Re Boyne Smelters Limited & Ors; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia Union of Employees

[1992] HCATrans 183

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sl43 of 1991
In the matter of -

An application for a writ of

prohibition and a writ of

certiorari against THE

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION, THE

HONOURABLE JUSTICE LUDEKE,

THE HONOURABLE DEPUTY

PRESIDENT HARRISON and

COMMISSIONER BACON OF THE

INDUSTRIAL RELATIONS

COMMISSION

First Respondents

BOYNE SMELTERS LIMITED

Second Respondent

Ex parte -

FEDERATION OF INDUSTRIAL

MANUFACTURING AND ENGINEERING

EMPLOYEES OF AUSTRALIA

Prosecutor

BRENNAN J
DEANE J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 23 JUNE 1992, AT 10.17 AM

Copyright in the High Court of Australia

Boyne(2) 1 23/6/92

MR J.W. SHAW, QC: If the Court pleases, I appear with my

learned friend, MR G.C. MARTIN, for the applicant.

(instructed by Carberrys)

MR C.N.JESSUP, QC:  May it please the Court, I appear with

my learned friend, MR G.M. GIUDICE,	for the second
respondent, Boyne Smelters Limited.	(instructed by
Freehill Hollingdale & Page)

MR D.J. ROSE, QC: If the Court pleases, I appear with my

learned friend, MR A. ROBERTSON, for the

Commonwealth Attorney-General intervening in

support of the applicant. (instructed by the

Australian Government Solicitor)

BRENNAN J: Yes, Mr Shaw?

MR SHAW:  Your Honours, we have handed up a folder which

contains within it our outline of argument and, in

a separate document, a chronology of some of the

more important events and we have also included a

number of the case references that were not on our

list of references.

BRENNAN J: Before you proceed, Mr Shaw, I should say that

the Deputy Registrar certifies that she has been

informed by the Australian Government Solicitor,
who appears for His Honour Justice Ludeke, Deputy

President Harrison and Commissioner Bacon of the Australian Industrial Relations Commission that they do not wish to enter an appearance in this matter and will abide by any order of the High

Court.

MR SHAW:  Thank you, Your Honour. Your Honours, on

17 April 1991, a large number of employees of Boyne

Smelters Limited were collectively dismissed.

Forty-eight of that group of dismissed workers were

members of what was then called the Federated Iron
Workers Association.	The company said that the

dismissals were effected because of the economic
circumstances and they were described as
redundancies. These workers had been employed at

an aluminium smelter at Gladstone in Queensland.

The Union made it clear that it was aggrieved.

It claimed that there had not been any real or

adequate consultation prior to the dismissals and

it argued that the company had not been even-handed

in the selection of which employees were to be made

redundant. The result was significant industrial

conflict, to use a neutral term, with substantial

time being lost because of strikes at the Boyne

Aluminium Smelter. In addition, there were stoppages of work by employees at another aluminium

smelter in Tasmania, Bell Bay, both smelters being

Boyne(2) 2 23/6/92

part of the Comalco Aluminium smelting business

unit.

The question in the present case,

Your Honours, is whether the Australian Industrial

Relations Commission has the power to deal with

that industrial problem by relying - - -

DEANE J:  Mr Shaw, you should not still be asking for an

order against Justice Ludeke, should you?	I mean,
should this not have been tidied up?

MR SHAW:	Yes, I think that is right.
DEANE J:	I mean, if we just went ahead on the basis of what

is before us and made an order against

Justice Ludeke, it would be ridiculous.

MR SHAW:  Yes, I appreciate that, Your Honour. I think it

would be sufficient if the order were to be made

that it be made against the Commission.

DEANE J:	And you discontinue against Justice Ludeke now?
MR SHAW:	Yes, Your Honour, I would seek leave to do so.
McHUGH J:	What do you want to do, just seek an order

against the Commission?

MR SHAW:  Yes, Your Honour, we think that would be

satisfactory.

McHUGH J: What is the source of that power?

DEANE J:  I might be leading you into trouble, Mr Shaw. I

think your suggestion that you only seek an order
against the other two members without having the

matter dismissed as against Justice Ludeke was a

preferable one to what I suggested.

MR SHAW: Yes, may I adopt that course, Your Honour. This

Court, as I understand it, has made orders against

the Commission in a number of cases and in many

ways - - -

McHUGH J: Under what provision of the Constitution?

MR SHAW:  I think it is merely a way of describing the

members of the Commission who might sit to deal

with a particular matter, Your Honour. It is more

a method of description of - - -

McHUGH J:	An officer of the Commonwealth?
MR SHAW:	- - - officers of the Commonwealth, a method of

describing them rather than by name. But if there

is a difficulty about that, then we would seek the

Boyne(2) 23/6/92

relevant writ of mandamus against the named members

of the Commission who have so far dealt with this

matter.

Your Honours, the real question is whether the

Commission has power to deal with these various

problems, based in large part, as Mr Justice Munro

thought, on the prior interstate dispute which had

been notified by the Union and which had been found

as an interstate dispute.

McHUGH J: But where is the wrongful exercise of

jurisdiction by the Full Bench? They entered on their task, they took a view of the facts of the case and they held that the judge was wrong and

that he had no jurisdiction; but why is that an

error of jurisdiction of the part of the

Full Bench?

MR SHAW:  Because we say the existence of jurisdiction was

manifest. There clearly was an interstate

industrial dispute looked at from a number of

different perspectives and we say, as we propose to

argue, that the Full Bench misconceived the way the

proceedings had gone and was clearly in error in

quashing the primary judgment.

The Full Bench looked at one throw-away line,

as it were, from the transcript put by the advocate

for the Union. It failed to look at the way in

which the Union had formulated its claim. It took, with respect, a very narrow, extremely narrow view of the basis of jurisdiction. And because the

Full Bench focused on one sentence that an advocate

had said on the transcript, it failed to look at

the conjunction of positive factors which

Mr Justice Munro had selected and analysed which

pointed in favour of jurisdiction.

McHUGH J: But why is that an error within the jurisdiction

of the Full Bench? It is not a question as to

whether Mr Justice Munro had jurisdiction; it is a

question of whether or not the Full Bench has

wrongfully failed to exercise its jurisdiction.

MR SHAW:  In our submission, the Full Bench was clearly in

error by quashing the decision that the Commission
had jurisdiction. The real and legal effect of the

Full Bench of the Commission's determination is to find that the Commission lacks jurisdiction to deal

with this problem. If that decision is in error,

it is a refusal to exercise the jurisdiction, in

our submission.

If there is an interstate dispute

comprehending these matters, then the Commission,

however constituted, is bound to proceed to hear

Boyne(2) 4 23/6/92

and determine that dispute and the failure to do so

or the refusal to do so amounts to a wrongful

declining of the jurisdiction, in our submission.

It is like Ranger Uranium, we would put, where the

Full Bench of the Commission held there was no

jurisdiction to deal with the reinstatement of a

group of workers, I think it was, in the Northern

Territory and this Court issued a writ of mandamus

to require that dispute to be dealt with. The

Full Bench declined to issue a writ of certiorari finding that mandamus was sufficient but the

position is analogous, we would submit, with Ranger

Uranium.

Your Honours, Mr Justice Munro, in his

decision, which is in volume 2 of the application

book at page 235, relied in large part but not

exclusively on a prior finding of interstate

dispute that he had made. He held that the

Commission had had the requisite jurisdiction, whereas a Full Bench, as Your Honours now know,

held that the Commission lacked jurisdiction. The decision of the Full Bench of 23 September 1991 is

in volume 2 of the application books at page 318. Both at first instance and before the

Full Bench, the debate involved the question as to whether, conformably with the judgment of this

Court in Re Federated Storeman and Packers Union of

Australia; Ex parte Wooldumpers (Victoria) Limited,

(1989) 166 CLR 311, a valid dispute with the

necessary scope or coverage was in existence to

enable the Commission to exercise its jurisdiction.

So one way of formulating the question,

Your Honours, it seems to us, is whether

Justice Munro or the Full Bench was correct in

applying the Wooldumpers' judgment of this Court.

Justice .Munro, in holding that the Commission had jurisdiction, as I have indicated, relied upon

a pre-existing finding of an interstate dispute.

That dispute involved operators of aluminium

smelters throughout the country, including the in Tasmania, as well as the Tomago smelter in the

Hunter Valley in New South Wales.

Your Honours, it was on 19 October 1990 that

Justice Munro had found the existence of such an

interstate dispute and that is set out in volume 1

of the application book, page 17. That page of the
application book, page 17, in volume 1, records

that prior finding of a dispute between the

Federated Ironworkers Association, as it was then

titled, and various employers, including Boyne

Smelters Limited, and determined that there was a

Boyne(2) 23/6/92

dispute pursuant to section 101 of the Industrial

Relations Act and recorded that dispute as follows:

1.       THAT there is in existence an industrial

dispute within the meaning of the said Act
between the Federated Ironworkers' Association

of Australia and the companies listed in the

Schedule.

2.       THAT the matters in dispute are the

industrial matters contained in the letter of

demand and log of claims dated 7 August 1990

and specifically that the employers observe

for employees conditions of employment to the

effect that:

(a) The employer shall not dismiss any employee (whether or not such dismissal takes

place before the making of any Award or

Agreement made in settlement of the Log of

Claims), and

(b) The employer shall reinstate forthwith

any employee dismissed (whether or not such

dismissal takes place before the making of any

Award or Agreement made in settlement of this
Log of Claims).

3.       THAT the dispute extends beyond any one

State and exists particularly in Victoria and

New South Wales, Western Australia, Tasmania

and Queensland.

Your Honours, there was never any appeal against

that finding of dispute, although an appeal would

lie under section 45 of the Act.

May I examine how Justice Munro approached the question of jurisdiction, relying in large part

upon that antecedent interstate industrial dispute.

As I have said, His Honour's decision begins at

page 235 in volume 2 of the application book.

BRENNAN J: Just before you leave that finding of dispute,

Mr Shaw, it is inherent, I take it, in your

submission, that it is open to the Commission to

make a finding of a dispute with respect to a log

of claims requiring an employer not to dismiss a

previous employee in the sense that that person has

been dismissed before the award is made?

MR SHAW:  Yes, that would comprehended within the demand,

Your Honour. It would be possible to make an award

like that, we would submit.

BRENNAN J: And in what respect does such a provision relate

to the relationship of employer and employee?

Boyne(2) 6 23/6/92

MR SHAW:  It has the effect of restoring the relationship of

employer and employee and of restoring the status

quo which existed prior to the dismissal and, in

our submission, Ranger Uranium is authority for the

proposition that an award of that kind could be

made, as one of the possibilities to arise from

this dispute.

BRENNAN J:  So that the restoration of a relationship of

employer and employee is capable of being a matter

constituting an industrial dispute?

MR SHAW:  We would so submit, Your Honour. The historical

definition of industrial matter always contemplated

that reinstatement of an employment which had been

severed was an industrial matter and did,

therefore, pertain to the relationship between

employers and employees.

BRENNAN J:  One can understand that with respect to the

terms and conditions of an existing employment so
that those who are employees are not to be

dismissed except subject to such and such a

condition, but what of the position of those who

were previously employees? How is it that that

gives rise to an industrial dispute?

MR SHAW:  It is true, of course, that if the employment has

been lawfully terminated, then it would not subsist

at the time when the award was made but, in our

submission, the award by restoring that

relationship by, as it were, overturning the act of

dismissal on the grounds of unfairness or whatever

other criterion is applied, that award is by that

restoring process pertaining to the relationship

between employers and employees.

BRENNAN J: It seems somewhat of a bootstrap argument.

MR SHAW: Perhaps during the course of the argument I could

attempt to refer to authority.

BRENNAN J: Yes.

MR SHAW:  But I do contend that Ranger supports that kind of

reinstatement jurisdiction, Your Honour.

Mr Justice Munro, at the top of page 238, being, I

think, the third page of his decision, records that he had required the FIA to specify the terms of the

relief sought by the Union. This is of importance,

Your Honours, because the Full Bench misconceived

the matter by focusing not upon that formal

specification of relief which was undertaken

pursuant to His Honour's direction but by focusing

upon an exchange on the transcript.

Boyne(2) 23/6/92

Then, at about line 12 on that page, 238, His Honour sets out the relief actually sought by

the FIA which became exhibit 14 in the proceedings

and that relief was as follows:

A. If the Company dismisses an employee

without that employee's consent (whether
before or after the making of this award) then
the Company shall, upon request made within

three months of the dismissal by the employee

or any organization of which the employee is a

member:

(i) reinstate the employee to the position

occupied immediately prior to the dismissal on

the same wages and conditions as applied
immediately prior to the dismissal and without

loss of or interruption to seniority or rights

to superannuation, company subsidised housing

loans, training, or any other benefit received

by the employee or to which the employee was

entitled immediately prior to dismissal; and

(ii) pay to the employee an amount equal to

that which the employee would have received by

way of wages had the employee not been

dismissed.

B. If it is impossible for the Company to

reinstate the employee to the same position
then the employee shall be reinstated in a

position commensurate with the employee's

skills, abilities and experience and the

provisions of A (above) shall likewise apply.

So that was the award and/or the variation actually

sought. It is also found, and I will not ask

Your Honours to turn to it, as an exhibit at

page 395, exhibit 14, in the same volume of the

application books.	So that was the formulation of
the prescription which the Union advanced in the	proceeding and the debate came to be whether the
Commission had jurisdiction to proceed with the
hearing and determination of that claim and either grant it or grant some claim which was incidental
or related to it which, of course, may represent in practice a major modification of that claim.

Justice Munro held that there was

jurisdiction. His reasoning begins at page 249.

At line 12 His Honour said this:

The circumstances of this case disclose a

scrambling of issues about productivity
improvement, work practice changes, the use of
redundancies for productivity improvement

purpose, reinstatement of dismissed employees,

Boyne(2) 23/6/92

and alternative procedures or benefit

packages. Resolution of one of the latter

issues might moderate the industrial tensions

which have been stimulated generally.

Then, if I can go to the foot of that page, at

about line 34, the first basis of His Honour's

positive finding in relation to jurisdiction was

that the pre-existing industrial dispute found on

19 October 1990 should be seen in conjunction with

the circumstances presently facing the Commission;
that was major industrial action in two States and a substantial complaint about lack of consultation

and selective treatment of employees.

DEANE J: Mr Shaw, I have lost the place, I am sorry; where

are we now?

MR SHAW:	At line 34, Your Honour.
DEANE J:	On page?
MR SHAW:	On page 249.

DEANE J: Thank you.

MR SHAW:  Where he uses the words, that that prior dispute,

the 19 October 1990 dispute, is to be seen in conjunction with the other circumstances that

His Honour pointed to.

Then, at page 250, line 4, His Honour relies,

secondly, on the fact that the precise award sought

by the Union in the present proceedings should be:

regarded as reasonably appropriate to part

settlement of the earlier dispute as it has

developed at both Gladstone and Bell Bay. Then, immediately below that, at line 6 on the

page - - -

The award sought -

by the Union -

was something sought and denied in the log, in
as much as it would create a duty owed by the

union respecting reinstatement attaching to

members of the FIA in the class of dismissed

employees -

McHUGH J:	But why was the Full Bench not entitled to take
the view that having regard to what was said by retrospective terms of exhibit Ml4, that the

Boyne(2) 9 23/6/92

subsequent dispute was really about reinstating

these named employees?

