set out. These grounds were:
the decision by way of finding of dispute and interim award which the second respondents decided to make:
(a)will inhibit or impair the capacity of the State of Victoria to function as a government and/or to exercise its constitutional and governmental functions, or would do so unduly;
(b)will inhibit or impair the existence of the State of Victoria as an independent entity, or would do so unduly;
(c)disclose an error of law on the face of the record in that there is and was no industrial dispute within the meaning of the Industrial Relations Act 1988 enabling that decision and finding and award to be made, because, as the respondents to the dispute are State public sector employers only, the letter of demand and log of claims cannot create an industrial dispute extending beyond the limits of any one State.
the first respondents and the second respondent were in error in holding that the interim award which they decided to make did not -
(a)impose a special burden or disability on the State of Victoria and thus discriminate against that State; or
(b)interfere with the administrative services of the State of Victoria;
the proposed interim award would be beyond the jurisdiction of the Commission (and the first respondents and the second respondent should have so held) in that it would -
(a)impose a special burden or disability on the State of Victoria and thus discriminate against that State; and/or
(b)single out the State of Victoria for award respondency alone of all parties to the alleged industrial dispute and alone of all State education authorities; and/or
(c)interfere with the administrative services of the State of Victoria;
the first respondents and the second respondent were in error in holding that the Commission had jurisdiction to make an award in part settlement of an industrial dispute before the Commission had fully discharged its duty under s.101 of the Industrial Relations Act 1988 to determine the parties to the industrial dispute and the matters in dispute;
in the alternative, the first respondents and the second respondent were in error as a matter of law in deciding to proceed to the making of an award in part settlement of an industrial dispute before the Commission had fully discharged its duty under s.101 of the Industrial Relations Act 1988 to determine the parties to the industrial dispute and the matters in dispute."
On 5 August 1994 Northrop J directed that grounds (iv) and (v) be heard separately and prior to (i), (ii) and (iii). The reason for this direction was that there is litigation pending in the High Court dealing with issues identical, or closely similar, to those raised by grounds (i), (ii) and (iii). The parties saw no advantage in arguing those issues in this Court, at least at this time. As a result of this direction, the argument before us was confined to grounds (iv) and (v).
The application for intervention
Before going to the argument, it is convenient to note that, when the matter was called on for hearing before us on 31 August, Mr J S Douglas QC and Mr R Jones of counsel appeared on behalf of the Queensland respondents to the log of claims seeking leave to intervene. Dr C Jessup QC, who appeared with Mr Nicholas Green for the applicants, did not object to Mr Douglas' application. However, Mr Kevin Bell, counsel for the Union, did object. He contended that the Queensland respondents had no interest in the finding made by Senior Deputy President Riordan, which did not extend to them, or the interim award, which affected only the Victorian government. Mr Bell said he had not been given notice of the application to intervene and expressed apprehension that the intervention would raise issues he was not ready to meet. In reply, Mr Douglas conceded that his clients had no interest in the particular questions the Court had to determine. However, he argued that, if Senior Deputy President Riordan's action in making what Mr Douglas called a "piecemeal" dispute finding were left uncorrected by this Court, the same course would be likely to be taken in relation to his clients, to their disadvantage. Mr Douglas agreed that no prior notice of the application had been given to Mr Bell. But he suggested that nothing he said would raise an issue Mr Bell was unprepared to meet; if this turned out to be wrong, the Court could allow Mr Bell additional time to respond.
Section 470 of the Industrial Relations Act empowers the Court to permit intervention:
"If the Court is of the opinion that an organisation, person or body should be heard in a proceeding before the Court in a matter arising under this Act, the Court may grant leave to the organisation, person or body to intervene in the proceeding."
This is the first case in which a Full Court has needed to consider s.470. The section is framed in wide terms. It states no criteria for the grant of leave to intervene other than the Court's opinion that the applicant for intervention "should be heard". The legislature having left the Court's discretion otherwise unfettered, the Court should not itself impose fetters. But two comments may be useful.
First, people concerned with the operation of s.470 may derive assistance from United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, a decision of the Full Federal Court. That was an appeal and cross-appeal against a decision granting leave to a non-government public interest organisation to join in the proceeding as an amicus curiae. At 533-539 the Court discussed the nature and function of an amicus curiae, pointing out that the position of an amicus curiae is different from that of an intervener in one important respect; an intervener becomes a party to the proceeding, an amicus curiae does not. However, there is a common rationale for the involvement of both classes of participant. As the Federal Court said at 533-534, the task of a court exercising a judicial function is "to determine disputes that are brought before it by parties who appear before it, adduce evidence and make submissions". The Court went on:
"Nevertheless, a court has an inherent or implied power, exercised occasionally, to ensure that it is properly informed of matters which it ought to take into account in reaching its decision. Particularly is this so in judgments which may affect the community generally or persons other than the parties who are before it."
