Re Fogarty & Ors; Ex parte Cape Lambert Services Pty Limited

[1991] HCATrans 162

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane	No S71 of 1991
In the matter of

An application for writs of

prohibition and certiorari

against MR COMMISSIONER

ADRIAN DANIEL FOGARTY (a

Commissioner of the

Australian Industrial

Relations Commission), THE

SEAMENS' UNION OF AUSTRALIA,

the MERCHANT SERVICE GUILD OF

AUSTRALIA and THE AUSTRALIAN
INSTITUTE OF MARINE AND POWER

ENGINEERS

Respondents

.Ex parte -

CAPE LAMBERT SERVICES PTY

LIMITED

First Prosecutor

PEKO-WALLSEND OPERATIONS

LIMITED

Second Prosecutor

ROBE RIVER MINING COMPANY PTY

LIMITED

Third Prosecutor

MITSUI IRON ORE DEVELOPMENT

Cape 1 27/6/91

PTY LIMITED

Fourth Prosecutor

NIPPON STEEL AUSTRALIA PTY

LIMITED

Fifth Prosecutor

SUMITOMO METAL AUSTRALIA PTY

LIMITED

Sixth Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 9.07 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  Your Honour, I appear with my learned

friends, MR R. BUCHANAN, OC, and MR B. KITE, for

the applicants in this matter. (instructed by

Minter Ellison)

HER HONOUR: Again, I have read the affidavit.

MR JACKSON:  Your Honour, this case, of course, does not involve a section Sl(xxxv) provision. What it

involves is provisions of the enactment made

pursuant to section Sl(i), the trade and commerce

power. I am not certain of the extent to which

Your Honour would want me to go through it, but may

I perhaps indicate what the issues are.

HER HONOUR:  I have read it, and·perhaps I should say that

no award seems to have been made with respect to,

and binding upon the persons whom you say were not

parties to the dispute.

MR JACKSON:  Your Honour, it is right to say that so far as

the two awards are concerned, they are not named as

parties to the award, but a finding of dispute was

made in respect of them in proceedings of which they were given no notice. But also, Your Honour,	it is right to say that their activities are
affected by the operation of the two awards,
because Your Honour would have seen the way in
which the refining terms of the awards expand the concept of "employee" and "engagement" beyond those
ordinarily applicable to, for example, independent
contractors and any other form of provision of
services, so that the persons involved are affected
by the making of the awards.

HER HONOUR:  Your application goes beyond the mere naming of

them as parties to the dispute?

MR JACKSON:  Yes, Your Honour.

Cape 2 27/6/91

HER HONOUR:  Yes, well then, I would need to hear full

argument really as to that.

MR JACKSON:  Your Honour, could I say in relation to that,

first of all that Cape Lambert, of course, which is

one of the prosecutors, is bound by the awards, and
Cape Lambert provides the services for the other

prosecutors and, Your Honour, I should not have to say if it be appropriate to make the order nisi in respect of the operations of Cape Lambert, then it

is just a question, I suppose, whether the other

prosecutors are appropriate parties to be joined as
prosecutors.

Your Honour, we would submit it is appropriate in the case of Cape Lambert for the orders to be

made because assuming other matters in our favour,

the case is one where the operations of Cape the awards.

HER HONOUR:  It is appropriate because the operations of

Cape Lambert are directly affected?

MR JACKSON:	Yes, Your Honour.
HER HONOUR:	Yes, but how does that make it appropriate for orders to be made? That is the nature of all
awards.

MR JACKSON:  Your Honour, I am sorry. What it does in

relation to Cape Lambert is - perhaps if I could

take Your Honour to the awards which are behind

tabs 20 and 21 - Your Honour, if I could go to -

The Tugboat Recruitment of Seafarers - Cape

Lambert Services Pty Ltd Interim Award -

which is behind tab 20, the award -

is binding on Cape Lambert Services.

That is clause 3. Then it goes on to provide in

the definitions that -

"employee" means an Employee of Cape Lambert

Services Pty Ltd, Robe River Iron Associates -

which is the other prosecutors.