MR SHAW:  Your Honour, we would submit, first of all, that

the fact that the Union might aspire to achieve the

reinstatement of particular employees should not

deflect attention from the actual claim that it was

pursuing.

McHUGH J: But that was the reality of the matter.

MR SHAW:  It was a hope or an aspiration that some or all of

the dismissed employees might get their jobs back

as a result of proceedings in the Commission but

Wooldumpers directs attention to the way that the

claim is prosecuted and asks whether the claim is
within the jurisdiction; that was the central
question for the Full Bench, it was the claim that

the Union was pursuing within jurisdiction.

McHUGH J: But they were seeking a reinstatement of these

employees and that was what was said in express

terms orally on the transcript and then there was a

reservation about the way it was formulated and

then, obviously, somebody said, "Look, you might

have some trouble with Wooldumpers, we'd better

dress this up", and so you dress it up as though

you are seeking a prospective award but it has a

respective clause in it; that is the reality of it.

MR SHAW:  I do not think the Full Bench relied upon the

retrospective element but nevertheless I appreciate

the point. Your Honour, the formal claim

crystallized by the Union and put on paper and

tendered as an exhibit was expressly substituted

for _the prior discussion. That was a discussion in

arguendo of a relatively informal character and it

·does, with respect, seem to be a narrow and

formalistic approach to focus on some single

sentence in the transcript as denying jurisdiction.

McHUGH J:  I could see much force in your submissions if the

exhibit M14 did not have that retrospective clause

in it but the moment you put that in, the reality

is that it is just an attempt to reinstate these

named employees.

MR SHAW:  Part of the claim is, no doubt, a hope by the

Union. If the Commission were persuaded to make

the award retrospectively the Union would no doubt

hope that some of these people would get their jobs back. But it is open to the Commission to grant or

not grant the retrospective element and, in our

submission, if the claim, as presented, as

prosecuted by the Union is one for a general

regime, then that is sufficient to meet the test in

Wool dumpers.

Boyne(2) 10 23/6/92

Secondly, and alternatively, we would say that

even if the claim were one for the reinstatement of

individual employees, then it is reasonably

incidental to or related to the antecedent

industrial dispute. We would defend the capacity

of the Commission to make an award reinstating

individual employees if it is necessary for us to

do that. We submit that we can get that from

Mr Justice Mason's judgment in Wooldumpers but

where there is a relevant connection, where there

is a link in practical and logical terms between

the antecedent dispute seeking permanency of
employment and the crystallized claim for the
reinstatement of the individual or particular
employees, then that is within the jurisdiction of

the Commission.

BRENNAN J:  Mr Shaw, your argument comes to this, does it

not, that in the finding that was first made, there

was a dispute as to, inter alia, the provision in

an award of a clause which would entitle a union to

move for the creation of a relationship of employer

and employee between those who were previously

employees and the employer?

MR SHAW:  Yes, Your Honour.

BRENNAN J: If that is capable of founding an industrial

dispute, your argument is this is simply an

application of that earlier finding and it is

within it?

MR SHAW: That is so, we do say that.

BRENNAN J: If it is not capable of founding an industrial

dispute, then it does not matter whether it is

within it or not?

MR SHAW: That is true, Your Honour.

BRENNAN J:	Do you not have to address then the question of the power of the Commission to make an award
retrospectively which will have the effect of creating a relationship of employer and employee?

MR SHAW:  Yes, Your Honour. As I indicated earlier, we

would have thought that Ranger Uranium stood for

that proposition.

BRENNAN J:  Can you take us to that and demonstrate it?

MR SHAW:  Yes, Your Honour, (1987) 163 CLR 656. As

Your Honours will recall, there was no question of

interstateness in Ranger Uranium because it

concerned the Northern Territory and there was no

necessity for an interstate dispute. But if I can

just refer to the summary of facts or circumstances

Boyne(2) 11 23/6/92

at page 657, that summary makes it clear, in about

the middle of the page, that what was being

agitated before the Commission in that case was a

claim for reinstatement of employees who had

already been dismissed. It says:

At the hearing the representatives of the

Union and the Society stated that they sought

a variation of the Award or the making of a

new award providing for the reinstatement of

the dismissed employees. The Commissioner

held that he had no jurisdiction in the

matter. He refused to make any finding about

the existence of a dispute or to entertain the

notified dispute further.

Then the Court delivered a single judgment. Could

I refer to page 661, point 2:

Whilst some reinstatement disputes may

not pertain to the relations of employers and

employees, it must be accepted that many such

reinstatement disputes are agitated, not

merely by or on behalf of the former employee,

but by and on behalf of the remaining

employees who have a direct industrial

interest in the security of their own

employment and in the attitude in practice

adopted by an employer to the termination of

employment. These matters, like questions of

manning and recruitment, have a direct and not
merely consequential impact on the

employer-employee relationship.

However, disputes as to the duty to
reinstate may be generated in advance of

actual termination of employment, and in circumstances in which interstateness is

necessary it may be expected that they will be

generated as interstate disputes. Two such

disputes have been held by this Court to have

been beyond the jurisdiction of the

Commission.

If I could go to page 663, the middle of the page,

the problem about whether this was an exercise of

judicial power is noted and the members of the

Court said:

It is clear that reinstatement may be claimed as a legal right or as a remedy for

breach of a legal obligation. Section 5 of
the Act is illustrative of situations in which

reinstatement is a curial remedy for the

breach of a legal obligation. A dispute as to

the existence or enforcement of a legal right

to reinstatement or as to the breach of a

Boyne(2) 12 23/6/92

legal obligation properly remedied by an order

for reinstatement is a dispute which

necessarily involves the exercise of judicial

power ..... the Commission ..... has no

jurisdiction .....

However, the creation of legal rights and

obligations is a function which may be

performed in the exercise of arbitral power. This is so even if the function is performed

in settlement of a dispute relating to past

transactions, events and conduct:  Re Cram; Ex

parte Newcastle Wallsend Coal Co Pty Ltd.

Save for the quite specific situations

covered bys 5 of the Act -

and, Your Honours, section 5 is about unlawful
dismissals, discriminatory dismissals based on

union membership and so on -

an employee whose employment is regulated by

award made pursuant to the Act has (in the
absence of award provision) no legal
entitlement to reinstatement either as of

right or by way of remedy for breach of a

legal obligation. If an employee is dismissed
in breach of award, enforcement proceedings

may be instituted in the Federal Court .....

Where, as here, the relevant award imposes no obligation upon an employer to

reinstate a dismissed employee or class of

employees and the Act confers no general

entitlement to reinstatement, either as a

right or as an available legal remedy, then,

unless the provisions of s 5 of the Act are

invoked, the dispute is properly to be viewed

as a claim for the creation of an obligation

on the part of the employer to reinstate the

creation of new rights and obligations is a dismissed employee or employees. The	function which is properly performed in the
exercise of arbitral power. In the present case, no claim was made by reference to s 5 of the Act and it was made clear by the Union and the Society that they sought a variation of the Award or the making of a new award to bring such an obligation into existence.

However, as Reg v Portus; Ex parte City

of Perth and Reg v Gough; Ex parte Meat and

Allied Trades Federation of Australia

demonstrate, a claim that a right or

obligation should exist may be formulated in a

manner which requires the Commission to assume

powers which it does not possess. In the

Boyne(2) 13 23/6/92

present case it is contended that the

resolution of the claim made by the Union and

the Society would necessarily involve the

assumption by the Commission of the judicial

power -

and then the award provisions are referred to. At

665, point 2 -

Ordinarily, in industrial tribunals

empowered to order reinstatement, the

criterion for the making of an order for
reinstatement is that the dismissal was harsh,
unjust or unreasonable, although more recently

the tendency has been to express the test in

terms of unfairness. In the present case the

Union and the Society each claimed that the dismissals which gave rise to their claim were harsh, unjust and unreasonable.

And then the discussion of judicial versus arbitral

powers proceeds with the Court holding that that

reinstatement could be effected as an arbitral

power and the Court then, at page 667, granting the

order by way of a writ of mandamus against the

Commission.

BRENNAN J: But that was in respect of a claim which is that

set out at 664 to 665, is it not?

MR SHAW:  I think that that was not the claim, Your Honour.

That was the existing award provision and the

argument was that this is really just trying to

enforce that award provision. The best I can do in

terms of the claim is to refer to 657 where the summary of the facts and circumstances appears.

BRENNAN J:. It may not be entirely clear but if one looks at

661, that passage that you have read to us is

capable, is it not, of being read as relating to

the security which is being sought by existing

employees and the provision of a clause, therefore,

which gives security to them?

MR SHAW:  It certainly uses the existing or the ongoing

employees, as it were, as a reference group

indicating that their security would be affected or

influenced by the denial or the granting of a

reinstatement order in respect of those employees

who have been dismissed. In our submission, the

Court is linking the reinstatement of the already

dismissed employee with the security of tenure of

the employees who are remaining and pointing out

that that indicates the industrial nature of the

claim.

Boyne(2) 14 23/6/92

Your Honours, I referred earlier in passing to

the definition of "industrial matter" which was

traditionally in the Conciliation and Arbitration

Act 1904. That definition - I think I am right in

saying - has gone and you simply have in the 1988

statute a definition of "industrial dispute" which

refers to matters:

pertaining to the relationship between

employers and employees -

but in the prior definition of "industrial matter"

in the 1904 Act it was explicitly clear that the

reinstatement of a dismissed employee was

considered by the legislature to be an industrial

matter. I think that I am right in saying that

that idea that a person who had been dismissed

could be restored to earlier employment was

affirmed by this Court in Australian Iron & Steel v

Dobb, which is referred to in Ranger Uranium,

(1958) 98 CLR 586, especially at 597 to 598.

But, Your Honours, I do not think there is any doubt, looking at page 657, that what the Court had

before it in Ranger Uranium was a claim to

reinstate employees who had already been dismissed

by Ranger Uranium Mines and it is that claim that

this Court held the Commission had jurisdiction to

deal with, admittedly not having to consider the

problem of interstateness. So, for those reasons,

Your Honours, we say that the idea of reinstating

somebody with retrospective effect is an industrial

matter.

GAUDRON J:  You do not reinstate with retrospective effect,

as such, do you? You calculate present rights to

security, leave, pay on a hypothesis that the

dismissal never took place?

MR SHAW: Yes, Your Honour.
GAUDRON J:	So the notion of retrospectivity is really just

a convenient shorthand way of saying what is the

effect of the award?

MR SHAW:  Yes, that is so, Your Honour. Obviously, during

the period of dismissal there is no work done.

GAUDRON J: There is no retrospective reinstatement.

MR SHAW:  No, that is true; it simply restores the

relationship for the future, but preserves rights

to continuity of service or service being regarded

as continuous for issues like long service leave

and the like.

Boyne(2) 15 23/6/92

Your Honours, I will of course need to come to

the Wooldumpers case, but I think I am right in

saying that it is not suggested by the various

judgments of this Court in Wooldumpers that there

is something beyond power in the idea of seeking

the reinstatement of an individual employee. In
that case a Mr King's employment was in issue and

the Union was seeking his reinstatement and the

judgments provide various reasons why jurisdiction

was lacking, but they do not suggest, as I read

them, that it was because reinstatement is not an

industrial matter or that there is some barrier to

dealing with a person who has already been
dismissed, as distinct from simply providing a

regime for the future. But, as we were indicating,

we say primarily, Your Honours, that the claim here
was for a general regime, albeit one which the

Union hoped would have a retrospective effect or

would have an operative date prior to the dismissal

of the people concerned but, secondly, if need be,

we would say it would be open to the Commission to

make individual reinstatement orders directed to

former employees of the company.

Your Honours, I was pointing to various

features, and I have only got one or two more of
Justice Munro's decision which affirmed

jurisdiction. At page 250, line 6, he had pointed

out that:

The award sought is something sought and

denied in the log, in as much as it would

create a duty owed to the union respecting

reinstatement -

of members of the Union -

in the class of dismissed employees Then at line 23, His Honour held that -

The ambit -

created by the log of claims demanding -

immediate reinstatement -

of dismissed employees, was sufficient to -

logically ..... comprehend the intermediate

position of -

reinstatement which is not immediate and or -

payment for the period between dismissal and

the vesting of the right to reinstatement.

Boyne(2) 16 23/6/92

And then finally, at the bottom of page 250, he held that the Commission should:

embark upon the hearing on the merits of the

application -

and had jurisdiction to do so.

In our submission that affirmation of

jurisdiction by Justice Munro was consistent with

the judgment of this Court in the Wooldumpers case.

If I could just, for convenience, give that

reference again, Your Honours, 166 CLR 311.	We
would say, before turning in detail to the

judgments in Wooldumpers, that there are a number

of points of distinction between the present
controversy and that which this Court considered in

the Wooldumpers case. They are, firstly, the 1990

log of claims, directed, as it was, to employers in

a number of States in the aluminium industry,

explicitly sought reinstatement forthwith of any

employee who is dismissed. So that there was an

unambiguous claim for reinstatement. In

Wooldumpers, Mr Justice Mason was prepared to imply

a demand for reinstatement in the then log but

Your Honour Justice Gaudron held that there was no

implied claim for reinstatement. As far as the

Chief Justice is concerned, it is at page 315 point

3, where His Honour talked of an implicit demand

that an employee, who is -

dismissed otherwise than in accordance with

the -

provisions of the clause, shall be reinstated. And

Your Honour Justice Gaudron at page 335, at the

bottom of that page, would not have construed the

demands in that way. But there is one clear

difference, the explicit claim for reinstatement.

Secondly, the present controversy is not, in

our submission, focused upon the position of an

individual employee asserting unfairness but was a

collective dispute between the Union and the

employer concerning whether there should have been

any dismissals at all, the method of selection for

those who were to be made redundant and the absence

of consultation preceding the dismissals. Hence,

in the present case, in our submission, there was

no element of vindicating an individual right but

rather the situation of the Union seeking to

rectify what were perceived as general injustices

as to both procedure and substance. In Wooldumpers

it was clear that the claim was an individual claim

on behalf of a named person and the Chief Justice

adverts to the individual nature of the claim at

Boyne(2) 17 23/6/92

the bottom of page 313. It was explicitly a claim

for reinstatement on the ground:

that the dismissal was harsh, unfair and

unreasonable.

Your Honours, the third point of distinction that

we would make between the present case and

Wooldu.mpers is that in the present case there was a

real and pressing problem, which had manifested

itself both in Queensland and Tasmania and which

involved general concerns about the security of

employment in the industry and the processes which
ought to be undertaken in situations of collective

redundancy. Indeed, the situation was sufficiently

pressing for the employers to seek a bans clause
prohibiting industrial action to be inserted in the

award.

Fourthly, the claim as presented by the Union,

both in its 1990 log of claims and in the draft

award or variation, tendered as exhibit M14, sought
a general regime to govern questions of dismissal

and reinstatement rather than the reinstatement of

specified individual employees. Your Honours, it

is no doubt true that the Union hoped that the

general regime might, by the terms of its

prescription, lead to the practical result of

certain employees or perhaps all of its members,

being reinstated in their employment, providing

that the award was given an appropriate operative
date but, in our submission, the hope or
expectation that the award might have had that
practical benefit for some members of the Union

does not detract from the fundamentally general

character of the demand which would be a

prescription of beneficial standards for the

future.

