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

[1988] HCATrans 112

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 COMMISSIONER JOSEPH CAESAR,

a Commissioner of the Australian

Conciliation and Arbitration

Cornnission and THE FEDERATED

STOREMEN AND PACKERS UNION OF

AUSTRALIA

Respondents

Ex parte -

WOOL DUMPERS (VICTORIA) LIMITED

Prosecutor

WILSON J

Wooldumpers

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 6 JUNE 1988, AT 2.16 PM

Copyright in the High Court of Australia

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MR P. COSTELLO: If Your Honour pleases, I appear on behalf of

the prosecutor in this matter, Wool Dumpers (Victoria)

Limited. (instruced by Freehill Hollingdale &

Page)

HIS HONOUR:  Yes, Mr Costello. I have had the opportunity to

read the papers. Can I just try to clarify my

confusion? I do not want to interrupt your opening

but it should not be necessary for you simply to

recapitulate all the circumstances and probably if I

make known the difficulty that I have in understanding

the papers, it can bring you directly to it.

The Commission in ruling - and the ruling that

you are here to focus on - was that to proceed to hear the matter under the dispute which was found in 1986 -

I am reading from page 29 of the transcript on 2 June -

by Commissioner Cox, following a log of claims served

by the Union,contained in that log of claims was

clause 23. Now, was clause 23 in that log of claims

of was it in the log of claims served at the end of

1986?

MR COSTELLO:  Your Honour, the material part of the clause is

the same in each. There was confusion before the

Commissioner as to whether reference was being made to

the 85 or the 86 log but in my submission nothing turns

on that because the clause relied upon is in fact in the

same terms.

HIS HONOUR:	You exhibited the 1985 log, did you not?
MR COSTELLO:	Yes, Your Honour.
HIS HONOUR:	Or at least it is exhibited to Mr Purvis' affidavit

and	I thought there was only one log, namely the 1986
log	that contained clause 23, but I must have - what

Tl was the exhibit number for the 1985 log?

MR COSTELLO:	Your Honour, the 85 log is exhibit BDP4.
HIS HONOUR:	My exhibit 4 ends	with clause 20 dealing with

bereavement leave. That is the source of my difficulty

because there is only one clause 23 in all the papers

that have been filed, and that is in the 86 log. But

anyway, let us not waste time on that. That has clarified

my confusion. So the Commisioner was talking about the

dispute found by Commissioner Cox?

MR COSTELLO:  Yes, Your Honour. A dispute was found by

Commissioner Cox in relation to the 1985 log.

HIS HONOUR:	Why did he not go to the latest finding?
MR COSTELLO:	Because there was some degree of confusion in the

minds of the person who appeared for the Storemen and

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Packers and there was confusion as to which log was

which, but we have worked it out and we think we know
what was being meant but nothing turns on it because

the particular clause is the same in each case.

Your Honour, the papers were prepared - - -

HIS HONOUR: Something might turn on it, might it not? Part of

your - at least Mr Purvis' affidavit makes the point

that no action has been taken -since the finding of the

disptue no action has been taken by the Union to
bring the matter of the settlement of the dispute to
a hearing, either by way of conciliation or arbitration.

The staler the finding of dispute is the greater the

substance in that submission.

:MR COSTELLO:  Yes, Your Honour. That certainly goes to the

question of genuineness. But my primary submission would

be that if one looks at the particular clause it cannot

comprehend the particular matters which are before the

Commissioner at the moment because it makes no reference

to reinstatement; indeed, its only reference and relevance

is it makes certain claims in relation to permanence of

employment.

HIS HONOUR:  But nor does the notification of the dispute, the

telex that the Union sent to the Commission. Is it
confined - does it necessarily have to be confined to

the question of reinstatement? I realize that the

advocate for the Union said that is what he wanted but,

of course, the Commissioner may have jurisdiction to do

other things.

:MR COSTELLO: Yes, Your Honour, but we would submit that in this

case he is not being asked to do other things and that

appears quite clearly from both the submissions made

and from the evidence called in support of those

submissions and - - -

HIS HONOUR:  How does it appear from the evidence? I did not

read the examination of Mr King. He is the only

witness that has been called so far, is he not?

MR COSTELLO:  Yes, and as we understand, he is to be the only

witness called in the proceedings.

