Re Finance Sector Union of Australia & Anor; Ex parte Illaton Pty Ltd; Finance Sector Union of Australia & Anor; Ex parte Swartz

[1993] HCATrans 37

IN THE HIGH COURT OF A_UST

Office of the Registry

Melbourne	No M47 of 1992
In the matter of -

An application for a writ of

prohibition and a writ of

certiorari against THE

HONOURABLE DEPUTY PRESIDENT

JOHN MACBEAN, THE HONOURABLE
DEPUTY PRESIDENT MICHAEL
JOHN MOORE, THE HONOURABLE

DEPUTY PRESIDENT IAIN

WATSON and COMMISSIONER

FRANK PALMER, members

of the Australian Industrial

Relations Commission

First Respondents

FINANCE SECTOR UNION OF

AUSTRALIA

Second Respondent

Ex parte -

ILLATON PTY LTD

Prosecutor

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	M48 of 1992
In the matter of -

An application for a writ of

Illaton(2)	1	3/3/93
Ex parte -

prohibition directed to THE

HONOURABLE VICE PRESIDENT
MOORE, THE HONOURABLE
DEPUTY PRESIDENT WATSON and

COMMISSIONER PALMER of the

Australian Industrial

Relations Commission

First Respondents

FINANCE SECTOR UNION OF

AUSTRALIA

Second Respondent

MICHAEL GLENN SWARTZ, CHERYL

ANNE GALL, PAUL MARTIN

PERKINS, PETER HULL, SHARON

MACKEN, RHONDA ESSON,

ANNABELLE JONES, IAN PELLY,
JANINE FANNING, MARION
ZISCHKE, ROBYN ENTRICH,

ANDREW LOWIENE, ALEXIS BOND and STEVE BURROWS

Prosecutors

BRENNAN ACJ
DEANE J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 MARCH 1993, AT 10.18 AM

Copyright in the High Court of Australia

MR R. MERKEL, OC: If the Court pleases, I appear with my

learned friend, MR L. KAUFMAN, for the applicant,
Illaton Pty Limited.	(instructed by Rigby Cooke)

MR J.S. DOUGLAS, OC: If the Court pleases, I appear with my

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

Swartz and Others, in matter M48 of 1992.

(instructed by Maurice Blackburn & Co)

MR R.W. HINKLEY: If the Court pleases, I appear for the

respondent, Finance Sector Union of Australia.

(instructed by Henderson Trout)

BRENNAN ACJ: 

In the matter M47 of 1992 the Deputy Registrar

advises that you have been informed by the
Australian Government Solicitor who appears for the

first respondents in these proceedings,

Vice President Moore, Deputy Presidents MacBean and
Watson and Commissioner Palmer of the Australian

Illaton(2) 

3/3/93

Industrial Relations Commission, they do not wish

to appear at the hearing of this matter and will

abide by any decision of the Court.

In matter No M48 of 1992, the Deputy Registrar

advises that you have been informed by the same
solicitor acting for the same parties to the same

effect. Yes, Mr Merkel.

MR MERKEL:  If the Court pleases, if I could hand up three

documents to the Court.

BRENNAN ACJ:  Thank you.

MR MERKEL: If I could indicate to Your Honours, the first

document is the outline of the applicant's

submissions, the second is a chronology with

references to the application book and there is a

slight confusion. The Lis a reference to the line

number and it looks like a 1 but it is slightly

different. The third is a cross-reference of

transcript references referred to in the affidavit
to the actual page numbers where the evidence

appears in the application book.

BRENNAN ACJ:	Yes, Mr Merkel.
MR MERKEL:	If the Court pleases. The application arises in respect of two logs served by ABEU, as it then was.
The first was served in October 1987 and that was
superseded by the log which was served in January
1989.  The second log was served to overcome the
technical defect which was raised by the applicant in proceedings before the Commission that the first log had been served when Metway was still a building society and not engaging in business as a
bank.  The second log was served to cure that
defect and, apart from a number of significant differences, picked up the same matters in general as the first log.
relevantly to the present application, the second

It is put by the applicant that both logs, but

log which appears at the application book at

page 82 did not constitute a bona fide demand for

the conditions set out in.the log and that their

non-acceptance did not generate a real or a genuine

dispute.

The principles governing applications of this

kind, we would submit, have been well established in Cohen's case and also Ludeke's case, which are

referred to in paragraph 2 of our outline. We

submit that the real purpose and object, and indeed

the only purpose and object that one can derive
from the evidence for the service of the relevant

logs, was what was in essence a demarcation dispute

Illaton(2) 3 3/3/93

which had arisen as a result of the announcement by

Metway, which was then the Metropolitan Building

Society, that it proposed to seek a banking licence

which would enable it to carry on business as a
bank. That meant that the Federated Clerks Union

which had coverage for the building society would

lose that coverage to the banking union, and the
banking union likewise would gain coverage in

respect of an area it previously did not have

coverage.

As a result of the public announcement that

was m~de in mid-1987 both unions were, in effect,

posturing for a position by which each could have

coverage, and that led to service of the two logs

towards the end of 1987.

Now, what we say the evidence clearly establishes - and I will have to take Your Honours

to that evidence - is that the purpose of the logs

were not to seek improved terms and conditions as

set out in the logs, nor to obtain those improved

terms and conditions within the framework of the

logs - - -

GAUDRON J:  When you say that you are speaking only with

respect to the prosecutors here, not to the other

respondents to the logs?

MR MERKEL:  That is so, Your Honour. The only relevant

applicant as far as the present circumstances are

concerned is Illaton, which is the employer, and

Illaton became a respondent to the second log. It

was never served with the first log.

The evidence we say is clear and Mr Hingley,

who was the federal secretary of the Union and its

prime witness, made it clear in his evidence that

the concern of the banking union was the

encroachment of the Federated Clerks Union on the

area of banking which had never happened before, and he was quite determined was not to happen on this occasion. The terms and conditions the

subject of the log, in stark contrast to what had

occurred in Ludeke's case, were not the subject of

any evidence; there was no evidence that they

constituted a standard or an updated log; there was

no evidence that any consideration had been given

to the figures or the details used in them and,

indeed, just by way of example, the first log

claimed a flat salary of $30,000 for all employees

as an ambit claim. The second log, without any

explanation, reduced that by 50 per cent and

claimed a flat salary by way of ambit claim of

$20,000.

Illaton(2) 4 3/3/93

Certain detailed job protection provisions in

the first log were missing in the second, and we
say the inference is that it was in effect picked

off the shelf to just have a log, but more

importantly, in respect of the second log, there

was no evidence that any consideration was given to

its terms or any consideration given to the detail

of it. That stands in stark contrast to Ludeke's

case.

In respect of the intent to seek the terms and

conditions, again what Your Honours will find

absent when I take you to the evidence is in

contrast to Cohen's case where there was evidence

of two witnesses, that they actually genuinely did
seek the terms and conditions as well as to gain coverage. That evidence, Your Honours will find,

is singularly lacking in the present case.

TOOHEY J: Is the timing of events important here,

Mr Merkel? I take it from what you said that the

second log was served before a banking licence had

issued.

MR MERKEL:  Now, Your Honour, the second log had been served

after the banking licence had issued. I will come

to the chronology now, if I might, Your Honour, but

what occurred is that, if I can just take

Your Honours briefly through the relevant facts.

Prior to 1988 the Federated Clerks Union had a

Queensland State award and had coverage in respect

of the Metropolitan Building Society employees,

save for senior employees. In the middle of 1987,

June 1987, the society announced its decision to

apply for a banking licence, and that was a public

announcement. The situation then arose where the

problem of coverage became a real concern because

the Federated Clerks Union had indicated it wished

to maintain its coverage, not lose it. And,

Mr Hingley gave instructions to the Queensland

secretary of the ABEU that the ABEU would have full

with the FCU concerning a hand-over and that is at	jurisdiction and coverage, and that he should deal
paragraph 3 of the chronology.

What then occurred, obviously as a result of

no agreement being reached and there is evidence to

that effect, there were two logs. The first ABEU

log was 10 October 1987, and the FCU log came

shortly thereafter. That was 12 days later. Then

at a hearing before the Commission, as to a dispute

finding on the FCU log on 18 December, Mr Hingley

gave detailed evidence about the reason for the

service of the ABEU log and, in substance, that was
because the ABEU found that the encroachment, or

the threatened encroachment of the FCU was

Illaton(2) 3/3/93

something it would not accept and it wanted to make

sure it had coverage, and he went so far as to say

that had there not been an FCU log, they would not

have been seeking an award at all, at that time.

Commissioner Brown found a dispute on

2 February on the FCU log and made a consent award,

that is when the Society was still carrying on

business as a building society. Then, in June 1988
the licence was granted to the society to carry on

the business of banking from 1 July 1988 and in the

meantime there had been appeals from the decisions

of the Commissioner, and one of the grounds of

appeal was that the ABEU had no coverage in respect
of building societies, and it was to cure that
defect that the second ABEU log was served on

17 January 1989, which was some 6 or 7 months after

the banking business of Metway had been carried on

pursuant to the Commonwealth licence.

Just taking the chronology through and then if

I can take Your Honours to the evidence: what

occurred is that in September 1988 the Metway Group

Staff Association established and that entered into

the arena, in effect, as a third contestant for

coverage. After the staff association was

established, the conditions of employment

dramatically improved in the banks from

September 1988. The Commissioner found a dispute

in respect of the first ABEU log in October 1988,

but in January 1989 there was the second log

because of the technical defects that had arisen by

reason of the first log having been served, in

effect, too early. That was responded to fairly

quickly by the Federated Clerks Union serving its

second log, still maintaining its desire to have

coverage in the bank, notwithstanding that it was

no longer a building society. And then in

February, voluntary employment agreements were

concluded between the staff association and

Illaton.

Some emphasis will be given to these in the

evidence - - -

GAUDRON J:  When you say, "between the staff association and

Illaton", there were three parties to the

agreements or only - - -?

'

MR MERKEL:  I think, Your Honour, it was the employees and

the employer. The staff association had

represented the employees - - -

GAUDRON J:	So it was between individual employees?
MR MERKEL:	Yes, and I think a large number of the staff -

the affidavit evidence, I think, deals with the

Illaton(2) 6 3/3/93

exact number, but a large number of the staff had entered that agreement. The matter of the second

ABEU log came before the Commission on 9 March and

counsel for the Union indicated why the second log
had been served, and then there was a decision of
the Commissioner on the existence of the dispute on

that second log, which is the subject of these

proceedings on 23 March. Appeals were then lodged

by Illaton against the orders and the finding of

dispute and then on 10 November the Full Bench

handed down a decision, in effect, dismissing the

appeal as far as Illaton was concerned and Metway

as a non-employer was excluded from the dispute.

There was a subsequent application by Illaton

under section lll(l)(g) that the Commission not

hear the matter further in the public interest and

then in the course of that hearing, in

September 1990, Mr Hingley again gave evidence

about the ABEU's motives for service of the log and

its position at that point of time, and I should

indicate to Your Honours that the evidence was to

the effect that the conditions pertaining in the

Metway banks were amongst those he described as the new banks which were, in effect, model conditions

which the Union was seeking to achieve for the old

banks and they had no changes that they were

seeking in respect to those conditions nor any

agenda at that time for any future changes.

I should indicate that it was at the

commencement of the lll(l)(g) proceedings - and

this is not on the chronology - and that was in

June 1990, that the FCU in effect withdrew and the contest thereafter for coverage became a contest

between the banking union and the staff

association.

After Mr Hingley's evidence on 14 September,

Illaton applied for revocation of the dispute

finding based upon his evidence and the Deputy

President gave reasons for his decision refusing

that application on 25 October; then that was the

subject of appeal. I am sorry, I think 23 says,

"the appeal bench discusses the appeal"; that

should be "dismisses the appeal'' in August 1992.

On 11 September, Illaton sought an order nisi and

His Honour Justice Dawson directed that the matter

proceed by notice of motion before this Court.

Could I take Your Honours to the evidence that

I have been referring to.	Can I first of all just
take Your Honours briefly to the two logs.	The

first ABEU log is at page 39. Paragraph 4 sets out

the salaries of $30,000 and annual increments of

$2500 and paragraph 21 at page 42 contains detailed

Illaton(2) 3/3/93

job protection provisions	ich, of course, would
be a matter of some concern.

The second log, which was served on

17 January 1989 is at page 82 of the application

book. I should indicate that it was accompanied by

a letter, at page 82, signed by Mr Ringley - that

is the witness giving evidence on behalf of the

federal union - and Your Honours will note that, at

page 83, the salary rate had been reduced to

$20,000 per annum, that is a flat ambit for all,

and Your Honours will find that substantially the

same terms and conditions are reproduced but there

is no job protection provision comparable with - or

in existence at all such as that at application

book page 42.

Again, we do not wish to place too much moment

on that but it does obviously leave the inference

open that this was in effect taken off the shelf.

There was certainly no evidence of any consideration being given to its terms.

Can I take Your Honours now to the evidence of

Mr Ringley. This is the evidence that he gave in

the course of the hearing on the FCU log for a

dispute finding on that log, and it start? at

page 49.	I take Your Honour to line 25 through to
line 40 at the bottom of the page.	What Mr Ringley

is saying that the Federated Clerks Union

encroachment in the banking area was unprecedented,

and there is a reference to the demarcation

problem, and over at page 51 - page 50 I think is

out of sequence - and at line 5 and this is

evidence in-chief, he was asked:

Are you able to briefly tell the commission what the basis of the demarcation proposal

made by the ABEU was? -

and this was to the Federated Clerks Union -

it was an initiative by ABEU to attempt to

overcome some of the problems that had led to
litigation and it was the basis of a working
document which we were prepared to negotiate

around which attempted to demarc the finance

industry in the post Campbell environment and

essentially it related to reserving
traditional areas plus certain propositions in

respect to the new Merchant Bank area.