And the final point of distinction we seek to

make is that, contrary to the situation in

Wooldu.mpers, one of the forms of relief sought was a variation of the existing award and it was

pointed out in Wooldu.mpers that that was not sought

by the Union. Just in terms of variation in order

to make good that proposition could I turn back

very briefly to Justice Munro's decision on

page 238, the last paragraph on that page, where he

says:

The application sought is to be conceived as an award to be made in part settlement of a

dispute notified under section 99 of the

Act ..... and also as an application to vary the

Award under section 113 of the Act for the

same purpose. By consent ..... ! applied Rule 5

of the Commission's Rules to waive compliance

Boyne(2) 18 23/6/92

with Rule 24 to the extent that Rule 24 might

prevent this part of the matter being

considered under section 113 of the Act. No

point has been taken as to any discrepancy

between the parties to the dispute ..... and the

parties to the dispute giving rise to the

Award. The Company is party to both disputes

and at this stage no order binding on any

other party to either dispute is sought. In

any event, as noted, Mr Amos appeared in these

proceedings on behalf of the parties -

to the earlier dispute -

other than the Company.

Might I turn, as briefly as I can Your Honours, to

each of the judgments in Wooldumpers: firstly, the

judgment of the Chief Justice. His Honour held at

page 315 point 3, as I have pointed out, that the log of claims implicitly sought the reinstatement

of dismissed employees and, in our submission,

there is an important passage at page 315, second

complete paragraph, which His Honour says:

The conclusion that the 1986 log of

claims contained a demand for an award

provision creating an obligation on the part

of employers to reinstate employees dismissed

otherwise than in accordance with the log does

not advance the Union's case very far. The

fact that the log contained such an
unsatisfied demand would have enabled the

Commission to vary the Award by including in

it a general provision of that kind.

So, if we are right in our primary submission in

·characterizing what the Union actually wanted in

the case as being a general provision then that

passage affirms the existence of jurisdiction.

At page 316 at the top of the page, His Honour

points out that:

the Commissioner was endeavouring to resolve

the dispute about -

an individual. His Honour says:

He was not directing his attention to a variation of the Award which would impose a

general obligation on employers bound by the

Award to reinstate employees dismissed

otherwise than in accordance with its terms.

The Union was not asking him to direct his

attention to that topic. Had the Union done

so, it would have been necessary to join the

Boyne(2) 19 23/6/92

respondent employers to the Award as parties

to the proceedings for a variation. No such

step was taken.

That, as we have pointed out, is in contrast to the

situation here. At the top of page 317, Mr Justice

Mason draws the distinction:

between a claim for the creation of an

obligation to reinstate and a claim for actual

reinstatement.

His Honour points out that the claim for the

creation of an obligation -

was within the ambit of the 1986 log -

which sought permanency of employment, whilst the

claim for an actual reinstatement of a particular

employee was not. And as we have put, in the

present case, we say the claim put by the Union was
in the former category and was consistently with
the logic of that passage at the top of page 317

within the ambit of the 1990 log.

The first complete paragraph on page 317

points to the prospect or possibility of individual

reinstatements being made because they were

sufficiently linked with the general demand.

His Honour says:

No doubt there are circumstances in which

the making of an award for the reinstatement
of particular employees may become reasonably
incidental to the settlement of an antecedent
interstate dispute embracing a claim for the

imposition on employers of an obligation to

reinstate employees dismissed otherwise than

in accordance with the terms of a proposed

award. The Commission can validly make an

award requiring employers not to terminate the

employment of employees otherwise than in

accordance with certain conditions or

circumstances in settlement of an interstate

dispute arising from the employers' rejection
of a claim by a union for an award
incorporating a clause restricting the

employers' right to terminate in this way. So

much seems to have been assumed in re

Bain ..... In the context of a claim for permanent employment it is then by a short

step to say that the making of an award for reinstatement of employees whose employment

has been terminated otherwise than in
accordance with the terms of the award or
proposed award may in appropriate

Boyne(2) 20 23/6/92

circumstances be reasonably incidental to the

settlement of that interstate dispute.

Then His Honour analyses the link that is necessary

between such a reinstatement award and the broader

or more general claim. His Honour, at page 318

point 3, doubted "that it is essential" to
establish that the award is objectively "necessary

or expedient" to prevent or settle a dispute. The

view was put at page 318 point 5, that:

it may be appropriate to allow the Commission

a considerable degree of latitude in assessing what is necessary or expedient for the purpose of preventing the dispute or disputes.

And at page 318 point 9, it said that:

the Commission might well conclude -

in appropriate circumstances -

that the making of an award reinstating

particular employees was fairly incidental to

the settlement of a dispute involving a claim

to permanent employment -

This depends -

on the nature of the original dispute and the

way in which it had evolved.

But the defect pointed out by the Chief Justice in

Wooldumpers was the lack of connection between the

original dispute finding and the problem about the

reinstatement of Mr King. In other words, as

His Honour expressed it at page 319, the original

log of claims which had been served in 1986 was

merely "a jurisdictional talisman" for the Union to

try to prop up jurisdiction. There was an absence

of any real connection between the antecedent

dispute and the claim for reinstatement of Mr King.

But Your Honours, in our submission here, there is

the requisite clear and real connection between the

1990 dispute and the current problem or the problem

that faced Justice Munro and that was before him.

We would describe the connection in this way:

first of all, the dispute about permanency of

employment and reinstatement was created by demand

dated 7 August 1990 and the dispute was found on

19 October 1990, so there is a temporal link within

six months from the finding of the dispute about

permanency of employment. You had the practical

problem erupting at Gladstone by the unilateral

action taken by the employer to reduce the size of

its workforce; secondly, in our submission, it can

reasonably be inferred that the serving of the log

Boyne(2) 21 23/6/92

of claims in 1990 was prompted by the Union's concern with the economic pressures and their

potential impact on employment, which led to the

redundancies of April 1991 at Gladstone.

There is evidence, Your Honours, and I will

not trouble the Court by going to it, but could I

just give references to it, that at the time when

the dispute was created, there were clear

indications of a threat to stable or permanent

employment in the aluminium smelting industry.

There was evidence that negotiations concerning

award restructuring had fallen into difficulties

from about July 1990, that is immediately prior to

the service of the log of claims, and we would give

references to the application book volume 1,

pages 56 and 57. Secondly, management had notified

the employees on 28 June 1990 that real changes

were necessary to preserve "the jobs of its

employees.". There is a memorandum dated 8 June

1990, which became exhibit W2, and which is to be

found in appeal book volume 2, page 333.

So, Your Honours, here the antecedent dispute

is not a jurisdictional talisman but clearly linked

in terms of chronology and industrial reality with

the actual problem that the Commission faced early

in 1991. And further, by way of linking the

earlier dispute with the practical problem, we say
that the tangible concerns expressed by the work-

force at Bell Bay in Tasmania about security of

employment illustrated the commonality of this

problem throughout the aluminium smelting industry.

And finally, we say that in 1991 the claim

was pursued in the same general concept, in the

same general way, seeking a general regime, as is

to be found in the log of claims. So, for those

reasons, we submit that really, on the analysis in

the Chief Justice's judgment, we are entitled to

say that there is an interstate dispute here

concerning, amongst other things, reinstatement,

and that there was jurisdiction, contrary to the

position in the Wooldu.mpers case. We would say

that that is so whether it is characterized as a

general prescription or as seeking the

reinstatement of a group of dismissed employees.

May I turn to the joint judgments of

His Honour Justice Wilson, Justice Dawson and
Your Honour Justice Toohey, beginning at page 322.

That judgment at page 324 point 1, draws the

distinction between a claim for a regime regarding

the dismissal of employees, setting a standard of

conduct, and the claim for an ad hoc reinstatement

of a particular employee. As previously submitted,

Boyne(2) 22 23/6/92

we say that the claim, in this case, falls into the

former category. That same distinction is

emphasized in the final paragraph of the joint

judgment at page 326 and Their Honours in the final

paragraph of the judgment at page 326, say:

Both principle and authority require a

distinction to be drawn between a claim for

conditions relating to the dismissal or
reinstatement of employees generally and a
claim that a specific individual be reinstated

in employment, not by the application of any

predetermined standard, but merely to deal

with the one instance. Each claim is of a

different kind and the one does not embrace

the other. That being so, the dispute about
the reinstatement of the dismissed employee in
this case does not fall within the ambit of

the 1986 log of claims -

TOOHEY J:  Mr Shaw, does it affect your argument that the

award provision sought does not in terms purport to
empower the Commission to inquire and, if
appropriate, order reinstatement according to some
standards, such as harshness and the like, but

provides for automatic reinstatement on demand?

MR SHAW:  Not in our submission, Your Honour, because, in

our submission, it would be open to the Commission

to find that some more complicated series of

standards ought to be prescribed or, indeed, that

individual cases should be looked at. It is an

ambit claim to create an automatic right of

reinstatement but the Commission could award

something very much less than that, including, in

our-submission, looking at harshness to

individuals. For example, the Commission might say

at the end of the day that where the Commission

will not provide an automatic and general right for

reinstatement but if employees have 25 years

continuous service then in that situation they

would be entitled to get their job back.

TOOHEY J: Is it part of your argument that the jurisdiction

to make an award provision in the terms sought,

whether in fact it is ultimately grounded being

another matter?

MR SHAW:  Yes, it is, Your Honour. Your Honour

Justice Brennan's judgment begins at page 326 and

at page 327 Your Honour said, in the third line:

The Commission's powers are arbitral, not

judicial, and they are limited to the making

of awards in prevention or settlement of

reinstatement disputes which exhibit

particular characteristics. The Commission

Boyne(2) 23 23/6/92

has no jurisdiction to make a judicial order

for reinstatement of a particular ex-employee

(an order which can be directly enforced); it

has jurisdiction to make an award in

prevention or settlement of a dispute as to

the duty of an employer (or of employers

generally) to reinstate in employment a
particular person or class of persons when

that duty pertains to the relations of

employers and employees and the dispute

extends beyond the limits of any one State.

And then Your Honour agreed with the reasons of

Justice Gaudron about the absence of that characteristic.

Your Honour Justice Deane in the discussion at

pages 331 and 332, would, I think I am correct in

saying, have readily found that an interstate

dispute could arise from an individual dismissal,
where the dispute of parties are national

organizations of employees and employers, but

Your Honour did reiterate or find the same

distinction that we have seen in the earlier

judgments and I refer to the bottom of page 332,

going over to page 333, between a claim for a

general regime and a claim for an individual

reinstatement, and Your Honour joined with the

other members of the Court in holding that the

particular claim for the reinstatement of King, did
not come within the ambit of the antecedent

dispute. For the reasons we have already put, we

submit, that is distinguishable from the present

case.

Your Honour Justice Gaudron's judgment begins

at page 333, and I have already noted that

Your Honour at page 335, at the bottom of the page,

would not have considered the log in that case as

making a claim for reinstatement at all. Then at

the top of page 336, Your Honour distinguished the

claim for security of employment from one for the

making of an award for reinstatement and

Your Honour held that the reinstatement order or

award would not have a tendency to dispose of the

original dispute, and the particular claim pressed
depended upon the harshness of the individual

dismissal. And again, we say that we meet that

distinction here by our claim for a general system

of reinstatement whether applied retrospectively or

merely in futuro.

Your Honours, I have now put the reasons why we say this case is distinguishable and should have

a different result from Wooldumpers. In our

submission, there was the quality of interstateness here flowing in particular from the 1990 finding of

Boyne(2) 24 23/6/92

dispute involving aluminium smelters throughout the country. In the alternative we say that there was,

in any event, an interstate controversy enlivened

by the real industrial discord and the demands

which manifested themselves in problems, both at

Gladstone and at Bell Bay, and His Honour - - -

GAUDRON J:  Mr Shaw, where will I find details of the

problems at Bell Bay?

MR SHAW:  Yes, I will give references to that. Your Honour,

I have proposed to rely on the findings of

Justice Monro in that regard; perhaps we can

provide more detail reference to the evidence, but

for the moment, Justice Monro at volume 2 page 244,

the final paragraph on that page:

Mr Harper, the Vice President of the FIA, gave evidence that the FIA members at the

Comalco Bell Bay plant in Tasmania had stopped

work on 22 and 29 April 1991. He stated the

stoppages were in connection with a national

log of claims about redundancy issues, and for

purposes of a report on what had happened at

Boyne Island Smelters on 17 and 18 April. He

contended that long held concerns of employees

at Bell Bay about their security of employment

with that company had been exacerbated by the

action of Boyne Smelters Limited at Gladstone.

Both Boyne Smelters and Bell Bay wedre known

as companies under the CRA umbrella. In his

opinion if there was not a satisfactory

conclusion with respect to the dismissals at

Boyne Smelters Limited, there was likely to be

further disputation at both plants. The Bell

Bay delegates of the FIA on 4 July 1991 had

carried a resolution in the following terms:

"(a) That in the light of dismissals at Boyne

Smelters, the delegates are gravely

concerned about the permanency of
employment at Bell Bay.
(b)	That the behaviour of Boyne Smelters Ltd.
in refusing to reinstate dismissed
employees when others were willing to be
retrenched threatens the stability of
employment throughout the industry in
Australia.
(c)
That the delegates at Bell Bay regard the actions of the employer there as setting a very bad precedent in the industry and
one which will have to be overturned to
avoid disruption at other sites."

Boyne(2) 25 23/6/92

GAUDRON J: Perhaps nothing turns on it, but was there a

redundancy provision in the Award?

MR SHAW:  I do not know, Your Honour. Might I inquire about

that to endeavour to inform Your Honour about that?

GAUDRON J: Or in the 1990 log of claims?

MR SHAW:  There certainly was not in the 1990 log of claims.

As I understand it, it was restricted to those

matters which were the subject of the finding under

section 101. At the bottom of page 245 - - -

GAUDRON J:	I am sorry, perhaps you could just help me. What led to the award restructuring negotiations?
Was there an earlier log of claims or did that just
arise out of the national wage decisions, did it?
MR SHAW:	I think it just arose out of the national wage

case decision; the national wage case then said

that you do not get the wage increases, whatever

they were, unless you engage in this process of

award restructuring.

GAUDRON J: Yes, thank you.
MR SHAW: At the bottom of page 245:

Mr Harper acknowledged that an element of the industrial action at Bell Bay was sympathy

for the Boyne Smelters Limited employees. He

added that there was also a commonality of

issues that concerned the membership at both

plants which had always been closely linked

even to the extent of staff being moved from

one plant to another during disputation.

Among these issues was the treatment of

employees affected by work related health

problems. The common issues were factors in

the endorsement of a further log of

claims ..... by the FIA membership at Bell Bay.

Now, Your Honours, of course Caledonian Collieries

(No 1) holds that a mere sympathy strike is not

sufficient to create interstateness - I am, of

course, putting all this in the alternative to the

reliance upon the 1990 log of claims - Caledonian

Collieries (No 1), (1929) 42 CLR 527, saying that a

sympathy strike is not enough but, in our

submission, it is distinguishable because here

there were actually demands formulated beyond the

State of Queensland, not merely industrial action

taken, as it were, to support the Queensland

aluminium smelter workers. May I refer very

briefly to page 555 in Caledonian Collieries, point

5, where in the joint majority judgment with Mr

Boyne(2) 26 23/6/92

Justice Isaacs dissenting in this case,

Their Honours said:

Another view relied upon was that the

Victorian and Queensland miners impliedly

required from their employers an assurance

that come what might in New South Wales their

wages would not be affected. This view

imputes to the miners a demand for an
immediate promise or contract that wages

should in no event be reduced in future,

although events in New South Wales might put

the Victorian and Queensland proprietors in
the dilemma of reducing wages or closing the
mines. But the truth is that the conduct of

the men and of their leaders imported no

request or demand upon their employers in

either of these two States. Their employers would not understand that anything was asked of them, nor would they be understood as

either requiring anything of, or refusing

anything to, the men.