"Engaged" is then defined to mean -

utilized whether pursuant to a Contract of

Employment or otherwise and engagement has a

corresponding meaning.

Cape 3 27/6/91

Now, what one sees when one goes to clause 5 is

that it provides that:

No employee -

of any of the nominated persons -

shall be engaged by CLS -

and "engaged", of course, means ''utilized". Now,

Your Honour, what we would be submitting is that in respect of Cape Lambert Services that goes

beyond the power of the Commission in the number of

ways that are identified in the material. I do not

know if Your Honour wants me to go to those ways

immediately.

HER HONOUR: Well, I would have thought that that was the

crux of the issue. I presume you wish to say that

it does not pertain to the relationship of

employers and employees.

MR JACKSON:  The relations between them, Your Honour, as it

now says.

HER HONOUR:	Between them, yes.
MR JACKSON:	It seems to be a little narrower, when

one

HER HONOUR:  And in other respects does not pertain to an

industrial matter?

MR JACKSON:  Yes, Your Honour. It also goes beyond the

ability of the organization to create industrial

disputes because it goes beyond the persons who are

eligible to be enrolled as members.

HER HONOUR:  Does it go beyond it any more than if it were a

claim which said, "No woman shall be employed on a

tug boat" other than - - -

MR JACKSON: That is dealing with employment, Your Honour.
HER HONOUR: Or "engaged" - it would not matter.	"Present

on".

MR JACKSON:  "Present on" would be a different problem

altogether, Your Honour.

HER HONOUR:  Not necessarily.

MR JACKSON: Well, Your Honour, it depends. If there were

some tradition on ships that women should not be

allowed is, I suppose -

HER HONOUR:  For example, on the oil rigs.

Cape 4 27/6/91

MR JACKSON:  Your Honour, that may be because it may pertain

to the relationship between the employer and the

employee. But what one has in the present

situation is not just saying something in relation

to employment. It is saying "No person shall be

employed", or "There should be no contract entered

into", for example, which is not a contract of

employment at all. Your Honour, I will come to the

cases in just a moment, but that, in our

submission, would go beyond the matters

contemplated by the nature of an industrial dispute

of the kind contemplated in relation to this class

in this part of the Act.

Your Honour, could I, in that regard, take

Your Honour a little more to the terms of the

award. It says in clause 6(1) that:

CLS shall observe the following procedure in engaging employees.

Those terms, of course, are both defined. Then you

will see in clause 6(2) that Cape Lambert Services

has to observe a particular procedure in engaging

other persons. A member of one of the unions may

be engaged any time, and then there is a time

involvement when one comes to clause 2(b). Because

"engaged" means "utilized", and because "employee"

goes beyond employees of Cape Lambert Services both

those provisions, in our submission, are provisions

which go beyond the matters which pertain to the

relationship between Cape Lambert Services and its

employees.

Your Honour, could I in that regard, seek to

make out a number of propositions, at least in a

provisional form for present purposes. One is that

the Commission's jurisdiction, we would submit,

does not extend to the regulation of relationships

other than employer and employee. Could I give

Your Honour two references and take Your Honour to

one of the cases?	One of the references is The
Manufacturing Grocers' case, (1986) 160 CLR 341, at
page 353 about point 6.	The second reference is to

Slonim v Fellows, 154 CLR 505. But may I take

Your Honour to Federated Clerks' Union v The

Victorian Employers' Federation, 154 CLR 472, at

pages 488 and 489 where Justice Mason, as

His Honour then was, spoke about the nature of

industrial dispute, and what he said was:

From the decided cases the following

propositions might be extracted:  (1) a matter

does not become an "industrial matter" or the

subject of an "industrial dispute" simply

because it is a matter with respect to which

persons who are employers and employees are

Cape 5 27/6/91

disputing; (2) in order to constitute an

"industrial matter" and become the subject of

an "industrial dispute" what is demanded must

have a relevant connexion with the

relationship of employer and employee or, as

it has been put more narrowly, "the

relationship of employer and employee must be

directly involved in the demand".