At 536 the Court said:
"The general principle is that the parties are entitled to carry on their litigation free from the interference of persons who are strangers to the litigation. But there is an overriding right of the court to see that justice is done. An amicus may be heard if good cause is shown for doing so and if the court thinks it proper. Nothing in these reasons should be understood to delimit or restrict the availability of or effectiveness of this valuable tool."
The Court went on to refer to the use of the amicus curiae procedure in the United States, making the point that United States courts have been more willing to allow an appearance by an amicus curiae on appeals than at trial level. The problem at trial level was pointed out by Wilcox J in Bropho v Tickner (1993) 40 FCR 165 at 172-173:
"An amicus curiae has no entitlement to lead evidence: see Corporate Affairs Commission v Bradley [1974] NSWLR 391 at 399. The role which he or she may play is a matter entirely within the discretion of the court: see United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534-535. In Australia, as distinct from the position in the United States, the intervention of an amicus curiae is a relatively rare event; the amicus' role normally being confined to assisting the court in its task of resolving the issues tendered by the parties by drawing attention to some aspect of the case which might otherwise be overlooked. I do not dispute that it may sometimes be appropriate to allow an amicus curiae to complete the evidentiary mosaic by tendering an item of non-controversial evidence; although I would prefer to reserve my opinion whether this should be permitted to be done over the objection of one or more of the parties. But it is another matter where the proposed evidence would be complex and controversial. To allow the tender of that type of evidence may be to allow the amicus curiae effectively to hijack the parties' case, taking it off into new factual issues which may greatly extend its length and thereby impose significant additional costs and disadvantages upon the parties. Rarely, if ever, should this course be permitted."
On appeal, the facts being closed, hijacking is less likely. Moreover, measures may readily be taken to minimise the impact of the intervention on the duration of the case. For example, interveners may be directed to put their submissions in writing, with little or no oral elaboration. This is the usual course in Canada, where intervention is commonly allowed at appellate level, especially in relation to issues arising under the Canadian Charter of Rights and Freedoms.
Our second comment relates to the considerations relevant to an application for leave to intervene under s.470. They obviously include the nature of the applicant's interest in the subject matter of the proceeding and the assistance the Court is likely to derive from the intervention. However, as foreshadowed by our references to United States Tobacco Co and Bropho, they also include the likely effect of the intervention on the existing parties. If intervention is likely to prolong the hearing significantly, inflicting additional costs or delays on the parties, that is a strong argument for denying leave. The same may be said of an intervention that will raise issues the parties are not ready to meet. Would-be interveners will improve their chances of obtaining leave if they give timely notice to the existing parties of their application and proposed argument; and, particularly, if they put their submissions in writing, or take other steps to limit any extension of the hearing.
As indicated, in the present case Mr Douglas had not given advance notice of his application to Mr Bell. Nor had he prepared written submissions. These were factors militating against our granting leave to intervene. However, with some hesitation, we did grant leave. We did so for two reasons. First, we were persuaded that the Queensland employers might be affected, in a practical sense, by the outcome of this case; and, second, we accepted Mr Douglas' assurance that his submissions would be short. He said they would take no more than half an hour, so there was no chance of the intervention extending the hearing beyond the allotted time. Mr Douglas proved as good as his word. His submissions were succinct and relevant.
The applicants' contentions
The issue that the applicants ventilate under grounds (iv) and (v) of their Notice of Motion is whether the Commission can make an interim award before determining all the parties to the dispute. Ground (iv) expresses the applicants' complaint in terms of jurisdiction; it is said that Senior Deputy President Riordan and the Full Bench were in error in holding that the Commission had jurisdiction to make an award before it had "fully discharged its duty under s.101 of the Industrial Relations Act 1988 to determine the parties to the industrial dispute and the matters in dispute". Ground (v) expresses the same matter, not in jurisdictional terms, but as an error of law.
Section 101 of the Industrial Relations Act is in these terms:
"101(1)Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:
(a)determine the parties to the industrial dispute and the matters in dispute; and
(b)record its findings;
but the Commission may vary or revoke any of the findings.