HIS HONOUR:  And he happens to be the dismissed employee?

MR COSTELLO:  Yes, Your Honour. I wonder if, on that point, I

could take Your Honour to pages 38 and 39 of the

transcript.	The transcript, of course, is exhibit
BDP6.

HIS HONOUR: Yes, I have it. Page 38.

:MR COSTELLO:  Page 38 and 39. At the end of his examination-in-chief

what appears to have been the critical question was put

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T2 at about half-way down the page:

What would you want to see happen?---I want

me bloody job back. Tha~ is what I want.

And then if I could take Your Honour to page 39.

HIS HONOUR:  That is what the worker wants but is it possible

that the Union is working towards something else,

such as persuading the Connnissioner on the basis of
the found dispute - the dispute found by Conunissioner Cox

or the other Conunissioner to bring all the parties to the

award together with a view to variation?

MR COSTELLO:  Well, Your Honour, we would say not. I would say

on three or four or more occasions when it was put

squarely to the advocate what he wanted he said

reinstatement and the witness he called was a witness

who gave evidence in relation to his specific

termination and applied for specific relief and we would

say, Your Honour, that if the Union wants to bring back

on that dispute in relation to other matters there of

course is no reason why it cannot do so, but it has

brought that log on in relation to a specific reinstatement

and to the degree that that is the relief it claims and

that is the case that the prosecutor has to meet, my

submission is that it is beyond jurisdiction.

HIS HONOUR:  Were you going to refer me to something else? I

have to keep stopping myself from interrupting you.

MR COSTELLO:  Yes, Your Honour. If I could then take you over

the page to page 39, which was the last question before
the examination-in-chief finished, which is generally
the most important question, Your Honour, the second

paragraph, the question was:

Could you tell the Conunission what it is
you want this Connnission to do for you?

---My job back, that is all.

Now, I could take Your Honour through the submissions

put by Mr Ceran and my submission would be that they are

consistent with the evidence which was led, that the

sole relief being claimed was reinstatement.

HIS HONOUR:  Where do the - I am not sure if Mr Purvis is counsel

or -

MR COSTELLO:  An industrial advocate.

HIS HONOUR: - - - he was appearing for the prosecutor and he

challenges the Union to say what they want, if I recall,

at the beginning. Where is the answer he got?

MR COSTELLO:  Page 11, the answer came in dribs and drabs,

Your Honour, as these things are wont to do, but I would

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take Your Honour to the last paragraph on page 11:

That is what we are obviously seeking this

Commission to do. What we are saying is that

the Commission is to make an award for
reinstatement of the dismissed employee consistent
with the ambit log served on the respondent back

in 1986.

HIS HONOUR:  And we have to read that now in the light of the

Commissioner's finding at 85?

MR COSTELLO:  Yes, Your Honour, and then he went on, on the top

of page 12, the first paragraph:

We believe that the order for reinstatement

by the High Court.

sought by the Union is consistent with the

And then if I could take you to the last paragraph

before Mr Purvis spoke, which is the third last

paragraph on the page:

T3	For that reason we would be at odds with the submission that was put, the preliminary
submission that was put on the question of
jurisdiction by Mr Purvis that ambit does exist and clearly it is our intention to put
arguments to you which would be along the
lines that you create. You make an award
for reinstatement of the dismissed employee consistent with the log served on the respondent
company in 1986.

HIS HONOUR:  Is your submission that a dispute based on a claim

concerning the contract of employement which is in the terms of clause 23(a), "No notice of termination shall

be given ..... without the consent of the Union. No

notice" and so on, you say that does not supply the

ambit within which the Commission could consider

reinstatement?

MR COSTELLO:  Yes, Your Honour, because that claim is a claim

directed towards employment and reinstatement, as has

been held by the Court, is a matter of post-termination

relief and to say that person shall not be terminated

at all or unless there are particular grounds is not at

all the same thing as to say if somebody is terminated,

and terminated lawfully, they ought to be reinstated.

So it is put both ways, Your Honour. It is said, if in

fact this is just a claim for Mr King's reinstatement

in respect of one company, that is clearly an intra-State

dispute; if it is put on the basis that this is the

bringing back of a log of claims from 85 or 86 which

claimed permanence in employment or a restriction on the

right to termination, which was an interstate dispute,

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then what is being sought, namely reinstatement, does

not fall within that ambit.