Your Honour, the proposition is elaborated upon a

little at page 489. Might I also refer Your Honour

to - - -

HER HONOUR: That notion of relationship has perhaps

expanded a little since then in the Ranger Uranium

case?

MR JACKSON:  Your Honour, it is true to say that in some

circumstances it is right to say the relationship
can be wider. But if one is looking at, for the

present purposes where one is not concerned with

the constitutional aspect of it at all, if one is

looking at the circumstances where the Act itself

looks to the relationship and is speaking of the

relationship between employer and employee, we

would submit there is nothing in the Act which

would enable the making of an award in the terms

incorporating the defined terms in clauses 5(1) and

5 ( 2 ) .

Your Honour, in that regard, it has been held,

of course, by the Court that there is no power to
regulate the relationship of the principal and

independent contractor by the making of an award.
For example, in Reg v Commonwealth Industrial
Court; Ex parte Cocks, (1968) 121 CLR 313,

observations to that effect were made, and could I give Your Honour a reference to the joint judgment

of Chief Justice Barwick and Justices Taylor and

Owen at page 318. After referring at page 318 to

the submission of counsel that -	the employment of independent contractors may
be forbidden by the Commission in particular
industries or, the terms and conditions upon
which they may be employed may be regulated,
if it be thought necessary or desirable in the
interests of employees in the industry who
have entered into contracts of service -

Their Honours said at page 319 that it -

is clearly not so as is shown by a glance at

the decisions of this Court -

in a number of cases to which reference was then

made.

Cape 6 27/6/91

HER HONOUR:  Is there still a provision in the Act setting

out the limits of the Commission's power to award

preference?

MR JACKSON:	Your Honour, may I check that for you?
HER HONOUR:	The reason I ask that is that it may be that

there is an argument to be made that this goes

beyond what at least used to be the statutory

provision relating to the award of preference.

MR JACKSON:  Yes, which had been held to be the limit of the

jurisdiction.	Your Honour, may I come back to
that.

HER HONOUR:	Yes.
MR JACKSON:	Your Honour, what I was going to say in

relation to the second aspect of the case was that,

we would submit, it is established that a union may

only make demands in respect of the class of

persons who are eligible to be enrolled as its

members. Your Honour, perhaps I need not do more

than give Your Honour a reference to one of the

cases in which that was said, Reg v Neil, 134 CLR

27.

HER HONOUR:  But this is not really quite that sort of case,

is it, Mr Jackson? It is not entirely a demand as

to the rates and conditions to be afforded to

persons not eligible. It is, is it not, as it

suggests, a preference in employment provision?

MR JACKSON: It goes beyond that, Your Honour.

HER HONOUR: In what respect? At this stage I am still

looking at the recruitment award.	Where does it go
beyond that?

MR JACKSON:  Your Honour, it goes beyond it because what it

does do is give to the concepts of "engaging" and

"employees" meanings which are wider than the

meanings which they would have ordinarily. Now, what I mean by that is that if one were to take,

for example, clause 6(1) in isolation without
seeing those terms defined, one might say that is a

preference clause. When one goes to clause 4, what

one sees is that -

HER HONOUR: Well, it may be a "shut out" provision as well,

if you wish to classify it as such. But it is not

quite within that area of operation, is it, in

which it has been said unions cannot claim with

respect to persons not eligible? It does not
attempt to prescribe the wages or conditions to be
afforded to persons not eligible to be members of

the union.

Cape 27/6/91

MR JACKSON: Well, Your Honour, it does the obverse of that

though. What it says is they shall not be engaged,

and as I was going to refer to Your Honour, the

definition of "engagement" specifically goes beyond

employment. So, Your Honour, it may be a question

of how one puts it, but whichever way one puts it,

we would submit, it is something which at least

sufficiently arguably for the grant of an order

nisi, is a point which does arise in the

proceedings. I am speaking about both aspects to

which I have so far directed attention.

I gave Your Honour a reference to Neil's case,

134 CLR 27, and I wanted to refer particularly to

what was said at page 30 by Justice Gibbs:

The question whether an industrial

dispute has arisen between the Association and

the prosecutors depends on whether any

employee of the prosecutors is eligible for

membership of the Association.