(2)Where the Commission constituted in any manner has made findings in relation to an industrial dispute, the Commission (however constituted) may, for the purpose of exercising powers in subsequent proceedings in relation to the same industrial dispute (other than powers on an appeal in relation to the finding), proceed on the basis of the findings or any of them.
(3)A determination or finding of the Commission on a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by the question."
Counsel for the applicants say that s.101 lies at the heart of the Commission's jurisdiction and function; relevantly, it is an arbitral body making decisions concerning disputes. It is not a legislature framing a code of industrial behaviour. Unless and until there is an "industrial dispute", as that term is defined in s.4 of the Act, the Commission has no power to order anybody to do anything. Section 4 defines "industrial dispute" in this way:
"'industrial dispute' means:
(a)an industrial dispute (including a threatened, impending or probable industrial dispute):
(i)extending beyond the limits of any one State; and
(ii)that is about matters pertaining to the relationship between employers and employees; or
(b)a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a);
and includes a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State);"
Counsel say the limitations contained in the definition point up the central role of the inquiry required by s.101. The purpose of the inquiry, they contend, is to ensure that the Commission confines itself to disputes that exist in more than one State and whose subject matter is industrial. They refer to s.99 of the Act which requires that, as soon as an organisation or an employer "becomes aware of the existence of an alleged industrial dispute" affecting the organisation or its members or the employer, it shall notify the Commission. They say this reinforces the view that the Commission is concerned with whole disputes, not part disputes. They add that a failure to consider and define the extent of a dispute at the outset may have the practical result of involving the Commission in matters that are, in substance, purely local disputes.
Counsel also refer to s.103 of the Act, dealing with the time when a conciliation proceeding before a member of the Commission shall be regarded as completed. This is when:
"(a)the parties have reached agreement for the settlement of the whole of the industrial dispute and the agreement has been certified under Division 2 of Part VIB; or
(b)whether or not the parties have reached agreement for the settlement of part of the industrial dispute:
(i)the member of the Commission is satisfied that there is no likelihood that, within a reasonable period, conciliation, or further conciliation, will result in agreement, or further agreement, by the parties on terms for the settlement of the industrial dispute or any matter in dispute; or
(ii)the parties to the industrial dispute have informed the member that there is no likelihood of agreement, or further agreement, on matters in dispute and the member does not have a substantial reason to refuse to regard the conciliation proceeding as completed."
Counsel say this section can operate only where the parameters of the dispute have been defined, so that the whole dispute is under the control of the Commission. They agree that the Commission can settle a dispute in piecemeal fashion, by making a series of awards; but they say the Act requires that, before this is done, the Commission assert jurisdiction over the whole of the dispute by defining its ambit. Counsel argue that it makes no difference that an award is an interim one. They say that to permit the Commission to make an interim award before it has established the full parameters of the dispute would be to encourage myopia - the interim award may fail to take into account all the ramifications of the dispute.
In support of this argument, the applicants' counsel cited several authorities. The earliest was a decision of the Commonwealth Court of Conciliation and Arbitration, Re The Professional Engineers (State Instrumentalities) Award (1952) 75 CAR 50. In that case a registered organisation, The Association of Professional Engineers, Australia, forwarded a log of claims to a number of public authority employers. None of the employers accepted the log of claims and a Conciliation Commissioner found a dispute between the Association and those employers. He certified that the dispute could not be settled by conciliation and fixed a date for arbitrating it. A few days before that date, the Association forwarded a log of claims, in identical terms, to several other public authority employers. None of those employers complied with the Association's demands and the Association notified the Commission of a dispute with them. In the meantime the Conciliation Commissioner had commenced to hear the first dispute. When he did so, counsel for the State of Victoria obtained leave to intervene. He subsequently objected that the Commissioner had not yet determined the parties to the dispute. He referred to the second log of claims and suggested that the Commissioner should hear the respondents to that log before making any award. The Commissioner refused. The matter came before a Full Bench of the Court. The main issue on the appeal was whether the Commissioner had complied with s.14(2) of the Conciliation and Arbitration Act which required that a Commissioner:
"shall ... immediately ascertain the parties to the industrial dispute and the matters which form the subject of that dispute and shall take such steps as he thinks fit for the prompt prevention or settlement of that dispute by conciliation or arbitration".
