Re Federated Storemen and Packers Union of Australia; Ex parte Wool Dumpers (Victoria) Limited

[1988] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M32 of 1988
In the matter of -

An application for a writ of prohibition against

MR COJ:1MISSIONER JOSEPH CAESAR

(a Commissioner of the

Australian Conciliation and

Arbitration Commission

and

THE FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA

Ex parte -

WOOLDUMPERS (VICTORIA) LIMITED

MASON CJ

WILSON J

BRENNAN J
DEANE J

Wooldumpers(2)

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF 'PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 NOVEMBER 1988, AT 10.18 AM

Copyright in the High Court of Australia

ClTl/1/PLC 1 22/11/88

MR M.E.J. BLACK, QC:  May it please the Court, I appear with

my learned friend, MR P.H. COSTELLO for Wooldurnpers

Victoria Ltd.	(instructed by Freehill Hollingdale
& Page)

MR R.C. KENZIE, QC:  May it please the Court, I appear with

my learned friend, MR M.F. MOORE for the Federated

Storeman and Packers Union of Australia.	(instructed
by Ryan Carlisle Needham Thomas)

MR G. GRIFFITH, QC~ Solicitor-General f.or the Commonwealth: If

t:he Court pleases, I appear with·my learned friend,

l-1RS- S .H. CREN1-TA.i.~ to ·intervene_ for· the Attorney·-General

for the Commonwealth in the interests of the respondent.

(instructed by the Australian Government Solicitor)

MR N.M. COOKE, QC: If the Court pleases, I appear with my

learned friend, MR A.K. HERBERT for the Attorney-General of Queensland intervening on the side of the prosecutor.

(instructed by the Crown Solicitor for Queensland)

MASON CJ:	Mr Black?
MR BLACK:	If the Court pleases, might I hand to the Court an

outline of the prosecutor's argument. If the Court

pleases, this is the return of an order nisi for
prohibition granted by His Honour Justice Wilson on

6 June of this year. The material shows that

Mr Commissioner Caesar, in the Australian Conciliation

and Arbitration·· Commission proposes to continue to

deal with a dispute which we say is essentially a

dispute about the reinstatement of a Mr King, a former

employee of Wooldumpers. Mr King's employment was

terminated by a payment of a weeks pay in lieu of
notice in May of this year and that termination was

lawful, it is submitted, under the terms of the relevant

award that permit termination on notice or by payment

of wages in lieu of notice.

The Union notified a dispute to the Commission. The terms of the notification, which I will come to in

more detail in a moment, were in substance that the

dispute was about the termination of an employee.

That is at page 96 of the application book, but I

will take the Court to these matters in a moment.

(Continued on page 3)

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Wooldumpers(2)

MR BLACK (continuing): That matter, the dispute notified

by the section 25 notification, became matter

No C31349 of 1988. I refer to that technicality

because it is that matter that is the subject of

the application forprohibition. There are
earlier matters in the Commission relating to

earlier disputes, which are disputes of an

interstate character. So I draw the distinction

between the matter with which Mr Commissioner Caesar

has and earlier matters.

The short history of the matter is as

follows: there were conciliation proceedings

before, I think, Mr Commissioner Merriman. They

failed to resolve the matter and Mr Commissioner Caesar

then took the matter esssentially for arbitration. He did that on 2 June of this year. Now the claim

made on behalf of the Union, the Federated Storeman

and Packers Union of Australia, was for reinstatement

of Mr King. A submission was made by Mr Purvis on

behalf of the employer that there was no jurisdiction

to deal with the matter because ther.e was no interstate

dispute. · 'IheJJnion replied by saying, in substance, that the

matter was within the ambit of an earlier
interstate dispute or disputes created by the
service and rejection of logs of claims in 1985 and

1986.          There were dispute findings about those

logs and I will come to those in a moment.

Mr Commissioner Caesar said that he intended

to hear the matter under a dispute finding based upon the non-acceptance of the 1985 log. Having said that, the Union advocate called Mr King,

who was to be the only witness on behalf of the

Union.

(Continued on page 4)

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MR BLACK·(continuing):  Mr King gave evidence about the

circumstances of his termination and was cross-
examined in some detail about matters going to

the merits or otherwise of the termination.

The matter was then adjourned to 6 June

of this year, a few days before the solicitors

for Wooldumpers notified the Commissioner that
they proposed to seek an order nisi for prohibition

in this Court on the 6th and the Commissioner

was requested to adjourn the matter sine die

and, indeed, it did not come on for hearing on

6 June and an application was made in this Court

on that day.

On 6 June, however, the Commissioner published

reasons for his decision on the preliminary

jurisdictional point. There was, for those reasons,

substituted some further reasons which are different

in one respect only, as I would understand it,

on 7 June and it is those reasons that appear

in the application book and to which I will take

the Court in a moment.

The difference, I should say straight

away, is that the reasons, as appearing in the

application book, refer to two previous interstate

disputes rather, I think, than one. No point

is made of that but that is the reason for the

change.

The first leg of the argument is that

the substance of the dispute with which

Mr Commissiner Caesar has commenced to deal,

is simply and solely whether Mr King, a former

employee, should be reinstated. It is the exercise

of jurisdiction in that dispute that it is sought

to prohibit by these proceedings. Now, to make

that point good, might I take the Court to passages

in the transcript which, in our submission, make

it plain that that is all that the dispute involving

Mr King is about. (Continued on page 5)

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MR BLACK (continuing):  The section 25 notification is at

page 96 of the application book and omitting formal

parts it says, in substance, that:

The impending dispute had arisen as

a result of the wooldumper's decision

concerning the termination of employment

of a member of this union on Wednesday

4th May, 1988 - -

and that the State secretary of the U.nion requests -

that a hearing be convened in an endeavour

to resolve this matter.

The dispute is said to be between the Union and the

members on the one hand, and Woodumpers (Victoria) on

the other. The notification asserts, I think wrongly,

that the members are employed under the terms of the

Storemen and Packers (Wool Selling Brokers and Repackers)

Award, 1980. In fact, I think that is an error for

1973, and I do not think there is any dispute about that.

It is a 1973 award of the Australian Commission.

Now, in the reasons for decision we submit it

is clear that Mr Commissioner Caesar apprehended that he

was dealing just with this aspect of the matter.

At page 106 of the application book he identifies the

matter in these terms:

This matter is the subject of a notification

filed by the Storeman and Packers Union

of Australia pursuant to section 25 .....

notifying a situation of pendine dispute

between members of the Union and Wool

Dumpers ..... over the dismissal by the

Company of a member and delegate of the

Union.

The decision recites that conciliation has failed.

In the fourth paragraph of the reasons for decision

two previous interstate disputes are identified and it

is said by the Commissioner that they still exist either

in whole or in part, and I might say right away that the

ambit of those disputes is central to the argument in

this case, and it is ·in the end quite a short argument.

(Continued on page 6)

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Woodumpers(2)

MR BLACK (continuing): Having said that Mr Connnissioner Caesar

identified the matter as being over the dismissal

of Mr King. I should nevertheless draw the Court's

attention to the concluding observations that he

makes at page 107 of the application book at the

end of the text. The Connnissioner there says:

The Connnission points out that the relief

requested by the Union is not the only
prescription available to settle or prevent

the dispute.

But we say that nevertheless the actual subject-matter

of the dispute is all about Mr King and in particular

about his claim, or the Union's claim on his behalf,

to be reinstated. This,we say,becomes clearer

from an examination of a few passages in the
transcript where the Union advocate, Mr Ceran,
was explaining to the C onnnissioner precisely how

his case was put and what was being sought. At

page 26 of the transcript, quite early in the

proceedings, the u~ion is asked what they want

to do about it and at line 35 on page 26

Mr Ceran says:

What we are essentially seeking this connnission to do is to give us a ruling

concerning the termination of employment

of a member, who is here with us this

afternoon, by Wooldumpers -

and then that is expanded on at page 30 at about

line 50, the bottom of the page, where the

advocate says:

(Continued on page 7)

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MR BLACK (continuing):

What we are saying is that - that the commission is to make an award for

reinstatement of the dismissed employee

consistent with the ambit of the log served

on the respondent back in 86, which
subsequently was where a dispute was
found and recognized by Mr Purvis -

who was the Wooldumpers' advocate. Then, further down the page, at line 45, the Commissioner says:

Well, I think I should state at this stage

that as I see it, the request is that the

dismissal of a member of the union was
harsh, unjust and unreasonable. If I

was to find that, of course, then an order

for reinstatement may issue. If I was to

find that, of course, it was not unfair,

harsh, or unjust or unreasonable ..... there

would be no such order. That is the way I

am reading. What have you got to say about

the log of claims? You say it does not

cover that?

Then, there is discussion about the ambit of the log. There is a further identification of what the

proceeding was all about by the Commissioner himself

at the bottom of page 38 and the top of page 39 of

the transcript. There appears to have been some

impatience with the submission about jur_isdiction

and the Commissioner points out to the Union

advocate, ·:in·:substance, that he has to get it right

because he says, in substance, at page 38, that if

he gets it wrong, there would be an appeal. It

would all have to be redone and over the top of

the page he makes the point that if it is not

resolved correctly there would be the prospect of:

getting an order and building up somebody's
not got his job back or whatever happens	hopes that he has got his job back or has
out of it, you know.

So, what the CJmmissioner is really identifying there

is that if he gets it wrong, Mr King will appear to

well, then he would not and, of course, for perfectly	get his job back but if there is no jurisdiction,
sensitive and proper human and industrial reasons,
that would not be a desirable thing at all.

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Wooldumpers(2)

MR BLACK (continuing):  The Corm:nissioner is identifying what

he sees to be the essential point of controversy

between the parties. Now at page 43, at the bottom

of the paie, line 35, "interstateness" is mentioned

and the union advocate then proceeds as follows:

So that in terms of the order that we are

seeking, that is reinstatement -

and then he goes on. Similarly, at page 44, at the

bottom of the page there is a further reference to -

I am sorry that is just a reference to .ambit. But

then over the page at page 45 at the top of the page,

again a reference is made to "reinstatement" and
that reference is made in the context of the ambit of

the earlier dispute. Finally, as far as the lf.nion

advocate is concerned, I would refer the Court to his

opening at page 47 at about line 20, where the

Corm:nissioner invites him to call a witness and asks

whether he was going to open the case and he says:

As we have indicated earlier on, what we are

saying is that we are seeking a ruling from

this corm:nission concerning the reinstatement

of employment·of the dismissed employee.

There are two references in the evidence of the employee

where he is asked by his Union advocate what he would

like to see happen. At page 55, in substance,he says

he wants his job back and at page 56, at the top of

the page, he repeats it. Again the advocate says:

Could you tell the corm:nission what it is you want this corm:nission to do for you?---

My job back, that is all.

So that we say that is the essential substance of the

matter that the Corm:nissioner is proceeding with. Now

that matter, in our submission, of itself, has no

interstate character at all. It is confined to Victoria.

The affidavits of Mr Pmrvis make that clear. At

page 91, he deposes to the fact,and this does not seem

to be in controversy at all, that:

Wool Dumpers ..... conducts the business of

wooldumping and container packing of wool.

It conducts business solely in the State of

Victoria and does not employ any employees in any State or Territory other than the State

of Victoria.

And in his earlier affidavit which is reproduced at

page 10 of the application book he deposes to the fact

that there has been no industrial action in relation to

this matter either in respect of Wooldumpers or

against the employer's organisation of which Wooldumpers

ClT7/l/SR	8	22/11/88
Wooldumpers(2)

is a member, if that be relevanti hllt it may not be.

But in any event there is a compete absence of .

interstateness concerning the focal dispute involving

Mr King. He is a Victorian, he is employed in

Victoria and his employment was terminated in Victoria

and there is no interstate element at all. So therefore

the central point is, in our respectful submission,

whether the matter comes within the ambit of some

pre-existing interstate dispute. If it does, and it

is truly within ambit, then,.as this Court pointed out

in RANGER,there would be jurisdiction to deal with

the matter. And if it is not within ambit, that is to
say, if it is not part of some interstate industrial

dispute properly construed then,- in our submission, the

Conunission has no jurisdiction to proceed and deal with

this matter.

(Continued.ton page 10)

ClT7/2/SR	9	22/11/88
Wooldumpers(2)

MR BLACK (continuing):  So, might I then go immediately

to the central question of what the pre-existing

industrial relationship between the parties was

and relevantly - and there does not seem to have
been any dispute about this and I imagine there

will not be any further dispute - any dispute

about it here - there are two logs and they are

the two relied upon by the Commissioner as giving

him jurisdiction to proceed with the matter.

The first was served in 1985 and is reproduced

at page 18 of the application book. The references

to these logs and the dispute findings are in

paragraph 4 of the outline. If I might, perhaps,

conveniently take the Court to the dispute finding

itself first. That is at page 20; it is before Mr Commissioner Cox in August 1985 and the log

is identified and, at the bottom of page 20,

the Commissioner says:

The subject of the dispute are the

items included in the log of claims attached

to the letter of demand dated 2 April 1985

and signed by Mr Crean, the secretary

of the union. Save as to those items

identified in transcript by Mr Richardson .....

those items being formally withdrawn at
that time. Save also to the exclusion

of - some other specified item.	And then, over the
page, he finds that:

The dispute exists in more than one state -

and that is the dispute finding. Now, r,e.t;(ftning to

page 18, the relevant part of the log is the

claim in respect of the contract of employment.

I will draw it to the Court's attention at the

moment but with the remark that the 1986 log

is in identical terms save that there is another

claim irrelevant to these proceedings. It is

a claim in respect of industrial action. It
may, therefore, be convenient to take the widest
log and, presumably therefore, the current log

and that is the 1986 one. So, if I might then

take the Court to that; that is at page 88 and

the dispute finding is at page 94. Again, following
the process of going to the dispute finding first,

and then taking the Court to the log, that is

Mr Commissioner Maher on 27 July 1988. On that

occasion the log is identified and the Commissioner

says; at about line 32:

C1T8/l/SDL	10	22/11/88
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Well, having heard the parties I have

determined that I will find that a dispute exists between the parties and the parties

are: Federated Storemen and Packers Union

of Australia and all those employers included

on annexure A -

of which Wooldumpers was one.

The matters in dispute are those contained

in the log of claims associated with the

affidavits -

and they are specified.	And this is the log
to which I will refer.

The dispute extends beyond the boundaries

of one state. I shall cause a record

of these findings be issued -

and then other matters are dealt with.

(Continued on page 12)

C1T8/2/SDL	22/11/88
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MR BLACK (continuing):	So going back to the log, if I may,

at page 88 of the application book, it makes

a claim about the circumstances in which an

employee's employment may be terminated. What it does is to provide, subject to an exception

in relation to casual workers, which for the

purposes of my argument I would put to one side:.

all employment shall be permanent. No

notice of termination of employment shall

be given_,to any employee by the employer

without,prior consent of the union. I

Then there are provisions as to men that notice may not be given, whilst on compassionate leave

et cetera, et cetera. The critical part is:

no notice of termination of employment

shall be given to any employee by the employer without prior consent of the

union.

Then, if one goes to clause (b) of the log,

it says:

In ad,dition to the provisions of sub-dlause (a) a minimum of six months not1te shall be given of intended termination of employment to the

affected employee by the employer.

On the face of it, there could be an inconsistency there but we do not argue that becaus~ construing the log broadly, it would seem that what the U.nion

is contemplating in its demand is that the notice

should be long, that the Union should know of it

and there. should not only be the long notice, but

also the Union's consent, so that is the outer

limit of the demand.

Then the log goes on to provide, and the

argument will turn to some extent on these following

words:

The employer shall assist the employee

in obtaining alternative employment by

such means as leave on full pay in order

to seek alternative employment or to

undertake retraining, and shall maintain

the income on termination of the employee

at the equivalent of current rates and

shall meet the additional costs incurred

where the employee moves elsewhere to

obtain employment.

Then there is the provision as to casual workers.