His Honour went on to say that that depended upon a

proper construction, of course, of the eligibility

rules, and so on.

Your Honour, in the case of the unions in question, the rules do not extend to include

persons who are not employees. Perhaps I did not

put that as clearly as I might have before. The

rules of the Unions include only persons who are

employees stricto sensu. But the persons

contemplated by the award are persons who go beyond that, and persons contemplated by the demand. That

is perhaps the point I am making in relation to

that aspect of it.

Your Honour, that is essentially the position

in relation to that award and - - -

HER HONOUR:  Before you leave it, I think those assisting

you might be able to tell you if there is statutory

provision.

MR JACKSON:	Yes, Your Honour, section 122.
HER HONOUR:	Of the Industrial Relations Act?

MR JACKSON: Yes, Your Honour, I am sorry. Section 122(1)

and it speaks of preference being given:

in such manner and subject to such conditions

as are specified in the award or order -

and the preference contemplated is preference to:

members of organisations.

Cape 27/6/91

That appears from the concluding words of

subsection (1) and also subsection (2).	The term
"preference" does not seem to be defined,
Your Honour.

HER HONOUR:	Do you make any argument by reference to that?
MR JACKSON:	Your Honour, simply that, that the concept of

preference is one which, we would submit, in this

Act would not be taken as having a meaning beyond

the expression "preference" in employment in what

one could call perhaps the traditional sense. And

assuming the correctness of that submission, the

presence of section 122 would be treated as really
being the basic power of the Commission and the

ambit of the power of the Commission to award - - -

HER HONOUR:	Its predecessor was held to be exhaustive of the Commission's power, and one prima facie, would
think that was the same under this Act.

MR JACKSON:  Yes, Your Honour. That was held by the court

in a number of cases, of course, both in relation

to the previous Act and its earlier form.

Your Honour, there would seem to be no particular

reason why that would not continue to apply. It

would leave, of course, the meaning of the ambit of the concept of preference, but that is something in

relation to which, we would submit, that preference

would be given to particular organizations or

members of organizations in employment, because

what one is talking about, of course, is it being

done, in effect, by an award and the award is an

award dealing with an industrial dispute. Your

Honour, that, I think, is what we would want to say

in relation to that award so far as those aspects

of it are concerned.

Your Honour, could I turn then to the question of natural justice or procedural fairness.

HER HONOUR:  You do not make any complaint about the

preservation of employment award.

MR JACKSON:	I am coming to that, Your Honour.
HER HONOUR:	Yes, thank you.
MR JACKSON:	Your Honour, the award to which I have referred

so far, I have referred to it really because it is

the one that contains the ambit aspect of the case,

that is, the definition of "employee'', definition

of "engaged". What I was going to move on to then

was the aspects that arise both in relation to that
award and in relation to the other award, the

preservation of employment award.

Cape 9 27/6/91

Your Honour will see that both awards apply to

Cape Lambert Services and the question which arises

in relation to both of them is whether, to put it

shortly and perhaps in a slightly dated fashion,

natural justice was accorded to the persons

involved, and in particular, to Cape Lambert

Services, of course, in relation to the making of those awards.

Now, in that regard I need to take Your Honour

to the terms of the affidavit of Small and,

Your Honour, may I also seek leave to file in Court

and read a further affidavit of Mr Small sworn

today, in which he exhibits a part of the
transcript which did not appear in the material.

If I could just take Your Honour to that part of

the transcript for a moment which is in the new

affidavit, Your Honour will see from the bottom of

it that it relates to the events of 11 June 1991 at

a time when Commissioner Polites was dealing with

the matter and it moved from Commissioner Polites

to Commissioner Fogarty.

HER HONOUR:	Deputy President Polites.
MR JACKSON:	Your Honour, I am sorry. It had eluded me for

the moment. At the top of the page, the movement

from Deputy President Polites to

Commissioner Fogarty is dealt with, and Your Honour

will see that he says in the second paragraph:

Both those matters -

they are the two matters that resulted in the

award -

are listed before Commissioner Fogarty for

Thursday. He will deal with the question

whether there existed industrial disputes within the meaning of the Act. Any other application subject, of course, to the

determination of that question may be made to

him on Thursday as to the future proceedings

in those matters.