The Court held, at 77, that the Commissioner had not performed that duty because he had "treated the question as to which employers were parties as concluded by the action of the Association in giving notice of a dispute with named employers." At 78 the Court went on:
"It is, of course, plain that there may be cases in which it is difficult to say whether what has taken place between an organization of employees and, over some period of time, a number of employers is correctly to be described as constituting one, two, or even more disputes. We are of the opinion, however, that, in order to decide such a question (and, therefore, to decide who are the parties to any alleged dispute), it is necessary to consider factors additional to the intention of the party serving the log, and the list of parties upon which the claimant had, in point of fact, served the log. It seems to us to have been plainly material to the question whether the employers who became parties to proceedings No. 606 were, in truth, parties, with the employers in proceedings No. 349, to what was one dispute with the Association to consider the identity of the logs served on all such employers, the degree of identity of the terms of the covering letters, the period of time between the forwarding of the log to the employers who were before the Commissioner in matter No. 349, and of the same log to employers in matter No. 606, and the absence or presence of any facts logically or practically differentiating one group of employers from the other. The question was substantially one of fact."
Counsel for the applicants rely particularly upon a passage at 80 concerning the purpose of s.14:
"It is important to appreciate the purpose of section 14 in requiring the Conciliation Commissioner to ascertain who are the parties to an alleged industrial dispute. The purpose is, we think, to ensure that the Commissioner conducts an arbitration. It was laid down in The Australian Boot Trade Employees Federation v Whybrow and Co (1910) 11 CLR 311, that a power to declare a common rule in an industry cannot validly be conferred on the Commonwealth Court of Conciliation and Arbitration by Commonwealth legislation. The reason for this decision was that the concept of arbitration (as used in placitum (xxxv) of section 51 of the Constitution) connoted 'the existence of parties taking opposite sides.' If there were 'no ascertainable parties between whom an ascertainable difference capable of being composed exists the basis of arbitration is wanting.' The arbitral tribunal 'must, therefore, act on the ordinary principles of justice involved in the necessity of allowing a hearing to all parties to the difference on which it must decide, and of abstaining from involving in its decision interests of others than the parties to the difference.' As the same matter was put by O'Connor J. 'One can have no mental conception of arbitration without parties in difference over some matter capable of judicial adjustment by an arbitrator. The exercise of an authority to impose conditions of employment upon employers and employees between whom there exist no such differences, even though it may be exercised by a standing arbitral tribunal, is not and cannot be an application of arbitral power.'
It thus appears that section 14 is directed towards ensuring the constitutional validity of such awards as may be made by a Conciliation Commissioner. To make a valid award in settlement of a dispute, it is necessary to ascertain the parties so that the award may validly define those upon whom the award when made is to be binding."
The next case cited by the applicant's counsel is The Queen v Isaac; Ex parte State Electricity Commission of Victoria (1978) 140 CLR 615, a decision of the High Court. In that case there had been two separate interstate industrial disputes, both involving the State Electricity Commission of Victoria ("SECV") and the Electricity Trust of South Australia. One dispute was partly settled by an award, the other by the Commission certifying an agreement as an award. The SECV was not a party to either the award or the agreement. The relevant unions later applied for variations of the award and the agreement. The Commission refused to allow the SECV to appear in that proceeding. The High Court upheld the Commission's decision. The facts of the case are different from those before us but counsel for the applicants rely on some observations of Mason J at 626-627:
"Section 61" (which specifies the persons on whom a final award is binding) "has no application to consent awards: it applies only to awards determining industrial disputes. At first glance it might seem that the author of s.61 proceeded on the view that an interstate dispute would necessarily lend itself to resolution by the making of a single award because it does not deal explicitly with a situation in which more than one award is made in settlement of such a dispute. Neither the Act nor the regulations confer specific authority on the Commission to fragment a dispute for the purpose of determining it. It might be thought that the regulations, notably regs 19 and 20, contemplate a hearing of the entire dispute, rather than hearings of separate parts of the entire dispute. The Act itself requires the Commission to 'deal with the dispute' (s.30(1) and that in the context must mean the entire interstate dispute over which the Commission has jurisdiction."
Next, counsel refer to a passage in the judgment of Deane J in Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Victoria) Limited (1989) 166 CLR 311 at 331. The facts do not matter. The relevant passage is as follows:
"... except in a case where the Commissioner proceeds on the basis of an earlier finding in relation to the existence of an industrial dispute: see s.24(2), the Commission shall, when proceedings in relation to an industrial dispute come before it, 'determine whether there is an industrial dispute and, if so, who are the parties and what are the matters in dispute'. The effect of that requirement is that the Commission must identify with some precision the interstate industrial dispute or disputes upon the basis of which it asserts conciliation and arbitration jurisdiction under the Act."