And then he said that he "never received a formal

reply" not even "an informal one". Then at page 52

lines 30 to 35 he gave evidence that the banking

union had never sought to encroach on the building

societies but this was the first exception, "the

Illaton(2) 3/3/93

current matter", that is where the ABU had served

its first log. Then could I go to page 53 lines 14

to 30, after stating at lines 10 to 13 that the

federal union would "not encroach" on Federated

Clerk Union areas such as credit unions.	And then
he was asked at line 14:

Mr Hingley, what is the ABEU's interest in

serving a log of claims, directed in part to

achieve a federal award, in relation to

employees providing the banking services that

the - you seem to be licenced until April next
year, the bank in Queensland .......... ?
---Well, clearly we intend to preserve the

area of our eligibility as we see it which is

certainly, we would say, uncontestable

licenced bank areas and we intend to see that

we give proper coverage to those people both

in terms of award and union membership.

Now, do you have any concern about the

effect of a consent award being made in these

proceedings on the view that you have just

expressed regarding ABEU's interest in the

employees?---Yes. I have got very

considerable concern about it in that it runs
counter to our understanding of that position

and our ambitions.

That relates, we would say, entirely to coverage

which is the sole matter that Mr Hingley was

preoccupied with. We go to page 56 lines 20

through to 30 - there is evidence there.

Mr Mark Lynch at the top of the page is the

Queensland secretary of the union, and what

Mr Hingley had instructed Mr Lynch to do, that is

at or about the time of the log:

I said to Mr Lynch that when the licence

issued we would have full jurisdiction and

coverage and that he ought to be talking to

the clerks union in Queensland about the

appropriate processes for the handover of

union membership.

I then go to page 63 line 5 through to 10, and

particularly lines 7 to 10. Mr Hingley said:

I say that the Federated Clerks Union has no

entitlement whatsoever to follow its members

into the licensed bank areas.

Then at lines 23 to 24 he says:

Once a licence issues ..... we will do all in

our power to pursue the proper coverage.

Illaton(2) 9 3/3/93

Then he says that if there is a federal clerks

union in place he would seek to revoke it. Again,

not the slightest reference anywhere to terms and conditions or anything to do with the employment.

That was all evidence in-chief. In

cross-examination, Mr Ringley at page 65 lines 3 to

13, was asked specifically:

What was the aim of serving your log?---To

ensure that the award was not made.

Right. No other aim? You were trying to

short circuit what the FCU was doing?---No, we

would see it the other way round. The FCU was

taking a sudden interest in an area where it

traditionally had coverage to short circuit

what might happen after a licence issues.

So you wanted award coverage before the clerks

got it? Federal award coverage?---Look,

simply put, we were grossly disadvantaged if

we were going to have to stand around and wait

till a licence issued, while in the meantime

the employers and another union encouraged

each other.

Then, in re-examination, an endeavour was made

to, in effect, establish or re-establish,

genuineness and counsel for the union at line 17 of

page 69 in effect asked what some might say is a

leading question:  "Did the ABEU want the

conditions of employment - - -". That questions

was stopped and the subject of objection. Then at

page 70 counsel for the employer, Mr Douglas, at

line 10, after stating that the witness was

apparently being given an instruction about some

other motive for the service of the logs.

Then at line 23 Mr Ringley, hearing all this,

had the leave of the Commissioner to give his

answer. The Commission said:

Just a moment, gentlemen. What did you -

what were you starting to say, Mr Ringley?

---Commissioner, the unions motivation, I

would have thought, was clear from the whole

process of this hearing and that is that the

clerks union for some years had been involved

within our jurisdiction they initiated a move

in this area and had not sought to have a

federal award and on the eve of the Building

which would be to our disadvantage if we did

not take some action to cover people that we

should rightfully cover and gain an award for

and have their membership.

Illaton(2) 10 3/3/93

We say that that in a nutshell is the sole, and remained the sole purpose for the service of the first log and nothing emerged in respect of the

evidence on the second log which would suggest that

that purpose changed at any time thereafter.	Then
at page 76 - - -

McHUGH J: That confuses motive with purpose, does it not?

Surely their purpose is still to obtain an award.

I must say, Mr Merkel, notwithstanding all the

jurisprudence in this area, the chances of getting

a finding that a log is not a genuine dispute

except in a Caledonian Colliery situation seems to

me to be a very hard barrow to push. Particularly
when we have regard to what was said in Cohen and

Ludeke.

MR MERKEL:  Your Honour, I accept that the paper doctrine

has resulted in maybe what may be said to be a

triumph of form over substance. But the cases in

this Court, including Cohen and Ludeke, have
emphasized that there is an onus on an applicant

but it is an onus that can be discharged if you can

show evidence that the motive, purpose, object and

reason for the service of the log was not to obtain

the conditions, the subject of them, or improve

conditions over time within the framework of the

log. We say that if this case cannot succeed we

would say it is very hard to imagine a case that

will.

But if the end result of the present application is that the service of a log means that

it is almost unchallengeable as a basis for

creating an industrial dispute we will obviously

have to live with it, but we would say,

Your Honours, that this is a case where, at the

very highest against us, if one scrounges around

and picks up skerricks of evidence and remarks here

and there you might be able to say, "Well, at some

time they may seek to get some of the conditions in

the log; when, what and where remains to be
contemplated in the future".	We say that is not an

industrial dispute and it in fact denies the

meaning that the Court has given to the words

"industrial dispute".

McHUGH J: But the answer that was given by Mr Ringley as to

the Union's motivation is probably the true
motivation of unions in scores, perhaps hundreds,

of these applications.

MR MERKEL:  Yes, Your Honour, but Cohen added one further

requirement, that it must really want what it

seeks, and we say that is a further requirement.

It is not established merely by service of the

piece of paper. And that is why I took

Illaton(2) 11 3/3/93

Your Honours to both Cohen and Ludeke and indicated

the evidence that was given there that stands in

contrast to the present case. We say the present

case, if a valid dispute, goes one stage further

than the Court has gone in both those cases

because, Your Honours, in Cohen's case, His Honour

the Chief Justice - and I will just give

Your Honours the page references, I do not want to

take Your Honours to the judgment, but in

Cohen's case at page 340 point 9 over to page 341

point 1, in a judgment concurred in by other

members of the Court, His Honour did say that if

coverage and membership was established and no

more, then it would not create a valid dispute.

And we say that this is the case His Honour had in

mind.

But it was important in Cohen's case that

there was - and His Honour emphasized it on a

number of occasions - sworn evidence by two union

officials which His Honour, as His Honour put it at

page 341 at point 3, "there was nothing inherently

incredible about their evidence that they genuinely

desired to obtain the award", and that was an award

His Honour accepted within the ambit and pursued

within the ambit and framework of the log of

claims.

BRENNAN ACJ:  Would it have served the Union's purpose to

have simply achieved a finding of dispute and left

it there?

MR MERKEL: Well, Your Honour, not necessarily. This matter

has been beset by, obviously, the number of

hearings that have occurred and the number of

changing events, but we say it is not sufficient to

say, "Look, we want to issue a log, get a finding
of dispute". The real purpose of an award, in a

sense, is ultimately to try and get coverage for

that workplace.	What we say, Your Honour, and
it -

BRENNAN ACJ: In this case, on the facts of this case, we

have left at a finding of dispute, would there have

been anything to stop the agreements from taking

effect under the Queensland award?

MR MERKEL:  No, Your Honour. The Queensland Act provided

for - but for Queensland, the reason why this is an

interstate dispute, if it is a dispute, is because

the banks trade also in New South Wales.

BRENNAN ACJ:  Would that have serve.ct the Union's purpose, so

far as Illaton was concerned?

MR MERKEL:  Not really, Your Honour, because there was a

finding of dispute for the Federated Clerks Union

Illaton(2) 12 3/3/93

as well, and therefore the problem of who was

ultimately to get coverage was unresolved.

BRENNAN ACJ:  So they had to press on with an application

for an award?

MR MERKEL:  No, Your Honour, what we say is that this is a

demarcation dispute and was a demarcation dispute,

and section 118 of the Act deals with the
jurisdiction of the Commission to make an order in

respect of a demarcation dispute, to give coverage.

We say that the problem in the present case is that

a log was pursued and one needs to have regard to

this context. A log was pursued by the banking

union only because the FCU were encroaching. They

did not have coverage at that point, and wanted to

ensure it or secure it, and did not want to be

pre-empted.

The real course to solve the real dispute was

an order and application under section 118A which

enables the Commission to determine coverage. But,

the matter got off on the rails of logs,

Your Honours, because one was, in effect, reacting

to the other and no one ever turned their mind to

what the dispute was, and that section 118A was the

way in which it would be and should have been

resolved. So we say, Your Honours, that to, in

effect, conclude, that the way to resolve a dispute

over demarcation is to issue a log of claims in

respect of award conditions of employment, we say

mixes up two quite different directions that the

Act takes.

BRENNAN ACJ:	Well it may mix up two quite different directions, but you have to prove a negative, do
you not, and having regard to the direction which
the ABEU took, how do you prove that negative?
MR MERKEL:	We can prove it in two ways, Your Honour, and

when Your Honour says "prove a negative", I

appreciate what Your Honour puts save that we are

saying that, on the evidence, the only purpose was

to secure membership, gain coverage and prevent

encroachment. In a sense, that may be proving a

negative, but we do not say that we have to go that

far. We say that if the evidence establishes that

as the only purpose, and there is no evidence as

against that, that the Court could properly act

upon that there was another purpose, we say we have

established the onus that lies on us.

BRENNAN ACJ:  I was taking the negative from your outline of

argument.

MR MERKEL:  Your Honour is right there, although what I have

just addressed Your Honour comes from paragraphs 4

Illaton(2) 13 3/3/93

and 5, Your Honour. Bearing in mind that there is

a limit on how far an employer can go to challenge

a dispute finding, that - sorry, paragraph 4 rather

than 5, Your Honour - that in Caledonian

Collieries, Their Honours in the joint judgment

said that where:

the existence of a genuine dispute is in

question the purpose and object with which

paper demands were delivered may be decisive.

And we say that is such a case.

BRENNAN ACJ: But the legal criterions as indicated in

paragraph 2 are negative.

MR MERKEL:  Yes.

BRENNAN ACJ:  And, of course, it may be decisive, but that

is a question of the evidence.	You have to
establish, do you not, that it	was not the ABEU'S
intention to seek an award?

MR MERKEL:  We say, Your Honour, the way in which it was put

by this Court in Ludeke, and I believe it comes

from the judgment, as the ABEU did not desire and

was not seeking both the conditions the subject of

the log and an award-making provision for them. We

say that to merely say they wanted an award is not

sufficient for the Union to establish a real and

genuine dispute. We say focus must be placed on the conditions the subject of the log and we say

that is what this Court said in Ludeke.

An award, Your Honour, could cover the problem

of demarcation; it is the terms and conditions

which are the subject of the log which we say are

critical, and I accept what Your Honour says about

establishing the negative, but the way we would

rather put it to Your Honour is that we establish

what the court in Caledonian Collieries said may be

decisive, namely the purpose and object. We say

that there is just no basis for drawing any

inference beyond that that was the sole purpose and

that there was no genuine intention.

Now we say that whilst that burden lies on us,

having got to that one then asks the court to

peruse the evidence of the Union, because it was

peculiarly within its power at all times to adduce

evidence that there was a genuine desire, of the

kind referred to in Cohen or in Ludeke, that there

was some thought and care given to the log or it

was an updated log not prepared for the purposes of

the particular claim that was standard for its

claims in the industry, and when the court finds no

such evidence in the present case, we say that the

Illaton(2) 14 3/3/93

silence on the Union on_ this topic should make the

court very reluctant to draw the kind of inferences

that might otherwise be drawn by it. But, in the

end, I accept that there is a fine line. We say

that the Union has not crossed that line of

genuineness or we have crossed the line of onus,

and in a sense that is how we put it.

But we do say it is important evidence,

Your Honour, but it goes further because - I had

not finished Mr Hingley's evidence; he was re-

examined and an endeavour was made - - -

GAUDRON J: But you just ignore, do you, at page 70, his

evidence that he wanted an award?

MR MERKEL:	I was about to come to that, Your Honour.
GAUDRON J:	But that is one of the difficulties, is it not,

in your case. What you assert to be the purpose

and object could in fact only be achieved by

getting an award.

MR MERKEL:  Yes, Your Honour, but it was not an award in

respect of the terms and conditions of employment.

They wanted an award that gave them coverage to

represent the interests of the employers.

GAUDRON J:  They wanted an award dealing with wages and

conditions. It is hardly likely they would want an

award that did not deal with those matters, and it

is hardly likely that they would want those matters

dealt with in a way that was less advantageous than

the existing conditions or less advantageous than

those in the industry generally.

MR MERKEL:  We put it this way, Your Honour, that if the

only dispute is to maintain existing conditions,

that is not a dispute about the terms and

conditions of employment. I accept what

Your Honour says, although I was going to come to

page 70 because the evidence that was then sought to be adduced in re-examination - - -

GAUDRON J:  And that, of course, is in a specific context,

that evidence, is it not? That is evidence given

in a case directed to preventing the FCU from

getting an award.

MR MERKEL:  Yes, but it was evidence on oath, Your Honour,

as to a subject-matter which was the very

subject-matter of the ABEU's claim itself for a
finding of dispute; it was the evidence that formed
the basis for the dispute finding later made. But,
again, as I said earlier, if one goes through and
looks for a throw-away line here or there one finds

that, yes, there is support for the view that they

Illaton(2) 15 3/3/93

want an award ultimately, not just a finding of

dispute. But an award as to what is never stated,

and we say that in Ludeke the Court made it clear

that the standard is not just an award, and it

cannot be because the log is not just a matter of

an award, the dispute is not to get an award for

coverage because that is a section 118A matter.

TOOHEY J:  I am not sure why you would say that to get an award for coverage is a section 118A matter. An

order under section 118A is made independently of

the making of any award, is it not, or can be.

MR MERKEL:  It is the way of resolving a demarcation

dispute. I should indicate, Your Honours, that

under the current Act paragraph (c) of the
demarcation dispute is defined as a dispute about

representation "under this Act" of "the industrial interests of ..... employees" by an "organisation of

employees". At the time this dispute arose
paragraph (c) did not appear in the Act, it came

about by a 1991 amendment although we would say

that it was, in any event, a statement of what what

would have been accepted prior to the amendment as

an industrial dispute. It just made explicit what would have been accepted as a correct statement of

the law, but under section 118A the court could
have made the orders about the right to

representation.