Now, if I could move then to paragraph 36 of the

principal affidavit, that is the occasion referred
to in paragraph 36. Paragraph 37 refers to the

fact that the notifications came on for hearing on

13 June, and then paragraph 38:

In the proceedings ..... Counsel for the Unions

asked that there be " ... a finding of dispute

between the three unions and the company Cape

Lambert Services and a finding in the terms

sought in the notification."

Cape 10 27/6/91

Your Honour will see in paragraph 39 that counsel

who was representing Cape Lambert Services asked:

" ... that if the commission is to make a

finding of dispute that it -

makes a finding that the -

dispute only exists insofar as the demands

made attain to persons who are eligible for

membership of the union -

and so on. And that - paragraph 40, the particular

matter of relevance - they be given -

an opportunity to consider that matter before

the commission proceeds -

et cetera. This, of course, was in a context where
they had been advised that the matter was listed
for the limited purpose contained in
Deputy President Polites' observations.

Your Honour will then see in paragraph 41 the

exchange which occurred just before the

Commissioner reserved his decision. But if one

goes then to paragraph 43, what happened was that

the Commissioner proceeded to make the decision and

the awards which are the subject of the present

proceedings, and Your Honour will see in

paragraph 44 that the terms of the finding of

dispute include the existence of an industrial

dispute between the unions and all the prosecutors.

Your Honour, no one other than Cape Lambert

Services had been - this appears from

paragraph 45 - served with any application in that

regard and -

HER HONOUR:  But that really is a peripheral issue, is it

not, in your natural justice argument?

MR JACKSON:  It is not peripheral in the sense that the finding of dispute was one which was made, no

notice having been given.

HER HONOUR:  Yes. But it is peripheral to the awards, is it

not? Your main complaint is that the awards were

made.

MR JACKSON: That they were made, yes, Your Honour.

HER HONOUR:  But why are they not capable of being seen

purely as status quo arrangements?

MR JACKSON:  Your Honour, assuming that they could, we

should have been given an opportunity to be allowed

to put some submission on whether they should have

Cape 11 27/6/91

been made. And what happened was that the

Commissioner, having heard argument on the question

whether there should or should not be a finding of

the dispute, then it proceeded - - -

HER HONOUR:  Which seems to go to the preference of

employment award, does it not? The arguments

advanced, in relation to whether or not there

should be a dispute finding, do not seem to go to

the preservation of employment award?

MR JACKSON:	Your Honour, exactly the same thing happened.
HER HONOUR:	I know the award was made, but the arguments

about the finding of dispute do not seem to bear on

that aspect of the matter at all.

MR JACKSON: But, Your Honour, it comes - perhaps I can be

corrected if I am wrong - from the same finding of

dispute. What happened was there was one finding

of dispute but two awards emerged from it. It is

not as if there were two separate proceedings going

on.

HER HONOUR:  But given the nature of the dispute, there was

nothing that could be said. I mean, there were two

aspects to the dispute at all times were there not,

that is to say, whether people were going to have

their employment terminated and secondly, what

arrangements were going to be made for engagement

of other people?

Now, the arguments that were being put about

the finding of dispute seem to go only to that

second aspect and not to the former and one would

have thought, on a question as to termination of

employment, you would be saying everything that

there was to be said then and there as to whether or not that was going to happen or you were going

to be prevented from terminating people.

MR JACKSON:  Could I take Your Honour to the document which

is the actual finding of dispute, which is behind

tab 19, and Your Honour will see the way in which

it was treated. And if I could go briefly to the

second page, Your Honour will see about a third of

the way down the page, the paragraph commencing:

The principal arguments put to me on

behalf of the three unions are -

and then in the third subparagraph:

clearly a serious dispute ..... as to which the

Commission should find the existence of

industrial disputes ..... and make two awards -

Cape 12 27/6/91

and - - -

HER HONOUR:  But you see, right at the beginning the

question of termination is dealt with separately

and it is not the sort of matter which in the

ordinary course of events you would say, "Don't

make an award because it goes beyond the

relationship of employers and employees". The

arguments were not addressed to that matter; were

not capable even of being seen as addressed to that

matter, that aspect of the dispute.