HIS HONOUR:  Yes. Was there anything else you need to say

than that or want to say?

MR COSTELLO:  Your Honour, I do not think it is necessary to

take you in any more detail to the transcript. I

could take you to some authorities in support of those

propositions.

HIS HONOUR:  I suppose the main one would be the 108 CLR, would

it, dealing with CAIRNS MEAT EXPORT?

MR COSTELLO:  Yes, Your Honour, the CAIRNS MEAT EXPORT case

which was a very similar case to this one in this

respect that - - -

HIS HONOUR: That is the principal authority, is it not, on

which you would rely?

MR COSTELLO: Yes,it is, Your Honour.

HIS HONOUR:  You might address me on its relevance. I accept that

it is probably relevant. I would like to hear you on it.

MR COSTELLO:  Yes. Your Honour, that was an application in

relation to an actual order which had been made by

Commissioner Gough to reinstate four particular

employees. Now, when it was objected that that was

not an interstate dispute because it revolved around

individual employees and individual employers, it was

argued that the orders could be justified on the basis

of a pre-existing dispute and if I could take Your Honour

to page 350, at the - - -

HIS HONOUR:  Of which the dismissal was said to be a part, so

as to attract that definition of "industrial dispute"

that the Commissioner refers to where it includes a

part of a pre-existing dispute-

MR COSTELLO:  Yes, it was said in a very similar way to this

case that perhaps the immediate problem was an
individual reinstatement which was not an interstate
dispute, but we can call in aid a previous interstate

dispute and bring it back as part of that and this

argument was put in the last paragraph on page 350.

It seems clear enough that, when Can-Pak -

that was the method of operation -

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.

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However, 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,"

(Continued on page 9)

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MR COSTELLO (continuing): And then His Honour Sir Owen Dixon

Chief Justice, who gave the leading judgment, referred

to section 59 of the CONCILIATION AND ARBITRATION ACT,

and he went on:

Of course, Mr Cormnissioner Gough was the

Cormnission for the purposes we have in hand,
and of course, he could vary the award if he

had a jurisdictional basis for it. But, again,

you cannot bring the fountain higher than its

source: you cannot do it by a mere variation.

HIS HONOUR:	Do what?
MR COSTELLO:	You cannot order reinstatement by a mere

variation. The variation would have to be within the

original dispute comprised in the original log.

HIS HONOUR:  It is clear that that is what they were seeking

here, just the reinstatement of the four men that had

been dismissed?

MR COSTELLO: That was a case where the cormnissioner had

already ordered the reinstatement and it was prohibition

to prevent the operation of that particular order.

HIS HONOUR:  Yes. And then, go on,"the variation would have

ti

to be

MR COSTELLO:

the variation would have to be within the

original dispute comprised in the original

log.

Then, if I can leave out the next two sentences where

His Honour the Chief Justice said that it did not look

like a variation and go to the next sentence:

But 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 dispute
about these events, events which occurred three

years later or at least two and one half years

later.

So, what His Honour was saying is if one says that one

can go back to the original dispute and justify an order

of reinstatement on that basis, one has to come within
ambit and there would appear to be a logical difficulty

in creating ambit in advance in relation to particular

dismissals and particular reinstatements because they
could not be foreseen. Indeed, terminations and

reinstatements could not be foreseen at all. And, in my

submission, if it could be said - and I do not for a

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moment concede that it could be said - that this

particular matter is within the original ambit, there

would appear to be the added difficulty of showing how

ambit, in relation to this matter, could have been

generated in 1986 in relation to events which occurred

in 1988.

HIS HONOUR: Well, let us suppose that the dispute was not

focused on reinstatement, at least, the present
application, but on the fairness of - and I am not talking

about legality - the termination. What would you say about that? In other words, clause 23 has created a

dispute with respect to termination and the fact that

this particular worker had not had his employment
terminated would not preclude, would it, the subsequent

industrial dispute, namely, the circumstances in which	jurisdiction of the Cormnission to entertain a part of an
employment may be terminated by the employer having regard
to this particular case? I realise it is not an apt
analogy, I am just testing the proposition that you are
naying that it could not have been within the expectation
when formulating the ambit of 23 to encompass a particular
dismissal.