We say, the position here is in contrast where

there clearly were demands by the Union on the

aluminium smelter employers generally, and by way

of considering the application of Caledonian

Collieries, Your Honours, we say, and we will refer

to authority shortly, that Caledonian Collieries

did not decide that a local dispute could not be

the occasion of an interstate dispute, a party to a

local dispute may seek to attract the Commission's

jurisdiction by substituting for it a dispute

beyond the boundaries of one State, or may turn the

local dispute into a more extensive or widespread

one. By way of support for that, could we refer to

what Mr Justice Menzies said in Reg v Commonwealth

eonciliation and Arbitration Commission; Ex parte

Melbourne and Metropolitan Tramways Board - I am

just wondering whether that is a case where the

order might have been made against the Commission,

Your Honour - 113 CLR 228, and the passage in the

judgment of Mr Justice Menzies to which we desire

to refer is at page 252 point 5:

the prosecutor relied on Caledonian

Collieries ..... The substance of that decision

was that a local dispute in New South Wales

did not spread to Victoria or Queensland

because there was no disagreement between

employees and their employers in the other

States, notwithstanding that the employees in

those other States stopped work to support the

New South Wales employees in what remained a

local dispute with their employers about

wages. That case did not decide that a local

dispute could not be made the occasion for a

Boyne(2) 27 23/6/92

dispute extending beyond one State; it did
decide that, notwithstanding the industrial

action taken by the employees in Victoria and

Queensland, there was still no dispute in the

sense of dissidence between employees in

Queensland or Victoria and their employers.

Here, however, we have a demand by employees

upon their employers in four States and, if

that demand is in other respects capable of

giving rise to an industrial dispute extending

beyond one State, it is not to be disregarded

or discounted simply because a party to a

local dispute sought to attract the

jurisdiction of the Commonwealth Conciliation

and Arbitration Commission either by

substituting for it a dispute extending beyond

the limits of one State or by turning the

local dispute into a more extensive dispute.
It is not to the point to complain that the

intention was solely to create an industrial

dispute within the jurisdiction of the

Commission. The question is whether, as a
consequence of the action taken, there has

been brought into existence an industrial

dispute extending beyond the limits of one

State -

DEANE J:  Of course, what that brings home is that the

distinction in the earlier case just gave rise to

this Court being put into a position of giving

judicial advice as to how to disrupt the industrial

relations in the country.

MR SHAW: Yes, I see the force of that observation,

Your Honour.

The final reference we want to make in this

area - I do not think it is necessary for me to

read from the case, but it is to Reg v Ludeke; Ex

parte Queensland Electricity Commission,

(1985) 159 CLR 178, and we only desire to refer to

page 191, the very end of the judgment. This case,
as Your Honours will recall, was about the

genuineness of the claim concerning the Queensland

electricity generating industry, with this Court

taking the view that even if one of the purposes of

that interstate dispute was to attract the

jurisdiction of the Commission nevertheless that

was sufficient. And this Court also dealing with

the argument that it was really a local dispute in

Queensland, between the Queensland employer and the

workers in that State but, at page 191, this Court

held that:

the Queensland dispute was not only the
occasion, but also a reason, and perhaps the

principal reason, for the ETU serving the log

Boyne(2) 28 23/6/92

of claims in February and March 1985.

Nonetheless -

this Court said -

the ETU genuinely advanced the log of claims for the purpose of engaging the jurisdiction of the Commission with a view to its making in

due course an award regulating terms and

conditions of employment in the industry

within the framework of the log of claims.

Your Honours, might I finally turn to the argument

as to why the appeal decision of the Full Bench of

the Commission miscarried. I have already noted

that the Full Bench decision commences at page 318

of volume 2 of the application books. The Full

Bench sought to ascertain the nature of the dispute and to identify what was being claimed and refused

and the Full Bench did so by reference to the

transcript; that is at the top of page 320. The

Full Bench, at the top of page 320, takes a quotations from what the Chief Justice said in

Wooldumpers, that:

" .... it is necessary to ascertain the nature

of the dispute and to identify what one side

is claiming -

and so on. But then, Your Honours will see at

lines 10 to 12, the Full Bench determined that it

was possible to do that -

to identify what· was being claimed and refused

by reference to the transcript;

And then they quote from the transcript what was

·said by Mr Martin for the FIA about its "basic

demands". It said:

"the union seeks first an award creating an

obligation on Boyne Smelters Limited to

reinstate those persons named in the

notification; secondly, that the award contain

a provision that Boyne Smelters Limited

provide to each of those named employees an

amount equivalent to that which he would have

received had he not been dismissed; thirdly,

that each employee's - that each of those

employees rights as to leave of all types,

superannuation and other non-wage benefits be

regarded as unaffected by the

dismissal ... that's the claim."

The Full Bench then go on to say:

Boyne(2) 29 23/6/92

Counsel for the FIA reserved his right to

better express the union's claims and tendered

the draft award variation set out earlier.

That is set out in the decision at page 318.

There was no other comment made on, or

variation suggested to, the statement of the

FIA's objectives. The employees referred to

in this statement comprise 27 persons whose

names are set out in the notification of

dispute.

BRENNAN J: Where do we find that notification, Mr Shaw?

MR SHAW:  Yes, Your Honour, I am sure that is in the book; I

will give a reference to that. Yes, page 377. It notifies a dispute under section 99 of the Act and

then names individuals. It says that the dispute
concerns the dismissal of named individuals and

then says, at page 378 point 6:

This is part of the dispute found by the

Commission on 19 October 1990.

And then reference to:

a threatened, impending or probable industrial

dispute -

At page 320, point 6, as I have said, the

Full Bench thought that:

There was no other comment made on, or

variation suggested to, the statement of the

FIA's objectives.

So it was at the top of page 322 that although the

Full Bench thought the general demand contained in the 1990 finding of dispute:

provided a basis for the prescription of

general provisions setting out relevant
conditions of employment -

nevertheless it felt that:

the proceedings before Munro J were concerned with a dispute about the reinstatement of the

named workers who had been dismissed by the

Company.

And to that characterization of the demand, the

Full Bench applied the distinction to be drawn from

Wooldumpers between a claim for reinstatement of

employee X and a general claim for a regime of

Boyne(2) 30 23/6/92

provisions governing termination of employment and

hence it was held that:

jurisdiction did not exist to support Justice

Munro's decision.

And the decision was quashed. Now, Your Honours,

it is obviously true that Mr Martin, in the course

of argument and without any prior notice being

given to him about the point, indicated some things

that the Union sought and no doubt it is true that

in practical terms the Union did want those people

to have their jobs back. But he expressly reserved

his right to refine the form of the claim and to

later deal with it and he did later deal with it in

a formal way. Mr Justice Munro directed that the

Union should lodge the terms of the relief sought

and serve it on the opposing parties by a specified
day. That appears at page 194 point 2 of the

papers.

So what was given by Mr Martin was merely an informal intimation or indication of what the Union

sought out of the arbitral proceedings. That was

done on 8 July 1991. On 12 July 1991 the draft

award and/or variation was tendered, as appears at

page 200 of the application book.

McHUGH J: What do you say about the point that the 1990

dispute about prohibition on dismissing an employee

and if he or she was dismissed, his or her

reinstatement forthwith, while the proposed

variation did not prohibit dismissal at all but

allowed a person to be reinstated in employment

within three months if he or the Union requested

it~

MR SHAW:  We say that that claim is well within the scope of

a general prohibition and/or is reasonably

incidental to or related to it as a form of relief.

McHUGH J: But reinstatement in the original dispute seems

to be incidental to the prohibition against

dismissal. There is no prohibition against dismissal in the proceedings that are being challenged here.

MR SHAW:  Your Honour, we would not accept that

reinstatement was merely incidental in the original

finding. We would say that the claim for

reinstatement was an independent and equal claim,

contemplating that if dismissals did occur, then

there ought to be a right vested in the Union to

secure the reinstatement of the dismissed

employees. But certainly, whether it is incidental

Boyne(2) 31 23/6/92

or a more fundamental part of the claim, there was

a clear claim for a right to reinstatement.

Now, it is not very far from that to say that

the employee should be able to require

reinstatement within three months of the dismissal.

Once it is accepted that there is an actual claim

for a right to be reinstated - - -

McHUGH J: But the hypothesis is that the employment

relationship is terminated. Now, what you want to

do - you can call it reinstatement - but you want

to create the obligation of employer-employee, even
though the relationship has been lawfully

terminated.

MR SHAW: Well, in principle, that is exactly the same as

reinstatement, Your Honour. Reinstatement is
predicated upon the notion that the employment is
lawfully terminated, but says notwithstanding that

it is lawfully terminated, perhaps with due notice

or whatever else is required by the contract or the

award, nevertheless, in the discretion of some

arbitral tribunal, reinstatement can be granted to
restore immediately, if necessary, the employment

relationship.

Now, the precise form of claim actually

pressed simply does the same thing in point of
principle, in our submission, but allows a period

of three months in which it is to be done. It is
really qualitatively the same as the original
demand or, at any rate, is reasonably related to

it, in our submission. It certainly covers the

same topic: the topic of the right of a dismissed

employee to recover his or her job, and a narrow

approach should not be taken to these matters.

Where the precise formulated claim logically links

back to the original demand, then in our submission

that is sufficient for the Commission to deal with

these matters.

McHUGH J:  Do you concede that an award could not have been

made reinstating these employees as such?

MR SHAW:	No, I do not concede that, Your Honour.
MCHUGH J:	Do you not?
MR SHAW:	We would submit that, if necessary, if we are

driven to the position of having to accept the
characterization of the dispute as being about the
reinstatement of designated individuals, we would

would say that the Commission would have the power

submit that the Commission - we would rely upon the

Boyne(2) 32 23/6/92

to effect those individual reinstatements as being

reasonably related to the 1990 dispute.

DEANE J: But there is a bit of a complication, is there

not, in that if you look at the finding of the dispute in A, the demand pretty obviously goes

beyond what is within the power of the Commission

to order in that the Commission could not

effectively make an award that the employer shall

not have dismissed someone at the time the award

takes place. It may be that the real attack on the

ambit of what is asked does not go towards the

existence of an interstate industrial dispute, but

goes really towards asking more than could be awarded in a proper exercise of the powers of

conciliation and arbitration. Now, where they all fit in is something that needs to be worked out, I

would have thought.

MR SHAW:  Yes. Your Honour, I think there is authority

saying that even if the demand goes beyond the

jurisdiction of the Commission, that that can found

a valid dispute and an award can be made if the

award is within the jurisdiction of the Commission.

That arose in the area of preference to unionists,

where - and I am afraid I cannot give the reference

at the moment, but this Court held that although

the then court could never award compulsory

unionism, nevertheless a claim for compulsory

unionism was an industrial matter and could create

a dispute which could lead to an award within

power.

DEANE J: Unless you are in the area where the whole dispute

is about something which is beyond the competence

of the Commission, such as awarding judicial power,

or purporting to award judicial power, to itself.

MR SHAW: Yes, I accept that, Your Honour. But here we say

the dispute, on any view, is about permanency of

employment and reinstatement and that is within the

general purview of the Commission and, on any

analysis, represents an industrial matter.

BRENNAN J: Mr Shaw, I understand the argument, I think,

that it is for this Court in the exercise of its

original jurisdiction to determine for itself

whether there was an industrial dispute of a kind

which enlivened the jurisdiction which the

Commission refused to exercise, but in performing

that task, are we entitled to look at the competing

views that were taken, what complexion was put on the agreed facts by Justice Munro on the one hand and by the Full Bench of the Commission on the

other, and to say that the Full Bench of the

Commission is the body which, representing the

expert opinion of that tribunal, puts this

Boyne(2) 33 23/6/92

complexion on the facts, and that is the complexion

which we should follow?

MR SHAW:  Your Honour, normally, of course, this Court would

pay regard to and give weight to decisions on

questions of fact of the Commission, whether the

Full Bench or a single member, but in this case, in

our submission, the question of characterizing the

demand or analysing just what occurred before

Justice Munro involves no question of industrial

expertise. There is nothing about it which the

Full Bench of the Commission could lend any

particular expertise to as distinct from any other

court looking at the matter.

BRENNAN J: Well, I do not know, because you are relying

upon the existence of a paper dispute, and paper

disputes must none the less represent genuine

controversies.

MR SHAW:  Yes, Your Honour.

BRENNAN J: And for the reasons that Justice McHugh first

put to you today, might this not be a case where

what is being seen in this controversy is really

nothing other than trying to put a patina of a

paper dispute over what what is in reality no more

than a claim for getting these people back on to

the payroll?

MR SHAW:  We submit not, Your Honour, because the -

Your Honours have now seen the total history of the

matter; we submit that material establishes long

term, ongoing concern about security of employment

in this industry, reasonably based concern as

events showed.

BRENNAN J:  I understand the force of what you have said.

My question to you is: ought we not discount what you have said in the light of the contrary view

taken by the Commission itself?

MR SHAW:  I would submit not, Your Honour, with respect to

the Full Bench, because its view takes such a

narrowly based view of what the claim was about. Its view really depends upon one sentence in the

transcript and it, in our submission, is clearly

wrong. Could we refer to - - -

GAUDRON J: Well, does this Court not have to decide for

itself whether there are constitutional facts, and

it may be that you would give certain weight in a

case where the Commission found that there was

jurisdiction that you would not give where they

found that there was not jurisdiction, because

ultimately if jurisdiction exists, it is

Boyne(2) 34 23/6/92

constitutional jurisdiction and it must not be

denied?

MR SHAW: That is true, with respect, Your Honour, and ,one

can understand this Court placing considerable

weight on the views of the Commission on matters of

industrial practice or usage, such as if there were

a controversy about what was the aluminium smelting

industry; what were its perimeters and so on, but

here it is just a question of what actually went on

in the proceedings, what claim the Union was

pursuing. I do not think that the Full Bench

expressly or clearly finds, for example, that the

actual claim pursued by the Union was some sham or

disguise; it is just that they focus upon the

words used on 8 July 1991 by the advocate.

Whatever weight this Court might give the decision

of the Full Bench, our submission is that that

Full Bench decision is just clearly wrong because,

Your Honours, that perhaps unguarded and informal

indication was overtaken by events.	It was clearly
replaced.

In proceedings before the Commission, all

kinds of things are said from time to time and it

does seem, with respect, unduly narrow to just

focus on this one sentence. At page 200 of the

application books there was the transcript of the

proceedings where Mr Martin substituted the formal

document for the earlier indication. At page 200

point 8, after he tendered this document,

Mr Justice Munro says:

And is this intended to be substituted for

what you read onto transcript?

Mr Martin: Yes.

Your Honours, how can it be said, in the light of

that, as the Full Bench appears to at page 320,

line 24, that: 

There was no other comment made on, or

variation suggested to the statement -

on the transcript, made by the FIA, when clearly

what was done was to substitute a considered form

of claim. And indeed, Your Honours,

Mr Martin - - -

BRENNAN J:  The difficulty with that is that line 19,

Mr Martin said that:

This is in fact the written version of what I

placed on the transcript.

