Re Griffin & Ors; Ex parte Professional Radio and Electronics Institute of Australasia

[1989] HCATrans 33

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sll of 1989
In the matter of -

An application for a writ of prohibition and a writ of

certiorari against PAULINE MARCUS

GRIFFIN, a Commissioner of the

Australian Conciliation and

Arbitration Commission

and

OVERSEAS TELECOMMUNICATIONS

COMMISSION

and

THE MINISTER FOR TRANSPORT AND

COMMUNICATIONS, RALPH WILLIS

Respondents

Ex parte -

PROFESSIONAL RADIO AND ELECTRONICS

INSTITUTE OF AUSTRALASIA

Radio

Prosecutor

BRENNAN J

( In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 22 FEBRUARY 1989, AT 2.33 PM

Copyright in the High Court of Australia

C3Tl/l/RB 1 22/2/89

MR J. L. TREW, QC: If Your Honow:: pleases, I appear with my learned

friend, MR J.P. PHILLIPS, for the applicant.

(instructed by Carneys)

HIS HONOUR:	Yes, Mr Trew.
MR TREW:	I understand Your Honour might have had an opportunity

to look at the papers.

HIS HONOUR:	Yes, I have.
MR TREW:	We move on the affidavit of Michael Gordon Roberts,

sworn 20 February, and the claim's denial of natural

justice that the applicant seeks the Court's relief

in respect of is set out in paragraph 14 of the

affidavit.

Your Honour, there is no court ether than this

Court that has been invested with jurisdiction to
deal with an application of this kind and the appeal

procedure within the Arbitration Commission does not,

in terms, apply to decisions of the Commissioner.

Would Your Honour wish me to go to that?

HIS HONOUR:  Yes. I would be grateful for your assistance on

that point because I wonder why that is so.

MR TREW: If Your Honour goes to - there will be two sections

that I will need to look at substantially. Section 35

is the appeals section and if it is appealable it

must be appealable under paragraph (a) of

subsection (2). It does not come within the first arm

of that, in our submission, that the decision that was

made is not "an award made by a member otherwise than

under section 28" and it is our submission that it

is not an award. I will come to that in a moment,
Your Honour, but if I could go through each of the arms.

The next arm that might be relevant is a decision of a member not to make an award, and we submit it is

not that either. Or a decision of a member by way of

a - it is not the rest of it. So the only parts, in

our submission, that could possibly apply are those

first two limbs of paragarph (a).

Can I take Your Honour to another section - it

will be relevant when I go to the particular documents -

Tl section 40(4). That provides that:

An award or decision made by a single member of the Commission shall be made by an

instrument signed by the member and the

instrument shall be dated with the date on

which it is so signed, which date shall, for

the purposes of this Act, be deemed to be

the date of the award or decision.

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I think the only other matters that -Your Honour

need know at the moment about the Act is "award" is

simply defined in section 4 as:

an award made under this Act and includes

an order;

and an "order" is defined as :

an order made by the Commission under this Act.

And that appears in section 4 too. The three documents

that we invite Your Honour to look at are, firstly,
the decisionsthat preceeded this one, namely the ones

in September last year. They are at exhibit MGR4 and

5.       MGR4 is the transcript of proceedings before the

Commissioner following her reserving her decision on an application which was consented to to increase the

award rates of the persons employed by OTC. There

was a dispute between OTC and the union but that was

only as to the date upon which it should operate. The union wanted it upon the date the Commissioner decided

it should operate; OTC wanted it to operate from two

weeks later, but otherwise, it was by consent.

On the last page of that transcript, page 31,

the Commissioner sets that out. Of course she is

delivering this orally and she says at the end of that:

This completes my decision. Thank you.

That is in the last line or two. Then that decision

was reduced to writing, it would appear in purported

pursuance of section 40(4) - that is the next

exhibit MGRS. It in substance is the same as the oral

decision although there are some slight verbal
differences and apart from the one that I have just

drawn Your Honour's attention to, I do not think they

are significant. That decision was delivered on the

next day, 27 September, and she recites in the first

paragraph what the application was and then over on the

third page, No 3, there are only three pages - the

first page of the decision is the second page of the

instrument.