GAUDRON J: In relation to the FCU?

MR MERKEL:  And also the ABEU.

GAUDRON J: Yes. It could never have done it though, could

it, with respect to the staff association when that

came into the picture?

MR MERKEL:  No, that is a different matter, Your Honour. We

say that that is of historical relevance to know

what happened, but really the question between the

employer and the two Unions at the time of the

concerned with, really related solely to	service of the log, which is the matter we are
coverage.The staff association in mid-1990 became
the competitor in replacement of the FCU. That
would have only made the case even stronger for the
banking union to get coverage under section 118A.
It would not have had a competitor.

I accept I must deal with all the evidence

including those parts that may be said to give some

basis for the argument that there was some

genuineness.

DEANE J:  What do you say is the relevance of the fact that

the Commissioner who saw and heard the witnesses

Illaton(2) 16 3/3/93

give oral evidence reached certain conclusions?	I
know that you can point to many statements which
say it is a question of fact and so on, but it cannot be that simple when you are relying on oral
evidence given before someone else.	And heaven

forbid, I am not suggesting that you should call

all the evidence before us.

MR MERKEL: Well, Your Honour, there are two answers to

that. One is that where issues of credibility were

not a matter of contest, and we are not saying this

was a contest on credibility, one reads the whole

of the evidence and this Court is in as good a

position as the Commissioner to deal with this kind

of issue.

The second, Your Honour, is that if that were wrong, then the "God forbid" that Your Honour

raised may well become a reality. That would mean

that the contest of evidence would have to be, in

effect, repeated as a viva voce contest in this

Court. We say that whilst weight is to be given,

and in some instances great weight, to the

expertise and experience of the Commission in this

area, we say that really this is not a case where

that principle carries one either way, because when

one comes to the reasons of the Full Benches in

this case, in the end it does not turn upon any

distinctions of the kind Your Honour has raised

with me. They looked at the evidence. The Full

Bench felt as equipped to look at the evidence as

the Commissioner, notwithstanding they had not seen

the witnesses, and nothing really turned on those

sorts of considerations. So we say that that would

not be a consideration in the present case.

But even taking up what Justice Gaudron put to

me, at page 70, again given the context - and we

say that this has got to be examined in the context

of the answer that was given to Mr Douglas in

cross-examination to the effect that there was only

the object of coverage - what he then said in

re-examination at line 25 was:

The unions motivation, I would have thought,

was clear from the whole process of this

hearing and that is that the clerks union for some years had been involved in this area and
had not sought to have a federal award, and on

the eve of the Building Society gaining

banking status and coming within our

jurisdiction they initiated a move which would

be to our disadvantage if we did not take some

action to cover people that we should

rightfully cover and gain an award for and

have their membership -

Illaton(2) 17 3/3/93

gain an award for their membership, not in respect

of terms and conditions. We say that Ludeke's case

makes the terms and conditions critical.

But could I move on, because it did not rest

there. At pages 76 to 77 this matter was persisted

in, at line 42, again in re-examination, and this

goes over to page 77 at line 37. He was asked:

if the FCU did not obtain an award out of the

log of claims that it served and on which a

dispute has been found, would the ABEU
continue in relation to 9001 to seek a finding

of a dispute and the award which you refer to

as something that you wanted?

He said that the answer is "no" at this time.

GAUDRON J:  Now, are we talking about the first log still?

MR MERKEL: This is the first log, Your Honour.

GAUDRON J: Which is irrelevant, really, now, is it not,

except in so far as you might draw inferences from

this evidence about the second log, but one would

wonder about the relevance of "no" a:t this time

when there is a later log served.

MR MERKEL: Well, yes, Your Honour, but the later log comes

in identical circumstances. I accept that this

evidence is inferential in the sense that

Your Honour puts, but it is very compelling because

when I take you to the grounds given for the
service of the second log the only distinction is

that now there is a bank, but no other purpose or

object is stated to be any different, and we would

say that this - and it is also reaffirmed by later

evidence given at the second hearing in 1990, but I

will come to that. But we do say that this is

compelling evidence and he says, at line 11, at

page 77 - - -

GAUDRON J: There you are. You see, the position changes.

The answer is made clear a little later on. He is

not asking for anything before it becomes a bank,

at that stage.

MR MERKEL:	Yes, Your Honour.
GAUDRON J:	And he says the position changes once the bank

is licensed and operates.

MR MERKEL:  And, Your Honour, solely for the purpose, if I

can put it in one word, of gaining coverage, not to secure terms and conditions within the framework of the log. That is the distinction.

Illaton(2) 18 3/3/93

BRENNAN ACJ:  I do not understand how you draw a division

between those two purposes when the accomplishment

of the one involves the accomplishment of the

other, in practical terms.

MR MERKEL: Well, Your Honour, there could be an award which

dealt solely, if I may put it, with the right of

coverage, with the right of access, but nothing to

do with the terms and conditions of employment -

the salary, the - - -

MR MERKEL: It seems very unlikely, does it not? In

practical terms it seems to be something	that is
conjured up for the purpose of argument,	Mr Merkel,
does it not?

MR MERKEL: Well, not really, Your Honour, because we are

endeavouring to say that the artificiality of a

paper dispute, which we accept, cannot be carried

over to an artificiality of whether there is an

industrial dispute.

TOOHEY J: Well, you say, or perhaps have to say - leaving

aside onus in the Commission and onus here - that

there was no demand, or no genuine demand, by the

Union for any of the terms and conditions in the

log, do you not?

MR MERKEL: 

Can I say, Your Honour, that we accept the

proposition that there was no genuine demand in
respect of the terms and conditions of the log. If

one goes through the log one may find - - -

TOOHEY J:  What do you mean you accept the proposition? I

would have thought that was fairly crucial to your

MR MERKEL:  No, Your Honour. Your Honour said "any". There

may be a stray condition in the log that has got to

do with a union right of access, and what I am

really seeking to focus on is, this is a dispute

about terms and conditions of employment of

employees by the employer, and if, in effect, the

union could say look, we genuinely wanted some

access to the employment, but the real substance

and gravamen of the log is one as to terms and

conditions. So we say that there was no genuine demand in respect of the terms and conditions of

employment the subject of the log. There may be a

question of degree, but this is not that kind of

case.

TOOHEY J:  You illustrate that, I take it, by the sort of

evidence that you have been taking us to.

MR MERKEL:  Yes, Your Honour. And the highest one can get

to this case would be Mr Hingley's answer about

Illaton(2) 19 3/3/93

what may happen in the future once there is a bank. I emphasize "may happen in the future once there is

a bank". He was asked at line 34 at page 77, when

he was asked in re-examination:

what things would the ABEU be wanting in the
award?---We would be wanting an award that had

conditions and salaries that were consistent

with the standards of the banking industry.

We would say that is the highest point at which

this evidence reaches -

DEANE J: Sorry, where is that?

MR MERKEL:	At line 35 to 38 at page 77, Your Honour.
DEANE J:	The next question and answer takes it a little

higher, actually.

MR MERKEL: Sorry, Your Honour, an inch higher maybe,

Your Honour, or a centimetre higher, because it

says that these are better than the standard in the

banking industry. But could I ask Your Honours to

note, and I will come to it, could I ask Your

Honours to note against that evidence, the evidence that Mr Hingley gives at appeal book page 206,

line 35, to 207 line 18. I was anxious not to get

too much out of sequence, but can I introduce that

passage with this comment.

We referred in our outline to a passage from

The Builders' Labourers' case, (1914) 18 CLR 55 -

that is at paragraph 5 where Their Honours - in our

outline the reference at 225 is wrong, it should be

255. Their Honours, Justices Gavan Duffy and Rich,

page 255 at point 7, Their Honours said:

The demand may be the outcome of a settled

determination on the part of the employees to

have that which they demand by lawful or it

may be even by unlawful means; the refusal may

be the result of an equally deliberate
determination on the part of the employers.

If so there is a dispute.

That is very consistent with Ludeke and Cohen.

On the other hand the demand may merely represent what the employees would like to have though they are not really discontented

with existing conditions, or, being

discontented, are not disposed to insist on

concessions; the employers' refusal may

represent a mere unwillingness to give too

easily that which, if pressed, they would be

Illaton(2) 20 3/3/93

ready to consider or concede.	In such a case
there may be no dispute.

Now we say that notwithstanding the triumph of the

paper doctrine, we say at the end of the day if the
paper represents no more than what employees may or

may not like or a Union may or may not want to

pursue, we say that that is not a genuine dispute. And we say that is consistent with what is said in

Cohen and Ludeke. In Mr Hingley's evidence at page 77 - - -

BRENNAN ACJ:	What do you mean, may or may not pursue? not understand what that is intended to convey,	I do
Mr Merkel.

MR MERKEL: Well, it follows from the may or may not want.

They do not really want it, Your Honour.	It is
just - - -

McHUGH J:  What do you mean by they? Do you mean the

employers and the Union, because one development,

of course, of the paper doctrine, is the fact that the Union is a party principal, so it is the Union that makes the demand on the employees, on behalf

of its members.

MR MERKEL:  Yes, I accept that and I interpolate in that

passage, the Union for the employees. So -

McHUGH J: It seems to me that when you talk about a Union

making a demand on behalf of its employees, it

would require a very strong case indeed to find

that it was not a genuine demand, but in Cohen's

case the Union had no members with a compensation

board. It was said on the facts that prima facie
they had no real disagreement with the employer,
but in a case like this, the inference seems very
strong that the Union would be demanding a these

conditions on behalf of its members.

MR MERKEL: Well, Your Honour, how strong a case one has to

get is, in effect, saying whether we have
discharged the onus.	We would say that the highest

the Union's case gets in the present case is that

at some stage they may claim a demand, they may

have a demand; they do not have any they identify;

they do not have any that they are dissatisfied

with as far as the workplace at Metway, and what I

was going to do was take Your Honour to where - - -

GAUDRON J: But that was a subsequent development too. What

one has got to look at really is the dispute.

Well, as at the time the log is not acceded to.

MR MERKEL:  Yes.

Illaton(2) 21 3/3/93

GAUDRON J:  The conditions that they now say are more or

less satisfactory are conditions that happened

subsequently. I know disputes can change, but you

do not say, well there was not an existing dispute

merely because at some stage subsequent to the

dispute, conditions were granted which satisfied

people for the time being.

MR MERKEL:  I accept that, Your Honour. I think what I am

really doing at page 77 is saying to Your Honours

that this is conclusive evidence that there was no

dispute at this point of time, because they said

they do not want an award, and they said that, "At

some time in the future after a banking licence is

obtained we will - - -"

GAUDRON J: But that is not the log of claims that were on

the list - - -

MR MERKEL:  No, I understand that, Your Honour. I accept

what is being put about a heavy onus, or a high

hill, or mountain to climb, that we can only do it

in one way, and that is to show that, look, as at

18 December at the first log, it was not a genuine

log, as Mr Hingley's evidence says it was not a

genuine log, and that becomes the s·tarting point

for a search to see why the second log is any more

genuine. I can only take it in those stages,

Your Honours, and we say that nothing emerges later

that shows that the second log had any higher or

better position or status than the first.

I was going to take Your Honours to the

passage at 206 to 207 because putting what I would

submit is the Union's case at its highest at 77 to

78, in context, does not carry them far, but

Mr Hingley at page 206 was asked about the ABEU's

agenda for change - and I will have to come back to

this evidence in context, but he was asked at

line 40:

Can you tell the commission what, if any

general view the ABEU has about the terms and conditions of employment of employees in what are called new banks by comparison with those of employees in the bank officials federal

award banks?---Well, our views on that are
well-known to the commission, and a matter of

quite detailed report, and that is that we

regard these awards as amongst the most

contemporary in Australia; that they are

modern awards and have all the flexibility

requirements sought under the national wage

decision and structural efficiency.

Does the ABEU have any view about any improvements generally which you want in

Illaton(2) 22 3/3/93

relation to new banks awards by comparison

with bank officials federal awards?---No.	The
weight of variation is really in the
traditional area rather than in the new
banking areas.
Comparing the two, though, the present

conditions in the federal award banks and the provisions in the new banks, and amongst them

I include Challenge, Advance, and Metway, does

the ABEU have any general view about the

relationship between those two groups and what

changes it might make - might want to make in

the new banks, including the old building

society banks?---I am not aware of any major

change we want to make in the new bank area.

Now, I will come to that in its context, but what

he is saying and what we will be submitting is that

the first log was not genuine, and nothing emerged

that made any basis for the second log any more

genuine. Indeed, if one looks at it, it suggests

that it lacks even what may be the genuine aspects

of the first log, an ambit of a lesser amount.

BRENNAN ACJ: Correct me if I am wrong, Mr Merkel, but is

that question not referring to comparison between

the award which is desired for new banks and the

award which is already existing?

MR MERKEL:  No, Your Honour, it is more complicated than

that. What had happened is the voluntary

employment agreement had become the subject of a State award in Queensland, and he was asked what

conditions would you be, in effect, seeking beyond

those which are already protected by the State

awards in respect of the new banks, and he said he

really has no agenda for anything more.

I will come to it in its context, Your Honour,

it comes up after the voluntary employment

agreement.	But the point really is, Your Honour,
that there is no evidence that there were any

existing terms and conditions in the Metway banks

which the Union had a dispute about.

GAUDRON J:  He was speaking then 21 months after the service of the second log. Am I right?

MR MERKEL:	Yes, Your Honour.
GAUDRON J:	And he was speaking, what, some 12 months after

the State award?

MR MERKEL: That would be right, Your Honour, but he was

speaking 20 months after the employment agreement

and before there was a finding of dispute. I will

Illaton(2) 23 3/3/93

have to come to the context, but the State award

embodied the voluntary employment agreement which

was entered into within a month of the log and

prior to the dispute finding on the log. So we say

that what Your Honour puts is correct, but one has
to go back to the employment agreement and what he

really must be taking as stating is that since at

least February - and we say the distinction between

January and February would be marginal in this

context - February 1989, I cannot determine any
condition of employment that we are dissatisfied

with.