MR JACKSON:  Your Honour, there was, for example, the

arguments specifically foreshadowed of an

application under section lll(l)(g), the old

section 4l(l)(d). Now, there was no reason why

that issue could not have been dealt with

expeditiously and if, for example, it were decided

that there should be an interim award made, the

interim award made after there had been a hearing.

Your Honour, it was not really treated as being

severable, in any way, if one looks through the

terms of the decision as recording what occurred.

What happened was that there was one dispute which

was then separated into two parts by the making of

the awards.

Now, it may be, assuming all else, that that

was in the abstract an appropriate thing to do, but

it was not an appropriate thing to do without

giving us an opportunity to be heard in relation to

the adoption of that course. Now, Your Honour, by

the adoption of that course, what I mean is to

proceed to make the awards in circumstances where

we had asked to be-heard and we were not.

Your Honour, I do not know that I can advance that

argument any further.

Your Honour, what I would propose to deal with as the next matter would be the question whether

there should or should not be a stay if Your Honour

were of the view that orders nisi should be made,

and may I perhaps proceed to do that?

HER HONOUR:	Yes.
MR JACKSON:	Your Honour, we would submit that the awards,

if they are not stayed, will have the consequence

that the economic and efficient conduct of the

business of the joint venture will be disrupted.

Could I take Your Honour in that regard to the two paragraphs in the affidavit of Mr Small which deal with this matter, and they are paragraphs 46 and

47.       Now, Your Honour will see at page 17 and in

particular paragraph 47 - - -

Cape 13 27/6/91

HER HONOUR:  I would just like reassurance. If I could

have details as to the evidence of the actual

employment arrangements prior to the awards, is

that here somewhere? I am concerned about:

would require C.L.S. to change its existing

method of operation and of manning the tugs -

MR JACKSON:  Yes, Your Honour, I think one starts from

paragraph 13.

HER HONOUR:  Yes, you go a long way do you not?

MR JACKSON: It is historical from paragraph 13 to

paragraph 19, and paragraph 19 shows the working

arrangements for the crews prior to what commences

in paragraph 20, and that is the incorporation of

the Cape Lambert Services; and then the

arrangement which is set out in paragraph 21.	And,
Your Honour, paragraph 30(b) perhaps is the

shortest summary of the current position. That is

in relation to the "Tai-0".

HER HONOUR:  Now, the change that is referred to in

paragraph 47 is the consequence, I take it, of what

I shall call the preference of employment

award - - -

MR JACKSON:	Yes.
HER HONOUR:	- - - and not, in any respect, related to the preservation of employment award?
MR JACKSON:	Yes, that is right, Your Honour, but of course there are other features which flow from the other
award and I was going to take Your Honour, for just
a moment, to one of the exhibits which is the exhibit JGS(3) and we are, in effect, obliged to
keep in employment persons whom we no longer
require for the performance or obligations,
including persons not qualified to perform the work
which may be available.  May I indicate what I mean
by that, Your Honour, by going to JGS(3) which is
behind tab 3.

Now, you will see that relates to a

Mr McKeller and - - -

HER HONOUR:	But they are not your deck hands are they?
MR JACKSON:	He is an engineer, Your Honour.
HER HONOUR:	Yes, but we are only concerned about deck

hands, are we not - no?

MR JACKSON:  No, Your Honour, I do not think so.

Cape 14 27/6/91

HER HONOUR: Seafarers - was that not defined with an

exclusion in the award? It might be a different

exclusion.

MR JACKSON:  No, Your Honour, "employee" means -

a Master, Maritime Engineer or Seaman

(including a Deckhand).