In the second-last paragraph she says that:

I believe there are sufficient grounds to approve the date sought by the unions -

and they are set out, and then says:

I so decide.

Then she says:

The unions are requested to provide draft orders

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to give effect to this decision. Orders

varying the respective awards will come into

effect from the first pay period -

et cetera. Then she signed it. In our submission,

what the Commissioner seems to have done is to act

pursuant to section 40(4) and reduce the decision to
the form of an instrument and sign it and, of course,

it has a date on the top of it so that it then operates

from that particular date. The procedure seems to be

that she then directed one of the parties, the unions,

to bring in the relevant order.

HIS HONOUR: What order is that? That is a different order from

the one that she has signed.

MR TREW:  Yes, Your Honour, and it may be arguable that indeed

this is sufficient compliance with that part of

r2	subsection (4) to constitute the award. But if
Your Honour has a look at one of the earlier exhibits -
I think it is exhibit MGRl, that has attached to it
a pamphlet form of the award. Does Your Honour see
this? It is a yellow document. That first document appears to be a printed form of the award originally
made and then attached to that are a number of documents
called orders. In terms they are somewhat like the minutes of an order of judgment made by a court following the delivery of reasons.

HIS HONOUR:  Am I right in thinking that those documents, those

orders, are in that form in conformity with the

requirements of regulation 8?

MR TREW: Yes, I think that is'right, Your Honour. Perhaps I

too hastily agreed with Your Honour. That deals only

with a finding for the purpose of the prevention or

settlement of an industrial dispute.

HIS HONOUR: Is that not what this decision is? In fact, it

would be hard to find any other foundation- - -

MR TREW:  Yes, I am sorry, I think I might have misread that,

Your Honour. Section 24 of the Act requires, when

there is an interstate industrial dispute brought

before the Commission, requires the Commissioner before
whom it comes to record the parties to the dispute,

the subject-matter and the like, and I think I have

misread that. So my agreement with Your Honour, in

my submission, that is correct. That seems to be a

regulation form of giving effect to section 40(4).

HIS HONOUR:  Yes. If that has not been complied with, that

is what the Commissioner had in mind in the last

paragraph of her decision.

MR TREW:	Yes.	It may not be entirely clear that the two
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documents are necessary, Your Honour, but that is

certainly the procedure that the Commission seems to

adopt and here, it is what the Commissioner certainly

seems to have had in mind. And that becomes even

clearer when one goes to exhibit MGR12 which is the

decision about which this application is made because -

that is described as a supplementary decision. At

the bottom of the first page, apart from - I can come

back to that. I will deal with only this matter.

She says at the bottom of the second page, in the

two last paragraphs:

In the light of these facts I have decided to

change my decision of 26 September -

and then she says:

The order varying the award to give effect to my decision of 26 September has not yet been signed.

And then goes on to deal with the practical effect

of it.	Now, that indicates, in our submission, that
the Commission	at least concedes it was not making

an award and when one looks at - - -

HIS HONOUR:  I do not follow why that is so. If the order is

one which varies the rates of pay and the rates of

pay are included in an award which was made in partial

settlement of an industrial dispute, why is it that

the order that is made to vary those rates of pay does not answer the description of "award" as defined in ·

section 4?

MR TREW:  For this reason, Your Honour, that it is our submission

that it is not an award in the form in which it has

been made; it is simply a step prior to that. It is

a decision to make that order and until the order is

made in the form that I took Your Honour to in

exhibit MGRl, it only has the status of a decision. It only has the status of order or award when it is reduced to writing and a further document is signed.

(Continued on page 6)

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MR TREW (continuing): Section 40(4) proceeds on the basis

that both a decision has to be reduced to

writing and signed and so does an award.

And regulation 8 speaks in the same - well, it

least, it speaks in terms of the decision and

finding and that then says, "shall forth" -

regulation 8 seems to proceed in the words:

shall be forthwith reduced to writing

and embodied in an award -

on the basis that it is just the one document,

whereas the section speaks of the possibility of

there being two documents and that is certainly,

as I understand the procedure adopted by the

Commission, and I am not certain that I understand

fully, but it seems that is the procedure followed

and it is our submission that that is what the two decisions that I took Your Honour to.

