Re Health Services Union of Australia & Ors; Ex parte The State of Victoria

[1993] HCATrans 80

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No Ml4 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE JOSEPH MARTIN

RIORDAN, A Senior Deputy

President of the Australian

Industrial Relations

Commission

First Respondent

THE HONOURABLE JUSTICE PAUL

MUNRO, THE HONOURABLE DEPUTY

PRESIDENT SIMON WILLIAMS and

COMMISSIONER McDONALD

Second Respondents

HEALTH SERVICES UNION OF

AUSTRALIA

Unions(2) 1 17/3/93

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No MlS of 1993

In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondent

KENNETH TURBET, A former

Commissioner of the

Australian Industrial

Relations Commission

Second Respondent

HEALTH SERVICES UNION OF

AUSTRALIA

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne	No Ml7 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE JOSEPH MARTIN

RIORDAN, A Senior Deputy

President of the Australian

Industrial Relations

Commission

First Respondent

HEALTH SERVICES UNION OF

AUSTRALIA

Second Respondent

Unions(2) 2 17/3/93

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No Ml6 of 1993

In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE JOHN WILLIAM

MacBEAN, A Deputy President

of the Australian Industrial

Relations Commission

First Respondent

KENNETH TURBET, A former

Commissioner of the

Australian Industrial

Relations Commission

Second Respondent

AUSTRALIAN NURSING

FEDERATION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Unions(2)	3	17/3/93
Office of the Registry

Melbourne	No M20 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE MICHAEL MOORE,

Vice President of the

Australian Industrial

Relations Commission

First Respondent

AUSTRALIAN LIQUOR,
HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Second Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne	No M21 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE JOSEPH MARTIN

RIORDAN, A Senior Deputy

President of the Australian

Industrial Relations

Commission

First Respondent

AUSTRALIAN LIQUOR,
HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Second Respondent

Unions(2) 4 17/3/93

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne	No M22 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against

COMMISSIONER BERNARD FRAWLEY

of the Australian Industrial

Relations Commission

First Respondent

THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Second Respondent

AUSTRALIAN LIQUOR,
HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Unions(2)	5	17/3/93
Office of the Registry

Melbourne	No M23 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE PAUL ROBERT
MUNRO, THE HONOURABLE COLIN

GEORGE POLITIES and KENNETH

JOHN McDONALD of the

Australian Industrial

Relations Commission

First Respondent

AUSTRALIAN LIQUOR,
HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Second Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne No M24 of 1993

In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE JOHN WILLIAM

MacBEAN, A Deputy President

of the Australian Industrial
Relations Commission

First Respondent

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Second Respondents

Unions(2) 6 17/3/93

STATE PUBLIC SERVICES

FEDERATION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and

THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne	No M25 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

HONOURABLE JOSEPH MARTIN

RIORDAN, A Senior Deputy

President of the Australian

Industrial Relations

Commission

First Respondent

STATE PUBLIC SERVICES

FEDERATION

Second Respondent

AUSTRALIAN MUNICIPAL,

TRANSPORT, ENERGY, WATER,

PORTS, COMMUNITY AND
INFORMATION SERVICES UNION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR POLICE AND

EMERGENCY SERVICES FOR THE

STATE OF VICTORIA

Applicants/Prosecutors

Unions(2)	17/3/93
Office of the Registry

Melbourne	No M26 of 1993
In the matter of -

An application for a Writ of

Prohibition against

COMMISSIONER ROBERT

MERRIMAN, A Member of the

Australian Industrial

Relations Commission

First Respondent

THE PRINTING AND KINDRED

INDUSTRIES UNION OF

AUSTRALIA

Second Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR FINANCE FOR

THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne	No M27 of 1993
In the matter of -

An application for a Writ of

Prohibition against

COMMISSIONER JOHN LEWIN, A

Member of the Australian

Industrial Relations

Commission

First Respondent

NATIONAL UNION OF WORKERS

Second Respondent

Ex parte -

THE STATE OF VICTORIA and THE MINISTER FOR BUSINESS AND EMPLOYMENT FOR THE STATE

OF VICTORIA

Prosecutors

Unions(2)	8	17/3/93
McHUGH J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 17 MARCH 1993, AT 4.35 PM

Copyright in the High Court of Australia

MR A.G. UREN, OC: If Your Honour pleases, in all of these

matters· _I appear with my learned friend,

MR L. KAUFMAN for the applicant. (instructed by

the Victorian Government Solicitor)

Your Honour, might I indicate that in these

proceedings various orders nisi are sought, but no stays are sought at this stage. It may be decided

at a later stage to approach Your Honour with

respect to stays, but there are no stays sought

today.