Can I move away from the first hearing. I

have taken Your Honours to the chronology, but at

appeal book pages 17 to 18, and I only mention the
reference, it is clear that after the staff association had formed, conditions improved dramatically, and that led to the second log which

is at page 82 and I have taken Your Honours to

that. Then there was the FCU second log on

1 February, so the contest between the two at

January and February almost mirror images to the

day the situation that had prevailed back in 1988.

Then proceedings came on in the Commission on

9 March on the ABEU second log, and can I take

Your Honours to pages 97 to 98 of the application

book where counsel explained why the second log was

served - this is counsel for the Union, Mr North,

at line 40 on page 97. He says:

On 11 November 1988, Austman -

that was the predecessor to Illaton -

served a notice of appeal against the decision

made on 21 October -

that is the dispute finding on the first ABEU

log -

and that appeal is to be heard on 9 May.	Now,
the notice of appeal deals with every
conceivable aspect of the decision of

21 October but, amongst other things, if the

commission pleases, it deals with two

allegations of importance. One is a - it

derives from the submission made by Metway,

Austman and Waltkay that there could be no

finding of dispute, because at the time of the
serving of the log the building society had

not yet become a bank and therefore had not,

as I understand it, come within the coverage.

Illaton(2) 24 3/3/93

There was a second matter that is not

presently relevant and at line 20, at page 98, he

said:

rather than have long and academic arguments about such technicalities, it is prudent, in

our submission, to have available an ability

to get to the merits aside from obstructive

technical arguments.

And then the Commissioner said:

And otherwise the log of claims ..... is

identical.

And I should say that the matter had proceeded on

the basis of the log being identical but, as I have
indicated to Your Honours, there were two

significant differences. It also is raised at the

bottom of page 99, at line 43 through to 55, where

counsel said:

The log is in identical terms. The only

purpose is to overcome the potential

difficulties which, of course, we do not

concede, but as a matter of precaution,

wishing to avoid any delays, we seek to avoid

any such consequences, but the underlying

reasons that were given for finding a dispute

in 9001, we submit, apply equally and that is,

as to the participation of the Metway Bank

Limited in the industry of banking, as you

found; the role of Waltkay, which I think was

all but conceded; and the role of Austman.

So we say that that makes it clear that the only

reason for the second log is to remove the

technical defect or argument that was being put at
that stage and if the first log is bad, we say
there is no evidence to make the second log any

better.

DEANE J:  Mr Merkel, what would you say about a situation in

which there was no present dispute about conditions
but there was real dispute about whether those

conditions should be protected by an award of the

Commission?

MR MERKEL:  With respect, we find it hard to reconcile the

two statements in the real world because the only
way they could be reconciled is if the Union
believed that even though they are the prevailing
conditions they could disappear at a moment's

notice, or they believed that the employer may

undercut them. There could be a dispute, but the

dispute, Your Honour, would be about the prevailing

Illaton(2) 25 3/3/93

terms and conditions in the sense that they are

momentary or transitory.

DEANE J:  What the Union believed really would not matter.

It could just be that the Union wanted the

protection of a federal award incorporating those

existing conditions.

MR MERKEL: Well, I suppose we come back to what we said

earlier, Your Honour, that the artificiality

doctrine may carry to paper disputes but cannot

create a dispute if there is none, and if there is

no genuine dispute about the terms and conditions

of employment, then we say that a dispute just to
get an award when there is no real dispute about

the security of those terms and conditions would

not be a genuine dispute. But I add that if there

was a dispute about the term for which they were to

apply, then of course that would be a dispute about
terms and conditions, how long or how secure those

terms would be.

But to merely get an award would have two

possibilities:  One is just to get coverage and we

say that would not be genuine, the other is to seek

award provision within a log to resolve a genuine

dispute that would be valid.

DEANE J:  Is there anything in the cases that you are aware

of - and your reference to Justices Gavan Duffy and

Rich would seem to indicate you are aware of

everything - which supports what you are saying in

that regard, that is that a genuine dispute about

whether conditions should be protected by a Federal

award is not a dispute for relevant purposes?

MR MERKEL:  I think, Your Honour, I am not sure that there

is authority either way. What I would ultimately

take comfort in is what this Court said in Ludeke

about wanting both the terms and conditions and their presence in an award, and we would say it

would be inconsistent - - -

DEANE J: But if you want them protected by a Federal award

you certainly want them.

MR MERKEL:  The question then becomes, "Was there a dispute

about them?", and we say these matters are of

importance, Your Honours, because, of course, the

jurisdiction that the Commission has is awesome and

it is to be founded, and it may require

consideration, as to how far the artificiality

doctrine can be taken if it goes to the

artificiality of the dispute itself, and we say

that is the issue that arises in this application.

Illaton(2) 26 3/3/93

TOOHEY J:	I thought you might have said in answer to Justice Deane that there is in fact no disagreement
between the parties as to the terms and conditions of employment, merely as to whether or not they
should be incorporated in an award. Now, whether
that is a sufficient answer is another matter but
is not that at the heart of it, whether in fact
there is any disagreement between the parties over the terms and conditions of employment.
MR MERKEL:	Yes, Your Honour, and we would say that it is in

effect a bootstrap argument to say we want an award

to say that we must create a dispute when there is

none.

BRENNAN ACJ:  Why is it that the terms and conditions being

protected by an award, as distinct from terms and

conditions not being protected by an award, is not

itself a term or condition of employment?

MR MERKEL:  I was just told on the way up here yesterday

that the Federal Court, I think, is convening a

Full Bench of five judges to determine whether

award conditions are incorporated into a contract

of employment. So, I think what we would rather

say, Your Honour, is that, as His Honour

Justice Toohey put it to us, a dispute over terms

and conditions is different to a dispute over an

award for those terms and conditions.

TOOHEY J:  I was not suggesting it is necessarily different.

MR MERKEL: Well, may be different.

TOOHEY J:  I was suggesting that it might be a basis of

distinction.

BRENNAN ACJ: But the question that I put to you was: is

there any distinction between a contractual promise

by an employer to pay a wage and an award provision

binding the employer to pay the wage, and if there

is, is that distinction itself susceptible of

characterization as a term or condition of

employment?

MR MERKEL:  We would say no, Your Honour. We would say that

a dispute over terms and conditions is capable of

being an industrial dispute, a dispute that we have

award protection for those terms and conditions is

not. The reason we would give, Your Honour, is

that the law imposes the obligation under the

Industrial Relations Act and the provisions dealing

with the enforcement of awards. That cannot be and

is not capable of being superimposed on the

contractual relationship as a term of the contract,
because the law imposes the obligation, the

contract is something that is quite different to

Illaton(2) 27 3/3/93

it. We say that what this Act is concerned about

is the relationship between wheeling out something

else from the past, the employer and the employees

as such, and we say that award protection only

comes up when there is a genuine dispute about

something arising out of the relationship as such.

An award protection is a statutory superimposition

independent of and extraneous to that relationship.

And we do gain something from Ludeke and also

all the cases because we would say that the cases

do not support the view that just wanting an award

is capable of giving rise to a dispute, but I

cannot say there is direct authority either way on

that very issue but it seems inconsistent with

Ludeke to come to the conclusion that such a

dispute would be an industrial dispute.

If I could go next, and I will deal with it

very briefly: the dispute finding by the

Commissioner was at page 109 - and I only take

Your Honours to these findings because we say that

in the end, whilst they are matters that the Court

gives weight to, the kind of issues before

Your Honours really involve, ultimately, a question

of law based upon what are not disputed facts.

At page 109, 15 to 20, Commissioner Brown's

decision is set out, and he in effect says there is a dispute about the letter of demand of 17 January.

That then goes on appeal and the appeal reasons are

at 117-118. At page 117, lines 35 to 45, the bench

states propositions of law and, at page 118,

lines 10 to 33, sets out its conclusions, and the

first sentence at line 9 is very much what

Your Honour Justice Deane put to me, that they:

were influenced by the goal of securing or

protecting award coverage.

But we say, again - I will not read Your Honours

the passage, but we say, again, there is no finding

of fact dealing with the precise issues,that we say

there is in effect a conclusion of law, and we say

that it does not take the matter very much further.

Then the section lll(l)(g) proceedings came on

before Deputy President MacBean and Mr Hingley gave

evidence again, and if I can take Your Honours to

that evidence, that is at page 159 it starts, and

can I just indicate to Your Honours that what had

occurred by this time, which is September 1990, is

that there was a voluntary employment agreement

which had been the subject of a State award in

Queensland and the only contest between the ABEU

and the FCU was over a union respondency to that

award and, in fact, the award ultimately was made

Illaton(2) 28 3/3/93

with neither as a respondent. That helps explain

some of the evidence that Mr Hingley now gives.

Can I take Your Honours firstly to page 170

and I will not read it, but lines 45 to 50 Mr

Hingley again emphasizes the question of

representation. That was the only opposition to

the employers award, we wanted representation, and

that carries through to page 171 line 10.

Page 183, lines 1 to 15, and this helps explain what Your Honour Justice Gaudron put to me earlier

about evidence that comparison between what the

Union was wanting in the VEA and the State award.

In cross-examination, Mr Hingley had put to

him certain documents about the State award and

counsel, my learned friend Mr Hinkley, wanted to be

satisfied that Mr Hingley was aware of the terms

and conditions of the documents. Mr Hinkley said

that what the ABEU's application in the State

jurisdiction was and what the employers were

seeking were for the same terms and conditions.

That is lines 7 and 8. So that they were the terms

and conditions which were the subject of the

voluntary employment agreement. entered into in

February 1989.

BRENNAN ACJ: What page was that, Mr Merkel?

MR MERKEL:  Page 183, Your Honour, at lines 1 through to 15.

That just helps explain the evidence I am going to

take Your Honours to at page 184, because the point of this evidence is that it is inescapable that the

ABEU had no dispute about any term and condition in

the voluntary employment agreement, the subject of

the State award, other than what it says at 184 and

that is at line 6. Mr Hingley is asked:

Now is it the case that the ABEU'S opposition to the employer application -

that is, in Queensland for registration as an award

for the VEA, Voluntary Employment Agreement -

that the ABEU is not written into the

application ..... ---Yes.

Does that mean that, if the ABEU was to be

written into clause 2 of the employer's

application that the ABEU's opposition would

be removed?---Yes.

You agree with me, then, that ABEU'S

opposition to the existing rates and

conditions under the VEA, going into a state

award, is not related to the wishes of the

employees, but in fact is related to the

Illaton(2) 29 3/3/93

desires of the ABEU?---It is related to the

desires of our ABEU members working in Metway.

And the desires of the ABEU members working in
Metway, where are those desires

expressed?---In discussions with them.

Then that is picked up at page 186.

GAUDRON J: That, none the less, is important, is it not?

We start from the proposition that you have got -

that the Union is itself a party principal in the

dispute. What they are saying is that the dispute

still exists because you will not deal with the

Union as party principal. What that evidence is,

is that you cannot get away with saying there is no

dispute simply because the terms and conditions

that have now come about are terms and conditions

that we think are appropriate.

MR MERKEL: There was always a dispute, Your Honour, about

representation of the workers' interests and this

is what the dispute, we say, is the subject of the

evidence. But first between the FCU and the Union

and then from mid-1990 between the staff

association and the Union, but what Mr Hingley is

saying there is, I have no dispute about any of the

conditions of employment; I want the Union to be

the organization having coverage. It is the only
matter I have issue with.

GAUDRON J: It wants the Union having the right to represent the employees who are their members, in discussions

with the employer.

MR MERKEL: Yes, Your Honour.

GAUDRON J: Well, that is an industrial matter, is it not?

MR MERKEL: It is an industrial matter - - -

GAUDRON J:	And it is part of the dispute.
MR MERKEL:	It is a dispute, Your Honour, but it is not the log of claims that was served.
GAUDRON J:	But it emerges by reason of the demand being

made by the Union in the original log.

MR MERKEL:  Your Honour, that is the contest, we say, that

there was a dispute about representation; that is

not a dispute about the terms and conditions of

employment. That is how we put it. Evidence is

given to that effect.

Illaton(2) 30 3/3/93

GAUDRON J: Well, the evidence is, you do not settle the

dispute with the Union. What that evidence is

saying - and as a proposition of law it really, I

think, is critical for you to deal with - what that

evidence is saying is, you do not settle a dispute

with the Union by reaching individual agreements

with individual employees, even if they are made
into an award, because the Union is left out of the

process.

MR MERKEL:  I agree with that, Your Honour. I cannot

contest that because that is our case, Your Honour,

that a dispute over coverage and the right to

membership -

GAUDRON J: Must that not be right? If the dispute is with

the Union, you cannot say it has gone away because

you have settled a dispute with individual

employees or with the staff association.

MR MERKEL:  I accept the burden that I have, Your Honour,

which is that there was a dispute, that is was not the dispute the subject of a log of claims; it was a dispute over a matter that was not the subject of

a log of claims, that is that the sole right of

coverage in respect of this workplace was the

Union's. We do not deny that, Your Honour, and

indeed it is made good by what Mr Hingley says at

page 186 at lines 16 through to 44. He makes the
point, and I will not read the passage, but really

he makes the point at lines 43 to 45, but I would

ask Your Honours to read the whole of the passage,

that we want the interest of the workers to be

served by a mature organization; that is us. That

is the only issue we have. Sarne thing at page 187,

he makes the point from line 30 to line 45, the

only issue is coverage, under an award to which

they are a respondent.

Sarne at 188 line 23 over to 189 line 7, and

this is an important point at the bottom of

page 45, the question of whether there was any

GAUDRON J: Page 45? agenda even for the future, that the evidence -

MR MERKEL: Sorry, Your Honour, page 188 line 45:

does your union have an agenda for the

variations ..... to the existing terrns ..... I

genuinely do not know ..... I do not have an

agenda.