Boyne(2) 35 23/6/92

MR SHAW: Yes, I had noted that. But it was clearly

intended to replace it and to be the form of the

claim that was actually pursued and Mr Martin

argued in the proceedings before Mr Justice Munro

that what was being sought was this general regime.

That is at the top of page 226, where he is

pointing out distinctions between his case and

Wooldumpers and he said at page 226, about line 6:

That is not what is sought here. What is

sought here is an award which creates a duty

and allows a benefit as between employer and employee, and whether or not an employee may

exercise that right is determined by the

action of the employer in dismissing -

and so on. Now, Your Honours, I will not repeat

it, but we do say that these facts are simple and
the Union is entitled to consider its position and
to formulate its claim in the way it sees fit;

that is what it did. That was the purpose of

Justice Munro directing that it provide a precise

to notice the formal compilation of the

formulation of the relief. The decision of this fails

demand as required by the Commission, is defective,

in our submission. So it is for those reasons we

submit Justice Munro's conjunction of factors ought

to be preferred in suggesting that jurisdiction

does exist. It is because of that misapprehension

about the nature of the claim that the Full Bench

did not even look at the conjunction of factors

that Justice Munro isolated and dealt with.

The Full Bench took the view it just did not

need to look at that because the Union had said at one point, in what were quite lengthy proceedings,

that they wanted these fellows to get their jobs

back. That is, in our submission, an

unsatisfactory approach to the existence of

jurisdiction and one which we submit this Court

would not accept. Those are our submissions.

McHUGH J: What about what Mr Martin says at page 209 from

lines 15 through to 29 - 225 of the book, 209 of

the transcript? Does he not seem to be tying his

casing back to the earlier notification, referring

to the dismissals?

MR SHAW:  He certainly refers back to the notification and

to the dismissals, Your Honour, but he is also

referring to that - it is understandable that he

would refer to the notification which, after all,

brought the matter on to the Commission, but he

says that that notification:

Boyne(2) 36 23/6/92

is part of the dispute found by the Commission

on 19 October 1990 -

and the Union sought part settlement of that

dispute. In our submission, the passing reference

to the actual notification, which is just an

informal document getting the matter on, does not

characterize the claim. At the bottom of page 225

he is referring Justice Munro to the dispute which

he found as being in two parts; the prohibition

against dismissal, and then the reinstatement

forthwith of employees who were dismissed. And

then he goes on to crystallize the points at the

top of page 226, the points of distinction. He

says about the claim for reinstatement of Mr King

in Wooldumpers, "that was not what is sought here".

That was not what he was seeking.	If the Court
pleases.

BRENNAN J: Thank you. Mr Rose.

MR ROSE:  If the Court pleases, may I hand up copies of the

outline of my submission?

McHUGH J: Mr Rose, have you got any statutory right to

intervene in these proceedings?

MR ROSE:  If Your Honour pleases, we are not making any

submissions on the factual issues. We are

concerning ourselves with the question whether the

Commission has power to do these things by way of

settlement of an industrial dispute. They are

statutory powers, but the language of the statute

engages a constitutional term, so we would regard
ourselves as entitled to intervene pursuant to

section 78A of the Judiciary Act, to that limited

extent.

GAUDRON J: There is as well a statutory right, is there

not, under the Industrial Relations Act? There

used to be one under the old Conciliation	and
Arbitration Act.

MR ROSE:  I confess I am not aware that we have one. We

were relying on our right to come here in response

to the 78B notice and present submissions in so far

as the statutory questions may be relevant to the
interpretation of the Constitution. It has, of

course, already been decided by the Court that

where a statute uses language in constitutional

terms, that the matter does involve the
interpretation of the Constitution, albeit

indirectly, but nevertheless that was decided, but

if I give Your Honour Justice McHugh the reference

to The Attorney General(NSW) v Commonwealth Savings

Bank, 160 CLR 315, which was concerned with

questions in which the Judiciary Act had used

Boyne(2) 37 23/6/92

constitutional language, and in my submission that

case supports the proposition which I just put.	My
friend Mr Robertson, in response to
Justice Gaudron's question, has referred me to
section 60 of the present Act which deals with a

power of the minister to intervene in the Court in

matters arising under the Act, but as far as we

know there is no statutory right for the Attorney-

General to come here.

BRENNAN J: Yes, Mr Rose.

MR ROSE:  If the Court pleases, since the submissions do

traverse a lot of the ground already covered by my friend Mr Shaw, it will not be necessary for me to

take much time beyond mentioning a few additional

points. I have already indicated we are not

concerned to make any submissions about the factual

issues, in particular, the main factual issue being

whether the dispute here is the one formulated in

the written document, the draft award variation, or

whether it is in the terms of the oral statement

made before Justice Munro.

Another factual issue in which we will not be

entering is the one which emerged in discussion

this morning, and that is the question whether on

the second version of that dispute - I will call it

the oral version - whether that pertains to the

relationship of employer and employee. Reference

has already been made to the Ranger decision, in

particular, 163 CLR 661, where the Full Court said,

in the first complete paragraph:

Whilst some reinstatement disputes may

not pertain to the relations of employers and

employees, it must be accepted that many such

reinstatement disputes are agitated, not

merely by or on behalf of the former employee,

but by and on behalf of the remaining

employees -

et cetera. Now, whether a particular dispute comes

within one category or the other as, in our

submission, a question of fact into which we do not

propose to enter here, I might, if I may, refer the

Court just to a statement by Your Honour

Justice Brennan in Wooldumpers on that point, 166

CLR 327, where, having referred to the Ranger case,

Your Honour Justice Brennan said, half-way down the

paragraph:

it has jurisdiction to make an award in

prevention or settlement of a dispute as to

the duty of an employer (or of employers

generally) to reinstate in employment a

particular person or class of persons when

Boyne(2) 38 23/6/92

that duty pertains to the relations of

employers and employees and the dispute

extends beyond the limits of any one State.

As I have said, our submissions do not extend to
the essentially factual question whether this
dispute, seen in its full context, does have the

wider implications beyond the interests of the

particular dismissed employees.

Another factual issue that we have not·

addressed in our submission in the significance of

the Bell Bay aspect. Now, it was our understanding

that that was not an issue before the Full Bench,

so we have not covered it in our submissions. What

we have done in our submissions is to set out at

paragraph 1 the terms of the interstate dispute as

found, and then in paragraphs 2 and 3 deal in the

alternative with the legal aspects. First, on the

assumption that the dispute in in the terms of the

document, the draft award variation, which of

course is in general terms, and for that reason

poses fewer problems than the dispute, if it is

seen as limited to the particular 27 or so

employees.

In our submission, on either basis the

Commission had jurisdiction, assuming, of course,

in the second case that the facts are such that it

can be said to pertain to the relations of

employers and employees in the sense that I have

just mentioned. But on the first limb, the first

assumption that the dispute that is before the

Court is in the terms of the draft award variation,

our submission is that an award in those terms

would clearly be within jurisdiction. We have

cited there the established tests which appear in

'the cases fully referred to in those passages in

the Wooldumpers case.

We point out that the terms of the draft award

variation would, like the 1990 dispute, concern a

general regime for dismissal, and that the 1990

dispute extended to dismissals before the making of

an award finally settling that dispute. When I say

extended to dismissals, of course it is in the

sense it has already been canvassed in argument

that there is no question of making an award with
retrospective effect, the breach of which would

make an employer guilty of an offence for things

done before the award was made, but despite the

expression of the dispute in the finding, it is to

be taken as a demand that if a person had been

dismissed before the award was made, in

circumstances that would have been a breach after

it had been made, then the employer would reinstate

the person forthwith.

Boyne(2) 39 23/6/92

We point out in paragraph 2.2.3 that there is

a difference between the 1990 dispute as found and

the draft award variation in one respect, and that

is that the 1991 draft award variation claimed

notice as a prerequisite to the reinstatement

obligation by contrast with the 1990 dispute that

reinstatement be forthwith. And there is a claim

for ancillary matters such as preservation of

superannuation benefits and so on. In our

submission, that does not take the 1991 dispute outside ambit. In our submission, the relevant passage, perhaps the leading authority from this
Court on the subject, is in Galvin's case, where we

would say in an analogous situation, the

differences between the claim and the existing
dispute were described by Chief Justice Dixon and

Justices Webb, Fullagar and Kitto, 86 CLR 34, with the passage to which I invite the Court's attention

at pages 40 to 41. At the bottom of page 40

appears a passage which has been much cited since,

including in Wooldumpers:

An award cannot give a form of relief

that is not relevant to a matter in dispute,
that is not reasonably incidental or

appropriate to the settlement of that part of

the dispute and that has no natural or

rational tendency to settle the particular

question in dispute.

That is the much-cited passage, but then they go on:

But the award need not adhere to the remedy or

relief proposed or claimed in the course of

the dispute or in a demand forming a source of

the dispute, so long as the provision in the

award is related to the dispute or its

settlement in the manner stated.

And then over the page, on page 41, in the second

paragraph they draw attention to the fact: But in the present case the question is

whether by dropping the expression of purpose

the commissioner has given relief of a kind

different in substance from that claimed.	To
drop the reference to purpose -

I think it is unnecessary now to go into the

details in question in that case, but the next

paragraph says:

The substantial grievance forming the

basis of the claim -

et cetera:

Boyne(2) 40 23/6/92

The clause in the log described in terms chosen by the claimants the precise relief

considered sufficient to deal with the

grievance. The award chooses another form of

relief and in some ways wider, in some ways

narrower -

et cetera. In our submission, drawing on that

approach would be that the difference between the

1990 dispute as set out in our paragraph 1 and the

draft award variation does not alter the substance

of the dispute; it goes to the details of the

remedy, particularly as one can see in - specially

in relation to the ancillary matters: preservation

of superannuation benefits, and so on, which can be

seen as consequential to the reinstatement.

DEANE J: This argument is really on the basis that a demand

for reinstatement does not, of itself, encompass being put back into possession of all the rights

you would have had if you had not been dismissed.

MR ROSE: Well, I think one could probably go either way,

with respect, Your Honour. If one takes a demand
for reinstatement as not impliedly carrying all the

others with it, then - - -

DEANE J: But if it does encompass all these things, you do

not really need to get to - - -

MR ROSE: Precisely, yes, with respect, Your Honour. In

paragraph 3 we go on to the alternative which, of

course, gives rise to the more difficult issues.

Of course, an award in the terms of the oral

statement before Mr Justice Munro would focus on

the particular employees. But in our submission,

even so, an award in those terms would be

sufficiently related to the 1990 dispute to come

within its ambit.

Now, my friend Mr Shaw has already pointed to

a number of points of distinction which we would,

with respect, adopt, indicating that in this

situation the Wooldumpers case is not applicable.

One of the points of distinction that has been

mentioned is that in Wooldumpers, emphasis was

placed by some members of the Court on the fact

that the claim there was in relation to the ground

of harsh, unfair and unreasonable dismissals. Here

there is a congruence between the two, the

interstate dispute and the particular claim,

because both of them apply to dismissal on any

ground.

Where we say in the note to our

paragraph 3.2.1 that in Wooldumpers the

reinstatement claim was made on the basis that the

Boyne(2) 41 23/6/92

dismissals were allegedly harsh, unfair and

unreasonable, we refer to the reference by

Chief Justice Mason to that. It is not at all

clear that he relies on it, but it is clear, with

respect, that Justice Gaudron, with whom

Your Honour Justice Brennan agreed, did place

considerable weight on that aspect in Wooldumpers.

But our submission, with respect, should not

be understood as saying that a claim that there be

no harsh, unfair or unreasonable dismissals is
necessarily outside the ambit of a dispute

involving a claim that there shall be no dismissals

at all, or no dismissals without notice, because it

would, in our submission, be quite conceivable to

have an interstate dispute in which the claim is

that there be no dismissals on any ground, and then
to have an award made which is in terms that there

shall be no dismissals if they are harsh, unfair

and unreasonable.

The reason I say that is that one can conceive

of a claim being pressed by a union in the wider
terms of the interstate dispute I hypothesized, and
then, in the course of the Commission's
consideration, coming up with an award of a more
limited nature. And so on the principle that the

greater includes the less, the award, in terms of

harsh, unfair and unreasonable criteria, would be

in within the ambit of the earlier dispute.	The
reason why, in my submission, that this is a

significant aspect of the Wooldumpers decision is

that those justices who mentioned it saw it in the

full context there in which it seemed - they appear

to have seen it as being pressed in isolation from

the_ wider dispute and not having the character of a
partial settlement, or a settlement with an award
in more limited terms than that claimed, but
nevertheless still an award aimed at the settlement

of the wider dispute. It was seen as a separate ad

hoc dispute, and for that reason it was held by

those justices to be outside ambit.

There are some other distinctions but I think

what we have said there would also traverse ground

covered by my friend Mr Shaw. We have in

paragraph 3.2.4 referred to Reg v Isaac as

authority for the proposition that the partial settlement of the 1990 dispute would be within

ambit. The fact that the dispute here is limited

to particular employees is no objection since it is

open to the Commission to proceed to settle the

1990 dispute by an award which focuses on these 27

employees and then later for the scope to move on

to settlement of the wider aspects of that. But the

fact that this is limited to particular employees

is, in our submission, no objection.

Boyne(2) 42 23/6/92

Finally, we have referred to the point already

addressed by my friend Mr Shaw on judicial power

and we would see in the claims here no objection on

those grounds, having regard to the Court's

decision in the Ranger case. Those are my

submissions, if it please the Court.

BRENNAN J: Yes, Mr Jessup?

MR JESSUP:  If the Court pleases. I hand up our outline,

Your Honour.

BRENNAN J: Yes, Mr Jessup?

MR JESSUP:	If the Court pleases, before we turn to the matters dealt with in the outline of argument, we
should deal with the submission which our learned
friends on behalf of the prosecutor made, that in
some sense events at Bell Bay in Tasmania
constituted one of the rungs on the jurisdictional
ladder, as it were, upon which Justice Munro was
entitled to rely. As will be demonstrated when we
take Your Honours to the material in a moment, that
rung was abandoned by the prosecutor in proceedings
before Mr Justice Munro and before the Full Bench, and that explains why the Full Bench did not deal
with that point at all;  a circumstance which might
have been puzzling Your Honours somewhat.
What happened on 8 July 1991 was that the prosecutor tendered a new notification of dispute.
That was exhibit M9 on page 377 of the book to
which Your Honours have already been taken by our
learned friends. That is the exhibit which listed
all the dismissed employees. If Your Honours look
at it, however, what you will find is that on
page 378 at the foot of the page, there is joined
to it a notification:

of the existence of a threatened, impending or

probable industrial dispute -

involving the Union, Boyne Smelters and Comalco

(Bell Bay).

Now, Comalco (Bell Bay) was represented in the

proceedings by Mr Amos. When that notification was

given to the Commission and evidence was called in

support of it, that is evidence which went to the

Bell Bay situation, Mr Amos said, at page 172 of

the book, line 27:

we were caught somewhat by surprise by the new

dispute notification.