MR R.W. HINKLEY:  Your Honour, I seek leave to appear for

the Health Services Union of Australia in matter

M14; for the Australian Nursing Federation in Ml6

and, Your Honour, for the Australian Municipal,

Transport, Energy, Water, Port, Community and

Information Services Union, which is commonly

referred to ASU, Your Honour, happily, in M25.

(instructed by Maurice Blackburn & Co and Ryan

Carlisle Thomas)

Your Honour, I am conscious of the fact that this
is an application ex parte.	Could I say to

Your Honour the reason why I seek leave to appear

in those matters for those clients is to oppose the grant of the order nisi on the ground that in those matters, Your Honour, the Court has already made

orders nisi directed to exactly the same employers

in relation to the same class of employees and, in

fact, the very same employees on previous

occasions. In particular, I am conscious of what

Your Honour said in your decision last week on

8 March about the position that the Court would

take in relation to applications for order nisis

that go to exactly the same class of employees.

Your Honour, another ground of our interest in

seeking leave to intervene, albeit not to oppose

Unions(2) 9 17/3/93

the order nisis, is so far as the content of the

order nisis might be seen to go beyond the issues

that are raised on the grounds of the application,

we would want an opportunity for us to be able to

make submissions to confine them. Your Honour, I

am perfectly aware of the Court's expertise in

these matters, but the intricacies of some of the activities which are undertaken are such that the

Court might be assisted by submissions that we

might be able to make in that regard.

In that regard, Your Honour, I do not seek

leave in relation to Ml5 and Ml7 on behalf of the

HSUA to appear to intervene for the purpose of

opposing the order nisi, but for that subsidiary purpose, Your Honour, to assist the Court to the extent that it is necessary in relation to the form

of the order.

HIS HONOUR:  Yes~ thank you, Mr Hinkley. Mr Uren, what do

you say? It is really a matter for me I think.

MR UREN: It is, Your Honour, but if I knew any Latin I

would say, "Beware of the Greeks bearing gifts".

They never it turned out to be entirely

satisfactory in the past. If proceedings of this

sort are, because of the interest of other parties,

to degenerate into oppose proceedings when anyone

seeks it and sees it in their interest to turn up,
then the rules might as well say we should serve

people in the first place.

There is ample opportunity, if there is any

error in the making of the order, for parties to

appear later and after the order is made to make

such application as they see fit in that regard.

But our application should not be "assisted" and

"by opposition" at this stage.

HIS HONOUR:  Thank you, Mr Uren. Having regard to the

complexities of some of these matters I will grant

you leave, Mr Hinkley.

MR HINKLEY: If the Court pleases.

HIS HONOUR:	Yes, Mr Marshall.
MRS. R. MARSHALL:	Your Honour, I seek leave to appear in

matters M24 and M25 for the State Public Services

Federation, and in M27 for the National Union of

Workers. (instructed by Gill Kane & Brophy)

HIS HONOUR:	Are your arguments the same as Mr Hinkley's?
MR MARSHALL:	In relation to M25 it is the same as

Mr Hinkley's first point, and in relation to M24

Unions(2) 10 17/3/93

and M27 it is the same as Mr Hinkley's second

point.

HIS HONOUR:  Yes. I ·will grant you leave, Mr Marshall.

Mr Bell?

MR K.H. BELL: If Your Honour pleases, I seek leave to

appear on behalf of the Australian Liquor,

Hospitality and Miscellaneous Workers Union in M20,

M21, M22 and M23 of 1993. (instructed by

s. Masselos)

I do so, Your Honour, to try to persuade

Your Honour not to grant the order nisi in any of the matters on the grounds that there is no arguable case in any of them.