There E an ambit claim there that they should be

CIT9/l/JM	12	22/11/88
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paid - it is an ambit claim that they should

be paid allotted money. Then clause (d), which

is new to the 1986 log. It is an ambit claim

in respect of industrial disputation: such

action is not, according to the demand, to be

deemed to constitute a breach of contract or

award provisions and so forth.

Now, in our submission, properly construed--

and by that I mean not legalistically, or

narrowly, or delicately construed, but construed

as an industrial document - in accordance with

the authorities giving considerable scope to

such construction, that log is quite inconsistent

with any claim, any demand for the creation of

an obligation on the part of an employer to

reinstate a dismissed employee.

(Continued on page 14)

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MR BLACK (continuing):  The reason we say that is - and this

reasoning, we say, is supported in its approach

by authority - that the log simply does not

contemplate reinstatement because it envisages

that there should be - it envisages a number of

things. First it envisages that there should be

no termination except with the consent of the Union,

and then it proceeds on the assumption that there

would sometimes be consent - we say it proceeds

on the further assumption that if there is

consent there could be no agitation by the Union

for the reinstatement to employment of the person
in respect of whose termination there has been
consent.

It is not making a demand on behalf of individual employees, it is the Union making a

demand. It says, "You shall no.t, •dismiss except with

our consent." Whether one interprets, as with a lease,

not to be unreasonably withheld and the demand,

is another matter. But in any event they envisage

not only that there shall be circumstances where

they will not::consent but also they envisage

circumstances where they will consent because -

and this is the importance,in our submission, of

clause 23(b). In clause 23(b) the maker of the

demand envisages that there will be persons who

will be looking for alternative employn:a;t - in brackets, and

therefore in respect of whom the Union has consented· -

and those persons are to be dealt with under the

widest ambit of the demand, are to be assisted

and dealt with industrially by an award prescription

that they shall have the assistance of the employer

by means, which are specified, such as full pay

and that they shall have maintenance of income

on termination and removal costs.

Now what therefore appears, in our submission,

is a demand that is a coherent scheme dealing with

termination but not en.visaging, and therefore not

demanding any form of reinstatement at all because

at the widest scope of the Union's demand this is in

relation to termination and if the demand is

exceeded to then the question of reinstatement is

inevitably irrelevant. Now that is really the

point about the construction of the log. There
are some cases that, we say, assist us to the same

conclusion - I will come to those in a moment - but

that is really the point. We say it is quite

inconsistent with anything other than a claim for

termination. To create a dispute there must be

a demand and there must be a demand capable of

being exceeded to. I mean, one day, industrially,

somebody might actually exceed to an ambit claim

and there might then be difficulties in working

out what to do next, even as to jurisdiction.

But in point of theory, in our respectful submission,

ClTl0/1/MB	14	22/11/88
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you must be able to say, "Look, that is what you have demanded of me. I now have a choice, I can

either accept it or I reject it", and reading

the document widely, and so forth, as an industrial

document there nevertheless must be some identifiable

question that forms the real subject-matter of the
dispute or the ancillary subject-matter of the

dispute, however one puts it, and in this case

we say it is not reinstatement.

Now, the method of construing a log which

looks at it to see whether there is an inconsistency

within it so as to work out what the log means is, in our submission, supported by a decision of this Court in CLARKSON's case and in particular

by a passage in the judgment of Your Honour the

Chief Justice.

(Continued on page 16)

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MR BLACK (continuing):  The case is not on our list of

authorities, so I would ask the Court's leave to

hand photostat copies of it to the Court.

It is on my learned friend's list, so if the Court

wishes to have photocopies they are here.

MASON CJ:	I think we probably have it.
MR BLACK:	It is 134 CLR 56. Its proper citation is

REG V CLARKSON EX PARTE GENERAL MOTORS HOLDEN'S

PTY LTD, 134 CLR 56. The Court

comprised Sir Garfield Barwick, Justices Stephen,

Mason, Jacobs and Murphy, and CLARKSON's case was,

I think, the last chapter in the history of

Mr Gnatenko, and Mr Gnatenko - - -

MASON CJ:  I am not sure that it was. Were there not

subsequent proceedings in South Australia? All the

people behind you are nodding affirmatively, Mr Black.

MR BLACK:  And on both sides of me. I bow to the very

considerable weight of authority on this side of

the bar table. Mr Gnatenko, and his union on his

behalf, was wishing to rely upon the reinstatement

powers under the South Australian INDUSTRIAL

CONCILIATION ARBITRATION ACT, and the question in

CLARKSON's case was whether a variation of the award

to allow the State jurisdiction to operate was within
ambit and that question turned upon the construction

of a claim in the log which is set out in the

judgment of Your Honour the Chief Justice at page 70.

It is a fairly familiar claim in those days:

All employment shall be by the week.

Employment shall be terminated by an employer by a week'.s written notice or

by two weeks' wages in lieu of notice.

Your Honour the Chief Justice at page 72 then examined

that claim to see what its ambit was and I should begin

by referring the Court to the observations made by

Your Honour at page 72 at the top of the page which,

no doubt, will be relied upon by my learned friends

about not interpreting logs too technically, and

we do not seek to say anything about that. But

Your Honour said:

In deciding whether a clause in a log

should be so understood -

that is to say whether it excludes State law

it would in my view be a serious mistake

to construe the log with that degree of

strictness which is reserved for formal

legal instruments. In this field we are concerned only to ascertain the sense of

ClTll/1/HS	16	22/11/88
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the document for the purpose of

determining whether an industrial dispute

... .. exists and what is its ambit. In

general, in the absence of some tangible

indication to the contrary, it is

appropriate to read the log as asserting

a claim which is additional to rights

and benefits bestowed on employees by

the general law.

This is the approach which I take to cl. 21 in the present case.

Then if I might take the Court down a few lines to

virtually the middle of the page where Your Honour

the Chief Justice said:

No doubt in some contexts it may be

correct to say that the concession of

a right in an employer to dismiss upon

the giving of a stipulated notice, with
the consequence that the employee dismissed
is entitled to wages up to the time of
dismissal, is inconsistent with, or
excludes, the co-existence of a right in the

employee to apply to a court for an order

that he be re-employed. This conclusion

might be readily reached, as it was by the

Full Court of the Supreme Court, in the

context of an award which comprehensively

sets out the rights of the employer and

employee, covering dismissal on notice

and summary dismissal for misconduct .

(Continued on page 18)

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MR BLACK (continuing):  And then Your Honour went on to

deal with this clause and came to the conclusion

that it was sufficiently wide as to allow for the claim

that became the award variation. The reason we

refer the Court to that passage is that it is,

in our respectful submission, an illustration of

a case which contemplated that a log could be looked

at to see what its consistencies and inconsistencies

were with a view to working out what its ambit

was and not just a question of the words, it is

a question of the substance behind the words.

And so too in this case. We say that if one looks

at the log in the way that we submit it should
be looked at,then any question of reinstatement

is simply beyond ambit.

Now, there are some other ways of looking

at the matter and we put two of them to the Court.

There is what might be called a narrower approach,

exemplified by some observations made on behalf

of the Court by Sir Owen Dixon in the

CAIRNS MEAT EXPORT casi. That case is REG V GOUGH

EX PARTE CAIRNS MEAT EXPORT CO PTY LTD, {19.62) 108 CLR 343.

That case has been referred to-

subsequently by this Court, particularly in

RANGER URANIUM, and it was essentially, in our

submission, a reinstatement case and the essential

problem for the union in that case was one of

interstateness. What had happened was that there

was an award covering the meat industry; it was

varied to cover certain specific tasks and some

men were engaged on those specific tasks; the employer

took the view that it was not satisfied with their

rate of work on those tasks and it dismissed the

four men. That dispute came before Mr Commissioner Gough

who, in substance, ordered reinstatement. When

I say in substance, I think the actual order was

that the men be offered re-engagement without breaking

continuity of their service. But the substance

of it was that they would have had their jobs back

had the order been within jurisdiction.

Now prohibition was sought and was granted

and the leading judgment in the case was that of
the then Chief Justice Sir Owen Dixon. His Honour,
having examined the facts, then said at page 350

in the second paragraph on that page, that the

question was what was done by the two orders of

Mr Commissioner Gough, was it:

anything in the nature of or incidental to
or consequential upon the prevention or settlement

of an industrial dispute extending beyond one

State? The original award, it is conceded,

was founded on such a dispute.

ClT12/l/AC	18	22/11/88
Wooldumpers(2)

And then His Honour conjectvres that it was one

created by the delivery and refusal of a log.

He refers to the amendments made to the award and

then, at point 6 of the page, says:

The question still remains as to how

Mr Commissioner Gough could bring his two

informal orders within the conception of the

settlement of an industrial dispute extending

beyond the limits of one State or within any

conception of what was even incidental thereto

or consequential thereon. Mr Byers, who has

argued the case in support of the two orders

with considerable ingenuity and resource,

begins by saying -

and then he refers to Mr Byers':argument on the

statutory aspects of the matter and then continues,

at point 8 of the page:

(Continued on page 20)

C1Tl2/2/AC	19	22/11/88
Wooldumpers(2)
MR BLACK (continuing):

Be it so. You still must have an

industrial dispute about that matter

extending beyond one State.

It seems clear enough that, when

Can-Pak -

which is the method of killing -

came in and this particular question as-

to the dismissal of these four men arose,

that was not a new industrial dispute

extending beyond the limits of one State

concerning them.

And so, too, we say here.

However -

and we would interpolate (as here) -

it is sought to meet that view by

saying, "Well, at all events, there is

always a power to vary an award. Here

was an award made in 1959, varied again

in 1961 - made on'.', I should, to be very

accurate, say, "February 3rd 1960, but

about a 1959 proceeding; and then varied,

and here is a power to vary awards. And all that was being done was to vary the awards."

And His Honour refers to the power and continues:

Of course, Mr Commissioner Gough was the

Commission for the purposes we have in hand, and of course, he could vary the a~ard if he had a jurisdictional basis for it.

And then, the passage often cited:

But, again, you cannot bring the fountain

higher than its source: you cannot do it by

a mere variation; the variation would have to

be within the original dispute comprised in

the original log. I would say for myself

that I cannot see any trace in Mr Commissioner

Gough's reasons, or his directions, of a

purported exercise of the power of variation.

And then His Honour says in the middle of the page:

But if there were any attempt to vary the award,

I cannot see that it would have been within the

original dispute.

ClT13/l/SH	20	22/11/88
Wooldumpers(2)

And this is the passage upon which we particularly

rely:

It would have required great foresight to make a dispute about these events, events which

occurred three years later or at least two

and one half years later. But that argument

amounted to a bold effort to find a ground to

support the direction given by the Commissioner.

If you go further and look at what

Mr Commissioner Gough did, it will be seen

that he was dealing with four individuals;

he dealt with them in relation to something

which affected them individually and their

conduct. He was not laying down new terms

of the old award, he was dealing specificallj with what must be done with reference to four persons.

Now, what we seek to derive from that passage is

that, in the view of the learned former Chief Justice
Sir Owen Dixon, with whom Justices McTiernan and

Taylor agreed, it was at least relevant to stand in

the position of the maker and,recipient of the demand

when the industrial dispute was created, to see

whether it could reasonably be said that the particular
events that were agitated some time later could have

been said to have been in contemplation at the time

of the demand.

DAWSON J:  He is saying a little more than that, is he not?

He is really saying that a private claim on behalf

of an individual can never fall within a general

claim for conditions on behalf of the whole

membership.

MR BLACK: Well, that is right and - - -

DAWSON J:  It might be a claim for enforcement of an award

if an award is made but it is never a variation of

the -

MR BLACK:  Yes, indeed, Your Honour, and we would respectfully

adopt what Your Honour says. It goes that far and

that is another reason why it is relevant to say,

"Well, you could not foresee such a thing", but the individuals cannot be in comprehension. The demand ought ordinarily to be interpreted as a demand of

a general nature.

ClT13/2/SH	21	22/11/88
Wooldumpers(2)

DAWSON J:  The only way individuals could be seen to be

in comprehension would be as enforcing an award,

if made, on that matter.

MR BLACK: If made, and if made in general terms. That

is what one would expect the demand to be and,

indeed, returning to the logs in this case, that

is what we would say the demand is even if,

contrary to all our arguments, it could otherwise

be said to involve reinstatement.

The other approach - and it may not, in

fact, be a different approach~ but the other

leg of the argument relies upon some statements

by all the members of this Court then sitting, the

six members, in RE LUDEKE:  EX PARTE QUEENSLAND

ELECTRICITY COMMISSION, 159 CLR 178, at page 191

point 1, the top of the page, the passage to which we

particularly refer.

The Court comprised the then Chief Justice

Sir Harry Gibbs, and Your Honour the present

Chief Justice, and Justices Wilson, Brennan,

Deane and Dawson. That case arose out of some

bitter industrial disputation in Queensland in

the course of which, or shortly after which,
the Electrical Trades Union served a log of claims,

the genuineness of which was disputed by the

Queensland Electricity Commission and, I think,

by the other authorities. What the Commission

said was that in truth this was really an attempt

to get federal regulation, or federal dealing,

with what was essentially an intrastate dispute

and for those and other reasons, the log was

not genuine.

The Court embarked, in that case, upon

a detailed analysis of the facts and that analysis

included a reference to the log of claim~ the

service of which was central to the whole question
of genuineness.	At page 187, at the bottom of

the page, the general substance of the log is

identified. The judgment is in these terms:

The log of claims ..... contained provisions

dealing with changes in the performance

of work, termination of employment and

redundancy ..... which reflected the decision

of the Commission in the TERMINATION,

CHANGE AND REDUNDANCY CASE given in August

1984. These provisions had no counterpart

in the State award.

The actual terms of the log do not appear from

the decision but I am sure it would be common

ground at the bar table that the TERMINATION,

CHANGE AND REDUNDANCY CASE provisions relevantly

C1T14/1/SDL	22	22/11/88
Wooldumpers(2)

provided that termination of employment by an
employer should not be harsh, unjust or unreasonable

and, for those purposes, termination of employment

should include terminations with or without notice.

I think the matter is taken up in some

more detail in Your Honour Justice Brennan's

judgment in the subsequent ETU case where, I

think, Your Honour actually identifies the source
of the TC AND R provisions. But, if I can give

the Court a reference to it: I do not have the

case on the list, but the actual case is in

(1984) 295 CAR, and the relevant clause in the

decision is at page 677. The substance of it

was a claim that there should not be harsh or

unreasonable dismissals.

In the ETU case, the industrial fact was

that before the service of the log, a large number

of workers had been dismissed and that was a

matter, of course, of great industrial concern

to the Union.

(Continued on page 24)

C1T14/2/SDL	23	22/11/88
Wooldumpers(2)

MR BLACK (continuing): In that context the Court concluded

its judgment on the question of genuineness with a

reference to an argument that the demand was a sham

or a mere device to give the Commission jurisdiction.

That argument had many facets, but the last facet is

dealt with at page 190, at the bottom of the page,

in these terms. And I read this as a prologue to the

particular passage upon which we rely, which is at

page 191:

The essential claims had been arrived at

independently in December 1984; they were

not invented or contrived in February and

March 1985. And there is no doubt that,

notwithstanding the attractions which the

State award - with its higher wage rates -

formerly had for members of the Queensland

Branch, they, in common with the National

Executive, genuinely desired to come under a

federal, in preference to a State, award.

Neither the National Executive nor the

Queensland members ..... were content to have the

terms and conditions of employment in the

industry in that State regulated by a State award.

Although the National Executive's decision was

inspired by the hope that the action taken would

enable the Commission to exercise jurisdiction

in relation to the Queensland dispute, this is

not a critical factor.

And it is in that context, important to the decision,

in our submission,although we do not submit that it is

part of the ratio for the submission, that the Court

then went on to say this:

Indeed, the dispute arising from non-acceptance

of the log would not endow the Commission with

jurisdiction to reinstate the dismissed

Queensland electricity workers because

reinstatement was not dealt with in the log and

perhaps because reinstatement involves the

exercise of judicial power.

