Re Health Services Union & Anor, Ex parte State of Vic

[1996] HCATrans 8

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 7905
  A 9.2.96

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M 7 of 1996

RE:  HEALTH SERVICES UNION

and ANOTHER

ex parte

STATE OF VICTORIA

DAWSON J (In Chambers)

AT MELBOURNE, FRIDAY, THE 2ND DAY OF FEBRUARY, 1996

DR C. JESSUP QC:   I appear with my learned friend, MR McDONALD, on behalf of the prosecutor.

MR R.W. HINKLEY:   I appear with my learned friend, MR W. FRIEND, for the second respondent, the Health Services Union of Australia.  Your Honour, we would seek to be heard on the application for the order nisi.

HIS HONOUR:   Well, you have been given notice in accordance with the practice direction, have you not?

MR HINKLEY:   Yes, your Honour.

HIS HONOUR:   It would seem you have no objection to that, do you, Dr Jessup?

DR JESSUP:   I beg your pardon, your Honour?

HIS HONOUR:   You have no objection to ‑ ‑ ‑ 

DR JESSUP:   I do not think I can, your Honour.

HIS HONOUR:   No, I would not have thought you could either.

DR JESSUP:   No.

HIS HONOUR:   Very well.

DR JESSUP: Your Honour, this is an application for an order nisi for prerogative relief under section 75(v) of the Constitution directed to the Industrial Relations Commission. The circumstances are that a member of that Commission who was at the time Senior Deputy President Riordan, made a decision and gave reasons for it a couple of days before he reached the statutory retiring age in February last year. He did not make an award. He left the making of the award to those who followed in his steps in the Commission.

There were proceedings before Senior Deputy President MacBean in that regard in which the kind of award which ought to be made was argued.  He recently gave another decision but has not yet made an award about the kind of award he would make, substantially saying that he would do exactly what Senior Deputy President Riordan intended to do, that is, Mr MacBean taking the view that the merits of the matter had been finally determined by Mr Riordan whilst he was on the Commission.  So that explains why we now seek this relief nearly a year after the substantial decision about which we complain.

Now, your Honour, the circumstances were rather involved but at the end of the day the section of the Industrial Relations Act under which Senior Deputy President Riordan acted was 170PP(3).

HIS HONOUR:   Yes, that is the section which ‑ ‑ ‑ 

DR JESSUP:   What had happened was that there had been a bargaining period under the Act which had been terminated under ‑ ‑ ‑ 

HIS HONOUR:   One of the preceding sections.

DR JESSUP:   ‑ ‑ ‑ 170PO(1)(b) which brought into effect 170PP, as subsection 1 indicates.  The result of 170PP(3) applying was twofold.  First of all, the Commission had to proceed to settle the industrial dispute and, secondly, if it did so by award it had to be a paid rates award.  Now, the point that we object to in that regard are twofold also.  The first is we submit that in accordance with the decision of this Court in Re AEU, that the Commission does not have jurisdiction to make a paid rates award against a state government.

Your Honour will recall that that was the case in which the implied limitation in the Constitution was discussed and the Court held that, generally speaking, the Commission could make awards binding on state governments but not in relation to engagement or termination of employees so long as they confine themselves to the setting of minimum wages and conditions of employment. Now, our point is in this regard that that does not empower the Commission to make a paid rates award, only a minimum rates award.

HIS HONOUR:   That is the only way in which you can put the argument.  The Court did not deal expressly with paid rates.  It did not mention them.

DR JESSUP:   No.  It did not mention paid rates awards, your Honour, it only mentioned minimum rates awards, yes.

HIS HONOUR:   And that is an argument which has been put and rejected in the Commission.

DR JESSUP:   In the Commission, yes, your Honour.  That is one of the reasons why we come straight to this Court because the Commission, on this point, in a Full Bench of the Commission has already rejected the argument.  It would be inefficient and quite pointless for our clients to appeal to the full bench, have it reject our argument ‑ ‑ ‑ 

HIS HONOUR:   But it would not be pointless to go to the Industrial Relations Commission - the Court, rather, would it?

DR JESSUP:   No, your Honour;  no, it would not.  We submit that your Honour should keep the matter but ‑ ‑ ‑ 

HIS HONOUR:   You have to come to me in the first instance anyway, do you not?

DR JESSUP:   We have to come to you in the first instance.  We may be a little optimistic in thinking that your Honour might keep it but that is our submission.  Nonetheless, the Industrial Relations Court of course would be perfectly competent to decide the matter.  We have to concede that.  The other point we have, your Honour, arises out of a decision of this Court in a matter called Re AEU.  It is a different AEU.  It was actually Re Australian Engineering Union, your Honour, in which two members of the Court - the Chief Justice at the time, Sir Garfield Barwick and Windeyer J, said that:

Any provision in the Act which directed the Commission to settle a particular industrial dispute by way of a rule or formula or principle would not be a law with respect to conciliation and arbitration.