HIS HONOUR:	Yes.
MR BELL:	I would seek to try to persuade Your Honour, in a

brief submission, that they are all different to

the matters in which Your Honour has already

granted orders nisi.

HIS HONOUR:  I am well aware of that, and I will grant you

leave, Mr Bell.

MR BELL: If Your Honour pleases.

HIS HONOUR:  Mr Uren, I do not know how you like to proceed,

but to the best of my ability and the time

available to me I have studied these various files.

It seems to me that some cases are covered by the

decision last week, but at least one or two of

those seek to raise issues which are identical with

issues raised last week - I am talking about Ml4,

for example, and Ml6. Then there are categories of cases, such as Government School Cleaning cases and the School cases, which seem to me to be in an area

of their own, and the Government Printing.	So,
would you prefer if I told you what I see are the

problems or would you prefer to go through them one

by one?

MR UREN:  Your Honour, I think for my own purposes, bearing

in mind the number of matters, it might be easier

if one went through them one by one, partly because

it enables me to deal with them in a way which then

one can put them aside after they have been dealt

with. We provided Your Honour with a summary which

sets out, basically - - -

HIS HONOUR:  Yes, thank you very much for that. Have the

interveners been provided with copies?

MR UREN:  No, they have not, Your Honour.

Unions(2) 11 17/3/93

HIS HONOUR:	Perhaps they might be made - - -
MR UREN:	I cannot do it at the moment because I have only

got one copy, and I had not anticipated our learned

friends being entitled to one. But our submission

on the substantive issues is that none of them are

in law any different from the proceeding which

Your Honour dealt with on the 7th and 8th.

HIS HONOUR: That is true, but let us take Ml4. Now, it

seems to deal with the same employees, the same

terms and conditions of employees as matter Mll

which I think was C31467 of 1992?

MR UREN:	Yes, that is right, Your Honour.
HIS HONOUR:	Now, why should I grant an order nisi at this

stage as opposed to simply adjourning the

proceedings?

MR UREN:  Your Honour, that one was in respect of a

different matter.

HIS HONOUR:  I appreciate it is a different matter because

the previous matter was C31467 in the Commission

and this is C32432. But the issues are the same.

Whatever is decided in Mll will dispose of M14,

will it not? In that situation why should the

parties be put to the expense of putting on

documents and serving documents? It really does

seem a waste of time and I am concerned about the

cost of these proceedings, both from the point of

view of the parties you represent, Mr Uren, as well

as the respondents.

MR UREN:  Yes, Your Honour, we are conscious of that, but if

I might say as a preliminary matter with respect to

that, the Mll matter C31467 involved a dispute

finding and then an interim award which concerned

conditions. dismissal of employees except on certain redundancy package and packages and prevented the

HIS HONOUR:	Yes.
MR UREN:	M14, itself, involves a different demand which was

limited to a dispute about rostering, and

consequently the subject-matter of each application

to the Commission were quite different. It is true
that the same employer is involved and so are the

same employees, but none the less the nature of the

dispute in each case was quite different.	It is
true also that the - - -

HIS HONOUR:  When you say it is quite different - in

relation to the terms and conditions because - - -

Unions(2) 12 17/3/93

MR UREN:	Yes.
HIS HONOUR:	- - - it is true in Mll you were dealing with,

what I call the VDP interim award, but the basis of

your jurisdictional attack on that is the inability

of the Commission to find a dispute in that case.

Now, is that not the same situation in Ml4?

MR UREN:  Your Honour, that is the same situation in Ml4 and

also in respect of all of the other cases, because

in each of the cases it is put that a

constitutional issue arises which is the same as

that dealt with in the SPS head case last year.

HIS HONOUR:  Mr Uren, could I just put to you what my

present thinking is, and that is that although the

same consitutional issue is involved, if the

factual situation to which the constitutional

principle is to apply is different from other

cases, ~hen it seems to me that that provides firm

ground for you saying an order nisi should be

granted. But if the constitutional principle is

going to be applied to the same set of

determinative facts then it just seems to me to be

futile.