Counsel for the intervener supported the submissions put on behalf of the applicants, elaborating a little on them. They submitted that the problems mentioned by Dr Jessup on behalf of the applicants were pointed up by the facts of this case. To make an interim award without first finding whether or not the Queensland employers are parties to the dispute was to place them in an invidious position; the Victorian interim award would be likely to affect the content of any later award binding the Queensland employers, yet those employers had no opportunity to put submissions in relation to the content of the Victorian interim award.
The Union's contentions
Counsel for the Australian Education Union submitted that the applicants' submissions divorced s.101 from its context. He said the Act confers on the Commission general functions (s.89) and powers (s.111) that may be exercised as the case requires (s.33) in accordance with procedures that are explicitly and necessarily flexible (s.110) and in pursuit of objects of fundamental importance (s.5). He said that this is the context in which s.101 should be interpreted. So interpreted, s.101 permits the Commission, if necessary, to determine the parties to the dispute sufficiently to make an interim award. He referred to Re The Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513, a case concerning s.24 of the Conciliation and Arbitration Act. Section 24 was framed in terms similar, but not identical, to s.101 of the Industrial Relations Act. Citicorp applied to a Commissioner under s.41(1)(d) of the Conciliation and Arbitration Act to dismiss or refrain from hearing that part of the matter that affected Citicorp without determining under s.24 whether Citicorp was a party to an industrial dispute. The Commissioner held that the power conferred by s.41(1)(d) could be exercised only after a finding of dispute was made. A Full Bench of the Industrial Relations Commission affirmed this decision, though it did so by reference to the provisions of the Industrial Relations Act which had by then come into force; the equivalent provisions being ss.101 and 111(1)(g). The High Court unanimously held the Commission was wrong. In discussing what had been required by the Conciliation and Arbitration Act, the Court said at 516-517:
"... neither s.24 (1) nor any other provision of the Act made express stipulation that that duty should be discharged prior to the Commission's undertaking any other function under the Act. Nor is that requirement to be discerned from constitutional or jurisdictional considerations, those considerations requiring only that a dispute (including 'a threatened, impending or probable dispute': s.4(1) of the Conciliation and Arbitration Act) exist, not that a finding be made as to its existence. ... However, s.24(1) was clearly intended as a procedural bar to the exercise of powers capable of affecting substantive rights and liabilities in circumstances where no finding had been made as to jurisdiction. From this purpose there is to be discerned an intention that the substantive powers conferred by s.41(1) (e.g., the power conferred by s.41(1)(b) to make an award) should not be exercised prior to the making of a dispute finding."
Section 41(1)(b) of the Conciliation and Arbitration Act empowered the Conciliation and Arbitration Commission to "make an award (including a provisional or interim award relating to any or all of the matters in dispute) or give a direction in pursuance of the hearing or determination". This provision is substantially similar to s.111(1)(b) of the Industrial Relations Act, on which counsel for the Union relies as the source of the Commission's power to make the award presently in dispute. Counsel concedes that Citicorp indicates that the Commission could not make even an interim award before making a dispute finding. But, he says, the quoted passage in the High Court's reasoning demonstrates this is all that is necessary; it is not necessary that the dispute finding identify all participants in the dispute. It is sufficient, says counsel, that the Commission find the existence of an industrial dispute, within the defined meaning of that term. This suffices to attract its jurisdiction; and, because the statutory definition includes the ingredient that the dispute extends beyond the limits of any one State, it ensures constitutional validity.
Mr Bell emphasised the disparity of the alleged industrial disputes that come before the Commission. In his outline of argument he suggested that an industrial dispute:
"(a)may or may not exist in the form as alleged, in some other form or at all and may or may not be likely to be 'diminished ... enlarged or altered' during the proceedings or the dispute itself (see Re Printing and Kindred Industries Union: Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 at 613);
(b)may have a small or large number of known, unknown, disputed or undisputed parties, or a mix thereof;
(c)involve well-defined or ill-defined matters in dispute; easily or readily resolvable matters, or difficult or not readily resolvable matters; or a mix thereof;
(d)have little or great implications for the public interest, the economy generally, essential services and the parties themselves and possibly different implications in different places (within and between States and Territories) and for different groups in the community;
(e)may be burning with greater or lesser intensity, and therefore may or may not require urgent consideration through the exercise of interim award powers etc, and some parts of the dispute may be more or less urgent and required different treatment from other parts;
(f)may involve parties on one or other side of the dispute who adopt consenting or non-consenting, or opposing or non-opposing, positions in relation to all or part of the dispute, the manner in which it is to be resolved and the way in which the Commission should conduct proceedings in relation to the dispute; or
(g)may or may not involve issues as to whether, in whole or in part, the dispute is 'threatened, impending or probable' or whether the situation is 'likely to give rise' to a dispute in accordance with the extended definition of 'industrial dispute' in s.4 of the Act."