So that even in the context of the cases like

Ludeke where it is suggested the fact that you do

not want to pursue the conditions now but may wish

to in the future or do wish to in the future, does

Illaton(2) 31 3/3/93

not disqualify the dispute, but here there is not

only no dissatisfaction with any existing term and

condition but there is no agenda in the future for

any improvement on those existing terms and

conditions, and that is rounded off at 190 lines 16

to 25 where counsel for the staff association said:

To round it off, then, it is clear from what

you have said that the federal organization

does not have an agenda for variation to the

existing rates and conditions of Metway?---

That is right.

And then at 206 line 35 to 207 line 16 is the

passage I read to Your Honours, and I hope the

context now is a better one because it shows that

this agenda for change and this award protection

has got nothing to do with seeking anything in

respect of terms and conditions of employment at

the Metway Bank.

Mr Petie gave evidence at pages 238 to 241, he

was the secretary of the State branch. I do not

need to trouble Your Honours with that evidence, it

did not take it any further and Mr Hingley clearly
is the Federal secretary, the person who issued a

letter of demand and had the running of the matter.

Can I finally go to the two decisions because,

after Mr Hingley's evidence, application was made

to revoke the finding of dispute, and that was

dealt with by Deputy President MacBean. It is in

volume 2, but the particular pages where the Deputy

President dealt with these matters is at pages 337

through to 344 and again I will not take

Your Honours to it all, but again Your Honours will

find on reading it that it really is an argument of

the application of the law in this area to what

were not disputed questions of fact. He sets out

his conclusions at page 341, again based upon Cohen
and Ludeke, and says at line 10 at page 343, "The

submissions" put on behalf of the employers and the

staff association:	fly in the face of the judgment of the High
Court ..... and must be rejected.

That we say is the question of law that arises on our application. That was then the subject of

appeal to the Full Bench, and that was dealt with

at page 369, and again I am not sure that a great

deal is served by taking Your Honours to the detail
of it. Their Honours seek to apply Ludeke and

Cohen's case principles to the very evidence that I

have taken Your Honours to, and we say that they

formed a view that, with respect, is wrong for the

reasons that I have identified to Your Honours.

But again this is not a case where one can say,

Illaton(2) 32 3/3/93

"Look, great weight should be given to these

findings", because they are really based upon the

same view of the evidence that Your Honours have in

an appeal book or an application book.

Now, we say that there is one matter we do

wish to address. Their Honours - - -

BRENNAN ACJ:  Mr Merkel, can I just interrupt you for a

moment? The power to revoke a finding of a

dispute - - -

MR MERKEL:	I think that is section 101, Your Honour.
BRENNAN ACJ:	And can that be exercised because a dispute

that has existed no longer exists?

MR MERKEL:  Yes, Your Honour. I think we have referred on

the last paragraph in our outline of argument to

Bain's case where that proposition is put,

Your Honour, but 101 can revoke a dispute finding.

The authorities, Your Honour, are that there must

be a dispute at the time of the finding of a

dispute, but the award must still be in settlement

of a dispute at the time the award is made. I

think Blackburn's case and Bain's case deal with

those matters. So that ~f, I think, particularly

Blackburn's case, Your Honour, there is no longer a

dispute, then there is no longer jurisdiction to

make an award. One can only resolve and settle by

an award that which is still in dispute, and 101 of

the Act gives the broadest of discretion and

jurisdiction concerning those matters.

TOOHEY J: Are there any other sections in the Act that bear

on the exercise of power under section 101,

Mr Merkel?

MR MERKEL:  In this context I am not aware of any. I recall

in the matter that came up last year before the

Court, there was the problem of section 113 and its

relationship to 101, but I do not think that is

relevant for present purposes. I do not think

there is any other relevant provision, Your Honour. There is one matter which we do wish to

address very briefly and that is that in the

reasons, in the Commission, weight was placed upon

the fact that it is not surprising that there may

not be immediate pursuit of a change to terms and

conditions by way of award, and that was under the

first award principles, the National Wage case

decisions that set, prima facie, a first award

shall be on existing terms and conditions and

improvements are to be by way of variation.

Illaton(2) 33 3/3/93

I say three things about that. First, that is

a prima facie position, it does not mean that one

cannot seek to have improved conditions or that one

cannot seek to vary them if one wishes to.

Secondly, we say there was no evidence anywhere by

the Union that first award principles played any

part in its thinking in respect of this matter, and

if our argument is right, they would have been

irrelevant in any event. Thirdly, we say that the

doctrine of first award principles really is not an

answer because we say, whilst it may justify, in

effect, the Ludeke's case situation of saying, "We

do not.wish to have those conditions now, but we

certainly wish to pursue them in the future", it is

not a substitute for where there is a case such as the present where there is no wish demonstrated in respect of any of those terms and conditions.

McHUGH J: It would be understandable, quite apart from the

first award principle, that the Union would not

want to seek to disturb the existing conditions,

having regard to the fact that one of the sticks

they were being beaten with by Metway was that an

ABEU award would be disruptive of the terms and

conditions of the employees.

MR MERKEL:  Your Honour, that inference may be open, but we

say it only emphasizes the fact that there is

absent a dispute over existing terms and

conditions. It goes back to that BLF passage,

"There may in the future be a dispute", and we say

that is not sufficient to ground jurisdiction.

We finally do place emphasis on the absence of

evidence which it was always open to the Union to

call to attack this genuineness allegation which

has been at the heart of the challenge to the

ABEU's role in this matter from the very beginning.
And we say no evidence was filed or tendered on

that issue other than what I believe we have taken

Your Honours to.

McHUGH J: But you seek to prove your case by inference. It

was never put to Mr Hingley that this was not a

genuine log.

MR MERKEL:  We say it was, Your Honour, in the sense that it

could only be put by asking the questions that were
asked of him: What was your purpose? Was that the

only purpose? And then in re-examination in the

early days and nothing improved later on, what

counsel sought to say was: Well, did you have

another purpose? Did you want the terms and
conditions? And his answer is, "We wanted to keep

the FCU out".

Illaton(2) 34 3/3/93

We say that the Court should be hesitant in

drawing inferences in favour of the Union when it

was open to it to call evidence of the kind called

in Cohen and Ludeke, and that evidence, as I have

indicated, is absent.

McHUGH J:  I must say one of the problems I have with this

doctrine of purpose in this particular area is that

the mental processes are operating at two levels.

One level is the motivation of what might be called

"the union officials" to maintain or extend their

coverage; and at another level there is the

intention to obtain award conditions on behalf of

their members. Now, the cases seem to collapse

those two processes into one, but are they not two

separate processes? I mean, the real motivation

for the Union's service of the log of claims may be
the fact that it wants to maintain its coverage,
but at the same time it is doing something and it

intends to get coverage.

MR MERKEL:  Your Honour, we say that Cohen's case

particularly does treat them as separate issues and

makes it fairly clear that if it is just an award

for coverage purposes and not because there is a dispute over the terms and conditions, then that

would not be a genuine dispute. We do say it maybe

is time to draw back a little in this area because

of the consequences which a dispute finding leads

to. It is to be borne in mind, Your Honours, that

once a dispute is found there must be an award in

settlement of it subject only to the
section lll(l)(g) issues, an award that makes the

terms of employment a private contract subject to

law, and we say that the Court should not be overly

indulgent in, in effect, allowing that process to

be resorted to when there is what I will say is an

artificial dispute, as opposed to the paper

dispute.

McHUGH J: It is about 60 years too late to be putting this

sort of argument.

MR MERKEL:  No, Your Honour. I am accepting that a paper

dispute, if shown to not reflect a genuine dispute,

we say the Court should give effect to that

doctrine and say there is no genuine dispute. I am

not trying to move back from paper, but we say it

still is only prima facie evidence of the existence

of a dispute and we say we have displaced it in the

present case.

But, Your Honour, the best answer to the

purpose doctrine is that from the joint judgment I

gave Your Honour earlier in Caledonian Collieries, which is a case which has been cited and approved

of recently, where Justices Gavan Duffy, Rich,

Illaton(2) 35 3/3/93

Starke and Dixon indicated that, in a case such as the present, purpose and object may be decisive and

we say that it ought to be in this case.

The very final matter I wanted to say briefly

is my learned friend has sought to file an

affidavit today. We have only seen it, I think, in

rough form, last night and in other form today.

Maybe it is appropriate that we do not say anything

about it at this stage. He has sought to use some

exhibits and we say that one of them is a

resolution of the federal executive. We say it

does not take the matter any further, but possibly

if we dealt with that by way of reply after he has

put it and sought leave to rely on it. If the

Court pleases.

BRENNAN ACJ:  Thank you, Mr Merkel. Mr Douglas.

MR DOUGLAS:  Can I say first of all that we adopt our friend

Mr Merkel's submissions and will say a few other

things briefly. Could we hand up an outline of

submissions. In our submission, where the

Full Bench has gone wrong, is to seize on the log
of claims and its rejection as the foundation for a

dispute and really, to use the Chief Justice's

words in Wooldumpers, as a jurisdictional talisman.

The problem that has arisen is that the Full Bench

has lost sight of the real dispute which is and

always has been a dispute about representation:

who should represent the employees; should it be

the Australian Bank Employees Union or the

Federated Clerks Union, originally; these days

should it be the Finance Sector Union or the Metway

Group Industrial Organization of Employees?

The consequence of the finding by Commissioner Brown, which is sought to be attacked

here, will be, if it is allowed to stand, that if

conciliation fails, arbitration will ensue with the

aim of instituting an award based on a log of

claims and a refusal which do not address the main

issue, based on a log of claims seeking terms and

conditions of employment and a refusal of them,

neither of which addresses what is significantly an

issue between the parties to the dispute, which we

concede exists.

So that the Commission will start going down

the path of arbitration to the creation of an

award, ignoring what really is its main job, which

is to settle a dispute about representation, in our

submission. So, that is why we say the writs of

prohibition should go. We concede that there is a

dispute rule here we are fighting, but what has

been decided by the Full Bench has nothing whatever

to do with what the real fight is about. So, in

Illaton(2) 36 3/3/93

our submission, the Court should intervene and

should prohibit it from proceeding in this matter,

C30101.

McHUGH J:  Where does the interstateness come in in this

case? Does Metway have branches in other States?

MR DOUGLAS:  It has branches in Sydney and Melbourne; I

think elsewhere in New South Wales too, and perhaps

Tweed Heads, and employees working there who are

members of the prosecutors for whom I appear.

It is interesting to look at the history briefly. The ABEU had no members originally. Its

eligibility rule prevented it from having members

who were employees of the Metropolitan Permanent

Building Society, so when it first came in to the

scene it was truly an outsider with no membership

rights in respect of the employees of the

Metropolitan Permanent Building Society.

The evidence so far has never shown how many members it has who are employees of Illaton. There

has been no descent to specifics about it, whatever
evidence there is suggests that there is a mere

handful of employees.

McHUGH J:  I thought I read somewhere where there was

evidence which depended upon whether people were

fully paid up as members.

MR DOUGLAS:  Yes, there is a dispute about that, but even

so, I do not think the number is available, on the

evidence. But the inference one draws is that at

best there is a handful, and if one ignores those

who only have to pay in the event of certain
circumstances happening, there is a very very small

handful.

McHUGH J:  On the other hand, there were a substantial

number of employees who were obviously in favour of

a federal award.

MR DOUGLAS: That is so, yes. And, of course, there were

proceedings on foot, referred to I think in the
Full Bench's decision, on behalf of my clients and

Illaton, for the certification of an agreement

under the federal legislation under section 115,

which has now been repealed, but there were

transitional provisions enabling a certified

agreement between the employer and my prosecutors.

McHUGH J:  Has that outstanding element of the appeal been

disposed of yet, that 115 point?

MR DOUGLAS:  No, that is still being argued before the

Commission on a jurisdictional basis there as well,

Illaton(2) 37 3/3/93

where our learned friends are urging that the

Commission has no jurisdiction.	So that is still
proceeding.	And there are other proceedings on

foot relating to this very issue of representation,

including section 118A applications and a log of

claims between my clients and my learned friend

Mr Hinkley's clients.

So this, really, I suppose, is one small part

of a larger picture and our submission is that the

Full Bench has misdirected itself in this small

part of the larger picture by relying upon a

dispute which really is not a dispute and not

paying attention to what is the real dispute, a

dispute about representation.	And that is why we
say they should not proceed.

We do not wish to go through the citations to

authority that are set out as the relevant legal

principles in paragraph 5 of our outline. Really,

they are summarized recently in Cohen's case, 157

CLR 331, at pages 336 to 339, in similar terms to

the reference as to principle we have drawn out

there.

We say, however, simply that the main issue

is, in this case, has the Union's demand .been made,

or is it genuine in the sense that it really wants

what is demanded, and to use some of the language

in Ludeke's case, has the log of claims been put

forward with the intention of obtaining improved

terms and conditions of employment within the

framework of the claims made in that log? In that

context we would like to take you to the log. We

do not want to take you to any more of the evidence

that our learned friend, Mr Merkel, took you to

which illustrates, in our submission, that the

Union did not really want what it claimed in the

log, but rather sought to be what might be
described by it as a helpful interceder wishing to

support what was wanted by the employees of Metway.

That seems to be a simple characterization of the

Union's attitude.

BRENNAN ACJ:  Mr Douglas, you refer to the admissions by

Mr Hingley which are referred to at pages 338 to

339 which is a decision of

Deputy President MacBean.

MR DOUGLAS:  Mr Deputy Commissioner MacBean. He refers to

the passages of evidence there in a convenient

summary.

BRENNAN ACJ:	He does at certain transcript pages.
MR DOUGLAS:	Yes.

Illaton(2) 38 3/3/93

BRENNAN ACJ:	And those transcript pages may or may not correspond with the pages to which we have been
referred. Is there any piece of evidence to which
you would wish to refer in the context of your
paragraph 6 which has not already been drawn to the
Court's attention?
MR DOUGLAS:	Yes, there is perhaps one or two pieces of

evidence I could take you to.	Can I take you to
Mr Petie's evidence very briefly.	Our learned
friend told you where it was.	It is at pages 238
to 239.	He was the Queensland secretary of the

State branch of the Federal Union, so he has some

significant status. If I can start about line 42:

Do you remember Mr Hingley also was saying

that the federal union - the federal office

had no agenda for change in - in

existing - any existing conditions of

employment at Metway at the moment?---Yes.