A matter, of course, the Court has now resolved: In these circumstances, according to authority

in this Court, the Commission cannot order

reinstatement.

Reference is then made to the CAIRNS MEAT case and to

the earlier case of REG V PORTUS: EX PARTE CITY OF

PERTH, another reinstatement cas.e where the Court held
that the true nature of the demand there was a demand
that the Commission perform functions which it just

did not have and no dispute was therefore created and

it is not an argument we raise in this case, unless

ClTlS/1/SR	24	22/11/88
Wooldumpers (2)

ingenious, if I might respectfully characterize them~

ingenious interpretations are sought to be put on the

log and in those circumstances we would anticipate an

argument in reply based upon PORTUS' case that you

cannot construe the log in some ways because that would

be construing it as a demand for things that the

Cormnission cannot do.

MASON CJ:  Why was the view taken in PORTUS that it was a

function that the Cormnission just did not have. Because

it could not be brought within the ambit of any

antecedent log of claims-:or because the Cormnission

lacked statutory power?

MR BLACK:  Because the Cormnission la~ked statutory power and

also the exercise of that power, as then perceived,

would have involved the exercise of judicial power -

MASON CJ:	The exercise of judicial power.
MR BLACK:	And I think, Your Honour, that was really the critical

point. The way it was framed inevitably ran into

collision with that principle as it was then understood.

(Continued on page 26)

ClTlS/2/SR	25	22/11/88
Wooldumpers (2)

MR BLACK (continuing): In those circumstances, accepting

ililIIlediately t~e qualification that just as one log cannot be interpreted by reference to another and each case turns on its own

facts, each log turns on its own words,, we

nevertheless rely upon the unanimous statement
of this Court in that case as indicating that

if you do not ask for something, there is at

least a fair presumption that that is not what

you are disputing about. Now,that is putting

it in plain, almost homely language, but that

is what we say the Court was indicating in

that case and we would say, with great respect,

that that is a correct general principle and

we rely upon LUDEKE's case in support of what

we have already said about the ambit of this log.

MASON CJ: Are you raising any question of judicial power?

MR BLACK:  No, Your Honour. We raise no question about

that. The only way in which that could arise

in this case is, if to argue ambit certain

arguments are advanced, then, we would respectfully

say . they would need to be examined in the context

of what can and cannot be done according to the

recent decisions of this Court, and most notably

in RANGER URANIUM. To find ambit, and to suggest

what might be done within ambit, one, in our

submission, has to be cognizant of the reasons

why reinstatement may not necessarily involve

the exercise of judicial power, but also cognizant

to the fact that in some circumstances, depending

upon how one goes about it, and what the claim

is, it may. But, Your Honours, I do not wish

to anticipate the reply, but that is the only

way in which we would wish to rely upon such

matters in this case, but we do not wish to

say anything about the Court's decision in RANGER.

BRENNAN J:  I am not sure that I follow this, Mr Black.

You do not wish to say anything about it at

this stage,·but you may wish to say something

about it in reply?

MR BLACK:  Your Honour, only if some argument is raised

as to how the demand might be construed so as

to create ambit. If that argument involved,

on our submission, an invocation of judicial

power, then the argument would fail because

amibt would not properly have been created.

BRENNAN J: Is it ambit which is the sole relevant

consideration? We do not have to worry about

what happened in this case, or the relief

that was sought in this case?

MR BLACK:  Your Honour, we say that the relief sought

in this case and what this case is essentially

CIT16/l/JM	26	22/11/88
Wooldumpers(2)

all about has to be, in order to have the
necessary element of interstateness to

give jurisdiction, within the original

interstate industrial dispute.

BRENNAN J: Yes, I understand that, but I do not understand

why, if there is lurking somewhere in the background
the question of judicial power,one does not look
at the relief that was sought in this case and the
nature of the application that was made in order

to determine that question?

MR BLACK:  Your Honour, indeed. The difficulty in answering

Your Honour's question is that the relief was

sought in very general terms. The general nature

of the relief, we say, is clear enough; it is

reinstatement. It would have to be conceded - I

might withdraw the implicit - what was about to

be a concession.

(Continued on page 28)

CIT16/2/JM	27	22/11/88
Wooldumpers(2)

MR BLACK (continuing):  It may well be said that there are

ways, given interstateness, of proceeding - and

given appropriate circumstances, and so forth -

of proceeding by way of award variation in an

entirely arbitral way that would not fall foul of

the judicial power prohibition. We do not know what would be done if the matter proceeded so we

have taken the view that we cannot argue that an

exercise of impermissible judicial power would occur,

unless we can show that it must inevitably occur,

whatever happens, and we do not seek to go that far.

MASON CJ:  But that is almost to abandon the point for this

case, is not it, to say that?

MR BLACK:	No, Your Honour, with respect.
MASON CJ:	Let us assume for the moment that the respondents persuade us that embedded in the logs of claims is a
claim for reinstatement in the most general terms.
What shape would your reply take on judicial power?
MR BLACK:	Your Honour, our reply on judicial power -

other than contesting the primary point - would not
deal with it unless it appeared from the argument
that the nature of the relief sought must involve

the exercise of judicial power, and at the moment we

cannot contend that it necessarily would. It would

depend how it was done.

MASON CJ:  So what you are saying is that if the respondents

managed to persuade us that prima facie, at any rate,

there appeared to be a claim for reinstatement, but

reinstatement was envisaged as a concept that would

involve the elements of the exercise of judicial

power, then you would have a reply - - -

MR BLACK:  Yes, that is right, but not otherwise because if

there were a valid way of bringing about the result
of reinstatement within the ambit of the

interstate industrial dispute then, having regard

to this Court's decision in RANGER,that argument

would simply not be open to us, and if they did it

the wrong way, it would.

MASON CJ:  It seems a little unlikely, does it not, because if

we are dealing with an implied claim for reinstatement,

and that seems to be the basis of the interpretation

to be attributed to the log of claims, that that

implied claim for reinstatement will insist on an

exercise of the power according to criteria which

would immediately attract the exercise of judicial

power.

l-1R BLACK:  Well, Your Honour, we do not know how it will be put, but if

it is put that way, then that is our answer to it.

C1T17/l/HS	28	22/11/88
Wooldumpers (2)

MASON CJ:	All I am saying is we seem to be sparring with shadows at the moment.
MR BLACK:	Your Honour, our perception is that unless we can say that any claim, if it is within ambit, must
inevitably involve the exercise of judicial power,
then we would be wasting the Court's time by sparring
at a shadow, but if the way it is put is that the
claim -

MASON CJ:  Yes. Anyhow, I think you have explained what

your position is, Mr Black.

MR BLACK:  If Your Honour pleases. In those circumstances, the

final leg of the argument is - and it is implicit in

what has gone before - that there is nothing that can

be done in this case, given and accepting the width

of the power to deal with a dispute by making orders
that are rationally referrable to its settlement, and

so forth, and in accordance with the authority that we have mentioned in the outline that summarizes all

manifestation, an intrastate dispute involving the

the cases, there is nothing that can be done.

Union and the employer in Victoria, and there is no

antecedent interstate industrial dispute to provide

a jurisdictional foundation for any order that it is

contemplated may be made in this case.

For those reasons - the Commissioner obviously

intending to proceed with the matter - for those

reasons we say that prohibition should lie.

If the Court pleases.

(Continued on page 30)

C1Tl8/2/HS	29	22/11/88
Wooldumpers(2)

MASON CJ:	Thank you, Mr Black. Yes, Mr Cooke.
MR COOKE:	Your Honour, I have some short notes of argument

but I will have to ask the Court to disregard

items 2 and 3 and I will just explain why in a

moment.

MASON CJ:	They involve repetition, do they?
MR COOKE:	No, Your Honour, probably just an incorrect

statement of the material, I think.

Your Honours, if it please the Court, we adopt

what our learned friend,Mr Black, has said with

regard to the question of the interstate dispute.

In our submission, on the facts of this case, there

is no interstate dispute which could found the

Commissioner's jurisdiction to entertain a

reinstatement of this sort. We have referred,

as well, to those-passages, and we will not go
to.them again, where the Union advocate in front

of Commissioner Caesar indicated what the dispute

was about and the actual notification. The notification

of the dispute clearly isolates it to a particular

individual employee at a particular plant in Victoria.

Your Honour~ we have abandoned 2 and 3, because

it seemed not to be right. The current award seems

to have been made on a log that was served in 1979.

The 1985 log at some stage seemed to have been

abandoned and replaced by the 1986 log which is

the current paper dispute existing between the

parties. Your Honour~ that appears, I think, from

pages 28 and 29 of the transcript where advocates

were making submissions to Commissioner Caesar

about the position.

So that, Your Honour~, we then adopt what our

learned friend,Mr Black,said with regard·to the

construction of the current log, which appears

at page 88 of the application book, that one cannot

construe that as being a claim for some machinery
or some type of reinstatement.	And if, Your Honours,

I can skip down to our point 5, in our submission

the Commission has the power to order reinstatement

as part of its arbitral function to settle interstate

disputes and we have given two illustrations.

For example, where you have a paper dispute there

must be a dispute relating to some sort of reinstatement
machinery and if that paper dispute is then settled

by the Commission by inserting into the award some

machinery which tests when a person should be reinstated,

for example if he is dismissed unfairly or harshly

then the award can deal with that prospectively
and settle the paper dispute by setting down the

machinery to deal with cases of harsh and unfair

dismissal when they arise. And when the individual

ClT18/l/AC	30	22/11/88
Wooldumpers(2)

case arises, in our submission, the Commission

would not be able to entertain'that because that

would be an exercise of judicial power in the

particular case to determine whether that
particular employee was dealt with harshly or

unfairly and whether the machinery in the award

should be availed of to enable him to be reinstated. judicial power - to enforce the terms of the award,

and would have to be done in some other court.

We have listed the case of GREGORY V PHILLIP MORRIS,

77 ALR 79, as an illustration of what could be

done. In that case it was argued that the provisions

in an award were implied in the terms of employment

and it was really a case of damages for unfair

dismissal, the terms - the machinery, in the award

being used as the term of the contract of employment.

His Honour Mr Justice Gray in the Federal Court

in that case declined to make an award of damages

but nevertheless, in our submission, clearly sets

up the pattern which could be used to enforce a

reinstatement provision of some sort in an award.

(Continued on page 32)

ClT18/2/AC	31	22/11/88
Wooldumpers(2)

MR COOKE (continuing):  The second instance, in our submission,

in which the Commission would exercise, or could

exercise a power of reinstatement is in the

case of an actual interstate dispute, and we have

given an example there. If, for exarpple, there was

a national coal strike over some issue, whatever,

and during the course of that actual interstate

dispute some people were dismissed, say, in

Queensland, in the collieries in Queensland,

reinstatement would be capable of being ordered

by a Commissioner in those circumstances in the

settlement of the actual national dispute or the

interstate dispute with which he was- dealing.	But in
this case, in our submission - - -

BRENNAN J:	Without any paper log?
MR COOKE:	Without any paper log, Your Honour, because that

would be an actual interstate dispute, a national

strike, which the Commissioner was trying to

settle and in the course of that, in our submission,

he could exercise his arbitral function to settle

that dispute by ordering the reinstatement of

some people who may have been dismissed. That

would be a permissible exercise of the arbitral

power. But in respect of paper logs, paper

disputes, in our submission, it is somewhat more

difficult because of the nature of the paper

dispute,raising the issues in advance, raising

an issue of reinstatement or unfair dismissal

in advance and then the award is made, an award

is made which embodies some machinery to determine whether a person, an individual person is, in fact,

unfairly dismissed or harshly dealt with and what

should happen should that be the case.

Now, that, in our submission, is in settlement

of the paper dispute and becomes a term in the
award,but for an individual person to avail himself of
the award 11.e is _in the position 'of having to seek

enforcement of the award which would be an exercise

of a judicial function rather than an arbitral

function in his particular case. Also, Your Honours,

he would have the additional problem of determining

whether there is an interstate dispute involving

his unfair or harsh dismissal. So that the question

of the interstate dispute, .in our submission, which

is necessary to vest the jurisdiction in the

Commission, is somewhat difficult to see in respect

of an individual employee who is being dismissed.

DAWSON J:  But, Mr Cooke, even in (b) where there is an

actual interstate dispute the process would be

a two step process. First of all there would be

an award, an order, made for reinstatement and

then that would have to be enforced separately,

would it not, if not obeyed?

ClT19/l/MB	32	22/11/88
Wooldumpers(2)

MR COOKE:  Yes, I take Your Honour'.s point. What the

Commissioner would be doing would be establishing

the right of the particular individual to be

reinstated, yes.

DAWSON J:	Yes.
MR COOKE:	But to actually enforce the reinstatement

certainly he would have to take action to enforce

the award. So that there are only those two

illustrations, in our submission, as to how the

Commission could exercise a power of reinstatement

and it is difficult, in our submission, to see

how that can be done in respect of a single

employee in a single employment in one State.

It may be done, or it could possibly be done,

for example, if there was an application to vary

the award but to do that - and the Commissioner

here was not purporting to vary the existing award -
to vary the existing award, of course, requires

service of all the parties so that you would

really in a way be setting up another paper

dispute with the original parties to the award

over a separate issue. It may be done that way

but it was not purported to be done that way

in this particular case. Now, Your Honour·,,

the only other suggested method - - -

DAWSON J:	That is right, is it? I thought there was some suggestion it was an application to vary
the award?

(Continued on page 34)

ClT19/2/MB	33	22/11/88
Wooldumpers(2)

MR COOKE:  No, Your Honour, I think not, there is no formal

application to vary the award.

DAWSON J: No, but it was spoken of in argument in terms of

an application to vary the award?

MR COOKE:  I do not recall so, Your Honour. No, Your Honour,

I am apparently correct in that.

MASON CJ:  That would not necessarily matter, would it, the

fact that there had not been an application for

variation of the award so long as that was not excluded

by the Commission as a possible course? In other words,

this Court would not grant prohibition unless it

clearly appeared that the Commission was going to

exercise or intended to exercise a jurisdiction that

it did not possess?

MR COOKE: Yes. Your Honour, in our submission,it has here

because the Commissioner is intending to proceed on

the basis of an earlier dispute finding of an

earlier log. He is not intending to proceed by way of

variation of the award, that he has got no intention

of doing that, but he is intending, on our submission,

to proceed in an irregular way by relying on a dispute

finding in relation to a log which does not contain any

claim for reinstatement provisions. And I have

suggested the variation, Your Honour, simply as a way in which a new interstate dispute, as it were, can be

created for thepurpose of giving the Commissioner the power to exercise the arbitral function in respect of reinstatement but it is not availed of in this case.

Now, Your Honours,the other point which we should

cover, because we get no reply, is the question of

whether it can be said that because an employee is

dismissed in one plant in one State the Union might be

able to argue the impending dispute which might extend

into other States. Now that, Your Honours, depends on

the construction of the industrial affairs power in

the CONSTITUTION and also the definition of industrial

dispute in the Act itself which says that it is a

dispute including a threatened impending or probable dispute as to industrial matter which extends beyond

the limits of any one State.	Now, Your Honour, in the
case that we have in our point 4,..	REG V TURBET;

EX PARTE THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES,

there was evidence in front of the Commission from

which inferences could be drawn that that particular

issue, which bubbled up in one particular State at one

particular point of time was a threatened or impending
or probable interstate dispute because that was a

dispute on a demarcation issue between the Builders

Labourers Federation and the Australian Building

Construction Employees, but the report shows that

there was evidence that this demarcation dispute between

the two unions had been going on over a period of time

ClT20/l/SR	34	22/11/88
Wooldumpers(2)

and had erupted in problems in a number of different

States and this particular instance was simply one

instance where the matter had flared up and the

Connnissioner was entitled on our reading of the report, and the Court made it clear that he had evidence there,

to suggest that even though this was isolated in

this particular case to one State, nevertheless it

was simply one fire in a series of fires which had spread

across Australia in a number of different sites and

there was a possibility that it would spread impending

dispute.