TS MR COSTELLO: Your Honour, if we go back to a dispute which is

a few years previous and an award is brought down which

creates prospective rights - suppose that a person shall

not be harshly dismissed or something - then as those

rights fall due, as it were, by particular circumstances,

one can probably go back to the award and make entitlements

under the award, and one would, of course, enforce the

entitlements by judicial proceedings, for prosecution for penalty and the like. But, in my submission, it would be

different where what falls due in this particular case

is a termination and it is consequential on that to

seek a post-termination relief such as reinstatement.

There would be an intervening event which would put it

into a different category and would make it different

and one could not foresee the specifics of the
intervening event, particularly in a case where a

termination is lawful and reinstatement only arise

on the premise that it has.been lawful and on the premise

that there is a particular termination. As the Court

has said, that makes post-termination relief a very

different matter to prescribing rights which accrue

during the contractual nexus period which may be enforceable

down the track.

HIS HONOUR:  Yes, but one would have to contemplate that there

is jurisdiction in the Commission to vary an award to

create post-termination rights, given the adequate

basis for the exercise of that jurisdiction. Again,

this is not directly relevant to the present case but I

am just testing the extent of the operation of the

principles to which you are alluding.

By the way, is it the case that as long as a union

files a log of claims to which the employer withholds his

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assent , that you then have a framework- without proceeding

to an award, an adjudication and arbitration of that log of

claims, you thereafter have a framework within which matters

can be taken piecemeal to the Commission?

MR COSTELLO: Well, if a log is served and a dispute is found,

there would have to be the second step.

HIS HONOUR:  Yes, I meant to include that. And as long as the

piecemeal subsequent events fall within the ambit of the

original log as to which a dispute has been found.

MR COSTELLO:  And as long as each of the claims themselves relate

to matters within the Commission's power.

HIS HONOUR: Well, they would not need to be interstate, necessarily,

in themselves.

MR COSTELLO:: No. In themselves, for example, if the claim were

as to shop hours or something like that, a dispute might

be found but if it were attempted to bring that back on

it could be objected at the time that this·was not an

industrial matter. But then the other limitation on that

doctrine, Your Honour, mustbe that the concept of genuineness,

if demands are made and replaced by successive demands,

there must be - - -

HIS HONOUR:	Yes, none of which are processed to completion.
MR COSTELLO:	Yes, or brought on at all.

HIS HONOUR: What is the procedure? I mean, is there a backlog

in the Commission? The 1985 award was the subject of a

finding that there was a dispute. Did the November 1986

log of claims extend the ambit of the 1985 log?

MR COSTELLO:  Your Honour, it was almost identical. There were

changes to things like allowances. The 1985 claim was

for, I think, $20 allowances and in 1986 it had gone up.

But apart from one or two very minor matters like that

it was identical.

HIS HONOUR:  Given that a dispute was found about May 1987 or

somewhere around there - middle of 1987 - what would be

the normal procedure relative to a genuine dispute?

(Continued on page 12)

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MR COSTELLO: Normally it would be brought on for hearing and

evidence would be given in support of the various

demands made and there would be contrary evidence

and there would be a decision.

HIS HONOUR:  And all the parties served with the log would

be parties to that hearing I presume.

MR COSTELLO:	Yes, they would all be found to be parties to the dispute and they would all have rights to present
their cases.
HIS HONOUR:	Yes.:,

MR COSTELLO: They would coo:m:,nly be jointly represented, of course.

HIS HONOUR:  Has there been any move by the Union in the present

case to prosecute either the 85 or the 86 disputes to

take them on to a hearing?

MR COSTELLO:  Save in relation to the 86 dispute which Mr Purvis

deposes to, they sought to prosecute wages and

superannuation but have made no moves nor given any

indication that they seek to further any of the other

matters.

HIS HONOUR:  I suppose they could theoretically, without them

being challenged as to lacking as to genuineness.

MR COSTELLO: It is a question of timing, I suppose, Your Honour.

If they brought them on immediately nobody could

seriously challenge genuineness but as time elapses

it becomes - - -

HIS HONOUR:  The longer the period of delay the less genuine

the claim would - the more open it would be to attack.