HIS HONOUR:  Had not reached the stage, then, of making an

award, you say?

MR TREW:  It had not reached the stage of making an award

and that is why, in our submission, what has

happened here does not fall within the appeal

provisions of section 35(2).

HIS HONOUR: It is a very technical distinction.

MR TREW:  It is incredibly technical, Your Honour. Even if the

applicant here were to appeal and put to the Full

Bench of the Commission what Your Honour is

discussing with me that, namely, that does

constitute an award, that would be a matter that

would have to be then determined by that by this Court. The award or the decision that

has been changed in part, that is as to the

$10, comes into effect from 26 March next.

HIS HONOUR:	But it does not on that argument.
MR TREW:	It does not on that argument, Your Honour, that is

right. But at least if there is - it can come

into effect subject, of course, to, no doubt,

some other opposition that one might anticipate,

once the decision that is challenged here is put

to one side and that is, of course, the purpose

of this application, to get that removed. And I

regret to say that it is our submission that this

Court is the only Court that can do that and that

is why it is necessary to proceed by prerogative

writ rather than use the internal appeal procedures

of the Commission.

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HIS HONOUR:  I understand the way you put it. If ~our argument,

based on the distinction between the document which

is exhibit 5 and an award,as defined, is not

accepted, would you wish to grapple the more

substantive problem as to whether you should have

an order nisi before you have made application

at least to try the Full Bench of the Commission?

MR TREW:  The answer to that must be no, Your Honour, but the

difficulty is, of course, in having an

authoritative decision rather than an expression of opinion as to what that section means because until there is an authoritative decision about the

meaning of that subsection, the matter is at large.

I have just remembered, Your Honour, that the Commission itself has proceeded on that view.

I think there is a decision we have given

Your Honour a reference to in 99 CAR 585 at page 590.

Sufficient of what it is about can be gleaned

:4	from page 590. At the top-of page 590 is the last
paragraph of the decision of a member of the
Commission, Commissioner Horan. It is a demarcation
dispute and what he says, that work shall be
allotted to one union rather than another and then he said:

The Commission so decides.

That then went on appeal to a Full Bench

and the Commission, in the first couple of paragraphs,
deals with the matter:

The question before us is whether or

not appeals, pursuant to section 35 of the

Act lie from the decision of the Commissioner

which the appellants seek to have examined

by this Full Bench. To put this in a

negative form the fact that a Commissioner, well aware of the many methods of seeking to achieve the object of the legislation,	did not see fit to reduce his decision to	the form of an order or award is not under
examination. We have to decide the question
whether, the Commissioner having done what
he did, appeals lie under the section.

Having considered the terms of

section 35 of the Act we are of opinion
that what the Commissioner has done is

neither in form nor substance an award

(which includes an order) under sub-section(2)(a)
of the ~ection. The appeals are held not

to lieand are struck out.

Now, that has been applied in more recent times

and we have not given Your Honour a reference to

that, but by another Full Bench in, I think, 1971.

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It is in an-informal set of reports called the

Industrial Information Bulletin for 1971. It is

in volume 26 and it is on page 3100 and it goes

into the next page. That Full Bench referred to

the decision I have just told Your Honour about

and applied it.

HIS HONOUR:  What was the nature of the proceedings in that

case?

MR TREW: In that one. A Commissioner there - this was a

question of over-award payments. He said:

In my view there should be no absorption

into over-award payments of increased

rates of pay arising from the decision

of Mr Commissioner Deverall.

And the Commission applied then the earlier decision

that I have referred Your Honour to.

So, in the face of those expressions of view

by Full Benches of the Commission, if the applicant

here were required to move the Full Bench of the

Commission, it would be faced with an argument

that the section did not permit an appeal.

HIS HONOUR:  Well now, Mr Trew, the question arises what the

effect is of what the Commissioner has done. If

this is not an award for the purposes of

section 35(2)(a), has it any, and what effect,

upon the entitlement of employees under the existing

awards as varied?

MR TREW:  I have got to approach that in two steps in answering

it, Your Honour. If that is the case it must be

the case also in relation to the first decision.

And the first decision, all thatneeds, in our

submission, is a ministerial Act to reduce it into

the form of an award in respect of which the

applicant would have a basis for seeking relief.