(Continued on page 36)

ClT20/2/SR	35	22/11/88
Wooldumpers (2)

MR COOKE· (continuing):  Your Honours, in this case, there

is no evidence at all in front of the Commissioner

that would support an extension of jurisdiction

on the basis of a threatened impending or probable

dispute. There is just no evidence that anything

will come of this isolated dispute in Victoria

which would involve people in other States and,

in our submission, Your Honours, before the Commission

can rely on that limb of the definition of "industrial

dispute" it would be necessary for him to have

some evidence that that was likely.

Your Honours, in REG V TURBET case, at

pages 340 to 341, Mr Justice Stephen refers to

the evidence.	At page 341, in the second paragraph,
he says:

The evidence now before the Court

establishes that there had indeed been

a previous history of disputes between

the two unions throughout the Eastern States, about whose members should handle structural

steel.

In the next paragraph, His Honour said:

In the light of this evidence I conclude

that there did exist between the parties

an interstate industrial dispute concerned

with the demarcation of functions.

Your Honour Mr Justice Mason, at page 346 and

page 347 again, in our submission, adverted to

the fact that there was evidence.	At the top
of the page:

because, on the evidence, there is an

actual dispute as to an industrial matter

between the two unions -

and further down -	it is suggested that there is a threatened
impending or probable dispute ..... It is
also said that the commissioner himself has, as a result of these and other proceedings,
knowledge of the elements -

and, at page 370 Your Honour referred to the

fact that there was material in front of the

Commissioner there as well.

His Honour Mr Justice Murphy dealt with

the question of impending disputes at page 355

but again, in our submission, those comments

should be read in the context of the evidence

in that case, that it was simply an isolated

example or a continuing example of the continuing

dispute which spread across State boundaries.

C1T21/l/SDL	36	22/11/88
Wooldumpers(2)

His Honour Mr Justice Aickin, at page 357, observed,

at the bottom ~f the page:

Both the Court and the Commission have become accustomed to dealing with

"paper disputes", which, although somewhat

artificial, are such that their nature

and extent are ascertainable from the

documents with relative ease. It is sometimes

less easy to ascertain the nature and

extent of an "actual dispute" which must

be deduced from the evidence provided

by industrial action or a combination

of industrial action and general claims

made by the unions.

So, again, we submit that His Honour there is

saying that there must be some evidence on which

a Commissioner could conclude that this isolated

intrastate problem would be likely to give rise

to a threatened impending or probable dispute

before the Commission would have power to enter

upon it and resolve it by way of reinstatement

or other sort of award.

Your Honours, we adopt what our learned

friend, Mr Black, said about the question of

the RANGER case. We do not seek to challenge

the decision in the RANGER case but we do submit
that in this case there is not the interstate

dispute foundation for the jurisdiction being

exercised and, in any event, the exercise of

the arbitral function would, in our submission,

lead to a framework being set up in an award

by which particular conduct can be judged and

that, really, is the arbitral part of the function.

When it comes down to an individual case,

in our submission, it would be probable that
in that event the Commission, if they embarked

on it, would be embarking on a judicial function

to determine whether a particular individual,

when cast against the criteria in the award about

unfair dismissals, has or has not been unfairly

dismissed.

(Continued on page 38)

C1T21/2/SDL	37	22/11/88
Wooldumpers(2)

MR COOKE (continuing)~ In doing that, we would submit that

the Commission will be exercising judicial function rather than an arbitral one. The arbitral function

would cease with the laying down of the guidelines

or the laying down of the criteria on which the
dismissal is to be judged,as to whether it is

unfair or harsh. Those are our submissions,

Your Honour.

MASON CJ: Thank you, Mr Cooke. Yes, Mr Kenzie.

MR KENZIE:  May it please Your Honour. Could I hand to the

Court copies of our outline of submissions.

MASON CJ: Yes.

MR KENZIE:  If it please the Court, the Court can see that our

first and principal submission is that the jurisdiction

of the Commission to proceed and to proceed, if

necessary, to the making of an award or order for

reiri:statement:~of ·an indiv±duaL employee, namely,

Mr King, is founded upon the dispute found by the

Commission to exist in 1986. Mr Black has taken

the Court to the two logs of claims and the two separate findings. Before coming to the detail

of the submissions, could I remind the Court in,

perhaps, slightly more detail, what

Mr Commissioner Caesar said on pages 106 and 107

of the application book.

In the fourth paragraph of his decision,. at

page 106, the Commissioner says that:

The Union requested the Commission to

act under the dispute finding of

Mr Commissioner Cox made in matter C No. 205

of 1985 following the serving, by the Union,

of a log of claims on companies including

Wool Dumpers (Victoria) Pty Ltd.

And he says: 

The Commission on investigation found that

a dispute finding by Mr Commissioner Cox in

matter C No. 509 of 1985 and a dispute

finding by Mr Commissioner Maher in .....

also contained the same claim re termination

of employment. All disputes still exist

either in whole or part.

And then, in the last paragraph of his decision,

on page 107, the Commissioner said in the second

sentence:

Therefore, the Commission intends to act within the ambit of the dispute findings

of Mr Commissioner Cox mentioned earlier

C1T22/l/SH	38	22/11/88
Wooldumpers(2)

and investigate the question raised by

the Union.

And he goes on to point out that the relief sought

by the-Union.is not the· only relier.that·might be

granted, if any relief is granted at all.

Now, we would submit that the better view is

that the jurisdiction of the Commission is founded

upon the 1986 dispute and not the 1985 dispute,

as suggested by Mr Commissioner Caesar in.:the last paragraph of'his judgment and we simply point that

out, not that any point has been taken in relation to it but by way of submitting that, even if it be the case that the Commissioner has made an error in

relation to which dispute found in his jurisdiction it:'. is:· .. not·_: a relevant error for present purposes.

So the starting point of our submissions is the

1986 finding on the -basis of the log which is set

out at page 88 of the application book.

WILSON J: Well, what happens in practice, Mr Kenzie? Does a

later log usually oust the former?

MR KENZIE: Well, I do not know that there is too much law in

it, Your Honour. It either 'supersedes it or - - -

WILSON J: And presumably would, if it was substantially in the

same terms.

MR KENZIE:  Yes, but the better view would appear to be that

superseded,, the earlier log.;_ tha,t the a_ppropriate finding

would have been in terms of Mr Commissioner Maher's

decision and not Mr Commissioner Cox' decision. We

simply submit that that is irrelevant to the present

debate and we found upon Mr Commissioner:Maher's

decision that an interstate industrial dispute

existed on the basis .:of\: the log set out at page 88

of the materials.

(Continued on page 40)

C1T22/2/SH	39	22/11/88
Wooldumpers_(2)

MR KENZIE (continuing); It is also clear from the passages

Mr Black read to the Court this morning, from

the transcript of proceedings before

Mr Commissioner Caesar, that the Commission was

correct in saying that what the Commission was

being requested to do was to act under the
earlier dispute findings, and I will not go
back to but will repeat Mr Black's references
to pages 30 point 9, 31 point 9 and 44 point 9

of the transcript.

In our submission, and this really is the

first of our submissions we make in our outline,

the log of claims, the basis of the 1986

finding of dispute, is a log of claims which

makes if not an express then certainly an

implicit demand for reinstatement of any

employee dismissed from employment in
circumstances other than those set out in the

log. The opening words of the relevant clause of the log, 23(a), are these:

Except as provided for in sub-clause (c) of

this Clause all employment shall be

permanent.

So they are the governing words:

No notice of termination of employment

shall be given to any employee by the

employer without/prior consent of the

union, and no s~ch notice shall be given

whilst the employee is on annual leave -

et cetera. The clause goes on to say that

any notion of termination requires prior

consent of the Union, which consent can only

relevantly be given in certain defined circumstances.

Clause (b) then goes on to set out an additional

requirement. We agree with Mr Black's interpretation

of clause (b), namely that the requirements are

additional. So the effect of clauses (a) and (b)

is that the employment 11.of an employee. could not

be terminated without notice and without the

consent of the lJnion. The remaining part of

clause (b) goes on to deal with what happens to

an employee who is terminated in accordance with

the log. So that we submit, contrary to the

submissions of Mr Black made by reference to

CLARKSON's case, that there is no inconsistency between the claim for notice and the submissions we make to the effect that the log contains an

implicit demand for reinstatement of any employee who is terminated other than in

circumstances contemplated by the log itself.

DAWSON J: What is being claimed here, in this particular

case? What is being sought by the dismissed employee?

CIT23/l/JM	40	22/11/88
Wooldumpers(2)

MR KENZIE:  Your Honour, in our submission, what is being

sought is the resolution of an interstate

industrial dispute by ultimately the making of

an arbitral determination which would resolve

the interstate industrial dispute which exists

as a result of the 1986 finding of Mr Commissioner Maher

on a single State basis. That will be an arbitral

determination if the Union is successful and

consistent with the decision of the Court in

RANGER.

DAWSON J:  I am not sure I understand that. Is it being

asked that something be inserted in an award,

or an award be made in relation to the conditions

under which a person can be dismissed, so that then the dismissed employer can take advantage of that? Or is it being asked that he be

reinstated?

(Continued on page 42)

CIT23/2/JM	41	22/11/88
Wooldumpers(2)

MR KENZIE:	Your Honour, one of the problems is that the matter has not proceeded to the end of the road
yet but, as we understand it, certainly consistent
with the claims that are being made before
Mr Commissioner Caesar, the Commission would be being asked to make an award reinstating in employment
Mr King.
DAWSON J:	Yes.
MR KENZIE:	That is to partially settle the interstate

industrial dispute found to exist as a result of the

log on page 88 of the application book, by reference

to Mr King.

DAWSON J:  Does that not bring you into difficulties by

saying that the dispute is agitated not merely on

behalf of a former employee, but on behalf of

members of the Union generally?	That is .confined
to Mr King.

MR KENZIE:  Your Honour, that is an alternate submission we make,

but does Your Honour mean our final -

DAWSON J:  I was just using your words there.

MR KENZIE:  Yes, Your Honour. We make two submissions; the

first submission is that we can rely upon the 1986 log

of claims and finding of dispute. Contained within

that log is a claim implicit for reinstatement of

any person who is dismissed other than in the

circumstances set out. That is an interstate

industrial dispute as found by the Commission. It is

capable of resolution by award within a single State,

that is by an award which takes effect o.nly within

a single State, namely an award which reinstates an

individual employee.

DAWSON J:	It is hardly capable of settlement by an award which takes effect in respect of a single employee,
is it?

MR KENZIE:  Your Honour, it depends upon the classification

of the - - -

DAWSON J:  Claim, that is right, but you have to classify the

claim before you can see whether it is an ambit, have

you not?

MR KENZIE:  Yes, Your Honour. We say that the first step

by way of classification of the claim is to ask what

is sought in relation to members of the Union caught

by the claim and what is sought is that their

employment willbepermanent. That is the claim that

is made.

DAWSON J:  But in relation to Mr King, you are saying his claim

is to be reinstated and have an award that orders that.

ClT24/l/HS	42	22/11/88
Wooldumpers (2)
MR KENZIE:	Yes, Your Honour.	We say that Mr King is

caught by the ambit claim. He is a member of the

Union caught by the ambit claim and the Union's

claim is that all persons caught by the ambit claim,

including Mr King, will have permanent employment.

Implicit in that claim is that if someone takes a step which is inconsistent with the permanency of

that employment, not being in circumstances set out

in the log, that is with the consent of the Union

and upon appropriate notice, that that employer will

restore what has been interrupted, in other words

to recreate what is demanded which is permanent

employment.

DAWSON J:  Are you not being caught by what was said in the

CAIRNS MEAT COMPANY case, namely that a claim in respect of an individual is a different claim to

a claim in respect of conditions of members generally?

MR KENZIE:  Your Honour, if we may, we will come to the CAIRNS

case. We say that that is affected, in relevant

respects, by what was said in RANGER.

BRENNAN J:  Mr Kenzie, can I just pursue the question that Justice Dawson asked you. The relief being sought

here is reinstatement which I take it means that the

employer should enter into a contract of employment

with the employee.

MR KENZIE:  Well, either the re-creation of the contract of

employment, or the fresh creation of a contract of

employment, yes.

BRENNAN J:  Well, "re-creation" really means a fresh one, does

it not?

MR KENZIE:	Perhaps it does.
BRENNAN J:	And the ambit that you are relying on, as I

understand it, is one of permanency of employment.

MR KENZIE:  Yes, Your Honour.

BRENNAN J:  In other words, here was somebody who was dismissed

who ought not to have been dismissed.

MR KENZIE:	Yes, Your Honour.
BRENNAN J:	Do you say that the remedy of reinstatment of an

individual employee is a means of settling an ambit

claim that all employees should be permanent?

ClT24/2/HS	43	22/11/88
Wooldumpers(2)

MR KENZIE:  That is what we say, Your Honour. We say that

the governinR words_ are that the "emp;oyment shall

be permanent and. that the log does not simply start

with the words "No-one shall be dismissed without

the consent of the Union". The log commences with

the words,"That all employment shall be permanent".

BRENNAN J:	Yes.
MR KENZIE:	And we say that implicit in that demand is the requirement that if some step is taken that is
inconsistent with permanent employment that it be recreated. We say that that is necessarily
implicit in the demand.
BRENNAN J:	So long as there is a power to terminate a

relationship otherwise than in accordance with

the log then, to that extent, there is a prospect

of arbritral settlement by ordering the restoration

of that relationship.

MR KENZIE:  Your Honour, what we say is that the log does

not contemplate reinstatement of a person who is dismissed in circumstances actively contemplated by the log. In other words, the log says apart

from the exceptions that are set out in (a) and

(b), you cannot terminate. The log does not

contemplate reinstatement or permanency of employment

for persons who are dismissed in accordance with

the terms of the log but for other persons, all

other persons, the log demands that their employment

be permanent. That contains, so we submit, an

implicit demand that their employment will be,

and will remain, permanent - that is how we put

it.

DEANE J: How does that fit into the time frame? I mean,

I have no problem with the proposition that implicit

in the log is the claim that when a general award

becomes operative, people dismissed otherwise than

in accordance with its terms may be reinstated.

MR KENZIE:  Yes.

DEANE J: But, is not what we are concerned with here a

suggestion that the log's claims that people dismissed

otherwise than in accordance with the award, before

the award becomes operative, shall be reinstated?

MR KENZIE: Yes, Your Honour. That, perhaps, raises the

slightly more thorny question of the making of

a retrospective award.

DEANE J: That was what I was going to ask you. Is there

a claim as to when any award will commenc~ as to the

d2te on which it will commence?

ClT25/l/AC	44	22/11/88
Wooldumpers(2)
MR KENZIE:	Your Honour, there are two matters:	there 1s

the log of claims which founds

Mr Commissioner: Maher's finding and that is in

the terms set out on page 88. Then there is the

notification of industrial dispute,which Mr Black

reminded the Commission is found on page 96,and

that simply notifies the Commission of an

impending industrial dispute between the members

of the Union and Wooldumpers and goes no further.

Now, what the Commission can do in relation to

that, as the Commissioner said, is many things.

The Commission can take no action; the Commission

could reinstate prospectively or the Commission
could make an award for reinstatement of Mr King

retrospective to the date of dismissal, or purported

dismissal.,

All of those steps would be consistent with the finding of the industrial dispute in 1986.

(Continued on page 46)

ClT25/2/AC	.45	22/11/88
Wooldumpers(2)

DAWSON J:  Or it could do something else, it could amend

the order or 'ffic:1-ke an award, making it retrospective,

laying down general conditions including the

right to reinstatement and then Mr King could

come in and enforce that?

MR KENZIE:  Yes, but whatever the Commission does, Your Honour -

Let us assume, consistent with our submissions

and consistent with the 1986 finding, that the
Commission makes an award reinstating Mr King,

whether it makes it retrospective to the date of

dismissal or prospective, in either eventr that
award will not be specifically enforceable. All

that will be able to be done in relation to that

will be the commencement of proceedings under

section 119 of the CONCILIATION AND ARBITRATION ACT.