HER HONOUR:	Where are we looking at?
MR JACKSON:	Your Honour, it is the preservation of

employment award, and it is at the bottom of the

first page of it, the definition of "employee"; and

then Your Honour will see the "parties bound" in
clause 3; and then clause 5, "no permanent

employee", and "no casual employee" paragraph

(2).So, it goes beyond, Your Honour, the deck

hands.

Now, going back to 3, Your Honour will see

that he has been informed that:

the minimum requirements on the ..... new tugs
for engineer will be Engineer Class II.

He cannot get the qualification without extensive sea time; we say we cannot employ him but we are now required to keep him in employment even though

he is not qualified for the work which he is

required to do.	Now, that is an example of the
situation -

HER HONOUR: That is an example?

MR JACKSON:	An example.
HER HONOUR:	Can you take it beyond that?
MR JACKSON:	No, Your Honour, I am just simply saying that

it is an example of the situations which - - -

HER HONOUR:  But it is not very helpful, Mr Jackson, when

you are asking for a stay of an award which
preserves employment, and which if stayed, would

enable you to terminate the employment of people in

a remote location.	I would want a lot more than
"this is an example".

MR JACKSON: 

Your Honour, what I am able to say in relation

to it is that this is the instance of which we are
currently aware of being required to retain in

employment someone who is no longer qualified to do

it. Now, Your Honour, that is - - -

HER HONOUR: 

You do not tell me - for example, one does not

know if there if there is another tug that he could

work on - I mean, you simply do not deal with it.

Cape 15 27/6/91

MR JACKSON:	No, Your Honour, that is true but we - - -
HER HONOUR:	Could I ask you this:  I note the award

provides, prior to the conclusion of various
proceedings, the preservation of an employment

award which is clearly intended. One would think

it is a status quo provision pending further

hearings. Are they proceeding. Does one know what

has happened there?

MR JACKSON:	They are proceedings which are listed for hearing in September and October, as I understand
the position.  Your Honour, this, of course, would
prevent us letting a contract.  The award, as a
practical matter, would prevent us letting a contract for the carrying out of these works, for
example, carrying out of the work that the employees might otherwise do.
HER HONOUR:	I am sorry?
MR JACKSON:	I am sorry, of its nature as a practical

matter, one would think, because we are obliged to

keep - - -

HER HONOUR:  I can understand that with the preference

award. I do not see how that flows from the

preservation of employment award.

MR JACKSON: Just that it would be supererogation, in

effect, to - - -

HER HONOUR:	Of course, but that is
MR JACKSON:	Your Honour, we are entitled, subject of course

to the Commission, to arrange our affairs in such a

way as we may choose.

HER HONOUR:	Yes. But these proceedings have not been - has an application been made for priority of some
nature?

MR JACKSON:  No, Your Honour, but I suppose it may have to

be if we do not succeed in the present application.

HER HONOUR:  And there has been no appeal lodged or no

application for leave been made?

MR JACKSON:	No.
HER HONOUR:	And leaving aside the natural justice question

which, of course, is a different consideration, no

application was made to refer what is perceived to

be the question of law in relation to the dispute

finding as it bears on the preference of employment

award?

Cape 16 27/6/91

MR JACKSON:	No, Your Honour, but of course - - -
HER HONOUR:	I ask these things because it is a -
MR JACKSON:	because the awards follow, it is not

a -

HER HONOUR:  Yes, but it is a discretionary remedy and there are, at least, some other avenues available.

MR JACKSON:  Your Honour, there are. What I was going to

submit in relation to them was this: that so far

as the present case is concerned, what one sees

is - if one puts to one side for a moment the

natural justice point - that the issue, which is

the underlying issue, is an issue, we would submit,

of considerable importance, namely, the ambit of

the power of the Commission and it is an issue

which, we would submit, the determination of which

by the Court, is one which will enable, for the

future, any potential doubt as to the operation of,

for example, Cocks' case, to be examined.