The succeeding 20 pages or thereabouts were

concerned with exchanges between His Honour and

Boyne(2) 23/6/92

Mr Amos, on the one hand, and other advocates on

the other, as to Mr Amos's rights in relation to

this new notification.	He wanted to call evidence
and to deal with the matter thoroughly.	It was in

those circumstances, at page 181, more like 10

pages than 20, that His Honour came up with

something which might perhaps be regarded as the

jurisdictional talisman for the purposes of these

proceedings, and he referred to this in his

decision. At line 21 on page 181, His Honour

proposed a slightly different procedure. In

essence, he was proposing - and it was more fully

fleshed out in the bottom paragraph on that page -
reliance upon dispute C 21481 for the purposes of

the proceedings.

Then, at page 190, counsel for the Union at

line 10 interrupted an exchange which had been

taking place between our client's solicitor and

His Honour, and counsel for the Union said, "Look,

we will withdraw all this business about Bell Bay",

and Your Honours will see that at lines 10 to 15,

and that is in the passage immediately preceding
the formulation of the Union's claim which was

later set out in the Full Bench decision.

Your Honours have been referred to the substance of

what is on that page, but I do not think previously

to the fact that Mr Martin withdrew or abandoned

any reliance upon what is happening at Bell Bay.

Now, notwithstanding that, His Honour did, if

we may say so without any disrespect, rather

ambiguously smudged Bell Bay into it, as it were,

when he came to give his decision in the passages

to which my learned friend Mr Shaw has referred.

However, when the matter came on before the Full

Bench, again the question of what reliance was

placed upon Bell Bay was raised. Might we take

Your Honours to page 298 in the other volume of the

application book. At the top of that page, line 3,

Mr Hanger now appearing for the present prosecutor	disclaims again any reliance upon what happened in
Tasmania, and at page 303 about line 12 to 16,
Mr Hanger asks the Commission to take exhibit M9 as
a notification of alleged industrial dispute.
Then, at page 313 line 20, Mr Hanger says:

our submission is this, and it really comes

down to ..... we base our whole case on

Wooldumpers, I'm quite prepared to do that.
Wooldumpers authorises the course that we have

taken and it comes down to that. You have

your filing of dispute, the interstateness,

unchallenged, you have the enlivening of

jurisdiction by the notification, which refers

back to that finding of dispute, you have the

application to vary the award which we say we

Boyne(2) 44 23/6/92

submit to the bench is within the finding of

the dispute.

The rest - and that gives the Commissioner

jurisdiction. The rest is up to him -

At the very bottom of page 313, line 34:

The issue here, we submit, is simply whether

the application to vary falls within the ambit

of the log where the dispute is found.

And then over the page at line 6:

So we're not seeking a finding, and we didn't

advance arguments at the time that you should

make a finding that was interstate dispute

based on what's happening in Tasmania.

Now, for that reason the relevance of circumstances

in Tasmania was not argued by our client before the

Full Bench, and for that reason also the Full Bench did not deal with it, and that is the explanation why Your Honours find no reference to possible

interstateness arising out of Bell Bay in the Full

Bench decision.

Now, might we turn then to the submission of

which Your Honours have an outline. In our

submission, one must first construe, if that be the

right word, the 1990 dispute finding. It was a
finding based upon a claim that it be a condition

of employment of every employee that he or she not

be dismissed and if dismissed, be reinstated or, if

you like, in the language of Wooldumpers it was a

claim for a regime protecting employees from

dismissal and providing for their reinstatement if
aismissed contrary to that regime. And

Your Honours have already been taken to

each member of the Court in that case between a	Wooldumpers. The distinction which was made by
regime, on the one hand, and a situation arising ad hoc in relation to people who have been dismissed, on the other hand, was clear and it was the point upon which that case turned.
The question remains, of course, for the present purposes: what exactly is the regime? In
our submission, the regime which was claimed was a
regime which would protect employees from dismissal
and ensure that they be reinstated if they were dismissed contrary to the embargo on dismissal.
The regime was not concerned with reinstatement in
vacuo of an employee who had been dismissed in the
absence of an embargo on dismissal, or in the
absence of, in the language of Wooldumpers, a
regime written into the employees' contracts of

Boyne(2) 45 23/6/92

employment that they not be dismissed, or if

dismissed be reinstated.

Now, this understanding of the regime claimed

in the 1990 dispute is supported by the actual
finding, the actual wording in the finding itself
that the employers observe for employees conditions

of employment "to the effect that". It was not in

terms a claim that everyone who should happen to be

dismissed should forthwith be reinstated. It was

in terms a claim that existing employees should

have certain conditions of employment, and the Full

Bench itself obviously placed some importance by

that characteristic of the claim. If Your Honours

would turn to page 321 of the second volume of the

application book, about line 32, the Full Bench

said:

As may be seen from the finding of dispute set

out above, that dispute was concerned

specifically with the requirement that " ...

the employers observe for employees conditions of employment ... " to the effect that employers

should not dismiss any employee and should

reinstate forthwith any employee who was

dismissed.

GAUDRON J:  I see that the Full Bench there did much the

same thing as you did in your argument, Dr Jessup,

you just passed over the words in parenthesis,

"whether or not such dismissal takes place before

the making of an award", which all seems to suggest
that the dispute is not about people who are

dismissed in the absence of a regime but about

people who are dismissed whether or not there is a

regime?

MR JESSUP:  Your Honour, those words may be given effect

according to their terms but they do not mean:

whether or not such dismissal takes place before

the substantive obligation in this paragraph is

part of the conditions of employment of the

relevant employee.

GAUDRON J:  I note your more sophisticated language but I

certainly would have thought that, having regard to

the general pattern of industrial disputation about

reinstatement, it was to be read precisely as a

demand whether or not there was a regime.

MR JESSUP:  No, Your Honour, with respect, if you gave the

words - perhaps I should put it this way: an

industrial dispute is first and foremost a claim by

a union upon an employer or some employers which is

capable of being acceded to by the employers, and

if it is acceded to, then, in the absence of

Boyne(2) 46 23/6/92

special circumstances, that then becomes conditions

of employment of the union's members.

Now, that is what the claim was concerned

with, in our submission. You cannot read into that

a claim, Your Honour, that it be a condition of

employment of someone that he not be dismissed even

before that was a condition of his employment.

Your Honour, to give the words in parenthesis in

paragraph A of the finding such a meaning would be

to render them nonsensical. It would amount to

saying this: it shall be a condition of the

employment of an employee on day two that he or she

shall not have been dismissed on day one. Ex

hypothesi, he or she was not dismissed on day one,

for if he or she had been, there would have been no

conditions of employment on day two.

So, Your Honour, the only reasonable reading

one can give to the words in parenthesis in

paragraph A of the finding is that they are not

concerned with the absolute situation arising even

in the absence of conditions of employment

reflective of the employer having acceded to such a

claim. And we say, Your Honour, likewise also with

respect to paragraph B of the finding - - -

GAUDRON J: But really it is clear enough on ordinary

language, is it not, that what that dispute seeks

to do is to preserve the status quo pending any

award, or to restore the status quo ante, if

so~ething happens before an award is made?

MR JESSUP: With respect, Your Honour, to employees who had

those things as conditions of their employment. If

an employee does have an embargo upon dismissal as

a condition of his employment, then those words can

be - - -

GAUDRON J: Then it is not necessary, it is hardly

necessary.

MR JESSUP:  The dispute, Your Honour, has - the regime is in

place.

GAUDRON J: Yes, but paragraph Bis hardly necessary.

MR JESSUP:  No, Your Honour, because an embargo upon

dismissal, as you have pointed out in Wooldumpers,
leads to perhaps proceedings for breach of an award

but does not - - -

GAUDRON J: And the same for reinstatement; a failure to

observe a term obliging reinstatement only leads to

a prosecution of breach.

Boyne(2) 47 23/6/92

MR JESSUP:  Your Honour, that may be so, but if para A was

there on its own, there would not even be an

obligation to reinstate, quite apart from what

might be said about the breach of the obligation

not to dismiss. But, Your Honour, the point that

we make is that if it is to be read otherwise, then

you have quite absurd consequences. You have a

situation where even before it has become

conditions of employment as claimed, then there is

an embargo as part of those conditions of

employment upon dismissal, and we say that it does

not make sense if it is so construed. And we say

further, Your Honour, likewise under paragraph B of

the finding, this can refer only to the

reinstatement of a former employee in relation to

whom the relevant obligation existed as part of his

or her conditions of employment whilst an employee,

for after dismissal there could be no conditions of

employment.

With respect, we would urge upon Your Honours

the construction of the regime which was suggested,

I think, by His Honour the presiding judge in

argument earlier that this is something which is

designed to protect security of employment of those

people who are employees, and that was what the

dispute was about and not about recreating an

employment relationship in vacuo, as it were, where

there had been no such regime.

Now, putting it another way, a claim is

capable of giving rise to an industrial dispute

only if it is a claim to which the recipient

employer has the present capacity to accede. That

we apprehend it, Your Honours, is reasonably well

established in the decisions of this Court. The

1990 claim could not be construed as a claim to

reinstate any employee dismissed at any time in the

future because the employer could not accede to

such a claim until someone was actually dismissed.

Now, may I make the point a little clearer by

way of an example. If you demand of an employer to

make a payment on a particular day, the employer

accedes to that demand by making the payment.	If
you demand that an employer dismiss someone, the

employer accedes to that demand by dismissing the

person. If you demand that the employer not
dismiss someone, the employer accedes to that

demand by not dismissing that person, but what this

1990 dispute was concerned with, and after all it

was a dispute which was found by the Commission,

that is the Commission found that there was a

controversy between the parties, could not have

been based upon failure to accede to the demand in

that sense because there were no dismissals at that

time and, therefore, if it were construed as a

Boyne(2) 48 23/6/92

demand not to dismiss anyone, the only proper

conclusion would have been that as at that time

there was no dispute. However, realistically, as

is apparent, it was a demand that the employer

agree not to dismiss anyone, and it was that

refusal to agree not to dismiss anyone that gave

rise to this dispute.

So, therefore, Your Honours, that is a way of defining the dispute, not about whether or not

someone should be dismissed but about whether or

not the employer should agree as a matter of

conditions of employment with the Union and with

its workforce that people not be dismissed, and

that puts in place the protection. If the employer

refuses to agree, he is in effect refusing to

accept it as a condition of employment that people

not be dismissed, and that is what the Commission

can deal with. The Commission can make an award

settling that dispute because that is the matter in

dispute and they make the award by making it a
condition of employment that people not be

dismissed and likewise, we submit, with

reinstatement. If the demand as made in 1990 was

simply to reinstate people, the employer could not

accede to it because the dismissals had not taken

place. It can only be construed as a demand to

agree to reinstate people should they be dismissed and the employer by refusing that demand puts that point in dispute with the Union, and the Commission

can make an award settling that right up to the

full extent of the ambit which is defined by

reference to the employer's refusal to have it as a
condition of employment that people be reinstated

if they happen to be dismissed.

So, if looked at from that point of view also,

.we submit, the conclusion is inevitably the one to

which the Full Bench arrived, namely that the

regime which was sought by the 1990 dispute is a

regime which protects people who have been in

employment whilst these embargoes upon dismissal

and the requirement to reinstate have been

conditions of their employment.

McHUGH J: But does not your argument seem to link together

the dispute and the making of the award? The

findings have got to be read as at 19 October 1990.

At that date, is there not a dispute between the

parties that the conditions of employment shall be

to the effect that the employer shall not dismiss

any employee - any current employee or any future

employee?

MR JESSUP: Yes, that is the dispute, Your Honour, yes.

McHUGH J: Yes. But it exists as at 19 October?

Boyne(2) 49 23/6/92

MR JESSUP: Yes, Your Honour, that is so, but the essence of

it is that they be the conditions of employment,

and if that dispute is simply found to exist and

then, as it was, put into archives and not settled,
then they are still in dispute about whether these

things should be people's conditions of employment,

and if in that state of things, before an award has

been made, someone is dismissed, you cannot settle
that within the ambit of that dispute because that

person can no longer have any conditions of

employment.

McHUGH J:  I am not sure about that. If you take the view

that there is a dispute about what should be the

condition of employment of a particular employee as

at 19 October 1990, why can you not later have an

award which operates, say, from 19 October 1990,

even though after 19 October 1990 and before the

award is made the particular employee is dismissed?

MR JESSUP:  Your Honour, I suppose theoretically it is

possible to say, to make an award, "this shall have
been this person's conditions of employment", but

then, Your Honour, that is a retrospective award in

effect in form and in substance. It differs from

the award to which Her Honour Justice Gaudron

referred in that it does deem something to be a

state of affairs long before the deeming was done.

McHUGH J: But is that not the effect of what Exhibit M14

seeks to do, to operate really from prior to - - -

MR JESSUP:  Your Honour, I will come to Exhibit M14 in a

moment. I did want to attempt to define the regime

which was put in place or claimed in 1990, and we

will come to that in a moment.

Now, in our submission, this is not a case in

which a generous or free-wheeling judicial approach

ought to be taken to the terminology of a union

claim or of a finding by a commission. However

generous and liberal this Court may have been with

such matters over the years, ultimately, it must be

admitted, there comes a line over which the

constitutional power simply does not run, or the

legislative power simply does not run and,

ultimately, the Court will need to define with care

the place where that line should be drawn. In this

particular case, of course, the drawing of that

line defines the jurisdiction of the Commission and

the case is, on any view, at the fringe of

justiciable claims within that jurisdiction or

without it.

There was, of course, no active dispute

involved here in 1990. This was a paper log of

claims upon which a dispute was found and the

Boyne(2) 50 23/6/92

matter was then, in the words of Justice Munro, put

into the archives, and His Honour said that at

page 237, line 5. It was a kind of a sword of

Damocles hanging around over the heads of my client and others and, in our submission, the Union cannot now be heard to say, not having chosen to prosecute

their dispute, that its own words should be

construed generously to its own advantage because

it is suitable for that to be done in the light of

subsequently occurring facts. And we refer to what

Your Honour Justice Gaudron said in Wooldumpers that in construing the dispute, or in construing

the claim upon which the dispute is based, regard

must be had to the facts and circumstances out of

which the claim arose. And that was said by

Your Honour at page 335 at about the middle of the

page.

Now, of course, in this case the claim arose out of no external facts and circumstances, save

that it was a paper claim.

GAUDRON J: That is, of course, not the submission made on

behalf of the prosecutors. They say it was made in

the context of award restructuring in which there

had been a possibility of reduction in employment.

MR JESSUP: In the context of it, Your Honour. As I

understood it, my learned friend said that award

restructuring just flowed from the national wage

cases and things of that kind. All I can say to

that, Your Honour, is that there is no finding

below which would assist my learned friend in that

regard and the question, as was made clear by his

client before the Full Bench and before

Justice Munro, was simply whether the matter came

within the four corners of the dispute as defined

on paper.

our submission the limits of the Commission's Now, still dealing with the 1990 finding, in jurisdiction are relevant to a proper understanding

or construction of that finding. If the meaning of

paragraph B of that finding is not limited as

contended for by us today, it would refer to a

claim for the reinstatement of a former employee

dismissed in the absence of any regime, whether it

be a contractual regime or by award or howsoever

otherwise, which would make the dismissal wrongful.

That is to say, it would not be a claim for any

alteration of the relations of the employee in that

capacity and the employer. Rather, it would be a

claim which bears only upon the relationship, if

that be the right word, of someone who is not an

employee with an employer.