If I might just read to you very briefly what Windeyer J said about that and the Chief Justice said something similar. His Honour said - your Honour, I am reading from 118 CLR 269:

The Parliament has no power under the Constitution to direct that it go about its task ...(reads)... the prevention and settlement of industrial disputes by conciliation and arbitration.

That point was run by a company called Comalco Bell Bay in proceedings in the Industrial Relations Court and we have set out, I think, in the affidavit the extract from that case.

HIS HONOUR:   It is not exactly conclusive is it, the judgment on this point?

DR JESSUP:   I beg your pardon, your Honour?

HIS HONOUR:   It is not exactly conclusive.

DR JESSUP:   Of course not.  They were looking at another section in which the obligation of the Commission to make a paid rates award was qualified by a requirement to consider the public interest.  The Industrial Relations Court at page 680 of volume 131 ALR said, well, because there was this qualification as to the public interest.  It was conciliation and arbitration in the proper sense but if I could take your Honour to the paragraph on 680, starting at about line 37:

Turning to the Commission's arbitral roles, it is true that the powers referred to in S.170UB ...(reads)... However the mandatory provisions are qualified -

and they go on to deal with the qualifications.  The difference about PP, your Honour, is that there is no qualification.  There is no public interest ‑ ‑ ‑ 

HIS HONOUR:   Save for subsection 5 which really does not affect your argument.

DR JESSUP:   No, it does not, your Honour, no.  There is no qualification as to public interest or any other discretionary matter.  So, your Honour, we would submit that on the present state of the law as declared by the Full Court, that is, the Industrial Relations Court, that this arbitration must have miscarried.

HIS HONOUR:   You have put this argument to Deputy President MacBean and it has been rejected?

DR JESSUP:   It has been rejected.  He rejected it upon this ground.  He said, "Don't come to an administrative tribunal and say the section of the Act is invalid".  He referred to something that Brennan J said when he was a member of the AAT.

HIS HONOUR:   No doubt he was referred to this passage in Comalco.

DR JESSUP:   Yes, he was, because the Comalco decision was decided only in September this year and that was a very short period - something in the order of a month or six weeks, I think, before Deputy President MacBean decided the point.

HIS HONOUR:   And the Comalco decision is subject to an application for special leave to appeal to this Court, is it not?

DR JESSUP:   Yes, it is, your Honour.

HIS HONOUR:   You sought prerogative relief which was refused on the basis that there was ‑ ‑ ‑ 

DR JESSUP:   I did not.  Mr Merkel did.

HIS HONOUR:   You did not.  Someone did anyway.

DR JESSUP:   Yes, Mr Merkel did.  Yes, if I may say this, your Honour, it is the other parties, if I could put it that way, not the Comalco company, which ran that point, but the unsuccessful respondents to that application that had sought leave to appeal from it.  It was decided against the unions on other grounds.

HIS HONOUR:   So far as one can gather, you would not find in the Industrial Relations Court an unsympathetic ear.

DR JESSUP:   That appears to be the case.

HIS HONOUR:   Yes.

DR JESSUP:   Your Honour, we submit that we have made out in the - according to conventional text, a prima facie case for an order nisi and we would seek such an order from your Honour.  In our submission, both of the points are constitutional ones.  One of them challenges directly the validity of a section of the Act.  That is say, it is a black and white point.  The other one challenges the extent of the valid operation of that section against a state government.  Your Honour, we know ‑ ‑ ‑ 

HIS HONOUR:   I am going to put it to you, if I were minded to remit the matter to the Industrial Relations Court, why should I make an order nisi rather than allowing them to consider the whole application?

DR JESSUP:   Your Honour, I accept that in accordance with your practice, if you are minded to remit, you would simply remit without making an order nisi.

HIS HONOUR:   Obviously there is strength in at least your second point, anyway.

DR JESSUP:   I accept that.  Your Honour, I am aware of your Honour's practice in matters in which the kinds of arguments we have just put have not prevailed and so I do not want to take up any further time.  Unless your Honour feels you can be assisted any more, the points that we rely on are fairly short ones.

HIS HONOUR:   It seemed to me, and I am just putting this to you, that if one is going to remit, one should not, as it were, usurp any of the functions of the Industrial Relations Court by even making an order nisi but one should remit the whole application.

DR JESSUP:   I will not address your Honour further on that point.

HIS HONOUR:   Thank you, Dr Jessup.

DR JESSUP:   If your Honour please.

HIS HONOUR:   Mr Hinkley.

MR HINKLEY:   Your Honour, we, as I have indicated to my learned friend, would consent to any remittal.  Your Honour, we have briefly made a short summary of an outline of submissions perhaps which I could hand to your Honour.  That may save time simply to draw those to your Honour's attention.  Your Honour, unfortunately I have not been able to correct typographical errors in that.