Your Honour, I say any potential doubt as to

the operation of Cocks' case because, perhaps time

has passed it by a little in some respects, and

Your Honour may be familiar with the later decision - re Moore; Ex parte Federated

Miscellaneous Workers' Union, 140 CLR 470 - in

which, while Cocks' case was treated as being

applicable, the range of circumstances in which

persons who were not directly employees of the

person who was - - -

HER HONOUR:  You say that, but if it should come down merely

to a question of the interpretation of

section 122 - which it might well do - it is a

legal question that could as easily be dealt with in the Federal Court as in this Court, if it were referred by the Commission to the court.

MR JACKSON:  We have no right to get there, Your Honour.

HER HONOUR:  No, but it seems that notwithstanding the

availability of that avenue, the first recourse is

to this Court and never is recourse even sought

under the provisions which enable the reference of

a question of law.

MR JACKSON:  Your Honour, it is a question of circumstances

in which the Court will exercise the jurisdiction

it undoubtedly has.

HER HONOUR:	But it is discretionary.
MR JACKSON:	Of course, Your Honour.  Your Honour, it is now

discretionary, with respect, but could I just say

Cape 17 27/6/91

this: that in relation to that power,

section 75(v), of course, is placed there in order

to enable the Court to deal with tribunals and

Commonwealth officers and their powers, and if one

has a case where there is a serious issue arising in relation to the ambit of those powers, and the

issue is one of importance and of some urgency

then, we would submit, it is appropriate for the

Court to exercise its jurisdiction.

Your Honour, the alternatives, I suppose, are

decision which, in the end, does not have the

for us to go to the Full Bench of the Commission.

binding effect of the decision of a court of law.

We cannot apply to the Federal Court, for example,

to prohibit the Commission because the terms of

section 39B of the Judiciary Act do not apply to

the Commission. And so, Your Honour, we would

submit, it is appropriate to come to the Court and

say, "This is an important case, and accepting that

not all are important, this is an important case.

It does not have to be constitutional to attract

section 75(v).	We would ask the Court to exercise
the power".

I must remind you as to one matter, and that

is, that the awards that were made were made in

circumstances where we could not go to the

Commission. They were made before we had a chance

before the Full Bench.

HER HONOUR:	Yes.
MR JACKSON:	So, I mean we have to come after the horse has

bolted. Your Honour, those are our submissions.

HER HONOUR:  Mr Jackson, it is perhaps appropriate if I

indicate what I would be prepared to do because I

think your documents will need considerable

alteration.

MR JACKSON:	Yes, Your Honour.
HER HONOUR:	I would be prepared to grant an order nisi with

respect to the dispute finding only so far as it extends to the companies other than Cape Lambert Services.

MR JACKSON:	Yes, Your Honour.
HER HONOUR:	I would be prepared to grant an order nisi with

respect to the preference and employment award. In

both cases, I would be prepared to grant a stay.

As to the preservation of employment award, I would

not make an order nisi, but I would be prepared to

refer that issue which, as I understand it,

Cape 18 27/6/91

comprehends a large part of the natural justice
question to a Full Court, but that would be all, so

there would be no stay on the preservation of

employment award at all.

MR JACKSON:  Your Honour, I understand the position. May I

have just one moment to see if it would occasion us

any difficulty if Your Honour were to make orders

along those lines?

HER HONOUR:	Yes.
MR JACKSON:	Your Honour, we would be content with that.
HER HONOUR:	Yes, thank you.  Now, of course, I will certify

for counsel again. Could I ask when you might be

able to submit the new orders to the Registrar?

MR JACKSON:	Your Honour, later today.
HER HONOUR:	Thank you.  And, I presume that is the case in

the first one, as well, is it?

MR JACKSON:  Your Honour, I am not sure about that because

the horse may have bolted in that regard.

HER HONOUR: Yes. It does not particularly matter. If I

could just indicate if you are going to do it in

the Brisbane registry, it would be necessary for it

to be done, I think, before mid-day tomorrow.

MR JACKSON:  Yes, thank you, Your Honour.

HER HONOUR: Otherwise, it could be done in the Sydney

registry, but not until next week some time.	Thank
you.

AT 10.00 AM THE MATTER WAS ADJOURNED SINE DIE

Cape 19 27/6/91