Now,- the present decision, until that is set

aside, in our submission, will have the effect

of the Commission not issuing an order or award
pursuant to the first decision in the form in which
the Commission in the first decision said it should
be issued. So, the effect it has is that the
persons entitled to the benefit of the award will
be denied the particular - the $10 increase that the

decision purports to take away from them.

(Continued on page 9)

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HIS HONOUR:  They would be denied also the 3 per cent, would

they not?

MR TREW:	Yes, that is true, but all that requires is no further consideration by the Conunission, in our
submission, but merely a ministerial act to reduce in terms - to produce an award in the appropriate terms.

HIS HONOUR: Well, if we reduce this to somewhat practical terms,

the situation is very unsatisfactory, is it not,

because as you say, this Court is the only court with

jurisdiction; the problem is one which concerns the

rate of weekly pay of employees under an award, and if

you are driven necessarily to the jurisdiction of this

Court and this Court alone, you must take your turn in

the list of litigants whose cases are awaiting hearing
and take your turn with the list of cases which are

awaiting judgment.

MR TREW: 

I appreciate that, Your Honour. There is a - - -

HIS HONOUR: 

Now, is there no other practicable way of dealing

with this because that seems to me to be a very
unsatisfactory situation from the point of view of the
parties to this award and, indeed, those who are

interested in either supporting or rejecting the

decision that has been made.

MR TREW: In our submission, there is not. There is one matter

of fact that is not in the affidavit that I should tell

Your Honour about and it would be in the further

affidavits that leave is sought to file, and that is

the date in September last year upon the basis of the decision that was delivered and signed on 27 September.	this, that the 3 per cent has been paid by OTC from to believe that OTC would not continue to act in
accordance with the procedure that it had applied in the
past and if the present application were stayed, which
is also sought in the order nisi - I am sorry, the
most recent decision were stayed, that they would pay
in accordance with the order that had been made in
September last year.

HIS HONOUR:  Mr Trew, I would not be prepared to make an order of stay until the parties affected had been notified.

MR TREW: If Your Honour pleases. It is only ex parte at this

stage, yes. That would be -as soon as the status of

the present application had been determined that would

be the next step that would be made by the present

applicant.

HIS HONOUR:  And there is no other way in which you see the

problem is capable of solution?

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MR TREW:  No, Your Honour, that is the difficulty. That is the

way the CONSTITUTION and the legislation has confined

the game, as it were.

HIS HONOUR: It is most regrettable.

MR TREW:  It is extraordinary that this Court should have to be

troubled with this.

HIS HONOUR:  It is not a matter of the troubling of this Court,

it is the matter of this Court being an unsuitable

repository for the sole supervisory jurisdiction in

matters which are necessarily attended with some

urgency and which really ought to be dealt with by a

court which is both familiar with the area and

organized to exercise on a day to day basis its
original jurisdiction. But that seems to be precluded

by an express provision of the ADMINISTRATIVE

DECISIONS (JUDICIAL REVIEW) ACT which takes this

jurisdiction out of what might ordinarily be expected

to be the jurisdiction of the Federal Court.

MR TREW:  Yes.

HIS HONOUR:  I understand the submission that you make. I

would, however, like your further submissions on the

question of whether this ought not to be dealt with

by way of a direction to move for the relief that

you seek rather than by order nisi, and the reason why

I raise that is because it seems to me that there is a

very real question as to whether the course which has

been taken by the Commissioner does answer the

description of "award" in section 4 and, if so, whether

it is appropriate for this Court to grant an order nisi

in advance of the application being made to the Full

Bench of the Commission for relief on the assumption

that that relief is within the jurisdiction of the

rs Full Bench to grant.

MR TREW:  It is our submission, Your Honour, that the order nisi.

should be granted because there is a prima facie case,

indeed, in our submission there is a strong case for
relief, leaving aside the discretionary question about
the jurisdiction of the Arbitration Commission. That

matter, in our submission, as to whether or not the

Commission does have that jurisdiction-the Commission

itself has decided on at least two occasion that it

does not have that - and the applicant cannot be

confident that that view will not prevail, and it is

our submission that faced with that, there is sufficient

before the Court to grant the order nisi rather than to,

as it were, have two attacks and go firstly to the

Commission itself and ask for those decisions to be

overruled, which they may not be, and then have to

move this Court - it may be that because of the need

for the applicant to go to the_ Full Bench of the

Commission that that appeal may not be heard for some

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little time and this application would then lose its

place in the queue before this Court.