Boyne(2) 51 23/6/92

Now, as so understood, in our submission, the

dispute would not be an industrial dispute as
defined in the Act because it lacks the necessary
subject-matter. It would not pertain to the

relationship between employees and employers and,

of course, this takes one directly to Ranger on

which my learned friends relied, and I will come to

that in a moment, but can we remind Your Honours of
the relevant change of statutory language which has

occurred since the Ranger case was decided.

The 1904 Act - and Your Honours will see the terms of this when you come to Ranger itself in a

moment - define an industrial dispute relevantly as

an interstate dispute about an industrial matter.

An industrial matter was defined in the Act, as my learned friend said this morning, as:

all matters pertaining to the relations of

employers and employees and, without limiting

the generality of -

that expression including - and it included,

amongst other things -

the right to dismiss or to refuse to employ,

or the duty to reinstate in employment, a

particular person or class of persons.

Now, the present Act has not used that legislative

technique, if you like. An "industrial dispute" in

the present Act is defined as an "industrial
dispute" which is about matters which pertains "to
the relations of employers and employees"

extending, of course, beyond the limits of any one

Stc;3.te.

In other words, what the present Act says is that everybody knows what an industrial dispute is

but it is only an industrial dispute that is about

matters pertaining to the relationship between

employers and employees with which the Act deals

and with which the Commission is competent to deal.

Now, in that respect, the legislation is

different from that previously existing and on no

view is it broader because the previous Act dealt

with industrial disputes and defined them. The present Act does not define industrial disputes

but, assuming that the concept of an industrial

dispute is well known, takes a class of disputes

within industrial disputes and gives the Commission

jurisdiction to deal with them.

Now, in our submission, this takes one back to

the City of Perth case which was dealt with in

Ranger but, if we may respectfully submit, the

Boyne(2) 52 23/6/92

passages from the City of Perth case to which we

are about to refer were left unaffected by this Court's decision in Ranger, and the reason they were left unaffected is that, in essence, because

of the old definition in the Act, it was not

necessary for the Court in Ranger to deal with

them. The City of Perth is 129 CLR 312 at 329 to

330. As was pointed out in Ranger, this case was

decided upon a number of grounds and one of them

was the question of the exercise of judicial power
which was dealt with in Ranger, but on page 329

Mr Justice Stephen, in a judgment which attracted

the support of two other members of the bench, said

this at about point 4:

If the subject-matter of the dispute is

not within par (k) -

that is the paragraph which I read out to the Court

a moment ago -

it will not otherwise be within the general
opening words of the definition of "industrial

matters", which refer to "all matters

pertaining to the relations of employers and

employees". Because the demand does not seek

to deprive an employer of its power to dismiss

or terminate employment but seeks instead to

legislate for what will only occur thereafter

and then only because of an effective

dismissal or termination, it follows that it

is the relations of a former employer and its

ex-employee that are in question rather than

the relations existing between those occupying

an existing employer-employee relationship.

His Honour refers to the Hamilton Knight case, and

about five lines up from the bottom he said:

In the present case the right or advantage

sought by the Association is in no real sense

the fruit of employment; what gives rise to it
is the employee's dismissal from employment

and the employee who is not dismissed never

has occasion to enjoy it. Moreover it is not

some event occurring during employment, such

as an industrial accident or the rendering of

years of service, that gives rise to the
right; instead it is the termination of

employment, combined with a subsequent
election by the ex-employee, that would

operate to vest in him for the first time the

proposed right of appeal.

Now, in our submission, the present case falls four square within those words in that in the award

which is sought here, Exhibit M14, there is to be

Boyne(2) 53 23/6/92

no embargo on dismissal and the thing which brings

that award into operation would be the state of

non-employment, the fact that a person had been

dismissed, and in those circumstances, we

respectfully submit, it is four square within the

City of Perth and it is outside the definition of

"industrial matter" in the present Act.

If one comes then to Ranger, 163 CLR 656, one

can see that the passage to which we have referred

is left unscathed by Ranger and, in any event, to

the extent that it might have been tangentially

scathed one may distinguish it, in our respectful

submission - one may distinguish Ranger because of

the significant change in legislation which has

come about since.

If Your Honours would turn to page 660 in

Ranger, at the top of that page the Court sets out the definition of "industrial matter" as it

appeared in the 1904 Act, and at about point 6 the

Court said:

Reinstatement disputes may take many

different forms. The definition of

"industrial matters" contemplates that a

dispute may arise by reference to "the duty to

reinstate". The duty there posted is not a

legal duty, but a duty to be imposed by

considerations of industrial fairness -

reference to Dobb's case, and underneath the

quotation -

Of course an enforceable duty to

reinstate in employment can only arise after

employment has been terminated. As a general

rule disputes as to reinstatement also arise

after employment has been terminated -

and, of course, that was the case here. When I say
"here", I mean the case in Ranger.	The Court went

on to say that notwithstanding those fairly clear

statutory words, the view had been taken that a

reinstatement dispute was not within the

jurisdiction of the Commission.

The Court dealt with City of Perth at the

bottom of page 661, and in about the fourth last

line of that page said:

That demand was held not to create an

industrial dispute because the subject-matter of the demand was considered to be "a dispute

as to a proposed new function or jurisdiction

to be conferred upon the Commission and not a

dispute as to "the employer's duty to

Boyne(2) 54 23/6/92

reinstate in employment" within par (k) of the

definition of "industrial matters".

It is true that the City of Perth case was decided

because the Court there considered that the claim in that matter was a claim to have the Commission acquire and exercise a new jurisdiction but none

the less one of the other bases on which

Mr Justice Stephen decided that case was the one to

which we have referred, and he did that in the

context of saying, "Well, I have dealt with

paragraph (k) of the definition. I shall now deal

with the opening words of the definition of

'industrial matter'."

The opening words are, in effect, the words of

limitation contained in the present Act, and as we

read Ranger, His Honour's observations in that

regard were not attacked or overruled and the

reason for that, no doubt, was that the Court in

Ranger did not need to be concerned with the

opening words. It was sufficient for the Court's

purposes in that case that paragraph (k) applied,

that even if it did not pertain to the relations,

et cetera, it was covered by that paragraph.

Now, might we say this, that on page 661 in

the passage to which my learned friend referred

this morning, the Court did say this:

While some reinstatement disputes may not

pertain to the relations of employers and

employees, it must be accepted that many such

reinstatement disputes are agitated, not

merely by or on behalf of the former employee,

but by and on behalf of the remaining

employees who have a direct industrial

interest in the security of their own

employment and in the attitude in practice

adopted by an employer to the termination of

employment.

To the extent that that passage is concerned with the question of parties to a dispute or their

proxies then, in our respectful submission, it is

uncontroversial in the sense that it is well

established, at least in Slonim v Fellows, that

existing employees can agitate a dispute arising

out of somebody else having been dismissed. But as

we understand it, the Court has not gone so far and

did not go so far here as to hold that there could

be a term of the employment in some sense of the

dismissed employee that he be reinstated, when it

was not such a term whilst he was in employment.

One can understand the concern which existing

employees have for their security but what we say

Boyne(2) 55 23/6/92

is that even if they were to agitate a dispute about someone else's reinstatement, whilst the

parties would be there the subject-matter would

not. To the extent that it was an agitation

concerning their own terms of employment, that

would pertain. To the extent, however, that they

said, "Reinstate X", in our respectful submission,

that would not pertain; no more so than if they

said, "Employ X". And, of course, they might say, "Employ X" if a firm down the road had closed down

and six or seven people had lost their jobs.	It
would not be an industrial dispute if another

company altogether was in dispute with the Union,

that these other six people should be taken on as
an act of charity or the like. So we say that the

same applies in the case of reinstatement, even if

agitated by continuing employees.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

BRENNAN J: Yes, Mr Jessup.

MR JESSUP:  We were submitting before lunch that if the 1990

dispute finding is construed as being a dispute or

as involving a claim for the reinstatement in

vacuo, as it were, of someone who had been

dismissed even in the absence of a regime, then
such a dispute would lack the necessary
subject-matter to be a dispute within the meaning

6f the Act.

briefly with two possible objections that might be Now, we have then dealt in our outline very	advanced to the Court acceding to that submission,
and we deal with that in 1.6. It might be said
against us that section 101(3) of the Act requires
this Court to take the 1990 finding as a valid
finding, and not to question it in any way. Our
submission in that regard would be that these are
proceedings in a matter arising under section 75(v)
and that the Court's jurisdiction having been
attracted, it cannot be subtracted from by
legislation, and Your Honours will be well aware of
the general propositions in relation to that, and we think that the Charles David case is perhaps the
most recent occasion upon which the Court has
pronounced upon them.

Boyne(2) 56 23/6/92

Alternatively, if we are right in what we say

about that, we would submit that the Court ought

not to grant mandamus as a remedy because that is a

discretionary remedy, and it ought not to go where

the result would be an excess of jurisdiction by
the tribunal, even if on grounds different from
those upon the basis which jurisdiction was

originally declined. And Ex parte Ozone Theatres

at the reference contained in the outline is the

decision of this Court in which it is observed that

mandamus is a discretionary remedy and futility is

one of the bases upon which it may be declined, and

Your Honours will be well familiar with that.

May we then turn to the next main section of

our submissions which is concerned with the 1991

matter, and with the award which is sought in

Exhibit Ml4. We submit that that award would, if

made, travel beyond the ambit of the 1990 dispute

as properly understood in that it would purport to

require reinstatement of dismissed persons
regardless of whether such a requirement had ever

been and, in the facts of this case, where such a

requirement had never been a condition of their

employment, and also in the absence of any regime

proscribing the dismissals themselves. That

follows on from what we have submitted today with

respect to the 1990 finding, and I think it picks

up the point that Your Honour Mr Justice McHugh

raised earlier about the award sought in the 1991

matter. Your Honour, it is not an award which

seeks anything in relation to conditions of

employment or a regime, as· it were, affecting
ongoing employees. In fact, it has nothing to do

with ongoing employees. It operates only after

someone has been dismissed.

In an exchange between Your Honour

Mr Justice Deane and my learned friend this

morning, the question arose as to whether the

matter even in a way different from that Commission has jurisdiction to deal with this specifically sought in M14. Now, generally

speaking, where it is claimed that the Commission

does not have jurisdiction, if there is some

respect in which the Commission might have

jurisdiction, the Court might very well decline to

interfere but allow the Commission to work out its

own jurisdiction. But in this particular case, and

this is a somewhat unusual case because here the

question was whether a particular form of relief

would be within the jurisdiction of the Commission.
That was a decision made by Justice Munro, and it was the decision that was appealed. It is true

that Justice Munro has not yet decided whether he

would award that form of relief, but the question

which went on appeal and which comes here is

Boyne(2) 57 23/6/92

whether an award in those very terms would be

within the jurisdiction of the Commission. And it

is that question which the Full Bench answered in the negative and Your Honours are now being asked

to say that that particular answer was the wrong

one. So, in our respectful submission, one must

look at Exhibit M14 for the purposes of these

proceedings.

We say that M14 is beyond the ambit of the dispute because in terms it is beyond the ambit.

In terms it is outside the scope of the regime

which was sought in 1990, and that relies, of

course, upon the formulation or the construction

which we put on that regime before lunch.	But we
say also this - and we say it in the

alternative - that the substantial question as

distinct from the formal question with which we

have been dealing to date, but the substantial

question before the Full Bench was whether the 1991

matter, if you like, in a broad way was within the

ambit of the 1990 dispute; whether it could be

settled by any award made within the ambit of that

dispute.

We submit, Your Honours, that the Full Bench

was entitled to perceive what the substance of the

1991 matter was. It was entitled to use its

industrial expertise to recognize what the Union

was really concerned about and the purpose for

which it was invoking the jurisdiction of the

Commission. In so doing, the Full Bench identified

a passage in the submission of counsel for the

prosecutor which appears at page 190 of the

application book.

BRENNAN J: This argument assumes that the Union's immediate

purpose is something which itself confines the

jurisdiction of the Commission which purports to be

exercising a jurisdiction in partial settlement of

an existing dispute.

MR JESSUP: Well, Your Honour, the Full Bench, we submit,

recognized that it would not be doing that. It

recognized that there is a qualitative difference

between partially settling an interstate dispute

and settling an intrastate dispute under colour of

an interstate dispute.

BRENNAN J:  I appreciate that, but is it right to look to

the Union's purpose as the defining factor of what

the dispute is?

MR JESSUP: Well, Your Honour, it must be permissible to do

so, but I accept that it is not conclusive, and

that if the Commission had made an award and we

were here complaining instead of responding, it

Boyne(2) 58 23/6/92

would have been incumbent upon us to say that the

Commission's purpose was not a proper one.

However, as things transpired, the Commission

stopped short of acting in accordance with what it

perceived to be the wrong purpose. If one may put

what the Commission actually did within a legal

category, as we have suggested at the end of our

outline it would seem to come within the principle

in Brownells v Ironmongers' Wages Board, that if

you do have a power by way of an executive or

administrative power, then that must be exercised for the purpose for which it was granted, that is,

where you can discern a purpose in the legislation

granting the power.

What we submit, Your Honour, is that the Full

Bench recognized that they were being asked to

exercise a purported jurisdiction with respect to

an interstate dispute for a purpose which had

nothing to do with that interstate dispute, and we

would support what they did on that basis. We

would submit that it was quite proper for them to

perceive things in that light, and further, we

would submit that it was not entirely a question of

law for them to have done so. The identification

of the purpose of the parties before them, and

therefore carrying through, Your Honour, if you

like, the purpose which they were being asked to

achieve in making the award, is a question of fact and one which is particularly within the expertise

of that tribunal. If they had said that in so

many words, if they had said, "Well, we know that

this is the dispute you are trying to come within

but we have looked at all of the transcript and we

have read the evidence, and we can perceive here

that what you are seeking to do, although

technically within that dispute, is really directed

·to a different purpose, and for that reason we are

not going to touch it" - if the Commission had said

that in as many words, in our submission, this

Court would not interfere.

BRENNAN J: That is because they would have said, "and we

are not going to touch it", not because they would

have said, "and we have no power to touch it".

MR JESSUP: Well, Your Honour, in our submission, there are

two points there, and I intended the latter.	Of
course the Court would not interfere if the

Commission said, "We choose not to touch it", but in our submission, neither would they interfere if

the Commission said, "We perceive this to be beyond

our jurisdiction because of purpose".

BRENNAN J:  Why is it that if the award that is sought is

sought in truth for the purpose of getting the

dismissed employees reinstated, jurisdiction which

Boyne(2) 59 23/6/92

appears to be vested in the Commission, and I am

assuming the first argument against you in putting

it that way, somehow becomes vitiated? Why is it

that a jurisdiction to make an award within the

framework of an existing dispute ceases to exist

because the purpose for which the award is sought

is one which ordinarily, if one likes, would be

dealt with in the exercise of judicial power?

MR JESSUP: Well, Your Honour, it is analogous, we say, to

Brownells, 81 CLR 108, and might we take

Your Honour to that case.

BRENNAN J: This is where one has a power that is conferred

for a particular purpose?

MR JESSUP: Yes.

BRENNAN J: And then the exercise of the power is for a

purpose alien to that for which it is conferred?

MR JESSUP: Yes, that is so, Your Honour.

BRENNAN J: Well, that is a familiar enough proposition, but

it does not seem to me to deal with the question

whether if the Commission has a power to make an award it can be exercised, though the person who seeks the award is hoping thereby to achieve a

purpose which in isolation would not itself enliven

the jurisdiction.

MR JESSUP:  Your Honour puts it to me in a way which, with

respect, produces the answer which is contrary to

the submission we make.