DAWSON J:  But the point I had in mind was what the dispute is

about is the refusal to lay down conditions in

relation to employment in accordance with the

demand, not a dispute about Mr King. So that if

it were done the way I suggested that might achieve

the same purpose in accordance with the dispute.

MR KENZIE:	Well, it might, but that is not an exhaustion of the - - -
DAWSON J:	That is not what you are asking for, apparently?
MR KENZIE:	No. Well, Your Honour, it might do that but

that is not an exhaustion of the Commission's

powers. In our submission, this is a claim made

in respect of all employees covered by the log
and within the ambit of that claim is the

reinstatement of an individual employee.

DAWSON J:  May I get this clear, that is not what is being

asked for.	You are not asking for the Commission
to lay down	general conditions retrospectively
which would	then embrace Mr King?

MR KENZIE:	No, Your Honour.
DAWSON J:	You are not asking for that, right.
MR KENZIE:	There is no specific claim as to what the

Commission should do other than reinstate Mr King.

DAWSON J:  I am asking you, is that included in what is

being sought?

MR KENZIE:	Not apparently, Your Honour. It is not - - -
DAWSON J:	Well, is it or is it not?
MR KENZIE:	I would think that the answer to Your Honour's

question is no.

DAWSON J:  Well, that is right.

ClT26/l/MB	46	22/11/88
Wooldumpers(2)

MR KENZIE:  But, Your Honour, we would submit that that

really is beside the point. The issue is whether

there is a general demand, a finding of industrial

dispute on the basis of that demand and within

that ambit, within the ambit of that dispute,

arbitral power to reinstate an individual employee.

That is really the long and the short of it,

Your Honour. Your Honours, we submit that it must be

implicit in the demand that founded the 1986 finding

that employment of persons other than people

contemplated by the log is permanent and will
remain permanent.

Now, Your Honours, we rely upon and do not repeat the passages from CLARKSON, which Mr Black

read.	We set them out at the bottom of page 1
of our outline.	We refer also to the decision

of the Court in HEAGNEY; EX PARTE ACT EMPLOYERS

FEDERATION, (1976) 137 CLR 86, the decision of

Mr Justice Mason, as Your Honour then was, which was supported by other members of the Court.

and, Your Honours, at pages 105 and 106 of

137 CLR - I am sorry, Your Honour, at page 98

Your Honour sets out the principles applicable

in relation to the degree of certainty required

and Your Honours say that:

(Continued on page 48)

ClT26/2/MB	47	22/11/88
Wooldumpers ( 2)

MR KENZIE (continuing):

The degree of certainty required .....

has been authoritatively stated on two

occasions.

There is a reference to PORTUS and a reference to the

PROFESSIONAL ENGINEERS case,and Your Honour says at

page 99 that:  ·

the statements made in the two earlier

decisions should ..... be accepted as

authoritative expositions of the approach to

be taken by the Court to the degree of

certainty required in the formulation of claims,

whether by means of a log or otherwise, in

order to found an industrial dispute in the

constitutional sense.

And, Your Honours, that passage was approved by other

members of the Court, I think other than the

Chief Justice. Your Honours, reference was made by

Mr Black to the case of RF.G. V __ LUDEKE,- 159 CLR 178. •

BRENNAN J: You are not suggesting that there is any ambiguity

about this log of claims,. a+e you?

MR KENZIE:  No, Your Honour.

BRENNAN J: You are saying that it is just a straighttorward

log of claims for permanency?

MR KENZIE:  Your Honour, we say that implicit in the log of

claims is a clafun for reinstatement and the Court

would not be quick to construe the log with perhaps the precision that would be required in relation to contractual instruments. The Court would approach the

log generously in relation to questions of construction,

that is really the way we put it.

BRENNAN J: So it means, shall be permanent or,if not permanent,

will be reinstateable?

MR KENZIE:  No, Your Honour, it means that other than circumstances

in which the consent of the,Union has been obtained

and upon the notice set out in (b) employment will be

and remain permanent.

BRENNAN J:  I am sorry, I am just not understanding what is

meant by "reinstatement11 in that context? If there is

a relationship that cannot be terminated except in the

stated manners and those manners are not observed then

ClT27/l/SR	48	22/11/88
Wooldumpers(2)

the relationship endures? There is no occasion in

that event for reinstatement. There is just no

fracture of the relationship?

MR KENZIE:  No, but the claim is for a continuation of

permanent employment and it is a claim that that

situation will exist in the future. And if it

does not, because of the action of the employer, then

the employer is under a duty to create that situation.

BRENNAN J: But you must say, must you not, that to the extent

to which at any time the relationship is impermanent,
that is it can be put an end to, the claim is that so

far as permanency of employment will be

guaranteed by reinstatement if need be?

(Continued on page 50)

ClT27/2/SR	49	22/11/88
Wooldumpers (2)

MR KENZIE:  Yes. The log would not support reinstatement

of persons dismissed in accordance with its

terms.

BRENNAN J: No.

MR KENZIE:  It would only support reinstatement of

persons employed absent the consent of the

Union and absent notice. It those circumstances

what is demanded - absent those circumstances,
what is demanded is the continuation of permanent

employment and that will either result from a

non-interruption of the employment or a

purported or actual interruption followed by

~an.award for reinstatement, either prospective

or retrospective. That is the submission we

make.

DAWSON J: Does it amount to saying that permanency

is the high point; short of permanency there

are other conditions of employment which

approach that and which are threfore embraced

within the claim, including reinstatement

when a person has been dismissed? f

MR KENZIE:  Yes, Your Honour, but only in cricumstances

not specifically contemplated by the log as

entitling an employer to terminate.

DAWSON J: Yes.

MR KENZIE:  Your Honours, we were referring to the

RE.G V LUDEKE EX PARTE THE QUEENSLAND ELECTRICITY

COMISSION. Mr Black referred to this. At

page 191 it was said by the Court, in a

passage not, I think, necessary for the decision

in the case, that:

the dispute arising from non-acceptance of

the log would not endow the Commission

with jurisdiction to reinstate the dismissed

..... workers because reinstatement was not

dealt with in the log and perhaps because

reinstatement involves the exercise of

judicial power.

Mr Black referred to the description of the log which was given in that case and that

appears on pages 187 and 188. The only
observation we want to make about it - the log

itself is not set out in terms - but it is
clear that the log of claims that was being

considered in that case is the log of claims that

was founded upon the TERMINATION, C~GE AND

REDUNDANCY case, that is a log claims which

provides that persons shall not have their

CIT28/l/JM	50	22/11/88
Wooldumpers(2)

employment terminated unfairly, harshly
or unjustly, and is not a log of claims which
is the log of claims in existence in the present

case. It is clearly distinguishable. What

is absent is the demand that employment remain

permanent otherwise than in the defined circumstances.

Then, Your Honours, we come to the other matter mentioned by Your Honour Mr Justice Dawson,

that is the REG V GOUGH EX PART CAIRNS MEAT

EXPORT COMPAY PTY LTD, (1962) 108 CLR 343.

Your Honours, the submission that we make about

that case is that that is a case in which, on

the facts, the Court found that the dispute as
to reinstatement only arose after the employees

in question were terminated. This is made

clear, if I might digress for a moment, by the

judgment of the Court in the RANGER case,

163 CLR 660.

At the bottom of page 660 of that judgment,

the Court said this:

Of course an enforceable duty to reinstate

in employment can only arise after employment

hasbeen terminated. As a general rule

disputes as to reinstatement also arise after

employment has been terminated, as e.g.,

occurred in REG V GOUGH EX PARTE CAIRNS

MEAT EXPORT CO PTY LTD. Where a dispute

arises for the first time after employment

has been terminated, ordinarily two

questions will immediately present themselves.

One is interstateness and the other is whether

the disputes go beyond individual employees and

go to employees in general.

(Continued on page 52)

CIT28/2/JM	51	22/11/88
Wooldumpers(2)

MR KENZIE· (continuing):  I do not read the rest O•f that

paragraph. The Court then went on to distinguish

from that situation the situation described in

the middle of page 661, where:the Court said:

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 -

and I do not proceed further because they went off

on matters which are not presently relevant.

So the Court was there clearly drawing a distinction

between a situation such as the one we say clearly

exists here, namely a situation in which a dispute

as to the duty to reinstate has been created

in advance of actual termination of employment,

and in circumstances in which interstateness

is necessary, generated as an interstate dispute -

and that is what we say was done in 1986. And that

is distinguished from the situation that was

said to exist in GOUGH EX PARTE CAIRNS MEAT EXPORT

which was where, on the facts, the dispute was

held to have come into existence only after the

termination of employment.

DEANE J:  I do not want to take time on it but that, again,

ignores the time warp. I mean, the 1986 concerned

a general regime under which reinstatement might

be ordered in relation to somebody whose employment

was terminated contrary to that regime but what

we are concerned with here is a claim for reinstatement
without any such regime.

MR KENZIE:	Yes, Your Honour, but there is no requirement for an intermediate regime, in our respectful
submission.  The requirement is for the finding
of an interstate industrial dispute on a relevant
matter with relevant ambit and subsequent exercise of arbitral power to resolve it in whole or part.,

If one takes, perhaps, the clearest case,

where there was no doubt that the log referred to reinstatement - because it said so in terms:

"Any employee dismissed by an employer shall be

immediately reinstated upon demand", and that,

put forward as a general demand, rejected by

the employers on an interstate basis, in our

respectful submission, that must provide the

jurisdictional basis for the resolution of that

dispute on an individual basis or individual

or general bases thereafter in circumstances

where termination of employment has occurred

thereafter.

C1T29/l/SDL	52	22/11/88
Wooldumpers(2)

DEANE J:  But it is the "thereafter". I mean, what I am

asking for some help on, and I do not know if it has been dealt with, is the question whether a dispute about the establishment or about what the rules

will be if and when a general regime is established,

can be said to embrace a dispute about a particular

past action which occurred before that regime

was established.

MR KENZIE:  Your Honour, no regime is established until

it is created by award.	What one has is a demand
which has been rejected.	No award has been made
on that award.

(Continued on page 54)

ClT29/2/SDL 53 22/11/88

Wooldumpers(2)
DEANE J: But, you are missing the point I am making and that

is when you just have a demand for a general regime

to find an implied duty to reinstate, it is a· ·

meaningless thing unless you talk in terms of time

and that is, is it a general duty to reinstate

before the regime comes into existence or is the

general duty to reinstate once the general regime

which is being sought comes into existence where

reinstatement would be a means of enforcing that
regime?.

MR KENZIE: Well, in our respectful submission, the finding

of industrial dispute constitutes the basis for the

making of an award in respect of a termination whenever it thereafter occurs, the require~ent

being this and no more than this, that an award

is sought reinstating an employee subsequently

dismissed. The requirement for a regime to be

set up following the demand but before the specific award relating to reinstatement is non-existent, in

our respectful submission.

DEANE J: Well, is there any authority that supports that?

MR KENZIE: Well, not so far as I am aware, Your Honour, but

we say that it must follow that, once you have an

interstate industrial dispute, the only subsequent

requirement is f"or..:arbitration to resolve that

dispute in whole or in part and that will occur,

in this case, if an award reinstating an individual
employee is made.

DEANE J:	But the proposition is that,once you have an industrial
dispute about rules governing future conduct, that embraces a dispute about past particular conduct.
MR KENZIE:	No, Your Honour.

DEANE J: Well, that is so, is it not? I mean, the 1986

dispute was a general dispute about general rules to govern future conduct after an award was made.

MR KENZIE:  Yes.

DEANE J: What your proposition is, is that that dispute

embraces a dispute about past conduct which has

occurred before any award was made.

MR KENZIE:  No, that -

DEANE J: Past, in the sense of this particular dispute is

about things that have happened.

MR KENZIE:  The demand is that all employment will be permanent save in defined circumstances.

ClT30/l/SH	54	22/11/88
Wooldumpers(2)

DEANE J: No, the demand is that ·:all employment will be

permanent under an award to govern the general

conditions.

MR KENZIE:  With respect, Your Honour, the demand is simply

that all employment will be permanent. It is a

demand for an award in those terms but the demand

is that all employment will be permanent.

DEANE J:	Yes.
MR KENZIE:	That is the length and breadth - subject to the defined exceptions - of the demand. The award made
in relation to an individual employee will be an award made partially settling the dispute found on
that demand, in our respectful submission.
DEANE J:	I follow what you - - -
MR KENZIE:	Now, Your Honour, I hope I have made this sufficiently clear: the log of claims in 1986 was not._made·.in the
context of specific conduct - dsmissing Mr King or
any individual employees. It was a claim that related
to what was to happen in the future, that is, after
1986. After 1986, if an individual employee is dismissed, a finding of dispute made on the.basis of
that log will support a claim for reinstatement.

(Continued on page 56)

ClT30/2/SH	55	22/11/88
Wooldumpers(2)

DEANE J:  You still have not addressed my problem,

and that is you avoid it by saying the demand is
all employment will be permanent. The point I
was making to you is I can only find an implied

demand for reinstatement as applying afer an award

has been made, making employment permanent.

In other words, I cannot see in this a demand for

reinstatement before any award that employment will

be permanent.

MR KENZIE:  Your Honour, our answer is that the claim is

simply a claim that all employment bepennanent, full stop.

DEANE J:	I can see the force of that.
MR KENZIE:	Your Honour, may I then come to REG V GOUGH

EX PARTE CAIRNS MEAT EXPORT COMPANY, and our submission

is that in that case the Court accepted that a dispute

arising following the rejection of an appropriately

framed log could provide the basis for an award for

the reinstatement of employees subsequently dismissed,

and that what the Court did in that case was to say

that it would really require a lot of foresight before

you could get to that stage, but if you had

sufficient foresight you could do it, and if I might

take the Court to what was said by His Honour

the Chief Justice at pages 350 and 351, 108 CLR. At page 350, at about point 6, the Chief Justice

said:

The question still remains as to how

Mr Connnissioner Gough could bring his

two informal orders within the conception

of the settlement of an industrial dispute

extending beyond the limits of one state

or within any concept of what was even

incidental thereto or consequential thereon - and there was reliance placed upon the statutory

definition, and His Honour said:

You still must have an industrial dispute

about that matter extending beyond one State.

It seems clear enough that, when Can-Pak came in and this particular question as to

the dismissal of these four men arose, that was
not a new industrial dispute extending beyond

the limits of one State concerning them.

Reference was then made to the power to vary, and

at page 351 at point 5 His Honour says this:

if there were any attempt to vary the

award, I cannot see that it would have been

within the original dispute. It would

have required great foresight to make a

ClT31/l/HS	56	22/11/88
Wooldumpers(2)

dispute about these events, events which
occurred three years later or at least two

and a half years later. But that argument amounted to a bold effort to find a ground

to support the direction given by the

Connnissioner.

Your Honour, that appears to be the metes and bounds

of what was there said about the attempt to rely upon

the earlier log. Your Honour, in our respectful

submission, in the RANGER case that case was

treated as a case in which the true dispute arose

and only arose after termination of the individuals.

In RANGER the Court went on explicitly to say that

you could generate a reinstatement dispute, that is a

dispute giving rise to the duty to reinstate, before

reinstatement, and you could do so by serving an

interstate log.

(Continued on page 57)

ClT31/2/HS	57	22/11/88
Wooldumpers(2)

MR KENZIE (continuing): Your Honour, that much appears in

the passage that I read at page 661, point 6: ··

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.

Our submission is that where that is done, and we say

it has been done here, that those disputes can be

resolved by making orders or awards for reinstatement.

GAUDRON J: But it really does depend, does it not, whether or

not it is the same dispute, whether or not the

reinstatement of the individual is the same dispute

that was created?

MR KENZIE:  Or part of it?

GAUDRON J: Or part of it?