MR UREN:  Yes, I understand what Your Honour says and I will

deal with it in a moment, but if I can deal with the minor point and then go on to the major one.

In each case it is possible to say that there is a

minor point, namely, that whether or not the

constitutional principle is accurately put by

us - - -

HIS HONOUR:	I do not think that is the minor point is it?
MR UREN:	No, sorry, that is the major point, but the minor

point may be that the facts of a given case may
not - the award which is sought or the relief which

is sought in the Commission in a given case may not

attract the constitutional protection implication

which we assert.

So, there are two ways in which the

constitutional case can be looked at. One is the

broad way which says any interference is bad; the

other way may be that undue interference is bad;

and the other one may be that this particular case
does not show any interference at all on a proper

view of what interference means.

Now, if either of the last two views are

taken, then the question of the actual terms of

what is sought to be done by the relief sought

before the Commission will become of importance,

and we would not want, let us say, a case to go off on the minor point leaving the major point, namely,

Unions(2) 13 17/3/93

the true nature of the _mplication undecided	In
other words, it would oe unsatisfactory from ur

point of vie_w if this Court was to say, "Look, we

do not think that you get to the major point,

because even if you did we would not find for you

because of the minor point". That is one.

HIS HONOUR:  You have got such a spray of arrows that I am

certain that one of these minor points will hit the

target, so that you will get the constitutional

point determined one way or the other.

MR UREN:  If Your Honour is on the bench I will use that

against Your Honour in due course. The other thing

is that this has been, in a sense, a reverse

floodgates situation. We will be putting to the

Court eventually that the interpretation which is

asserted against us of the conciliation and

arbitration power, the entire industrial system of

the State can be taken over. This is a means of

showinq_by examples how that is occurring.

HIS HONOUR:	You can say that from the bar table, Mr Uren.
MR UREN:	I know, Your Honour, but one has often said things

from the bar table to have the word "floodgates"

used against one.

HIS HONOUR:  You would be able to point to the fact that

this matter is in the Court's list.	I am not
refusing an order nisi.	I just simply think that
at this stage - - -

MR UREN: Saying it would not be necessary.

HIS HONOUR:	- it should be adjourned at this stage.
MR UREN:	Your Honour, if I could say something in respect

of that particular aspect. If we are entitled to

orders nisi then the matter that Your Honour has

just mentioned can be dealt with by the matter,

perhaps not necessarily proceeding any further than	the order nisi stage. In other words, it could, if
it was desirable that the Court not be burdened
with, let us say, further material in respect of these matters, to grant the order nisi and then
have the matter not proceed any further pending the
decision in some of the other cases.

HIS HONOUR:  I understand that difference. But I think that

if an order nisi is granted then the matter should

be put in the list and be processed in the ordinary

way. So I am against you on that.

MR UREN:  Yes. I wonder if Your Honour would allow me to

mention one other thing. Consequent upon what

Your Honour said last week, an application is being

made to the President of the Commission for a

Unions(2) 14 17/3/93

reference Full Bench with respect to stays in all

of these proceedings. Now, if I could say that and

also, with respect, say that that does not

necessarily mean that we do not dispute

Your Honour's ruling last time. But none the less,

obviously regard had to be had to what Your Honour

said, and a reference Full Bench is sought.

The view which the Full Bench may or may not

take of the desirability of doing one thing or the

other with respect of stays in the Commission may

depend on what the Court does here.

HIS HONOUR:  You will have the benefit of the transcript

with what I have said here today if you have to use

it.

MR UREN:  I must say we would prefer to have the benefit of

Your Honour's signature. If the Court, in a sense,

regarded the matter as not sufficiently important

even for the grant of an order nisi, then that may

have an effect on the application which we

ultimately make.

HIS HONOUR:  But assuming the worst against you, and that in

some way the Commission drew an inference adverse
to you by reason of my failure to grant an order

nisi, then that would be in its reasons and you

would be able to rely on it when you sought a stay

from this Court. Mr Uren, I have got a number of

matters to get through. I do not think we should

take up any further time with this.