BRENNAN J:	I understand that.
MR JESSUP:	We do not say that the person seeking the award

has to be untainted by irrelevant or collateral

motives, but if one can secure from the tribunal an

award which in other respects is within

jurisdiction, if it secures advantages which,

looked at on their own be within that jurisdiction,

then all well and good.

What we are really saying, Your Honour, is that the Commission, if it had made this award,

would have done so with no intent or purpose of

settling any part of the larger dispute. Now,

there is a qualitative difference and I suppose,

Your Honour, at the margin it merges into the issue

anyway of whether it is the regime or not. But

there is a qualitative difference between settling

a part of a larger dispute and using the larger

dispute simply as the colourable basis for

jurisdiction for doing something which is in

Boyne(2) 60 23/6/92

substance settling an intrastate dispute which is

beyond jurisdiction, and that is the point we make.

Now, if one takes the much more common log of

claims which may deal with wages and conditions of

employment - if Your Honour would consider for a

moment such a log which may be sitting in the

archives with this one perhaps, and it contains
within it a claim for $500 per week for additional

allowances, nothing else, and if there is in one State a site in which a working condition arises

which does not exist anywhere else in the

country - it might be the only industrial operation

of this kind in the land - then likewise, we would

submit, that that would be an intrastate matter and

incapable of being dealt with simply under a

general claim for $500 for additional allowances.

In essence, the role of the Commission, its

purpose, is defined by reference to the

jurisdiction which it has under the Act, which is

to settle interstate disputes and, in our

submission, it would not be open to it properly

within jurisdiction to settle matters which are in

substance intrastate, simply because they happen to

involve a remedy which on the words is within the

ambit of an existing interstate dispute.

Now, we might have been very hard pressed to

make that submission if the Commission had made the

award, but we do not have to make it because what

we submit the Commission did was to recognize that

for itself. My learned friend said that the

Commission seized upon a single passage by counsel

for the prosecutor as to what their object was.

Your Honours, that was on page 190 and that was the

page upon which the prosecutor attached themselves,

as it were, uniquely to the 1990 dispute and

abandoned any reliance upon Bell Bay and that, of

course, was the most recent statement where the

prosecutor had indicated what its basic demands

were. At page 320 in the second volume of the

appeal book, the Full Bench referred to that in the

passage criticized by my learned friend, and at

line 24 on that page the Full Bench said:

Counsel for the FIA reserved his right to better express the union's claims and tendered

the draft award variation set out earlier.

There was no other comment made on, or

variation suggested to, the statement of the FIA's objectives. The employees referred to

in this statement comprise 27 persons whose

names are set out in the notification of

dispute.

Boyne(2) 61 23/6/92

Now, the Full Bench, in our submission, perceived

that as being the purpose for which they were being

asked to exercise a claimed federal jurisdiction

and the view which they took, in our submission, is

not a view of which one can be critical, is that

true it was that when the prosecutor came back to
the Commission four days later it had the actual

award in terms set out, but its basic objectives

were as there stated. That was not the only

occasion upon which those basic objectives have

been stated in the proceedings before

Justice Munro.

May we remind Your Honours that the 1990

dispute was before Justice Munro from the outset of

the proceedings and had been relied upon as a

jurisdictional - I can say it uncritically -

talisman, but a jurisdictional basis by the
prosecutor from the outset. But in conjunction
with that, the prosecutor had asserted that its

objective was to secure the reinstatement of these

27 people.

Could I take Your Honours to page 101 at

line 24:

Boyne Smelters Limited has set its face

against reinstating any of those persons who

were dismissed. The union has, on the other

hand, a very firm view that reinstatement

should take place. There has been a log

served last Friday on Boyne Smelters and other

aluminium industry employers -

et cetera. Line 30 -

the situation in Boyne Smelters is such that

should the issue of reinstatements not be

resolved, then further industrial action on an

interstate basis is likely.	The commission
would be aware of its own knowledge that there
was industrial action at Bell Bay some short
time ago which was a direct result of the
situation at Gladstone.

That is to say, here is a claim for reinstatement pure and simple in the absence of any regime.

Page 105 line 4 -

the first matter perhaps in point of time

would be to conclude the bans clause

application matter. The second would be to

deal with the log served last week to find the

parties to that and make the necessary other

findings, and then proceed ..... to a hearing on

the question of the reinstatement of those

persons who were dismissed.

Boyne(2) 62 23/6/92

Page 120 line 10 -

The central issue as seen by my client is the

fate of those persons who were dismissed.

That is central to this entire matter, and if

that cannot be resolved satisfactorily, then

the entire matter cannot be resolved.

Page 131, the names of the persons seeking

reinstatement were handed up at line 7. They

became Exhibit M7. Line 25:

The first is based on the log which was served

a fortnight ago in which, among other things,

reinstatement of the persons in M7 was sought,

and that dispute is part of the dispute which

was found by this commission ..... as presently

constituted on 19 October -

that is, the 1990 dispute. Page 138 line 11:

As I said earlier, it's in two parts: the

first is directed to Boyne Smelters, and it

concerns the dismissal of the persons who are

named in M7 and seeks to make that part of the

dispute finding that Your Honour made last

year.

Line 29 -

That's the first part of the notification, and

the FIA would be seeking an award which

imposed a duty based upon criteria set out in

the award for the reinstatement of persons who

fell within those criteria.

And it would appear that what was being sought

there was an award in terms of the 1990 finding,

but confined somehow to the named persons which

perhaps is the high point of the use of the 1990

finding in a colourable way just to achieve the

reinstatement of these persons. Page 142 line 5:

The FIA relies upon the claim for

reinstatement made in that log and says that

that is part of, and should be considered as

being part of, the finding of dispute made

last year. So the claim made approximately a

fortnight ago for reinstatement comes

within ..... the dispute found last year.

It was always put on that basis by the prosecutor,

but for the purpose - - -

BRENNAN J:  Mr Jessup, I think we have the page references

in your paragraph 2.2, do we not?

Boyne(2)	63	23/6/92
MR JESSUP: Yes, Your Honour.

BRENNAN J: Well, we can read them for ourselves.

MR JESSUP: Thank you, Your Honour. Might I draw

Your Honours' attention to one which is not in the

outline, pages 149 to 150. Mr Harper is the

national vice-president of the prosecutor, and he

was asked at line 26 on page 149 whether he was

aware of the log of claims in 1990, and he said:

I'm aware of it, but I wasn't involved in it.

And he was asked -

Do you know - what to your knowledge is the

nature of the demand made in that log of

claims?---! understood, and I am only going on

hearsay ..... ! am aware it was lodged to create

ambit on reinstatement in several awards

within the aluminium industry.

And do you have any knowledge of what precise

demands were made?---No, I haven't.

Now, if they were truly seeking to settle part of the 1990 dispute then Mr Harper, their national

vice-president with special responsibility for the

aluminium industry, would have known a little bit

more about it than that. But the ball upon which

he had his eye, as it were, was the reinstatement
of the people from Boyne, and that was what the

Union was seeking to achieve, not simply on page 190, but from the outset.

Now, the Full Bench correctly identified the

substance of the 1991 matter and compared it with

the 1990 finding as they were invited to do by the

passage that they set out at page 320 in the

judgment of the Chief Justice in Wooldumpers.

We say that the Full Bench has a special

expertise in being able to recognize these kinds of
manifestations of industrial disquiet and the
category into which they fall, and that is dealt
with in paragraph 2.3 of our outline, and the cases

that we have referred to there perhaps we need not

read from because the proposition will be well

understood.

Now, finally we come to the Brownells' point.

I have dealt with this. Your Honours will see from

those references there what the point is and it is

well known. We do submit, however, that there is a

real point here that this Commission is limited to

settling interstate disputes, and particularly

where it recognizes that the reality of a matter

Boyne(2) 64 23/6/92

before it is concerned with something which is not

interstate, then, in our submission, this Court

ought to be very slow to say it was wrong in so

proceeding.

If we might just finally say something

apropos our learned friend's paragraph S. If I

could take Your Honours to paragraph 5 of their

outline - as to S(a) we agree with, but if it is

true it demonstrates the point we were seeking to

make before lunch, namely, that the 1991 claim does

not come within the 1990 dispute because there is

nothing in the 1991 claim which limits it to a
regime constructed by the award.

As to S(b), it is true that the Union's claims

constitute a collective dispute rather than the

vindication of individual rights, but the question

is, "What dispute?" The 1990 dispute may be

accepted to be a collective dispute. In 1991 the

disputants are collective but, as we submitted, the subject-matter does not pertain if what is required is the reinstatement in vacuo of someone who did

not have it as a term of his or her employment that

they not be dismissed.

Subparagraph (c) is a different point

altogether from that upon which this case must

turn. It does not assist the question of whether

the 1991 claim comes within the 1990 finding to

make an observation of that kind, and it was not

the basis upon which Mr Justice Munro's decision

was sought to be upheld before the Full Bench as is

clear from what Mr Hanger said.

As to subparagraph (d) that, we would submit, begs the question as to subparagraph (e). That

avoids the issue in the sense of failing to deal with the crucial issue here of whether the award

sought would have an impact upon people who had

already been dismissed, and be retrospective either

in the sense suggested by Your Honour

Justice Gaudron, or in the sense suggested by

Your Honour Justice McHugh, in either of which

senses, we would submit, that the 1991 proposal is

outside the scope of the 1990 dispute.

Might we finally say something about the

submissions made on behalf of the Attorney-General,

particularly those contained in paragraph 3.2 of

his outline, in which it is suggested that even the

reinstatement of individual employees would be
within the ambit of the 1990 dispute. As I

understand it, my learned friend submitted that the

1990 dispute is sufficiently wide to encompass an

award which would be directed to individual

employees who had been dismissed and to deal with

Boyne(2) 65 23/6/92

them ad hoc. Now, as we understand it, that is the

very thing which Wooldumpers held the Commission

could not do. Then if you do find you have a

dispute which is based around a claim for a regime, then you cannot deal with individual reinstatements

as part of that dispute.

Wooldumpers did not turn upon the fact that

Mr King was singular. What goes for Wooldumpers in

point of principle in relation to Mr King would
likewise go, we submit, if there are two or 26 of

him for that matter.

We submit that Wooldumpers cannot be

distinguished, and we note that, other than to say

they did not concede the point, our learned friends

on behalf of the prosecutor did not press

Wooldumpers to those extremes. Those are our

submissions, if the Court pleases.

BRENNAN J: Thank you, Mr Jessup.	Yes, Mr Shaw.
MR SHAW:	If Your Honours please. Your Honours, it is true

that the applicants before the Commission did not
press for a new and separate finding of dispute
with respect to the disputation at Bell Bay in

Tasmania. However, in our submission, if one reads the passages relied upon there was no abandonment

of the relevance of that disputation in another

State as showing the development, the evolution, of

the 1990 dispute.

As to the construction of the 1990 log of claims, in our submission what the respondent says

about that is literalist and narrow. Too much

attention is placed on the words "conditions of

employment". This in reality is a demand that the

employers should change their terms and conditions

of employment forthwith so as to preclude

dismissals. It is not to be understood as being
contingent upon an award being made.	In our

submission, the words in brackets in the demand

make that clear.

The narrowness of our learned friend's

approach, and he expressly says a narrow approach

should be taken, is directly contrary to what the

Chief Justice said in Wooldumpers about reading

logs of claims broadly. That is at 166 CLR 315 point 2, and His Honour there cites the leading

case on construing logs of claims, Reg v Heagney.

McHUGH J: But this is a finding of dispute, not a log of

claims.

MR SHAW:  Yes, Your Honour, but as I have appreciated, the

finding reflects word for word the log of claims.

Boyne(2) 66 23/6/92

The same principle should apply, in our submission.
The dispute simply reflects what was demanded. Reg v Heagney is the leading case, and it says you take

a broad liberal approach to these things and try to

understand the practical concerns of the union in

making the demands.

Next, Your Honours, I have used the term

"retrospectivity" in relation to awards in what I

said this morning, but it probably is an inapt

term. The better view is that an award applies to

a specified period of time which might include a

period prior to its being made. When the award is

made the duty of obedience then arises, and this

idea of an award applying to facts or circumstances

which came into existence prior to the award being

made was discussed by this Court, and might I give

a reference to Federated Engine Drivers' and

Firemen's Association v Adelaide Chemicals,

(1920) 28 CLR 1, at 10 and 11.

Your Honours, I turn next to whether the claim for the reinstatement of an employee or a former

employee constitutes an industrial dispute by

pertaining to the relations between employers and

employees. I submit that the current definition of

"industrial dispute" within the 1988 Act is not
intended to be narrower than the 1904 Act
definition of "industrial matters", which expressly

adverted to the duty to reinstate dismissed

employees.

I have relied earlier on Ranger Uranium as

displacing any notion that reinstatement of former

employees was not an industrial matter, and may I
just remind the Court of one passage from

Wooldumpers which crystallizes what Ranger Uranium

found about this issue. It is a passage in the

joint judgment, 166 CLR at 322, the second complete

paragraph, where Their Honours said:

As was pointed out in Re Ranger Uranium

Mines Pty Ltd; Ex parte Federated

Miscellaneous Workers' Union of Australia,

where a dispute arises from the termination of

employment, ordinarily two questions will

present themselves. The first is whether the

dispute has an interstate character and the

second is whether the dispute pertains to the

relations of employers and employees and not

merely to the relationship between the

individual and his former employer. The first

question did not arise in Ranger ..... But the

first question does arise in this case.

The implication from that passage is that Ranger

affirmed the proposition that it was within

Boyne(2) 67 23/6/92

jurisdiction provided there were general questions
raised.

Here there clearly are general matters of

contention travelling well beyond the circumstances
of each individual employee, and one does have

something pertaining to the relationship between

the employers and the employees.

I mentioned Dobb's case earlier, Your Honours.

Might I give a more specific reference to
Australian Iron and Steel v Dobb,
(1958) 98 CLR 586, especially at page 598 in the
judgment of Sir Owen Dixon, where His Honour makes

it clear that the idea of reinstating a dismissed

employee comes both within the opening words of the

definition of "industrial matter", that is, that

the claim pertains to the relationship between

employers and employees, as well as in the specific

paragraph concerning the duty to reinstate.

There is also a discussion about the

application of the definition of "industrial

matter" to reinstatement claims by the Industrial

Commission of New South Wales in Federated

Miscellaneous Workers' Union v Consolidated Press,

(1973) AR (NSW). I regret, Your Honours, that I do

not have the precise page reference with me, but
the Commission there discussed the whole history of

reinstatement in New South Wales in the context of

a definition of "industrial matter" which was in

pari materia with the definition of "industrial

matter" in the Commonwealth statute.

Finally, Your Honours, in our submission, the

purpose or aspiration of the Union does not govern

the jurisdiction of the Commission to settle an

interstate dispute if that was before the

Commission, and to the extent that it is said that

members was alien to the exercise of jurisdiction, the aspiration of the Union to reinstate particular	we would deny that and submit that it was logically
related to the intention and purpose of the
antecedent dispute, and that it was within the general claim or hope that employees generally
would be reinstated and not left dismissed as
redundant employees. If the Court pleases.

BRENNAN J:  Thank you, Mr Shaw. The Court will consider

its decision in this matter.

AT 3.01 PM THE MATTER WAS ADJOURNED SINE DIE

Boyne(2) 68 23/6/92