He suggested that the applicants' approach:
"would have all these potentially different disputes dealt with in the same way at the dispute finding stage, however prolonged be the proceedings that may result. This is directly contrary to the purpose of the Commission and the flexibility of its procedures."
The Court's view
It seems to us that the argument of the respondent is to be preferred; in making the interim award, the Commission did not exceed its jurisdiction or err in law. We think this conclusion emerges from an analysis of the scheme of Division 2 of Part VI of the Industrial Relations Act.
As mentioned, s.99, which opens the Division, requires organisations and employers to notify the Commission of any alleged industrial dispute. This means an alleged industrial dispute, as defined. It refers to what appears to be an actual, threatened, impending or probable industrial dispute extending beyond the limits of any one State and pertaining to the employer-employee relationship or circumstances that are likely to give rise to such a dispute. The essence of the matter is actual or potential employer-employee conflict extending beyond the limits of any one State. Section 100(1) makes a general rule that, on becoming aware of an alleged dispute, the relevant Presidential Member shall refer it for conciliation within the Commission, "unless satisfied that (this) would not assist the prevention or settlement of the alleged industrial dispute". Section 100(2) provides that, if the Presidential Member does not refer "the alleged industrial dispute" to conciliation, the Commission shall deal with it by arbitration. It is to be noted that both s.100(1) and (2) speak of "the alleged industrial dispute"; at this stage there has not been a finding of dispute. If the matter is successfully conciliated, the Commission may never make a finding of dispute. Section 102(1) provides that, where an "industrial dispute" is referred for conciliation, the relevant Commission member "shall do everything that appears to the member to be right and proper to assist the parties to agree on terms for the prevention or settlement of the industrial dispute". It is unclear to us why the subsection speaks of "an industrial dispute" without adding the alternative "alleged industrial dispute". The matter may go to conciliation before a dispute finding is made. However, nothing turns on this. If the conciliation is successful, the parties resolve the dispute, or alleged dispute, by agreement without any exercise of the Commission's arbitral power. As already noted, s.103 indicates when a conciliation proceeding shall be regarded as complete: when the parties have reached agreement for the settlement of the whole dispute and that agreement has been certified or when it becomes apparent to the member or the parties that there is no likelihood of agreement. In the latter event, s.104(1) directs that "the Commission shall proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration". The remaining subsections of s.104, and ss.105-110, say how this is to be done. Importantly, s.110(1) requires the Commission, when dealing with an industrial dispute "in such manner as it considers appropriate, (to) carefully and quickly inquire into and investigate the industrial dispute and all matters affecting the merits, and right settlement, of the industrial dispute". Subsection (2) provides that, in the hearing and determination of an industrial dispute, the procedure of the Commission is, subject to the Act and the Rules of the Commission, within the discretion of the Commission.
Section 101(1) requires the Commission, if it considers that the alleged industrial dispute is an industrial dispute, to determine and record the parties to the dispute and the matters in dispute. The subsection does not specify that this must be done within a particular time or before the Commission exercises other powers. The applicants concede that some powers may be exercised in advance of a finding of dispute. This concession is clearly correct. It is apparent that the Commission will need to exercise some of its statutory powers in the course of determining whether there is an industrial dispute, and, if so, its parties and subject matter. For example, para.(a) of s.111(1) empowers the Commission to "take evidence on oath or affirmation"; para.(j) enables the Commission to "sit at any place"; para.(m) to "adjourn to any time and place"; para.(o) to "direct parties to be joined or struck out" etc. As already noted, in Citicorp the High Court decided that the power granted by s.111(1)(g) to dismiss, or refrain from further hearing or determining, a dispute on particular grounds might be exercised before a dispute is found. Then why not para.(b), empowering the Commission to:
"make an award or order, including one by consent of the parties, in relation to all or any of the matters in dispute, including:
(i)a provisional award or order; or
(ii)an interim award or order"?