And I take it you agree with that?---In terms

of any - of any definite position, yes.

Yes. And when you say that, you are saying

that in relation to the state union, because

he has already spoken for the federal

union?---Yes.

Now, he was also, as I have said, the secretary of the State branch of the registered federal Union,

and he issued what has been called a "Metway

Update" which Your Honours can see at page 474 of

the record. Perhaps the significance of it relates

partly to the date which is shown on the bottom

left-hand corner as 28.9.90, which I think was the

date of the evidence I have just taken Your Honours

to by Mr Petie given by him on 28 September 1990.

And it just reinforces what the evidence otherwise

establishes. In the right-hand column under the

heading "ABEU to seek improvements", in the second

paragraph the first sentence is:  ABEU will pursue improvements that Metway

staff want. These improvements may include

such things as -

and it sets out a list. But it again focuses

attention not on what is wanted in the log of

claims, but on what Metway staff want.

We say, as a result of that and in response to that evidence, that it is clear that whatever the

Union's intention was the pursuit of improved terms

and conditions was not to take place within the

framework of the claims made in the log. If any

changes were to take place under the auspices of

Illaton(2) 39 3/3/93

the federal award they would occur as a result of negotiation and consultation with the membership.

So from that it cannot be said that what has been

demanded is what was wanted, which is a test for

determination of whether a claim is genuine,

expressed in Horan's case, (1967) 117 CLR 78, at

page 84.

BRENNAN ACJ:  Mr Douglas, I do not quite understand this

page 474. ABEU is a party to the Interim Bank

Award which is a State award, is that right?

MR DOUGLAS:	Yes, the Voluntary Employment Agreement was made an interim State award after 30 September 1990
when the ability to have voluntary employment
agreements in Queensland ceased to exist because of
a change in legislation there.
BRENNAN ACJ:	But the ABEU here is the State branch of the

ABEU, is it?

MR DOUGLAS:	Yes.
BRENNAN ACJ:	And I take it, the right-hand column,

therefore refers to the State branches intentions
to seek improvements in accordance with the Metway

staff's desires?

MR DOUGLAS:  That is one possibility, Your Honour. Or that

the letterhead - - -

BRENNAN ACJ: Well, I just took it that this was the ABEU

speaking about its role in the context of the

interim Bank Award.

MR DOUGLAS:  It is not there, Your Honour, the letter or the

circular is on the form of the Australian Bank

Employees Union (Queensland Branch) which would

suggest that it is the federal union sending it

out.

GAUDRON J: It is authorized by the Queensland secretary.
MR DOUGLAS:	Who is the Queensland secretary of the State

branch of the federal union; this appears to be the

federal union's publication. On the bottom right-hand corner it says, "Australian Bank

Employees Union, Queensland Branch".

BRENNAN ACJ: Is it right to say, as a matter of history,

that the ABEU sought an interim award from the

State?

MR DOUGLAS:  I think it is right to say that an interim

State award was made, pending what was happening in

the federal jurisdiction.

Illaton(2) 40 3/3/93

BRENNAN ACJ:  But this attributes to the ABEU the role of

applicant.

MR DOUGLAS:  No, that is not true. I gather the State

registered union made the application following an

application by Illaton, the employer.

BRENNAN ACJ:  I see. That is the State registered ABEU?

MR DOUGLAS:  Yes. What I simply wish to draw from that,

however, was its consistency with the evidence

given that what ABEU wanted, expressed in simple

terms, was what the staff wanted and it made no

reference to what it said it wanted in the log of
claims.

In our submission, the Full Bench did not

apply the right test in determining whether or not
a genuine dispute existed and what they failed to
consider particularly was what was said in Ludeke

to be an important issue, in our submission, namely

whether the claim being sought was one seeking

improved terms and conditions of employment within

the framework of the log. They failed entirely, in

our submission, to consider whether or not what

Finance Sector Union wanted was something within

the terms or within the framework of the log that

they had put forward.

If I can take Your Honours to page 375 to 376.

I recognize the problem of proving negative,

Your Honour, but I suppose all that it shows in the

passage I will take you to is the fact that the

Full Bench just did not really appear to address

its collective mind to that issue:  was the claim

being made within the framework of the claims made
in the log? They refer to some of the evidence,

part of the decision in Ludeke at the foot of the

page in the second last line.

So there is nothing to suggest that this was

of any members it might have at Metway or of other	the sole objective of ABEU and that in due course improvements would not be sought in the conditions
employees of Illaton. The comment I wish to make
simply is that they do not say there, or do not address the issue whether or not the claims being
made, or thought to be made by FSU would be within
the framework of the claims in the log. When you
go to the log, that is when the real problems arise
from the FSU's point of view.

Can I take you to the log now? That is on

page 83. Our learned friend, Mr Merkel, has

already taken you to it. Really, in many respects,

it is a most unusual claim. There is the unusual

diminution from $30,000 to $20,000 between the

Illaton(2) 41 3/3/93

first log and the second log. It is significantly

unusual, however, that unlike most matters that

come before this Court which are said to be

unrealistic, it is unrealistically low in some

respects, and unrealistically high in others. The

significant thing is that it is a paid rates award,

it is not a minimum rates award.

GAUDRON J:	Where do we find that?
MR DOUGLAS:	In paragraph 4.

Employees shall be paid at the rate of $20,000

per annum -

it does not say a minimum -

upon commencement with automatic annual

increments of $2,500 for every year of

service.

So that the managing director, presumably, might be

limited to $20,000 unless he has been there for

15 years.

GAUDRON J: Simply another way of dealing with equal pay, is

it?

MR DOUGLAS:  It could be, Your Honour, it could be.

Correlatively you might have someone taken on in a

mail room who can never proceed beyond that because

of his particular skills - or her particular skills

- and he stays there for 50 years and ends up

starting perhaps at $20,000 and ending up at

$125,000 to $145,000. Perhaps getting more than

the managing director - who knows? It is a bizarre

log and one which it is difficult to conceive of

being put forward other than tongue in cheek. It

certainly is not one that suggests that the persons

propounding it have thought carefully about what

they want and why they want it.

In our submission, when the Full Bench

considered our submissions in respect of this, they

overlooked the light that the nature of the claim

threw on the critical question, which is whether

the Union has put forward the log of claims with
the intention of obtaining improved terms and
conditions of employment within the framework of

the claims made in the log. That is really the

language of Ludeke at page 183.

When one considers the evidence of Mr Hingley,

Mr Petie, and the nature of the log, the only

conclusion, in our submission, you can draw as a

Court is that this was not a genuine claim within

that test, and permitting it to be used as the

Illaton(2) 42 3/3/93

foundation of jurisdiction the Commission has

misdirected itself and critically has misdirected

itself in failing to pay attention to the true

dispute which is one, and always has been one,

about representation.

McHUGH J: Could I just ask you about clause 16 in the log,

public holidays?

MR DOUGLAS: Clause 16, Your Honour?

McHUGH J: Clause 16:

Fifteen days per year as paid holidays including all statutory public holidays -

What is the standard number of holidays you have in

Queensland?

MR DOUGLAS:  Four weeks annual leave; that is essentially

3 weeks plus public holidays. Annual leave is

dealt with in 19.

McHUGH J:	Yes I see, number 19, yes.
MR DOUGLAS:	They are not as ungenerous to their members as

all that, Your Honour.

We have no further submissions, if the Court

please.

BRENNAN ACJ: Thank you, Mr Douglas. Yes, Mr Hinkley?

MR HINKLEY:  If the Court pleases, we hand up to the Court

two documents.

BRENNAN ACJ: Yes, Mr Hinkley?

MR HINKLEY:  One of those documents, if the Court pleases,

is our outline of submissions. The other is a

third exhibit to the affidavit of

Mr Matthew Thomas O'Connor that was sworn

yesterday, and I understand that the affidavit and

the first two exhibits were faxed to the Court, and

we have been told that members of the Court do have

copies of it, being the affidavit with two

exhibits. If that is not the case, Your Honour, we

do have -

BRENNAN ACJ:  I think it probably is, Mr Hinkley.

MR HINKLEY:  It is that affidavit with those exhibits, of course, that we seek leave to file. Can I briefly

tell the Court what the exhibits to the affidavit

are concerned with. The first exhibit is concerned

with the resolution of the federal executive of the

ABEU, which was tendered in the proceedings before

Illaton(2) 43 3/3/93

Commissioner Brown, where Mr Hingley gave the first

lot of evidence that the Court has been taken to,

so that that decision of the federal executive was

before Commissioner Brown.

The second exhibit is a copy of the State registered ABEU's application for a State award in

Queensland that was the subject of discussion by my

learned friend, Mr James Douglas, just a moment

ago.

rhat was before Deputy President MacBean in the section lll(l)(g) matter in which Mr Hingley gave the second lot of evidence to which the Court

has been taken, and indeed the proceedings at one

stage were stopped so that Mr Hingley could have a

proper look at it, and I think my learned friend,

Mr Merkel, referred to that.

The third exhibit is a copy of the Australian

Industrial Relations Commission's national wage

case decision of August 1989 which is commission

print H9100, which were the wage fixing principles

that were operable from August 1989 through to and
beyond the date of the hearing before

Deputy President MacBean, and the first award

principles and the requirement of organizations to

make their commitments are contained in that.

BRENNAN ACJ: Perhaps we should see what the attitude of the

other parties is to the receipt of the affidavit to

start with, Mr Hinkley.

MR MERKEL: 

We do not object to the documents being before

the Court because I think two of them were exhibits
before the Commission, although we would ask the

Court to note that the resolution relied upon, I

think, was tendered on the same day as Mr Hingley's

evidence, I think that is 18 December 1987, so it

was before the Commission at that time.

MR DOUGLAS: We take the same attitude. Really, I suppose,

in respect of the national wage decision it is a

public document.

BRENNAN ACJ: Yes. Yes, Mr Hinkley?

MR HINKLEY:  If the Court pleases. The Court has a general

outline of the history of the proceedings, Can I draw attention to what, in our submission, is the centrally relevant consideration that comes before

the Court, and that arises out of, in our

submission, first of all, the proceedings that were conducted before Deputy President MacBean, not that we will not deal with the proceedings before

Commissioner Brown. Those proceedings before

Illaton(2) 44 3/3/93

Deputy President MacBean were section lll(l)(g)(ii) and (iii) applications by Illaton and the staff

association representing various employees.	They
were not dispute finding, nor were they award making proceedings.

The cross-examination of Mr Hingley and

Mr Petie that is relied upon by the applicants in

this case was conducted in the context of

applications that were before the Queensland

Industrial Relations Commission for an interim

award to cover support staff employees in Metway

Bank. That award was needed at that - - -

GAUDRON J:  I do not understand what you mean by support

staff.

MR HINKLEY:	Yes, Your Honour. The employees in the Metway Bank are divided, amongst other ways, into two
groups: support staff who would have been thought
to have been eligible for the Clerks Union
previously and non-support staff who have a
managerial-type activity, Your Honour. For
example, the person in charge of a branch would be
a non-support staff or senior staff member and in
the headquarters, many of the personnel would be
non-support staff.
GAUDRON J:	I see.
MR HINKLEY:	The application in the State Commission was, in

effect, to transfer the VEA, which had covered the

support staff, into a State award to cover only the

support staff. Now, that award that was being

sought in the State Commission was needed at that

time because the voluntary employment agreement

was, pursuant to Queensland legislation, to expire

on 30 September 1990, and in the absence of some

award from the State Commission at that time, those

employees would have fallen into a type of

industrial vacuum, whatever arguments there may

have been about their common law contracts of

employment.

The application that was made by the employers with the support of the staff association, was to

transfer the VEA into a State award in toto,
including, amongst other things, the provisions
that had identified the staff association as the
appropriate representative of staff for, amongst

other things, from time to time to be able to

determine what changes there should be terms and

conditions of employment or to agree what dispute

settling procedures should be adopted from time to

time.

Illaton(2) 45 3/3/93

The State registered unions' interest in the prospective industrial vacuum that would occur on

30 September was to ensure that it did not occur,

and so it favoured an interim award and it favoured

that interim award in a way that was meant to

ensure that the staff association was not

identified in the award as the appropriate and

relevant employee representative. So it made an

application for a State award to fill that vacuum. the content of that application now, so that the

Court is conscious of what it contains in relation

to all of Mr Hingley's evidence about possible

changes.

It is in exhibit MOC2 to Mr O'Connor's

affidavit. The first two pages are formalities for

dealing with the proceeding and then a statement of
claim appears in the third page and the court can

see in paragraph 2 the material facts which are

relied upon in subparagraph (b) are prefaced by a

statement that occurs throughout the document:

Pending applications for improvements in the terms and conditions of employment of

employees.

Similarly in subparagraph (c) there is a recitation of the danger of the industrial vacuum occurring, and then in the middle of that subparagraph (c):

The union intends to pursue the betterment of

the terms and conditions of employment of

employees.

Then in (d) there is an argument about who is the

right union to be recognised and then in (e),

further statements to the effect:

Pending applications for improvement -

these terms and conditions conform with the

principles:

(f) Pending applications for

improvements ..... there should be a smooth

transition from industrial coverage under the

old State Act to industrial coverage under the

new Act.

And then in (h):

Pending applications for improvements in the terms and conditions of employment of

employees ..... the content of the proposed

interim award is the same -

Illaton(2) 46 3/3/93

as the VEA. And the Court will notice that in

paragraph 3 the federally registered ABEU's

interest in arguing that there was a transmission
of business from Austman Pty Ltd to Illaton Pty

Limited, in relation to the employment of employees

performing the banking duties, was expressly saved.

TOOHEY J:  Mr Hinkley, what use are you inviting us to make

of the various references to pending applications
for improvements? Are we to give it some

significance outside the operation of the State

award?

MR HINKLEY: In itself, no, Your Honour, but what happens in

the argument before the Commission - and we will

say in this argument before the Court - is this:

that by some process of osmosis it is said that the

views of the State registered union, in its

interest in the State Commission, are able to be

identified as the views of the federally registered
union in the federal Commission and to the extent

that it is said that the federally registered union

is caught up with the same interest in having the

same terms and conditions sustained as the State

registered union seeks in the State Commission.