MR COSTELLO: To attack, yes. But if they are brought on with

some proximity it would be a very difficult matter to

attack their genuineness, of course. Again, as I

indicated to Your Honour, the fact that subsequent

logs of claim are made to some degree takes away from

the genuineness of earlier logs because it would be

normally assumed that they would supersede earlier ones.

HIS HONOUR: Why did the Commissioner choose the 85 log instead

of the 86 log? Was that just a slip?

MR COSTELLO:  I think it was because that was the only one he

was really referred to, Your Honour. If all the logs

had been there and he had been referred to all of them,

because they are in the same form, he might have said

86 rather than 85 but for material purposes the

specific clause 23 is the same and so it does not matter

whether he relied on its 85 or its 86 service.

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HIS HONOUR:	Do you wish to say anything else?
MR COSTELLO:	Your Honour, we have prepared a draft order nisi.
HIS HONOUR:	Is it a different one to the one that was filed?
MR COSTELLO:	It inserts, Your Honour, a fourth ground which

goes more specifically to the point that we have just

been making submissions in relation to, that is whether

this matter can be a part of the earlier 85 finding.

I wonder if I might hand that up to Your Honour.	The
only new matter is ground 4.

HIS HONOUR:  I notice you have also varied the opening preamble

to accommodate the second affidavit that Mr Purvis has

sworn.

MR COSTELLO:  Yes, Your Honour.

( Continued on page 14 )

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HIS HONOUR:  Yes. Well, I think you are entitled to your

order. And with respect to the terms of it, I notice

you do not ask for a stay.

MR COSTELLO:  On Friday, Your Honour, notice of this application

was given to the Commissioner and he indicated he would
not sit this morning pending the outcome of today's

proceedings.

HIS HONOUR:	I see, so it is not necessary.
MR COSTELLO:	So, it is not necessary.

HIS HONOUR: Since it may involve the constitutional question

of the limits of the Commission, it is necessary for

section 78B to be invoked?

MR COSTELLO:	Yes, it may do.
HIS HONOUR:	I did wonder, to begin with, whether that was so

but it is better to play safe.

MR COSTELLO:  I think so, Your Honour. I do foresee a great

deal of interest in this case because it is a question of

reinstatement preceding another tack past the RANGER

decision and it may be that there is wide and general

interest in the outcome of this particular case.

HIS HONOUR:  Yes. That destroys the illusion that I had that

the making of the order may be sufficient to set

different courses in train, perhaps.

MR COSTELLO: Well, we would hope so, Your Honour.

HIS HONOUR: There is some relevance in that last point you

mentioned to the constitution of the Court. As you

probably know, from what has been said by some of my

colleagues and, I think, the Attorney-General may have
indicated the possibility of some consideration of

legislative change, but the ease with which matters of

this kind can come as of right to the Full Court has been

something of a problem and it may well be that the
Court would simply constitute a Full Court with three

members if there were no long-term implications in the matter but it would seem, from what you have said, that

this may not be such a case.

MR COSTELLO: Well, it is difficult to predict what attitude

the Union would take but I am aware that there are

general questions arising in relation to very similar

subject-matter and it may be that a general interest is

taken. We would, of course, be content if the order nisi

did resolve the matter.

HIS HONOUR:  So would I. Well now, is there anything else that

needs to be - I think the commencing date in the order

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should be, what, 2 August and perhaps it ought to go on
to say "or so soon thereafter as counsel may be heard"

because the August sittings may be already full.

MR COSTELLO:	Yes, Your Honour.
HIS HONOUR:	But I would not want to look beyond 2 August, the

first day of the sittings, to set the conm1encing date.

MR COSTELLO:	Yes, we will make those alterations, Your Honour.
HIS HONOUR:	And it provides for service and the filing of further

affidavits, so I cannot see that anything else needs to be

dealt with.

MR COSTELLO:  There is one matter on page 3 which provides for

service on the Federated Storemen and Packers Union.	We
really ought to insert the address of its registered
office there.

HIS HONOUR: "At so-and-so in Melbourne"?

MR COSTELLO:  Yes.

HIS HONOUR: Well, certainly you have leave to do that. And

there will be an order accordingly.

MR COSTELLO:  As Your Honour pleases.

AT 2.51 PM THE MATTER WAS ADJOURNED SINE DIE

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