The answer, of course, is that given in Citicorp: a Commission order affecting substantive rights and liabilities is constitutionally permissible only where it has first been determined that the person against whom the order is made is a party to an industrial dispute extending beyond the limits of any one State.
However, that answer requires merely that there be a finding of a dispute of the requisite kind at least some of the parties to which are the persons intended to be bound by the award. There is nothing in Citicorp that suggests that, before it makes any award, the Commission must identify all the parties to the dispute. Nor is this necessary, as a matter of logic. It is possible to say that there is a dispute between a particular organisation and employers A, B and C without knowing whether the organisation is also in dispute with employers D, E and F; and, if so, whether this is the same dispute or a different one. The constitutional imperative that caused the High Court, in Citicorp, to describe s.24(1) of the Conciliation and Arbitration Act as "a procedural bar" is satisfied by a requirement that there be a finding of dispute involving the particular employer against whom the award is to be made. The same statement may be made about s.24's successor, s.101 of the Industrial Relations Act.
If the Professional Engineers' case is properly to be read as suggesting a view different from that which we have just expressed, we respectfully think it is wrong. The ratio decidendi of that case is unexceptionable; in determining the parties to a dispute, the Commission must look at the whole of the relevant facts and not regard itself as restricted to the persons selected by the claimant organisation to be recipients of a particular log of claims. The passage at 80 that is relied on by the applicants in this case was obiter dicta. If it is to be read in the manner suggested by counsel for the applicants, it is illogical. The constitutional necessity for a finding of dispute may be conceded. Of course, the Commission's hearing is an arbitration; and, of course, this requires ascertainable parties taking opposite sides. But it does not follow that:
"(t)o make a valid award in settlement of a dispute, it is necessary to ascertain the parties" to the dispute "so that the award may validly define those upon whom the award when made is to be binding",
if, by that proposition, the Court meant to convey that it is necessary at the outset to identify all the parties to the dispute. It is surely enough that the arbiter should determine that the particular parties that are to be bound by the award are in fact in dispute and that their dispute is an industrial dispute extending beyond the limits of any one State. There can be an arbitration, or other form of litigation, between two parties even though one of them has a similar quarrel with someone else.
We do not think any of the High Court decisions cited to us tends against the conclusion we have reached. Indeed, it seems to us that Citicorp supports that conclusion. It indicates that the powers given to the Commission by s.111(1) of the Act are available to it during the period before it has concluded its s.101 inquiry, subject only to the "procedural bar", dictated by constitutional considerations, against making an award affecting an employer who has not yet been found to be a party to an "industrial dispute". The passage in the judgment of Mason J in the SECV case relied on by the applicants, and quoted above, might appear to suggest that the Commission cannot deal with part only of a dispute; it must deal with it as a whole and so, inferentially, cannot make any award until it has determined the extent of the dispute, by reference to its parties and subject matter. But Mason J went on, at 627, to make clear that he was not saying this:
"However, it has been the practice of the Commission to fragment interstate disputes, when it is convenient to do so, by dealing with them on a State or regional basis, and by determining an entire interstate dispute by means of a series of awards one or more of which regulates the industry in a particular State or in particular States. This practice has not been thought to be at variance with the principle that an interstate dispute is one and indivisible, for this principle relates to the acquisition and retention of jurisdiction by the Commission, not to the manner in which it exercises jurisdiction once vested. Thus a dispute extending beyond the limits of a single State over which the Commission obtains jurisdiction remains such a dispute until it is finally and wholly settled. The Commission therefore retains jurisdiction to make an award having an operation in one State only when the dispute has been settled in all other States by agreements or by awards ...
For the purpose of achieving speedy settlement of an entire interstate dispute it may be expedient to fragment it, to divide it into its separate elements, the more so if it appears the dispute involves considerations which are unique or peculiar to the industry in one or more States. In such a case the settlement of an entire interstate dispute will be more readily accomplished if the Commission proceeds by way of separate hearings to the making of particular awards each having a limited area of operation, as for example an operation which is confined to the employers in the industry in a particular State, each award being made in partial settlement of the entire dispute."
It is not inconsistent with this approach that the Commission may make an award partly resolving a dispute, even though it has not yet identified all the parties to the dispute, provided that it has first determined that the persons to be affected by the award are parties to a dispute that is an industrial dispute extending beyond the limits of any one State.