MR KENZIE:  Yes, Your Honour, we would concede that without

that conclusion the reliance on the 1986 dispute and

its ambit is miscast and falls to the ground.	We
simply say that the demand in 1986 was that all

employees shall have permanent employment and - - -

GAUDRON J: Let us assume that the dispute goes so far as to

say, "And anyone whose employment is terminated otherwise

as here and provided shall be reinstated", and the

employers had agreed to that and an award provision

was then made in precisely those terms, which is as

much as you could have hoped for. What would then be

the status of the individual employee?

MR KENZIE:  That may have meant that the dispute as to that

matter had been completely resolved by the making of

an award setting out a complete prescription as to what

was to happen. What has happened here is that there is	a demand which has remained and remains unsatisfied
in whole.

GAUDRON J:  But may it not also indicate that they are different

disputes:  The one which could have been capable of

complete resolution in terms of the award as suggested
and the other which would not have been resolved by

that award as such?

MR KENZIE:  Your Honour, in our respectful submissiot1,:that realty

exposes the fallacy of the attack because it is trite

that a dispute might be resolved in various ways. It

might be resolved, partially within a State or

entirely in one State but not in others, or it might be

resolved by the granting in full and on a national basis

of the claim. Such a dispute might be resolved by an

ClT32/l/SR	58	22/11/88
Wooldumpers(2)

award which said, "No one shall be dismissed other

than in these circumstances and if they are they will

be reinstated" full stop. It might be resolved by the making of an award that is to this effect: "Mr King,

he having been dismissed in circumstances not

contemplated by the log, shall be reinstated". That is

simply a partial resolution of an interstate

industrial dispute and it does not cease to be a partial

resolution of the interstate industrial dispute because

it could have been resolved in another and more general

way. A resolution of the dispute in a way that

reinstates an individual is within the ambit of a

dispute in which the Union seeks, and the employers

resist a claim that all individuals be reinstated if

they are dismissed in circumstances not contemplated.

That really is the metes and bounds of the submissions

we make.

(Continued on page 60)

ClT32/2/SR	22/11/88
Wooldurnpers(2)

DEANE J:  But to follow on what Justice Gaudron says to

you, say at the relevant time, which is when the

particular dispute arose, your client got everything
that he wanted - that is on page 88, that would

say nothing at all to this dispute because it is

all framed in terms of future conduct and does

not deal with past dismissal, past permanency or

reinstatement arising out of what is past.

MR KENZIE:  That is so because-in circumstances where this

dispute was resolved in that way that may be so

but if the dispute were· resolved in another way,

it would, and could, involve a reinstatem~nt·award.

That is saying no more, with respect, Your Honour,

than that the dispute could be wholly resolved

in a given way and on the basis that a procedure

was set up which was general in application for

the future.

DAWSON J:  You could also say that, of course, this dispute

may never had happened if an award had been made

in those terms because the employer would not have

dismissed him.	And, in that sense, it would have
resolved it.

MR KENZIE:  Your Honour, possibly, but an employer may have

dismissed in breach of the award leading to

proceedings under section 119.

DAWSON ·J: Well, that is a different thing.

MR KENZIE: Yes. We concede all that but we simply say that

that is just one means by which the dispute might

have been settled.

DEANE J:  But that is the means whereby your client gets

everything he has asked for.

MR KENZIE:  Yes, and that is so. If the matter had been

resolved on that general basis then the issue of

Mr King's reinstatement may not, in fact, have
arisen.	The fact of the matter is that a general

demand is made; it is not met; Mr King is then

dismissed and the question is whether a claim for

his reinstatement is within the ambit of that dispute.

In our submission, it is because he is seeking

permanent employment.

(Continued on page 61)

ClT33/l/AC	60	22/11/88
Wooldumpers(2)

BRENNAN J:  That really assumes, does it not, that it is

right to characterize the Commission's consideration

of Mr King's request for reinstatement as a partial

settlement of the wider dispute. In other words,

the part of which it is - the part is an individual

case, the wider dispute is of the generality?

MR KENZIE:  Yes.

BRENNAN J: It seems to me to be a very curious characterization

of the wider dispute which, by its nature, was

intended to lead to a general provision?

MR KENZIE:	Well, Your Honour, Your Honour says "intended to lead to a general provision" but the answer to
that question is that it was capable of leading
to any provision within its ambit and if it was
general or specific it would still be within the
provision and it is a mistake to go back and to· categorize what the Commission can do by
reference to what might have been intended by
those who served the log.: The log may r.esul t in a general award, it may result in complete
rejection by the Commission, reactivation of the
demand at a later period of time and the like.
But, Your Honour, we accept Your Honour's
formulation. If the Commission is in error in
saying that it is within the ambit well we must
fail in relation to this point.  We say the
Commission is simply not in error.

Your Honours, we say that the foresight

argument, that is, the argument that should have

required great foresight in GOUGH's case has to

be looked at against the more recent pronouncement

in RANGER which contemplates that you can have

sufficient foresight if your claim is appropriately

framed otherwise, Your Honours, the general

statements in RANGER are really, with respect,

empty and devoid of industrial content. Now,

Your Honours, we submit - could we give Your Honours

a reference to another part of LUDEKE's case,

RV LUDEKE, (1985) 159 CLR 178 at page 183.

(Continued on page 62)

ClT34/l/MB	61	22/11/88
Wooldumpers(2)

MR KENZIE (continuing): In that passage the Court comes

to deal with the argument that the dispute was
not genuine because it really amounted to a

claim for something that the Union did not

then want. That was rejected by the Court

in the following terms, at page 183 point 3:

Because the provisions of an award which settles a dispute must be

"relevant", "reasonably incidental",

or "appropriate" to the statement

of what is in dispute, it is

essential that the log is so expressed

as to create a dispute which has

sufficient breadth and scope: (1) to

ground a general industry award free

from objections on the ground of ambit;

and (2) to justify variations of the

award which may be made from time to

time under section 59 in order to

preserve the settlement of the initial

dispute or to prevent a fresh dispute

arising. For this reason, and because

disagreement generating a dispute may

relate to what is to be done in the future

rather than the present, it is unnecessary

for an organization to insist that its

demands be implemented immediately in

order that they be bona fide. These

demands, known as "ambit claims", are

designed to establish the margins of

the dispute and to justify the making
of an award, if not initially, later by
way of variation, within those margins.

Then, Their Honours say that that is why claims far money claims which seem originally extravagant may turn out not to be so, it being simply one example.

Your Honours, we say that the perhaps rather

confining analysis of Chief Justice Dixon in the

CAIRNS case has to be read with RANGER and with

perhaps LUDEKE in mind. We go on to submit that

the dispute in question is a dispute as to an

industrial matter as defined in section 4(k)

of the CONCILIATION AND ARBITRATION ACT.

(Continued on page 63)

CIT35/l/JM	62	22/11/88
Wooldumpers(2)

MR KENZIE:(continuing): If we could remind Your Honours

of the terms of that, which are set out in RANGER,

of course, an "industrial dispute" is defined as a dispute in relation to industrial matter and "industrial matters",in section 4 of the

CONCILIATION AND ARBITRATION ACT, are defined

as meaning:

all matters pertaining to the relations

of employers and employees and, without

limiting the generality of the foregoing,

includes -

(k) the right to dismiss or to refuse

to employ, or the duty to reinstate in

employment, a particular person or class

of persons.

And the contrary is not contended, that the claim

here, if we be correct in our analysis of the

log, involves neither an attempt to confer power

on the Commission beyond that conferred by the

Act nor a claim founding a dispute requiring

for its resolution the exercise of judicial power.

In relation to the observations about the exercise of the judicial power, we found

upon the decision in RANGER itslef, pages 663

and 664, and we ~ay that the making of an award,

reinstating in employment an individual employee,

would not be the exercise of the judicial power

because it would not be taking defined circumstances

and applying them to the facts of the case.

What would be happening would be that new rights

would be being created where none existed before

and that would be, in the terms discussed at length

in RANGER, the exercise of an arbitral and not

a judicial power.

(Continued on page 64)

ClT36/l /SDL	63	22/11/88
Wooldumpers(2)

MR KENZIE (continuing):  We say that the matter is fully

discussed and our friend, Mr Black's concerns

are, really, put to rest in RANGER at those

pages.

Your Honours, in paragraph 3 we refer to the authorities relating to the resolutior:sof

industrial disputes and to the principles that

the Commission may settle an industrial dispute

by any provision which is reasonably incidental,

relevant or appropriate to the settlement of the

differences constituting the industrial dispute

or having a rational or natural tendency to dispose

of the question at issue.

We say that one has the decisions of the Court

in relation to the way in which one construes logs of claims. We have the recognition that a dispute with defined ambit can be resolved by the making of

a provision which is reasonably incidental or

relevant or appropriate or having a rational or

natural tendency to dispose of the question at

issue and we say that it becomes really impossible

to argue that the making of a reinstatement order

or award would be outside the ambit of the dispute

found to exist in 1986.

Now, in paragraph 4, we go an to make the point that I have already really made in argument a number

of times; that if it be accepted that the 1986
dispute involved inferentially, reinstatement, then

the Commission is invested with jurisdiction to

partially settle it by an award reinstating in

employment a particular employee or particular

employees dismissed without the consent of the

Union, even though that takes effect only in one

State and we call in aid the well-known passages

in REG V ISAAC AND OTHERS: EX PARTE STATE ELECTRICITY

COMMISSION OF VICTORIA and I do not invite the Court

to open that volume at this stage.	I do not think it
is disputed that,if we are correct in relation to the

first proposition, the second proposition follows.

(Continued on page 65)

ClT37/l/SH	64	22/11/88
Wooldumpers(2)

MR KENZIE (continuing):  Now, Your Honours, they are the

submissions that we make which rest upon the

1986 finding of dispute. Your Honours, if we

be wrong as to that and one then turns attention

to the notification that was given in 1988,which

is the notification in matter 31349, our submission,

which really is a submission that the prosecutor

has not discharged the onus upon it, is that

onus of proving clearly the absence

the rule nisi should none the less be discharged. bears the

of jurisdiction and we submit that in this

case the prosecutor has not shown that the

Commission is not entertaining an industrial

dispute, that is, a dispute in relation to an

industrial matter which is agitated not merely

on behalf of a former employee, that is, Mr King,

but on behalf of employees, members of the

Union generally - or if we be wrong about that at least members of the Union working pursuant

to the same award as governs employment at

Wooldumpers - being a dispute as to the

procedures to be adopted in relation to the
dismissal of employees in general and which has
implications or likely repercussions for the
industry as a whole or perhaps more correctly
for employees employed in the industry as a whole.

In this regard we would submit that the

decision in the CAI!ffl.S MEAT EXPORT case is
distinguishable because the contrary conclusion
was reached on the facts of that case.

Your Honours, as to the evidence in relation to

that could we refer to the application book,

pages 50 to 53, which supports the contention

that what was being addressed was questions which

went beyond Mr King but went to questions of

the appropriate procedures to be adopted in

relation to dismissals. There is a question asked

by Mr Ceran at page 50 as to:

whether any other employee had ever

been warned ..... ?---No.

(Continued ·on page 66)

ClT38/l/HB	65	22/11/88
Wooldumpers(2)

MR KENZIE (continuing):

As a union delegate do you think that you would have been aware of other employees being warned ..... ?---Yes.

He says that he is the Union delegate and he

would have known. At page 51 there is

extensive examination as to the warning and

the procedures involved -

GAUDRON J: All, though,confined to the practices at

Wooldumpers, not relating to the industry and in a circumstance where the registrar's

notification is sent only to Wooldumpers.

MR KENZIE: 

All of that is true, with respect, Your Honour,

and indeed, if I may refer to the notification
at page 96, the notification on behalf of the
Union is a notification of an impending

industrial dispute between the members of the

Union and Wooldumpers and it is said that the members are employed under the terms and conditions

of a relevant award. And that:

The impending dispute had arisen as a

result of the wooldumper's decision

concerning the termination of employment

of a member of this union on Wednesday,

4 May, 1988.

So the notification identifies Wooldumpers;

the evidence is about Mr King at Wooldumpers

but none of those things, in our respectful

submission, are determinative.	One has to have
a look at the matter as a whole.	An incorrect

decision, identification within the notification,

is not destructive of jurisdiction, but only

indicative. When you look at the evidence as

a whole it supports the contention that what is

being addressed is that there are matters of

procedures which are of concern to the organization.

And if I can direct Your Honours' attention to page 53 of the application book - this is in the

context of warnings:

(Continued on page 67)

ClT39/l/JM	66	22/11/88
Wooldumpers(2)

MR KENZIE (continuing):

If other people -

this is at about line 27

are going to be warned, were you, as the

delegate, called for?---Yes.

On those occasions?---Yes.

I think that is the point you are trying to make.

I think that is the Commissioner that asked that

question.

MR CERAN:  Yes.

So, true it is, all of this, against a background

of what happened at Wooldumpers - that is the reason

that people are before the Commission - there is

being discussed matters relating to warnings and

matters relating to the procedures for dismissal

and whilst there are indications in the material

that that relates specifically to Wooldumpers, the

prosecutor bears the onus, in our respectful

submission, of satisfying the Court that that

dispute is not one that falls within the description

that was set out in cases such as SLONIM V FELLOWS

and REG V STAPLES, to which I will now come, namely,

a dispute which, whilst it looks like a dispute of

an individual site or establishment, has repercussions

or implications for industry as a whole. So that it

is a mistake, in our respectful submission, to look

at the length and breadth of what is said in the

notification. One has to go beyond that or may

have to go beyond that and the onus is on the

prosecutor to satisfy the Court that the dispute
that we are talking about here is not in the
relevant category. Could I refer to two passages. (Continued on page 68)

ClT40/l/SH	67	22/11/88
Wooldumpers(2)

MR KENZIE (continuing): Firstly, in SLONIM V FELLOWS,

154 CLR 505, and at 515 Your Honour Mr Justice Wilson,

said this, and this is in relation to the concluding

phrase of the definition of "industrial dispute"

which was relevant to the Victorian Act - a passage

that is relevant to the definitions in the federal Act re threatened, impending or probable disputes:

In a case where an association of employees is aggrieved by what it conceives to be the unfair dismissal of one of its members, and

its overtures to the employer are rejected,

there could very readily be perceived, if

not an actual dispute, a threatened or

impending or probable dispute. Such a dispute,

if not open to be dealt with promptly in

accordance with the Act as a dispute involving
the dismissal and reinstatement of a particular

employee, could readily escalate into a major

confrontation between the association and

the employer. It is perhaps not without

significance in the present case that the

letter from the Union to the Registrar -

et cetera. Now that passage is consistent with

passages both within RANGER and in the other case

on our list, STAPLES. Could I remind the Court

first of the passage in RANGER.

WILSON J: That statement was in the context of the Victorian

Act where there was no problem of interstateness.

MR KENZIE:  No. We accept that, Your Honour. But the point

we make we say is not affected by that consideration.

Indeed, it is a consideration that has been picked

up in cases which were concerned with the federal

Act and not the Victorian Act.

GAUDRON J: Yes, but not all of the federal Act requires

interstateness. It was not required for the

AUSTRALIAN TELECOMMUNICATIONS COMMISSION for example.

MR KENZIE:  No. We readily concede that in that case there

were considerations that were relevant which are

not relevant here. For example, the Australian

Telecommunications Commission by definition

operated - even if inters ta tedness had otherwise

been required, was operating throughout Australia

but the definitions in the Act were different.

ClT41/l/AC	68	22/11/88
Wooldumpers(2)

MR KENZIE (continuing):  We say that those passages are

consistent with passages within RANGER and within

STAPLES where different considerations applied.

Could I take the Court briefly to RANGER and at page 661 again, at about point 3, 163 CLR 661,

the Court said 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 employement 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 - and there is a reference to CRAM. Now, the question

that arises, we suggest, is whether those principles

are only applicable to circumstances in which you
have employees of the one employer, and our submission

is that the industrial interest does not cease to be direct because we are talking about employers rather

than a single employer, and does not cease to be

direct because we are talking about employers in

more than one State rather than in one State, and

we submit that that passage has relevance and is

of assistance here.