HIS HONOUR:  Not necessarily. In other words, if a direction

were given instead of an order nisi under the

provisions of this Court's rules that you should move

on notice for the relief which you seek before the

Full Bench, it would have in substantially practical

terms the same effect as an order nisi. But it would

leave the way open, as it seems to me, for an

application to be made if any party were so minded to

make it, to the Full Bench of the Commission in order

to, as it were, try that jurisdiction to see whether or

not a more speedy solution to what must be a very acute

practical problem could be arrived at.

In other words, it is not by any means coming to

a conclusion about that question but simply leaving
the maximum opportunities open to the parties to seek

relief if they can get it.

MR TREW:  Your Honour, the applicant is then faced with the

additional costs whereas, if it was dealt with once

only, the matter could be finally determined and in

our submission the applicant should not be put to the

extra burden of preparing more appeal papers and then

appearing before the Commission in circumstances where

the costs cannot be recovered in any event.

HIS HONOUR: That is a matter for the party, if they wish to

apply or whether they do not. I understand on

inquiries that the lists of this Court are presently assigned either absolutely or provisionally to other cases until the May sittings. I do not know whether

you are aware of that.

MR TREW:  No. We arrived too late to make that inquiry, I

regret to say.

HIS HONOUR:  That means that you would not get a hearing, at

the earliest, until the May sittings of this Court.

That is what has given me particular concern about the

absence of any other avenue of relief for any party

who may be wishing to seek it.

MR TREW:  The applicant, Your Honour, would wish to take that

course and, as I said earlier, will make an application

for a stay forthwith after the proceedings today to

try and hold the position at least until the Court can

look at it.

HIS HONOUR:  Yes. It is regrettable that that application for

a stay was not made on notice today. If there are to

be proceedings between the parties for the purposes of

a stay would it not be desirable that this application

itself be the subject of any submissions which the

parties may wish to make?

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MR TREW:  Might I just consider that for a moment, Your Honour?

HIS HONOUR:  Yes. I might say, Mr Trew, that I will be

available to hear such an application on notice if

the time is either in conformity with the rules are

the parties otherwise agree on any day of this week.

7 MR TREW: I am instructed to take advantage of that,

Your Honour.

HIS HONOUR:  Yes. Then shall I adjourn the application now?

MR TREW: If Your Honour pleases.

HIS HONOUR: Well, is that - - -?

MR TREW:  I ask Your Honour to grant the order nisi. Perhaps

I should ask Your Honour to determine that and in

the event that Your Honour is against me on that,

I would ask that the application be adjourned so

that the applicant can then give notice to the

other parties of the application so that Your Honour can

determine that as well as a stay application.

HIS HONOUR:  I am not sure that we are talking of the same

matter. The alternative solution which I was putting

for your submission earlier was that either an order

nisi is made by me as a Judge at first instance

or that an order is made under the Rules of Court

directing the applicant party to move the Full Bench on notice to the other parties. In neither event is

there any final order made by me which deals with the
matter so that if it is a question of one form of

order rather than another, it seems to me that that

is something which can easily wait until we see what

the party who is interested in this and who will be

called before the Court in any event because you are

going to seek a stay, wishes to say about it.

MR TREW:  Yes. In that case, Your Honour, the proceedings

should be adjourned for that purpose.

HIS HONOUR:	Very well. Well then, until what day or date?
MR TREW:	It had better be Friday, Your Honour, if Your Honour

has this week available.

HIS HONOUR:	Yes, very well. At what time?
MR TREW:	And we will give notice this afternoon to the other

parties of the application.

HIS HONOUR: At what time?

MR TREW:  Would 2.15 be a suitable time, Your Honour?

HIS HONOUR: It would. Very well, we will adjourn until 2.15 on

Friday next.

AT 3.08 PM THE MATTER WAS ADJOURNED UNTIL

FRIDAY, 24 FEBRUARY 1989