HIS HONOUR:   Yes, well, my comment a moment ago is to the contrary of your submission in paragraph 3 that there does seem to be some substance in the argument in relation to section 170PP, is it?

MR HINKLEY:   Yes, your Honour.  I appreciate the way the argument was put, that your Honour made that comment.  Your Honour, my learned friend's submission did not take account of and nor does Comalco take account of section 170PP, subsection 4.

HIS HONOUR:   But does that relieve them of the obligation to make a paid rates award?

MR HINKLEY:   No, it does not, your Honour, but it relieves them of the obligation to be constrained by the wage-fixing principles and it requires them, in its terms, to base its decision on the merits of the matters under consideration. 

HIS HONOUR:   Say that it must make a paid rates award.

MR HINKLEY:   Say that it must make a paid rates award, your Honour, which raises the complicated factual and legal question of what a paid rates award is.  In Comalco, your Honour, the observations were made that a paid rates award - and we have given the passages there in that outline, your Honour - merely represents the Commission's view as to what should be the relationship and entitlement of employees.

HIS HONOUR:   But it precludes payment above the rate.

MR HINKLEY:   Well, your Honour, in Comalco, you see, their Honours do not take that view of it.  I have referred to the ‑ ‑ ‑ 

HIS HONOUR:   Well, what is the difference between a paid rates award and a minimum rates award?

MR HINKLEY:   Your Honour, in Comalco, their Honours take the view that the difference is that a paid rates award represents the Commission's expectation - and that is the word that is used, your Honour - expectation of what will be the actual entitlements paid to employees but, your Honour, does not carry a consequence of any negative consequence to an employer who pays above it, save for, your Honour, that an application can be made to the Commission to turn the award into a minimum rates award.

HIS HONOUR:   I really do not appreciate the distinction, Mr Hinkley.

[9.56am]

MR HINKLEY:   May I say, your Honour, that your Honour is not alone in that.  Your Honour, it is a - it has been an issue that has agitated those of us who suffered in this jurisdiction, an issue that has agitated us for a long time.  Your Honour, can I draw your Honour's attention to the passages to illustrate, with great respect to their Honours, how difficult and confusing the concepts are.  That is at page 677 of the Comalco decision in 131 ALR, your Honour.  At the bottom there of page 677, their Honours, dealing with part VI(c) say:

[It] is not easy to construe.  Comprehension is not assisted by the fact that parliament no where indicates the intended or assume defect of an award being a paid rates award.  The act says nothings about the rights and ...(reads)... satisfy the section 4 definition -

reference to Evatt J, then a reference to the Telephone and Photograph Officers case in which Aicken J, their Honours cite as saying -

It appears to be clearly within the Full Bench's constitutional and statutory power to make awards settling disputes by granting increases in wages of a particular kind (whether by reference to specific sums of money ...(reads)... upon other increases ...

Their Honours go on:

It is not clear however, whether this was a reference to a prohibition on future increases that would be reflected in the award or increases external to it;  that is, over award payments.  There is nothing in the case ...(reads)... rather than "minimum entitlements" -

and I interpolate, your Honour, that is the language of the definition -

the Commission manifests an expectation as to the parties' future conduct.  This being reflected in the statement required by section 170UE.  How section 170UD confirms that the statutory concept of "paid rates award" does ...(reads)... inconsistently with its terms.

HIS HONOUR:   I am not sure that the majority in the AEU case had those subtleties in mind when it spoke of minimum wages.

MR HINKLEY:   Your Honour, I recall the matter coming back before the Full Court on the application for variations to the orders by reference to the slip rule and while I have not been able to find my copy of the transcript, your Honour, I recall that the Court made observations to the effect that your Honour made but the issue, as I think you indicated to my learned friend, Dr Jessup, the issue of paid rates and minimum rates in the sense that it is now being agitated, was not before the Court and the Court was not alive to it at all in argument.

HIS HONOUR:   It was raised in a particular form by the Solicitor General for South Australia in the AEU case.

MR HINKLEY:   It was - yes, it was, your Honour, except that the question as to the difference between minimum rates and paid rates so far as the decision was concerned was said by the Court, as I recall your Honour, on the slip rule application, not to be something that had been dealt with by the Court.  I think that is consistent with what your Honour's earlier observations and recollection was.

HIS HONOUR:         But all of that, Mr Hinkley, you - your submission is that this matter should be remitted?

MR HINKLEY:   Yes, your Honour, yes and for the reasons that we have indicated in our paragraphs 1 and 2, your Honour, yes.

HIS HONOUR:   Thank you.  Do you have anything to add, Dr Jessup?

DR JESSUP:   I do not think I could assist your Honour further.

HIS HONOUR:   Well I propose to remit this matter to the Industrial Relations Court including the application for the stay.

MR HINKLEY:   If your Honour pleases.

DR JESSUP:   If your Honour pleases.

AT 10.00 AM THE MATTER WAS ADJOURNED
INDEFINITELY