(Continued on page 70)

ClT42/1/HS	69	22/11/88
Wooldumpers(2)

MR KENZIE (continuing): In the case of STAPLES; EX PARTE

AUSTRALIAN TELECOMMUNICATIONS COMMISSION, a case which

we readily concede raises some considerations similar

to those discussed by Your Honour Justice Gaudron,

(1980)143 CLR 614, at page 625-and this,we hasten to

add is, of course, within the context of the

TELECOMMUNICATIONS ACT which has a narrower definition

of "industrial dispute"_.. That appears in the headnote,

but half-way down page 625: ·

It is not immediately apparently, for

example -

this is in the judgment of three members of the Court -

why an individual employee may not raise with
the management a question of safety procedures

attending the performance of the work and find

himself in an industrial dispute with his

employer on that question in the event of an

unsatisfactory response. A dispute about

safety procedures may threaten repercussions

within the industry.

Then there is a discussion about what happened in the

individual case. At the bottom of the page:

The existence of an industrial dispute is a

question of fact, and will depend on the

circumstances of the particular case. If it

appears that a lone employee cannot invoke the

jurisdiction of the Commission then we suspect

that the reason is that the limited nature of

the dispute.

That is. that it has to be innately industrial. Then over on page 627 the Court comes back to the issue

and at about point 3 says:

We would also add, with reference to the

earlier discussion of the possibility of an	industrial dispute arising between a single
employee and his employer, that in the
circumstances of this case even if Mr Morris
were able to bring the subject-matter of his dispute within the literal terms of the
definition of "industrial matter" ..... we would
have grave difficulty in drawing a conclusion
in favour of jurisdiction.

ClT43/l/SR	70	22/11/88
Wooldumpers(2)

MR KENZIE (continuing):  There is a reference to the

definition; and a statement that the Court inclined

to the view:

that the whole context of Div. 8 requires

an "industry" character to be given to

the concept. It may be true that Mr Morris

in January 1979 had a dispute with his

employer over the number of hours that

he was required to work, and that such a

dispute might have satisfied the literal

words. At about four lines from the bottom of that paragraph:

nevertheless there is no suggestion in
the materials before the Court that the
dispute had any implication or likely
repercussion or dislocation for the
industry as such as to give the necessary

character to what would otherwise be no

more than a personal dispute.

We would submit, at the least, that the notification

of dispute in this case, notified of an impending

dispute flowing out of the dismissal of Mr King,

and there are suggestions from within the transcript

that what was at issue were matters of procedure

relating to dismissal which would have a direct and

not simply a tangential or consequential impact on

members of the Union, or at least members of the

Union employed pursuant to the same award as

applicable at Wooldumpers. So, Your Honours, we make

those submissions by way of alternative submissions
to our principal submission which is that the dispute
is well and truly within the ambit--that a reinstatement

award is well and truly within the ambit of the

1986 dispute.

If it please the Court, they are our submissions.

until 2.15. Thank you, Mr Kenzie. The Court will now adjourn

MASON CJ:

AT 12.55 PM LUNCHEON ADJOURNMENT

ClT44/1/HS	71	22/11/88
Wooldumpers (2)

UPON RESUMING AT 2. 17 PM:

MASON CJ:  Yes, Mr Solicitor.

MR GRIFFITH: If I can hand the Court our contentions.

My learned friend, Mr Black, indicates that he

disagrees only with the last one, if the Court

please.

MASON CJ:  Thank you.

MR GRIFFITH: If I could answer Justice Wilson's question

made before lunch, as to the effect of the 1986

log served after the 1985 log. We would suggest

that the correct analysis would appear to be

that the 1986 log supersedes the 1985 log and
therefore it would constitute the current extant

dispute. If we could give the Court a reference

as to that:  REG V COMMONWEALTH CONCILIATION

AND ARBITRATION COMMISSION EX PARTE BOOT TRADE

EMPLOYEES FEDERATION, (1966) 114 CLR 548, at

page 554.

As to proposition 4 of our contentions,

we would, with respect, agree with Justice Gaudron's

suggestion to my learned friend, Mr Kenzie, that

the question. really is whether the dispute is

the same dispute as that constituted by the 1986

log. So, to that extent, it would seem to be

essentially to us. an issue of construction

and, as to that question of construction which,

of course, involves the consideration of the

ambit of the log, may we take the Court very

briefly to the statement of the present Chief Justice

in REG V HOLMES EX PARTE VICTORIAN EMPLOYERS'

FEDERATION, (1980) 145 CLR 68 at page 76. There

Your Honour said that the purpose of the doctrine of ambit:

is not to determine the validity of a claim

or log of claims, but to ensure that there

exists an 'lppropriate relationship between

the dispute, especially a paper dispute,

and the award which settles that dispute.

It must appear that the provisions of the

award constitute a settlement, if not a

prevention, of an industrial dispute extending

beyond the limits of one State. The provisions

will have this character in the case of

a paper dispute if they are within the
ambit or scope of the log of claims. If.the

provisions are outside.this ambit or scope they cannot

be characterized as a SEttlement of the dispute. It has

been said that a provision will be within ambit if it is "relevant" or 1_'reasonably incidental" or "appropriate"

to the settlernentof the differences constituting the

'dispute or if i_t has a rational or natural tendency to

· disr,ose o:f the question at issue.

ClT45/1 /SDL	72	22/11/88
Wooldumpers(2)

MR GRIFFITH (continuing):  Of course, as Justice Aickin

said in RV GAUDRON; EX PARTE UNIROYAL PTY LTD,

(1978) 141 CLR 204 at page 231 - Justice Aickin

said:

There is no doubt that an award may be made

in terms different from those contained

in the log of claims, but that is not to

say that it may step outside the ambit of

the dispute.

So one comes back to the question of construing

the log of claims as it appears on page 88

of the application book and, in particular, we

would refer to the first sentence and the first

part of the second sentence of paragraph (a) and
the first sentence of paragraph (b) and

submit that,. in effect, there is a claim that all

empLoymenc shall be permanent say that it may be

terminated on not less than six months notice

given with the prior consent of the Union.	We
submit that they are collective demands of
employees in different States.	·

Now a clause in this term may be contrasted

directly with the terms which existed in respect

of the 1973 log which appears in the application

book at page 82 and, of course, that is very

similar - in fact, it is the same terms as the

log which was under consideration by this Court

in the RV CLARKSON: EX PARTE GENERAL MOTORS-HOLDEN'S

PTY LTD, (1976) 134 CLR 56. There at page 71,

in Your Honour Justice Mason's judgment, it is

made clear that absent reference of State

legislation, a claim .. in the terms of that log,

was not sufficient to embrace claims in respect

of reinstatement and, with respect, we would

agree with that construction. So as we see it

the issue is whether the different and more extensive

form of words here rr~y fairly be construed as

embracing claims in respect of reinstatement

or claims in respect of matters pertaining to the

ending of the employment relationship.

(Continued on page 74)

ClT46/l/MB	73
Wooldumpers(2)

MR GRIFFITH (continuing):  We submit that one may

here adapt the. language of this Court in

REG V LUDEKE, which has been referred to

in 159 CLR 178, in particular at page 183,

and submit that it is clear that clause 23

is expressed so as to create a dispute which

has sufficient breadth to justify an award.

The ~laim for an award for the reinstatement

of King, in our submission, is within the

margins of that dispute as being regarded as

relevant, or resonably incidental, or

appropriate to the settlement of what is in

dispute in paragraph 23 of the log.

Firstly, looking at the claim of the log

in clause 23, we submit that it would support

a general award provision providing, for example, that as from the date of the finding of a dispute

dismissals should only be in accordance with the

claim made in clause 23. A different.version

could be, for example, and we woµld submit that

also would be within the ambit of clause 23,

would be to provide that dismissal should not

be harsh, unjust or unreasonable. Indeed, it

seems that some such possibility occurred to

the Conunissioner because if one looks at the

award, at page 31.of the application book,

the Conunissioner, after hearing relevant

submissions from the Union advocate, which

conunence on the previous page, where it was

submitted at the bottom of page 30 that

the Conunission may make an award for reinstatement

within the ambit of the log of clause 23, and

further submitted, at about line 33, that

an award for reinstatment of a dismissed employee

is consistent with that log, the Conunissioner

said:

Well, I think I should state at

this stage that as I see it, the

request is that the dismissal of a member

unreasonable. If I was to find that,
of course, then an order for reinstatement

may issue.

of the union was harsh, unjust and

We would submit that clearly the Conunissioner may

have ordered a provision by way of award - of course,
"order" and "award" are coterminous in meaning

for the purposes of the Act - could have ordered

that in respect of employees of Wooldumpers, that

employees should not be dismissed in circumstances

which were harsh, unjust and unreasonable.

CIT47/l/JM	74	22/11/88
Wooldumpers(2)

MR GRIFFITH (continuin~):  And we would submit further that

such a provision could have been ordered

retrospectively, for example, to the date of the
service of the log of claims. Retrospective
operation is something which is, of course, an

ordinary course of exercise of the jurisdiction

of the Court, and if I could give the Court a

reference to FEDERATED ENGINE DRIVERS ASSOCIATION

OF AUSTRALIA LIMITED V ADELAIDE CHEMICAL AND

FERTILIZER COMPANY LIMITED, (1920) 28 CLR 1 - - -

DAWSON J:  You are suggesting an award could have been made

that, in general terms, an employer cannot dismiss - or has to reinstate the employee where the dismissal has been harsh, unjust or unreasonable.

MR GRIFFITH:  Yes, Your Honour. It could have been made

limited to Wooldumpers too as part of the settlement

of that aspect of the interstate dispute. It did

not have to be general.

DAWSON J:  But in general terms.

MR GRIFFITH: It could have been general under the log.

DAWSON J:	But I thought Mr Kenzie disclaimed that.
MR GRIFFITH:	Your Honour, it is a matter of saying what

is possible for the Commissioner to do and we would

submit, Your Honour, quite apart from - - -

DAWSON J: Well no one questions it would be possible to

make an award in general terms retrospective under

which the dismissed employee could then claim but

that is not what we are talking about.

MR GRIFFITH:  Your Honour, I was going to make another step.

This was the first step of a two-step proposition.

I was going to submit, Your Honour, that if such

an order was made, say limited to Wooldumpers'

employees, Your Honour -

GAUDRON J: 

But the nice question is though as to whether

or not there had been a breach of the award, it
not having been varied retrospectively at the time
of the action said to constitute the breach.

MR GRIFFITH: 

Your Honour, that would be a nice question for further examination but the question here is

whether or not the Commissioner is able to proceed

at all and we would submit, Your Honour, that a provision could be made which was retrospective and that then, Your Honour, it would be a matter

of consideration whether or not the claim by King could be one which could proceed analagous to the

manner in which the claim in RANGER URANIUM proceeded

or whether or not that would be a truly enforcement

provision involving judicial power so that it would be necessary
to take other steps to enforce the award so far as King's

rights were concerned.

ClT48/l/AC	75	22/11/88
Wooldurnpers(2)

MR GRIFFITH (continuing): Now, Your Honour, we would concede

there are obviously issues there which would arise if
that course of conduct had been taken by the Cormnissioner

in dealing with the essence of the claim. But what

the Cormnissioner has done, in our submission, has

taken the cormnon approach to issues of these sort and
to leave the general issue raised by the log as a
matter going to general ambit and concentrate
attention to the question of jurisdiction to resolve

the particular dispute which we have submitted and

it is covered by our earlier contention would be an

interstate dispute following upon the log.

So that we submit that the particular award in

respect of KING which provided, for example, for his

reinstatement as a particular employee in the event of

non-compliance with the procedures of clause 23 or,if

one liked in the event that there was a provision

dealing with termination being not in circumstances or

unjust or oppressive in breach of that obligation would,	in itself, be an order which would have a rational or
natural tendency to dispose of the question at issue. We submit that it is relevant, reasonably incidental
and appropriate to the settlement of the differences. Now a claim for reinstatement could, of course, operate
in two ways. One simple way for it to operate would be
an order for reinstatement as from the order of the
reinstatement and we would submit that there is no
difficulty about an order of that sort being made within
power. Alternatively, it could be an order expressed
to be effective from some earlier date and we submit
that just as other orders of the Cormnission may be made
retrospective there is no inherent reason why an order as
to that sort could not be made retrospective.

But on either view, it is our submission that

such an appro~ch comes comfortably within the approach

indicated by this Court in the RANGER case and also within

the earlier statement of the Cour.t in the REG V LUDEKE,

159 CLR 183, the passage that has already been referred to

by my learned friend, Mr,'Kenzie.	There it is ,said by the
Court, having referred to the reference to the log to

ensure that it is able:

to create a dispute which has sufficient
breadth and scope: (1) to ground a general

industry award free from objections on the ground

of ambit; and (2) to justify variations of the	award which may be made from time to time under
section 59 in order to preserve the settlement of the initial dispute or to prevent a fresh dispute arising ... ,'. For:,,this reason, and because disagreement generating a dispute may relate to what is to be done in the future rather than the present, it is unnecessary for an organization
to insist that its demands be implemented
irmnediately in order that they be bona fide.

ClT49/l/SR	22/11/88
Wooldumpers (2)
MR GRIFFITH (continuing):

These demands, known as "ambit

claims", are designed to establish the
margins of the dispute and to justify
the making of an award, if not initially,

later by way of variation, within those

margins.

And, it is our submission that this is just a

particular aspect of dealing with an issue, a particular dispute within the margin which is

amenable to resolution, in our submission,

without the making of a general award provision,

either to cover Wooldumpersas an employee,to

cover employees in Victoria,or to cover all the

employers on whom the log was served.

GAUDRON J:  Mr Solicitor, may I ask you there: you said "a

particular dispute" and that, really, does raise

the issue, does it not, whether you have got -

whether it is a - well, one of the issues - whether

it is a particular dispute or a dispute relating to

the relationships of employers and employees?

MR GRIFFITH: That comes back to your initial question,

Your Honour. It is a matter of characterization

as to whether this is the dispute which is within the ambit of the claim;that remains the issue, we

would concede, but we would submit, Your Honour,

that it is the ordinary process to resolve disputes;

that a Commissioner may, for example, in this case,

make an order under the 1986 log which, for example,

has the effect of varying the 1973 award made under

earlier logs by the addition of a particular provision

providing for reinstatement.

Alternatively, one would suppose there could be

a general award made by way of making a new award

with the addition of a paragraph in the term of

clause 23 or some variation within the ambit of that

paragraph but, if the Court pleases, we would say that

when one goes to the RANGER case itself, one sees a

situation for the moment, looking at it apart from

the question of whether or not there was an interstate
dispute which did not arise there, where there was a

claim for orders for reinstatement by employees, a

group of employees, by reference to issues of

industrial equity in respect of employees who had

already been dismissed in circumstances where there

was no relevant provision in the award to cover them.

ClTS0/1/SH	77	22/11/88
Wooldumpers(2)

MR GRIFFITH (continuing): In that case, we would submit

the Court had no difficulty in embracing the

possibility of jurisdiction being exercised

by the Connnission to order what was there claima::i,

namely reinstatement of those persons. The

additional ingredient here is the element of

establishing an interstate element. We submit

that that is established and that accordingly

there is analogous reasons in this case, as
there was in the RANGER case, to find that a simple
and direct order for reinstatement comes within

the jurisdiction of the Connnission, just as the

Court was able to concede that such a possibility

was within the jurisdiction of the Connnission.

That does not mean that it will be exercised, of

course,, .·but here we are talking about questions of

possibilities and we submit that one cannot

say, looking at the threshold of consideration,
as we are in respect of the material in this

case, that the Connnission on no view is able to

make an effective order which will be referable

to the ambit of the dispute raised by the log

and which will be one which is within the

jurisdiction of the Court.

DEANE J:  Mr Solicitor, is there any problem in relation

to penalties in terms of making an award

retrospective? I mean, is what you have done

in the past thereby going to be made a breach of

the award?