The comment of Deane J in the Wooldumpers case says no more, we suggest, than that it is a fundamental task of the Commission to identify the relevant industrial dispute. His Honour was not addressing the question whether or not it was permissible to make an interim award against some identified disputants in advance of identifying them all.
If it were clear that the statute pointed to the conclusion advocated by the applicants, the considerations of convenience urged upon us by Mr Bell could not be allowed to stand in the way of acceptance of that conclusion. However, to the extent that the statute might be thought equivocal, it is legitimate to take those matters into account in determining the likely intention of Parliament. They make it immediately obvious that the result for which the applicants contend would seriously undermine the Commission's effectiveness in resolving industrial disputes. In the present case the parties to the dispute may be easy to identify; the relevant employees are teachers employed by a limited number of public authorities. It may not be difficult for the Commission to ascertain whether the persons served with the log of claims are, indeed, employers in the industry and what attitude they have to the log. However, in many cases, these steps are complex and time-consuming. Some industries involve thousands of employers. Employers come and go. They change their names and structures. It may sometimes be necessary for the Commission to conduct an extensive and protracted inquiry to determine the parties to a dispute, perhaps taking evidence in numerous locations. In the meantime, if the applicants' argument is correct, it would be powerless to make even an interim award to resolve an issue (being part of the overall dispute) between the claimant and particular employers with whom it is clearly in dispute; and this no matter how urgent that resolution might be. It cannot be supposed that the Parliament would have intended this result, unless constitutionally compelled to accept it.
The practice adopted in this case by Senior Deputy President Riordan has apparently been applied in many earlier cases in the Industrial Relations Commission and its predecessor, the Conciliation and Arbitration Commission. So far as we are aware, it has not previously been challenged. We do not infer that its adoption in this case signals any new, indiscriminate, recourse to fragmented findings of an industrial dispute before making "piecemeal" awards. It may safely be assumed that the Commission is well aware that, as a matter of industrial reality, an award governing one group of employers may materially influence the content of an award relating to other employers in a like situation who have not yet been heard. Notwithstanding this, the Commission has a discretion that must be exercised in the light of all the circumstances, including the practical problems thrown up by the particular case. These considerations do not go to the Commission's jurisdiction or involve any question of law.
It seems that Senior Deputy President Riordan and the Full Bench were both alive to the potential effect of a "piecemeal" award on employers that might later be found to be parties to the dispute. The awards they made, though different in form, each merely continued the Victorian teachers' existing terms and conditions of employment. They were designed to maintain the existing situation until the Commission could decide, for itself, whether there should be any, and what, change in those conditions.
Grounds (iv) and (v) should be determined adversely to the applicants. As grounds (i), (ii) and (iii) remain undetermined, we will stand over the further hearing of the matter until a date to be fixed. Any party may apply on 3 days' notice to the others.
I certify that this and the preceding thirty-three (33) pages
are a true copy of the Reasons for Judgment of the Court.
Associate:
Dated:
APPEARANCES
Counsel for Applicants: Dr C N Jessup QC with Mr N Green
Solicitors for Applicants: Minter Ellison Morris Fletcher
Counsel for Respondent: Mr K W Bell
Solicitors for Respondent: Holding Redlich
Counsel for Intervener: Mr J S Douglas QC with
Mr R Jones
Solicitors for Intervener: Queensland Government Solicitor
Dates of hearing: 31 August, 01 September and
16 November 1994
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) No VI 597 of 1994
)
VICTORIA REGISTRY )
IN THE MATTER of an application for a Writ of Prohibition, a Writ of Mandamus and a Writ of Certiorari against:
THE HONOURABLE JUSTICE BOULTON, THE HONOURABLE DEPUTY PRESIDENT HARRISON AND COMMISSIONER FRAWLEY, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
(First Respondents)
THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
(Second Respondent)
AUSTRALIAN EDUCATION UNION
(Third Respondent)
EX PARTE
THE STATE OF VICTORIA AND THE HONOURABLE MINISTER FOR EDUCATION FOR THE STATE OF VICTORIA
(Applicants)
CORAM: WILCOX CJ, KEELY & RYAN JJ
PLACE: MELBOURNE
DATE: 16 NOVEMBER 1994
CORRIGENDA
On page 34 of the Judgment, Counsel for the respondent should
read: "Mr K H Bell".
Signed:
RICHARD NIALL
ASSOCIATE TO JUSTICE RYAN
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