Then so, too, its interest in relation to improving

terms and conditions, we say, by that argument, if

it is to be accepted, follows. But I will take the

Court to show that Mr Hingley actually talks about

an interest in changing terms and conditions of
employment.

What happened, Your Honour, was that in the context of this application, counsel for the State

registered ABEU said - and I will take the Court to

the passage - that if and when the State award is

made, the State union has some applications for

variation in mind, and they later on took some form

in some Metway ABEU update documents.

What Mr Hingley in the federal organization

says is that, "We do not have applications for

variations presently in mind", and will say to the

court that that amounts no more than him saying,

"We have not as yet designed the applications that

we will make to vary the award when the award comes

into existence." It is no more than that.

GAUDRON J:	Was he talking about the State award?
MR HINKLEY:	Your Honour, he was caught in the context of

the State award by the examination.

GAUDRON J:  He would be in no position to make application to vary the State award or in his organization.

Illaton(2) 47 3/3/93

MR HINKLEY: Exactly, Your Honour, but that is the way the

matter was put to him constantly, and then by this

process of osmosis it was said of him, "Well, if

the State union is seeking that, do you have

applications for variations in the federal commission", but that is all in the context of applications for variation to an award that is already made which, in fact, is not made because there was no award in existence.

applications for variation in the federal union?" determined

So that if there were any sins in the State

union, there was an attempt to visit them on him,

if there were any acts of grace in the State union

like pending applications for further improvements,

somehow or other they were excised and were not

allowed to be visited upon him. Really, Mr Hingley

was being asked, in effect, "What is the federally

registered union's position in relation to the

variations that the State union has in mind to the

State award when it is made?" All Mr Ringley

could say was the federal organization has not

designed variations which it will seek to the

federal award when the federal award is made. And

it is said of that that that shows that there was

no desire to improve those conditions at some time

in the future.

I will show the Court that Mr Ringley is

assiduous in saying, "We do have an interest, even

when that federal award is made, in changing terms

and conditions of employment. I can't tell you at

the moment what sorts of variations we will seek.

That is a matter that will be worked out, and among

other things we will work it out by discussions

with the employees on site with a view to

enterprise bargaining being developed so that the

changes we might seek in the future to the federal

award if and when it is made will be made in a

context that is satisfactory from the union's point

of view, the employees' point of view."

BRENNAN ACJ:  Does that mean that the log of claims was not

susceptible of being acceded to so as to settle a

dispute?

MR HINKLEY:  Your Honour, the log of claims, if it had been

acceded to by the employers, would have settled the

dispute.

BRENNAN ACJ:  Even though the achievement of that log of

claims was not what the Union had in mind?

MR HINKLEY:  What the Union had in mind, Your Honour, was

that if and when a dispute had existed, it would

come before the Commission to seek an award and

Illaton(2) 48 3/3/93

over time it would, through a variety of methods
that will be adopted from time to time, seek

changes to that award, and improvements in it

within the context of the ambit.

BRENNAN ACJ: But you prefaced your answer by saying if

there were a dispute.	The question is whether
there is a dispute.

MR HINKLEY:  Yes, Your Honour, and what it said to show that

there is not a dispute is that the Union showed

that its intention was that when the award was

made,.and the conditions were contained in the

document, it would be looking to improving those

conditions, but be doing that by reference to discussions with employees about the sorts of

changes that from time to time might be the subject

of an application for variation at a particular

time.

BRENNAN ACJ: Well, perhaps you could identify what was the

subject of dispute at the time of non-accession to the log of claims, and at the time of the decision

by Deputy President MacBean on the lll(l)(g)

application.

MR HINKLEY: It was the same, Your Honour, it was the

contents of the log of claims, but it is - - -

BRENNAN ACJ: 

So that our question is whether or not, on the

material before us in relation to those respective
times, there was a genuine intention on the part of
the Union to pursue that log of claims.

MR HINKLEY: Yes, Your Honour. 

And, Your Honour,

historically, in a context where between the time
of the dispute coming into existence in 1987 or
1989, and the time of the hearing before

Deputy President MacBean in 1990, there were in

fact improvements in terms and conditions of

employment granted by the employer to the staff.

So that in a sense, part of what the Union was

demanding had already been granted to the

employees; they had achieved their demand, in part, and all the Union was saying in relation to further
achievement of that demand, "We will, as Ludeke's case indicates is quite appropriate, from time to

time pursue our ambit by way of making applications

for variation", and the Union said in relation to

that, "We will be wanting to know what the

employees think about particular issues for

variation from time to time". And that, in our

submission, would be not only a proper course but a

very sensible course for an organization to take,

rather than willy-nilly make applications for

Illaton(2) 49 3/3/93

variation once the award is in place without

obtaining the views of the employees concerned.

The position, Your Honour, back in 1987, and I

think Mr Merkel took the Court to it, was that the

ABEU was saying that it wanted banking industry

conditions. The position by 1990 was - and let me

say that banking industry conditions are much less

than the log of claims was; it was clearly talking

about what sort of first award it was seeking. By

1990, as Mr Merkel pointed out in the evidence,

Mr Hingley knew that there had been a change in

conditions for Advance Bank, Challenge Bank and

Metway Bank employees that had been brought about by processes of structural efficiency and other

changes, which were considered at that time to be

terms and conditions better than they were in 1987,

but at that time terms and conditions that would be

satisfactory to achieve in a first award, without

in any way derogating from an interest in pursuing further benefits after consultation with employees by way of variation within the ambit.

And it is important, in our submission, that

the Court be very conscious that there had been

very significant changes and improvements in terms

and conditions between the service of the ABEU logs

and the 1990 hearing. One could speculate as to

why some of them might have been made, but what
with what are called the new banks, and the

they did do, which was to have an effect that

Commission was very conscious that the new banks,

leaving aside Challenge Bank and Advance Bank at

that time, were respondents to ABEU awards. There

were some 19 or so of these various new banks.

So, both the Commission and Mr Hingley, and

indeed those who were participating in the hearing,

knew that there had been significant changes in the

terms and conditions of employment, and all we say

of that is that a union cannot be in the position

where, when it serves its log, the employer rejects

the demands but then later on grants some

improvements and the union says in relation to

those, "Well, as a first award if we had settled

the dispute with you in part, that might have been
an appropriate outcome for the time being", that
the consequence of that is that the ambit for
everything else is lost, or indeed that the dispute
ceases to exist, because if the employer had come

to the ABEU in relation to those terms and

conditions it may have been, and I will have more

to say about that, that the Union would have agreed

by consent to a first award in terms of those

proposed conditions, which would not have destroyed

Illaton(2) 50 3/3/93

ambit for variations for the future as the court so

often found.

Historically, though, the reality was that the

ABEU had failed to get a consent award from Metway

Bank back in June 1988 because while Metway Bank

had said, "This is the deal we will offer you, will

you agree to it?", the ABEU had gone away and

overnight said, "No, we want some other things as

well", so Metway Bank said, "Well, in that case, in

effect, all bets are off" and that, indeed, is the

historical politically important event in these

proceedings because it was then that the movement

to establish a staff association commenced and

other things followed.

BRENNAN ACJ: Well, you had better perhaps take us to the

evidence.

MR HINKLEY:  Yes, Your Honour, but I really did want to try

and give some focus to the general position as it

developed.

BRENNAN ACJ:  How long do you expect your argument to take,

Mr Hinkley?

MR HINKLEY:  Your Honour, I expect that I will want to ask

the Court to have a look at some of the passages
the Court has already seen, and ask the Court to

see them in the context of others that I will want

to look at, and I think it is something like an

hour and a half, Your Honour.

BRENNAN ACJ:  In that case, the Court will adjourn until

2.15 pm.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM

BRENNAN ACJ: Yes, Mr Hinkley.

MR HINKLEY:  If the Court pleases, with the benefit of the

luncheon adjournment I should tell Your Honour that

I think my time will be much less than I indicated.

BRENNAN ACJ:  I thought it might, Mr Hinkley.

McHUGH J: It usually works the other way, does it not.

Illaton(2) 51 3/3/93

MR HINKLEY: Well, hopefully it does not now, Your Honour.

Can I ask the Court, by reference to our outline of submissions, to go to paragraph 1 where we -

BRENNAN ACJ:  Mr Hinkley, before you proceed, what is your

present re-estimate?

MR HINKLEY:  About half an hour, Your Honour.

BRENNAN ACJ: About half an hour - in that case we will not

take the next matter before quarter to three.

MR HINKLEY:  Your Honour, I was going to paragraph 1 of our

outline and we are perfectly conscious where the

burden lies in this matter, but we do draw

attention to the content of the ABEU resolution

back in 1987, which is exhibit MOCl to

Mr O'Connor's affidavit. In paragraph 2 it clearly

identifies the ABEU's concern to improve the terms

and conditions of employment of persons employed by

the employers served with the log and was in

evidence before the Commission.

Secondly, by reference to our outline we draw

attention to - - -

BRENNAN ACJ: Just before you go past that resolution. That

resolution has all the hallmarks of having been

settled by counsel. What kind of weight does one

put on a resolution by one of the parties asserting

the existence of their concern?

MR HINKLEY:  Only this, Your Honour, that if it is in

evidence before the Commission and a competent

party like the federal secretary is a witness and

is not cross-examined as to the concern that is

stated in the resolution, then the absence of that

cross-examination, Your Honour, indicates that

there is no contest about the concern that is

expressed in the resolution. And can I say,

Your Honour, that if I had been the counsel

settling it, I might have gone that far, but I

would not have written the rest of it, Your Honour.

That is not to say any counsel did in fact settle

it, Your Honour.

DEANE J:  Mr Hinkley, what do you say about the point that

the $20,000 was less than some were receiving?

MR HINKLEY: 

Your Honour, I do want to examine the logs

because I will show the Court that we are really
talking about $50,000.

DEANE J: Pardon?

MR HINKLEY:  We are really talking about figures like

$50,000.

Illaton(2) 52 3/3/93

DEANE J:  You mean when you add the two lots of $5000 and so

on?

MR HINKLEY:  Yes, Your Honour, and other provisions as well

which the Court was not referred to.

I was drawing attention to the first paragraph

of our outline in subparagraph (ii) where the Union

continually pursued its log, of course, in

proceedings before the Commission over years and

also, of course, by re-service of the log for fear

that it would fall for technicalities of service on

persons. Without going to it, I draw attention in

our paragraph l(iii) to the evidence of the federal

secretary about the Union's desire to obtain future

benefits and future conditions for employees, in

appeal book page 177 at line 40 through to appeal

book 178 at line 16 and at line 43. Finally, in

relation to paragraph 1, the reaffirmation on

1 November 1991 by the ABEU of its intention to

obtain the wages and conditions set out in all

documents in current proceedings, and that is the
very last document in the second volume of the

application book at page 501.

BRENNAN ACJ:  What is the date of this document?

MR HINKLEY: It is on the previous page, I think,

Your Honour, page 500, 1 November 1991. In the

second paragraph of our outline, by reference to

Ludeke's case, in 159 CLR at page 179, we observe

that the fact that an organization does not have an

intention to obtain its demands immediately, or

does not have a timetable or an agenda for claiming

them, cannot be said to defeat the genuineness of

the demand.

At page 183 of that decision-tis really at

the bottom of page 182, over to the top of page 182
- the court observes that the lack of an intention

to obtain things immediately does not defeat

genuineness, we say no less than the absence of a

timetable or an agenda does not defeat

genuineness.

And, as we say in the third paragraph of our

outline, the evidence amounts to no more than this, that the ABEU or the FSU as it is now, has not made a decision to make applications for variation to an

award it might obtain. That, in our submission,

cannot touch the genuineness of the demand and,
indeed, if anything, it indicates that the ABEU has

not lessened the range of its demand or the Finance

Sector Union, because it has not got to the stage

of even delimiting it beyond any first award that

might be made.

Illaton(2) 53 3/3/93

As we indicate in the next main paragraph of

paragraph 3 in our outline, all the evidence shows

is that the ABEU, before it decided on any future

variations to an award that might be made, wanted

to consult with its members and perhaps non-members

in Metway before determining on variations that

might be made in the future. And, without reading

the passages in the application book - they are

found at page 169 at line 39 through to page 170

line 19, 201 at line 34 through to 202 at line 18,

page 238 at line 41 through to 239 at line 9,

page 240 line 5 through to line 24, and page 241

line 23 through to line 242.

Fourthly, as we say in our outline, in the

first matter, C 9001 of 1987, all the evidence
discloses is that the ABEU's timing for the service

of its log was activated by a desire to prevent the

Federated Clerks Union from obtaining its award

before the Metway Bank got its licence.

The passage that my learned friend, Mr Merkel,

went to at page 65 at line 3 where Mr Ringley was
asked, "Did you have any other aim?" is an

important passage, in our submission, because

Mr Hingley denies the proposition that there was no

other aim.	He answers it in the negative at
line 6.	He says "No", and somehow or other in the

course of argument that response gets turned into a Yes, and it is apparent that Mr Ringley is debating

the issue of the timing of the service.

It was also apparent in the proceedings that that issue of the timing of the proceedings could be changed into an issue as to whether or not there

was a genuineness for the demands. And as we point

out at the top of page 3 of our outline, counsel
for the ABEU did attempt to re-examine on that

question and was prevented from doing so, and the

reason why counsel for the employers sought to

prevent that re-examination was that counsel's fear

that the Union would reply, "Yes, we genuinely

wanted what we demanded."

I do take the Court to those pages in the application book, page 71. The Court will see at

the middle of that page, page 71, the witness has

withdrawn, and then counsel, at about line 28

addresses the Commission saying that there was a

danger that the answer could:

be taken as being the motive for making the

demand as distinct from the motive for serving

when it was served -

and that would go to genuineness. And then over

the page at page 72 it is said to the Commission

Illaton(2) 54 3/3/93

that if the situation "is allowed to rest" the way

it is:

the witness' answers which ..... were clearly

directed to -

timing could be said to be directed to what was

being demanded, and the Commissioner says:

do not you think that when it comes to

argument or finally when it comes to a

decision that I will look at that in the light

of the union's history of disputes in this

area of management services?