MR GRIFFITH:	Your Honour, it seems this Court, particularly in the FEDERATED ENGINE-DRIVERS' case, Your Honour,
which is really good clear authority that such
orders can be made.
DEANE J:	Was that problem adverted to?
MR GRIFFITH:	I do not think it was, Your Honour, ·no. But

there there was a claim made; there was not a

claim for retrospective payment, Your Honour.

This is 28 CLR 1 at 4. It is stated that:

The original claim did not include any

special claim for retrospective payment.

The question is, one sees on page 5 question 2, whether or not there can be an! order made in respect of Tasmanian respondents who were not parties to an award which continues in force for

payment for work done prior to the date on which

the award is made.

Your Honour, the Court there at page 9,

accepted, one sees in the last sentence of the

paragraph ending on that page:

CIT51/l/JM	78	22/11/88
Wooldumpers(2)

There is nothing in the Arbitration Act

compelling the Court to make one award;

it may dispose of the dispute wholly or

piecemeal as it thinks convenient.

Then, there follows a discussion which is drawn

together in the first para~raph commencing in

the middle of page 11, indicating that there

is no objection, Your Honour; to an award which

has the effect of ordering retrospective payment.

DEANE J: Yes, but that is a different thing, is it not,

in that you can talk about retrospective payment

but if you say you will pay him his wages for the

last five weeks, it is not a retrospective award,

whereas if you say as from three months ago, it

is ordered that you will not dismiss somebody

without the consent of the Union and thereby

create an offence for what has happened in the past; you are in a completely different area.

(Continued on page 80)

CITSl/2/JM	79	22/11/88
Woordumpers (2)

MR GRIFFITH:  Yes. Well, Your Honour, perhaps that is an

issue of the manner in which an order, an award,
would be framed. We have submitted, Your Honour,

that a simple approach would merely be to provide

an order for reinstatement from the date of the

order when such issues would not arise. Now,

Your Honour, we would submit if that is a possibility

well, then, the order nisi should be discharged

because the Commission is able to proceed with

jurisdiction that far. Now, if there is a question,

Your Honour, of whether or not the effect of the order is to make an order in respect of matters

which would retrospectively create an offence that

might be another issue. It could be a matter which

was covered by the appropriate terms in which an

order was drafted.

DEANE J:  What I was wondering about in the questions I

was asking Mr Kenzie was is there any authority

that supports the approach that the log when it

is served speaks as at that time and when the

demand is rejected you then have the, as it were,

area of dispute defined and any interim activity

or action, if it would come within that dispute,

looked at prospectively from that earlier time

will be in it even though the particular Act is

done subsequently. I am being incoherent but I

think you probably get the general - - -

MR GRIFFITH:  Well, Your Honour, perhaps the FEDERATED ENGINE

DRIVERS' case goes to the first two steps.

MASON CJ:  Well, it is discussed, is it not, on page 11.

If you look at the first two paragraphs, the

incomplete paragraph that commences on page 11

and the subsequent paragraph.

MR GRIFFITH:  That is commencing the sentence -

MASON CJ:  'The judgment touches on these matters.

MR GRIFFITH:  Yes. That is the sentence beginning, "The

award", Your Honour?

MASON CJ:	Yes.
MR GRIFFITH:	Yes. Would Your Honours like me to read

this out?

MASON CJ:  We can read it for ourselves, Mr Solicitor.

-

MR GRIFFITH:  Yes. Well, I am indebted to Your Honour. That is

perhaps what I was searching for - is that one

can analyse the effect of an order made that

has retrospective operation as indicating that

there is to be an obligation in futuro arising

ClT52/l/MB	80
Wooldumpers(2)

out of the mat~er in respect of which there has

been a retrospective treatment. But one does not

say that the obligation was pre-existing, it only

comes into existence once the order is made.

DEANE J:  Or put differently it would be, for me, much

easier to accept a suggestion that the ambit of

the dispute can be defined historically or

retrospectively rather than that an award could

be made retrospective in the true sense.

MR GRIFFITH:  Your Honour, perhaps it is a matter of

characterization as to whether one is fixing the ambit retrospectively or merely looking back and

saying, "Well, there are the words which were in

the log served some years ago~ What meaning is

to be given to them including meaning which were

covering events which have happened in the

supervening periodi"

DEANE J:	I follow the way you put it, thank you.
MR GRIFFITH:	We would submit that the Commissioner is

able to make a specific award dealing with this

employee. He does, we would submit, have a choice

of the manner in which such an award be framed

but that power may be exercised in a manner which

on its face would not seem to involve any exercise

of judicial power or even arguably exercise

judicial power and that that possibility, having

been spelt out, in our submission, that is

sufficient for the order nisi to be discharged.

(Continued on page 82)

C1T52/2/MB	81
Wooldumpers(2)

MASON CJ:  Mr Solicitor, what is the Commonwealth's interest

to argue the particular questions on which you

have directed submissions as distinct from some

larger and more important question - scope of

constitutional power?

MR GRIFFITH:  I was about to address a remark to that issue,

Your Honour, but having - - -

MASON CJ: Well, you can treat my question as an appropriate

vehicle on which to address that - - -

MR GRIFFITH:  Your Honour, we, primarily, are here because

it was not part of the order for the order nisi

that we be served with a 78B notice, Your Honour.

Having been served with it, we found the issue

an interesting one, Your Honour, and it was rather

difficult until one got this far along

to be sure as to where the constitutional issue

was. But having done that, Your Honour, we would concede that, having in the course of argument

today moved along to the issue of being really

that raised by clause 4 of our contentions, it

is probably about two steps removed from the issue

of constitutional construction~.and

our interest would be limited. But I suppose at

that stage, Your Honour, it may be said that our

submissions, short as they are, are mostly justified

by reference to our desire to assist the Court

in construing an Act of the Parliament - to put

it in a word, Your Honour - limited.

If the Court pleases.

MASON CJ:· Yes, thank you, Mr Solicitor. Yes, Mr Black.

MR BLACK:  Might I first deal with the answer to the

Solicitor-General's suggestions as to how this

matter might be solved within the existing Commission

proceedings without going beyond ambit. The short

answer, in our submission, is that the general

methods of solution suggested are not methods that

have been pursued in the proceedings below and

which I would understand to have been disclaimed,

inferentially at least, by my learned friend,

Mr Kenzie. The evidence is in as far as the Union's

case is concerned; the primary submissions are

finished and there is no suggestion that what is

sought to be done is to activate the whole claim

under the 1986 log.	The issue relates to Mr King
and to Mr King only.

DAWSON J: Well now, to get that quite straight, you say

that what they are asking for is an order that

Mr King be reinstated.

ClT53/l/AC	82	22/11/88
Wooldumpers(2)

MR BLACK:	He gets his job back, in plain terms, yes.
DAWSONJ:	And nothing else?

MR BLACK:  Nothing else. And however it is done, that is

what they want and that is plain and they do not
want an argument about the regime - the general

regime - that is sought to be established by the

1986 log. Now, as to the permanency argument

advanced both by my learned friend, Mr Kenzie,
and by the learned Solicitor-General, we contend

that permanency is the wrong characterization of

the demand. At best the end sought by the demand

is permanency but permanency of a qualified

character -that is to say, permanency except with

the consent of the Union and particular notice.

In this case six months notice.

Now, to express that qualification really,

in our submission, points to what the dispute is

about. The dispute is not about the end but about

the means and the means are what define the dispute.

The means sought are restrictions on termination.

Given those restrictions on termination then there is a degree of permanency, though not complete

permanency, as the end and that is why, in our
submissions, we have been careful to characterize
the ambit of the claim in a way that avoids

permanency. That, in our submission, is really

a prima facie view that does not reflect what the

claim is really about.

(Continued on page 84)

ClT53/2/AC	83	22/11/88
Wooldumpers(2)

MR BLACK·(continuing):  One could put it another way:

the claim is about the means of ending the contract,
that is to say, restricting the means of ending

the contract, not about the means of establishing

a contract from time to time.

In our submission, there is a distinction

to be drawn in industrial matters, between the

means and the end, at least in so far as ambit

is concerned.	One could have, for example, a
log claiming reduced hours.	The result of that

log might be that if hours were reduced, an employee

working 40 hours would be getting, in effect,

more money for less work if the hours were reduced

and so his or her general rate of pay would increase

if the hours were reduced to 38. But that log
could not be a vehicle for wage claims; it would

be, first and foremost, a log with respect to

hours.

Turning to the other aspect of the argument:

in our submission, the problem facing the respondent

·lhion in this case is, how does one activate

around Australia or around sufficient parts of

Australia a claim that would encompass individuals

whenever an individual case arises. We say that,

at least in this case, that question is insoluble

because what is sought by most logs, and what

relevantly is sought here, we say, is the creation

of a general right and the creation of those

rights in future.

So that what it comes down to is, in our submission,a demand for the creation of a general

future regime, ultimately, in the form of an

award. The problem there is, if that is the

true characterization, that when an individual

case arises before the regime is in place, first

the individual case would not ordinarily, at

least, be contemplated by the paper dispute -

it has nothing to do with the regime. Alternatively,

the individual case cannot, in our submission,

rationally advance the regime.

The Wooldumper's Mr King award, 1988, if

ever made, would not advance or part-settle a

demand that has, as its outer limits, the creation

of a regime.

C1T54/l/SDL	84	22/11/88
Wooldumpers(2)

MR BLACK (continuing): First, because it would just be a

tiny step and although every journey starts with a tiny
step if the distance to be covered and the time

available is immense, one can say that the tiny step

does not rationally amount to an embarkation upon the
journey but,more importantly, the step is a step in

the wrong direction. The special award for Mr King

wo.uld be a step in the wrong direction because it would

not achieve what is claimed to be the permanency object
of the demand. All that would happen in the case of

the Mr King award, assuming that it could be framed to

avoid the vices of retrospectivity and arbitral

creation of retrospective penalties and so forth,

assuming somehbw one could do it, that the proolem

would be that Mr King would have re-established a

contractual relationship with his employer but it would

not be a contractual relationship of permanency. True

it is he would have his employment for some unspecified

time longer but he would not have his employment

permanently and he certainly would not have his employment

in the terms agitated before Mr Commissioner Caesar on

terms that he should not lose that employment except

with the consent of the Union because that is not what

the case was about.

The final general point that we would wish to

make in reply concerns the reliance that we still place

upon the obse:ruations of this Court in the REG V LUDEKE,

the QUEENSLAND ELECTRICITY.case. It is said that

because the log there sought protection of employment

against harsh and unreasonable dismissal then that is

in a material way different from the log in this case.

In our submission it is not because the TC and R based

demand in the LUDEKE's case was really in the same way

as the log in this case, seeking to achieve a limitation

on the employers otherwise existing capacity to

terminate employment. Now the method employed in the

ETU log was to demand that employment should not be

terminated if it was,~s~, unreasonable and oppressive

to do /'so or words to that effect.

(Continued on page 86)

ClT55/l/SR	85	22/11/88
Wooldumpers (2)

MR BLACK (continuing):  The demand, in this case, is that

employment shall not be terminated subject to
other constraints but in neither case is

reinstatement asked for. In each case, in our

submission, the method sought and the critical

ambit-defining part of the demand is that there

shall be a restriction on termination.

Might I finally submit argument to the Court about what I might characterize as the alternative

interstatenesstatgument of my learned friend,

Mr Kenzie. We say this about it: it is plain

on the material that only Wooldumpers is involved

in the matter presently before Mr Commissioner Caesar.

Itais apparent from the submissions that no broad

matter was agitated about broader issues that

could extend beyond Wooldumpers. Only Wooldumpers

was notified~ True it is, that is perhaps

evidentiary only and it could just be a mistake,

but it is the fact that only Wooldumpers was

notified on the dispute and there has been no

suggestion in the material that any other parties

should be brought along.

Next, the relevance of the evidence to which

my learned friend, Mr Kenzie, referred about warnings

and absence of warnings and so forth, we would submit,

is clearly justified on the basis that the Union was

contending that this dismissal was not the right

thing to do and warnings and the absence of them

or warnings to other people are, in our submission,

relevant~ although, of course, not decisive of that

issue and, finally, if that submission is not correct,

then the relevance of that evidence is related, in our submission, on the material only to procedures at Wooldumpers and has no connection with anything

that might happen interstate.

The last point is that the cases cited and relied

upon by my learned friend were all cases in which there

was no requirement of interstateness. They were, in

our submission, directed to different matters.

So, for those reasons, we - - -

WILSON J:	Mr Black, just what significance do you make upon
the service of parties with respect to a variation?
MR BLACK:	Your Honour, if it were desired to agitate this

matter as a dispute not confined to Wooldumpers

and thereby to - - -

WILSON J: Or, assume it did come under the 1986 log.and

was directed to a variation of the existing award.

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Wooldumpers(2)

MR BLACK: Any partyaffected or to be served, I do not have

the provisions at my fingertips but the Act

requires that parties - - -

WILSON J:  But you are not suggesting that all parties to

the award would need to be served, are you?

MR BLACK:  No, relevant parties only, Your Honour, unless

the Act says otherwise and I do not have it in

front of me. But since there is no suggestion

of service upon any interstate party, in our

submission, the interstateness anyway submission

is partly answered by that fact.

WILSON J: Although an interstate dispute can be

settled - - -

MR BLACK:  Yes, indeed, Your Honour, but if it is said, as

my learned friend says, that, really, leaving aside
"ambit" nevertheless this has an interstate

character, then one would expect, in our submission,

that parties outside the State would be involved.

What my learned friend is really saying - what we

submit he is really saying is that this is, in

truth, a new interstate dispute, not a manifestation

of the old one. That is his alternative argument.

If it is a new interstate dispute then one would

expect to find some evidence of it and, in our

submission, there is none.

I am reminded that the actual log which is

not reproduced before the Court but which is in

the - or it was before Your Honour Justice Wilson,

is headed "The Federated Storeman and Packers Union

of Australia log of Claims" and then, beneath

that, ''Storeman and Packers (Woolselling Brokers)

Aw a rd , 198 6" . So that i t takes the form of a

desired award and that is how it appears in full.

In that regard it is, one would believe, similar to many logs of a general nature.

Might I just say one more matter that has

occurred to me, in so far as there is any hint

in the learned Solicitor-General's argument

that this matter is in some way premature, we would

say, I think, three things: first, that that is

not argued by counsel for the Union; secondly,

it is sufficient on the authorities that there

be a real likelihood or danger of the Commission

acting beyond jurisdiction:

ClT57/l/ND	87	22/11/88
Wooldumpers(2)

-

MR BLACK (continuing) : M::>st recently, t.'1-iat was said in the MANUFACTURING

GROCERS case, 160 CLR 341,at 354 to 355. Finally, even if there were less of a real likelihood than there might otherwise be, so long as there is a

proper basis to apply for prohibition, in our

submission, this is the sort of case where, as indeed

in the,MANUFACTURING GROCERS case, the Court should

not be slow to assume a real likelihood because, in

a case of this nature, it really is, if I may say so,

much the best thing if there is a jurisdictional

problem and it appears that jurisdiction is likely

tobe exercised, on our argument, impermissibly,

it really is very much the best thing to have it
dealt with authoritatively and finally before

rights are purportedly determined.

MASON CJ: But, generally speaking, we have allowed matters to

go forward as far as they can in the,Gommission.

I am not suggesting that that is a bar to your

success in the present case.

MR BLACK:  No, I understand that.

MASON CJ: But I was just identifying the general attitude

that the Court takes in relation to these matters.

MR BLACK:	Your Honour, I understand that and the proposition
was probably stated too widely but, in the circumstances
of a reinstatement-case.., in our submission, there would be sound reasons - assuming the matter is properly made out - for determining the jurisdictional matter
authoritatively befsre rights are purportedly
determined.  I think I am correct in saying that there
are many matters awaiting the decision of the Court
in this matter.  May it please the Court.
MASON CJ:	Thank you, Mr Black.  The Court will consider its
decision in this matter and will adjourn. r 1.
AT 3.00 PM THE MATTER WAS ADJOURNED SINE DIE

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Wooldumpers (2)