And can I just tell the Commission that the

expression "management services" was directed

towards a number of cases in relation to new banks

where the employees were employed by a service

company which provided services to the company that

was to have the banking licence. Then there is

some discussion with the Commission about that, and

at the bottom of that page counsel for the employer

says:

if my learned friend is allowed to examine

further on this and I have been caught by it

before and that is the reason why I was quick

about it, we will get another answer which

will say, oh, yes, we also had another aim and

that was to pursue the demands and the log of

claims to their full over x period of years.

Now, in my submission, that question and

answer is so important that my learned friend

should not be allowed to cross-examine on it

in the way he intends.

Then counsel for the Union makes some submissions

to the Commission, commencing at line 6, indicating
that it would only be if there was a gross

inconsistency between saying that we serve the log

for timing purposes when we did, but we also

would only be if there was a gross inconsistency	genuinely wanted everything that we demanded, it	that such a question should not be allowed to be
asked. But the Commissioner at line 30 said:

On balance, I would uphold Mr Douglas'

objection, Mr Hinkley, and cut the matter
short where it is.

So it was the employer's own action that effectively prevented the ABEU from being able to

give the evidence in relation to genuineness to the

extent that it is alleged that genuineness is

raised by that answer that goes to the question,

really, of timing of the service of the log of

Illaton(2) 55 3/3/93

claims. Of course, the Court would be aware that

on appeal before the Full Bench the Union won on

that issue; the appeal bench sustained the finding
of dispute, all of that material being before it,
and of course being cognizant of all that was

before Commissioner Brown.

BRENNAN ACJ: All of the debate that you have taken us to

with the Commissioner, and the reason for the

objection, goes back to the form of the question

that you were going to ask on page 70.

MR HINKLEY:	So far as it was asked, Your Honour.
BRENNAN ACJ:	So far as it was asked, yes.
MR HINKLEY:	Yes, Your Honour, yes.
BRENNAN ACJ:	And so that question was not asked, but after

that question was not asked, the Commissioner said

to Mr Hingley, "What were you starting to say?",

and at line 25 Mr Hingley gave his answer, that is

page 70 line 25.

MR HINKLEY:	Yes, Your Honour, indeed, Your Honour.
BRENNAN ACJ:	What question, further than the one which

Mr Ringley dealt with there in his own words were

you seeking to ask?

MR HINKLEY:  Your Honour, I cannot say what exactly the form

of the question that appears at page 69 line 16 or

so was to be, but there was no question,

Your Honour, from my submissions to the Commission

that what I wanted to explore was the difference

between a motive regarding timing and a motive

regarding content. I made that quite clear to the

Commissioner, Your Honour. That is what I was

prevented from doing.

Your Honour drew attention to the answer that

Mr Ringley gave, in a sense, a statement rather

than an answer to a question at page 70,

Your Honour, commencing at line 24, and that is a

passage to which my learned friend, Mr Merkel,

referred and it recites Mr Ringley speaking of, in

the second last line, "rightfully cover and gain an

award", and what Mr Merkel said of that was that

was clearly an award in relation to demarcation and

not, as he said, going to conditions of employment.

We do not understand how that proposition can come

out of those words.

In any event, in passages that Mr Merkel did

go to, Mr Ringley in re-examination did say at

page 77, that the Union was "wanting an award" -

and this is at line 34 or so - "consistent with the

Illaton(2) 56 3/3/93

standards of the banking industry" and, of course,

he observed later that those standards were within

the ambit of the log that had been served.

In paragraph 5 of our outline we go to the

issue that was raised by my learned friend,
Mr Douglas, or at least is raised on his outline of

argument, regarding Union membership, and that is

in paragraph S(g) on page 2 of my learned friend's

outline, and we just observe that the evidence

before Deputy President MacBean and accepted by the

Full Bench in the second appeal, was that in June

1990 there was employee support for the ABEU's

claims for a federal award and that is found in the

Full Bench decision at page 360, being an outcome

that was the result of a ballot conducted by the

staff association.

The degree of support for the ABEU's position,

if it is relevant, is very significant, in our

submission. At page 361, it can be seen that 288 out of 680 persons who voted, voted their support

for the ABEU in its claims for them to be under a

federal award and the Full Bench observed that

Deputy President MacBean had found that at that

time the only issue in contest, so far as unions

were concerned, was between the employer and the

ABEU and the Clerks were not in issue.

So if there is any relevance in the views of

employees, when the matter was before

Deputy President MacBean, the employees' support

for the ABEU's position was very significant. We

do not say it was a majority, and we are conscious

that it was less significant amongst the senior

staff.

In any event, in our submission, as we

indicate, the existence of such support is not

determinative of the question of whether or not an

industrial dispute exists and we refer to R v Cohen

at page 336 to 337 and 349.

My learned friend, Mr Merkel, referred to the

question of ambit and Your Honour Mr Justice Deane

raised it. Could I take the Court to the content

of the log so far as ambit is concerned by

reference first of all to the second log at page 83

of the application book. This is the second log

served, 17 January 1989. The Court can see there

is - perhaps before I go to it, can I remind the

Court that the purpose of serving the log was to

correct technical irregularities and the Commission

was told that there was no difference, and I will

submit to the Court that there is not meant to be

any difference, and if there is some difference

such as $20,000 versus $30,000 we will say, in the

Illaton(2) 57 3/3/93

appropriate place at the appropriate time, that the
ambit exists to the full extent of the first log.

But even if that is not right, we go on to point out that once you add $20,000 and $2500 in

paragraph 4, together with $5000 in paragraph 5,

together with $5000 in paragraph 6, and the

contents of paragraph 9, $50 a day travelling

allowance, assuming a five-day week, you end up

with $45,500 per annum.

Now, that was our demand in January 1989. It

is apposite to note that the consent, or rather the

State award that was actually made, which is in the

application book at page 152, made in the State

Commission on 10 November 1990 - at least in the

Government Gazette - had as its maximum wage $450

per week for a grade 5 support staff employee, and

that is some $23,500 per annum.	So that even by
the time the matter was before

Deputy President MacBean there was still a wealth

of ambit for wages only for support staff
employees.

We could do a similar analysis on the first

log and come up with the obvious $10,000 extra;

$55,500. Now, we are conscious that there are

non-support staff. We are conscious that there are management personnel whose salaries during the time

the matter was before Deputy President MacBean

could well have been more than $45,500 in the
second log. All that goes to though, in our

submission, is a question of ambit and a

consideration as to whether or not the award in

relation to wages should leave room for senior

personnel to be able to negotiate packages such as

they chose.

It was also said about the first and second log versus each other that the very important

question of job protection, which was in the first

log, in clause 21, at page 42 of the application

book, was omitted from the second log. In our

submission, that is just not right. Without asking

the Court to look at it, clause 21 in the first log

has all of the flavour of being an award provision.

It is structured the way an award provision would

be structured, but what it deals with is redundancy

and retrenchments in a job protection technological

change environment.

That issue is much more appropriately

identified in the second log by a shorter and wider

demand in clause 37 at page 88 of the application

book under the heading "Retrenchment and

Redundancy" where it prohibits retrenchment unless,

in effect, the Union is satisfied, it gives

Illaton(2) 58 3/3/93

6 months notice and 10 weeks' pay for every 1 year

of completed service.

TOOHEY J:	How does that tie in, Mr Hinkley, with clause 50?
MR HINKLEY:	50, Your Honour?

TOOHEY J: Yes, on page 90.

MR HINKLEY:  I would not like to try to finally resolve that

in any way, Your Honour, it is - - -

TOOHEY J: It perhaps does not matter a great deal, but they

are both looking to comparable situations, are they

not?

MR HINKLEY: Certainly the retrenchment situation would fall

within the termination situation, yes, Your Honour.
way to express some demand that gives the

The unions, I think it would be true to say,

Commission jurisdiction regarding termination for

the purposes of reinstatement, and one might hope

that would be efficacious. There are many, many

other varieties at the moment for it.

And of course, Your Honour, that inclusion

into the log at that stage arises out of judgments

of the court, Ranger Uranium for example, which

occurred after, as I recall it, the first log,

where the reinstatement jurisdiction was

identified.

The last paragraph of our outline merely

refers to the observations made in Ludeke's case,

at page 184, ones which, in our submission, are

very apposite in a case such as this where, in a

way that we have tried to summarize there in our

outline, the Court observed at page 184 in the

fourth line there:

If the evidence remains the same, if the

Full Bench has confirmed the decision at first

instance and if the issue of fact is one in

which the Commission's knowledge and

experience of the industry specially equips it

to provide an answer, greater weight will be

given than in cases in which one or more of
these factors is absent:

And then the Court segregates those three

considerations. The important consideration that

we draw attention to is at the top of page 4 of our

outline whereas we say the Commission is especially

equipped to make judgments about the fact that a

union does not have an agenda for variations to an

award that is going to be made, and it is also

Illaton(2) 59 3/3/93

especially equipped to consider the effect of the

Commission's wage-fixing principles on any union's

application for a first award. And while the

Full Bench does not in express terms say it knows that the ABEU has made the wage-fixing commitment,

it clearly implies that it is conscious of that

when it speaks of the effect of the wage-fixing

principles on a union situation in seeking a first

award.

Finally, to understand my learned friend

Mr Douglas's argument, and my learned friend,
Mr Merkel's, at least in part, it is that somehow

or other, the Commission has misconstrued what the disputatious issue is; that the disputatious issue

is between organizations or associations of

employees regarding representational rights.

All we say of that is that if there is such an

issue it is not the one before the Court, nor was
it the one that the Commission was dealing with.

The issue here is simply whether or not, on the

argument that has been adduced, the respondents can

show on the evidence that the Union did not

genuinely seek what it was demanding.

cinally, in relation to that, it is said that

somei10w or other the Union should have brought up
some more evidence. It is difficult for us to

understand why that would be so, granted that in

the first appeal the matter was determined in

favour of the Union, and in the second matter the

whole question was argued before the Commission at

first instance in the context of possible future

variations and no challenge ever made. No one ever

put it to the ABEU that they did not genuinely seek what they were demanding; no challenge at all ever

made. And why in such circumstances we should have

to revisit the issue, in our submission, still

escapes our understanding.

It is for those reasons, if the Court pleases,

that in our submission the application should be

refused. If the Court pleases.

BRENNAN ACJ: Yes, Mr Merkel.

MR MERKEL: If Your Honours please, I will just address the

matters addressed by my learned friend in

paragraph 1 of his outline.	He has relied on two
resolutions.	The first, we only wish to say that

the Commission in its wisdom did not place any

weight on either resolution at any time, and we say

that they are just further pieces of paper which

beg the question, and the question is to be tested

and assessed in the light of the sworn evidence

given by Mr Hingley which we took Your Honours to.

Illaton(2) 60 3/3/93

Secondly, the ABEU resolution in 1987 has to

be seen in the context of the evidence given by

Mr Ringley on the same day it was tendered, which

was that he did not want an award, and we said that

that log could not on any view give rise to a

dispute, and nothing occurred, as we put to

Your Honours, after that date that made the 1989

log any more genuine than the earlier log.

We submit that likewise the November 1991

resolution again had all the hallmarks of being

tendered for a legal purpose. It was in the
context of proceedings before the Commission and

the Commission itself paid no weight to it and did

not have regard to it in its assessment.

The real issue turns and, we say, is to be

decided on Mr Hingley's evidence. Two matters

arose in my learned friend's submissions concerning

that and Mr Ringley gave evidence as federal

secretary and gave evidence concerning the federal

union's wishes, desires and intentions and the

State application does not bear on that save that

Mr Ringley gave evidence which leads, in our submission, to the conclusion, not only that he did not know what variations he would seek to existing terms, but he never really had any agenda or anything in mind as to any dispute that he had over

any terms at any point of time. So we say, looked

at properly, this Court can conclude on the
submissions we had put, that there was either no

genuine dispute, or if there was the skeleton of a

genuine dispute, by the time Mr Ringley gave his

evidence, it had ceased to exist as a dispute.

We say that the contest was always between

different organizations as to coverage and indeed,

the Full Bench, at page 368 in its ruling, saw that as the substantive contest between the parties. So

we say that what ultimately the Commissioner is

seeking to do is to proceed in respect of a dispute

finding which does not reflect the dispute, and the

only dispute that could be said to exist, and that

is in respect of representation.

The final matter was my learned friend's

response to the discrepancies between the second

log and the first log.	We say there are
significant discrepancies.	The point we make about

that is in contrast to Ludeke's case where the log
was put forward as an updated log, the subject of
careful consideration and derivation, not in the
context of the Queensland dispute, but in the
context of a genuine desire to seek the conditions

within them. This log bears all the hallmarks of a

log taken off the shelf really to have a document

that would serve the purpose of raising the

Illaton(2) 61 3/3/93

coverage issue. So, for those reasons, it is our

submission that the prohibition sought, should lie.

If the Court pleases.

BRENNAN ACJ:  Thank you, Mr Merkel. Mr Douglas.

MR DOUGLAS:	Could we respond on one issue where our learned friend submitted that if demarcation was not an
issue, or the representation question was not an
issue the Commission was dealing with. He himself
said, at the foot of page 187, between about lines 42 and 45 - Mr Hingley said, in fact - that:

what is in issue is the question as to whether

the coverage of the staff of the Metway

organization is to be under an award in which

there is ABEU respondency?

and in response to that question Mr Hingley said:

That is right.

So that is an issue and the dispute finding arising

from Commissioner Brown's finding, in our

submission, does not cover the real dispute

covering the prosecutors for whom I appear. It

does not cover the eventuality of that organization

also being a party to an agreement or an award in

respect of those employees of Illaton. So the real

dispute still has not properly been addressed by

the Commission.

BRENNAN ACJ:  Thank you, Mr Douglas. The Court will

consider its decision in this matter.

AT 2.52 PM THE MATTER WAS ADJOURNED SINE DIE

Illaton(2) 62 3/3/93