MR UREN:  If that is Your Honour's view then I will put what

I have just put in that regard.

HIS HONOUR:  Yes, I think the proper order in matter Ml4 is

to adjourn those proceedings giving you liberty to

apply to bring it on, Mr Uren.

HIS HONOUR:  In matter MlS, Mr Uren, I do not want to hear

you in that matter.	You can have an order nisi in
MlS - - -

MR UREN: If Your Honour pleases.

HIS HONOUR:  - - - subject to it being confined in the way I

indicated in my judgment last week to the Victorian

Government and its agencies.

MR UREN:	Yes.
HIS HONOUR:	Now, Ml6, I think, also raises the - - -
MR UREN:	The same as in Mll.
HIS HONOUR:	Yes.

Unions(2)	15	17/3/93
MR UREN:	Yes, it may.	On the view Your Honour has

previously taken I think that would be so.

HIS HONOUR:  Yes, I think so. So, Ml6 I will also adjourn,

and you can have liberty to apply. In Ml? I will

grant you an order nisi in that, Mr Uren, having

regard to -

MR UREN:  We seem to miss out two numbers and then go down

to 20.

HIS HONOUR:  Mr Uren, I think in relation to M20, M21, M22

and M23, M24, M25, M26, you will have to argue long

and hard to persuade me to grant you an order nisi

in any of those matters. I think that they are

covered by decisions of this Court, either directly

or by implication. What I would be prepared to do,

if you want to pursue the point, is to adjourn the

proceedings so that you can make your application

to the ~ull Court.	Can I tell you shortly why I
think - - -

MR UREN:	Yes.
HIS HONOUR:	So far as the school teachers, or schools are

concerned, child care services in the schools,

teachers' aides and matters of that nature - they

seem to be covered by Lee and Harper. If school

teachers are outside the constitutional power, I

myself cannot see how people such as cleaners and
so on can possibly be outside the constitutional

power. But having regard to the decision in Lee

and Harper and the earlier decision in the Social

Welfare case, it does not seem to me that in the

existing state of the authorities you have an

arguable case. But, as I say, I would adjourn the

proceedings into the Full Court where you could

make your application to the Full Court for an

order nisi.

MR UREN:  Yes. I would not want, at this stage of the day,

I think, to have to argue long and hard with

Your Honour, or vice versa, but perhaps I could

indicate that the argument that we would put in

that regard is that Lee and Harper, although it is

a decision which, on the matters which were then
put to the Court, went one way, none the less did
not deal with the issue of the constitutional

implication. It dealt only with the question of

what was or was not industrial, and I think I am

right in saying that, and that the argument which

we put in favour of the application of the

constitutional principle is that those functions

which the Government takes on board as a public

service are, in fact, functions of government which
are protected by the constitutional implication

without a division of those functions into

Unions(2) 16 17/3/93

administrative or truly governmental or any of the

other - - -

HIS HONOUR: Well, my recollection is that, for example,

Chief Justice Gibbs denied in terms that school

teachers fell within the concept of administrative

services.

MR UREN:  Yes, for the purposes of this case we do not argue

to the contrary.

HIS HONOUR:  Yes.

MR UREN: But, in our submission, that is not the true

distinction. At least, the distinction of

administrative and non administrative services is
not the true distinction or categorization which

attracts the constitutional implication.

HIS HONOUR: Well, I understand that, but I think, having

regard to the authority of Lee and Harper that a

Judge in my position could not hold that you have

an arguable case. But that is not to say that in

the Full Court, where you could pursue your order

nisi there, your position - - -

MR UREN:  I wonder if I could ask Your Honour, in respect of

those matters, if Your Honour would adjourn, for

consideration by a Full Bench, and I will take

instructions on whether it is desired to pursue

that application or not.

HIS HONOUR:	Yes.
MR UREN:	It may be that it is not or it may be that it

will, but none the less, if I could ask Your Honour

if Your Honour would make that order.

MR BELL:  Would Your Honour hear me first in relation to the

matters in which I am interested before actually

granting that leave, Your Honour?

HIS HONOUR: Well, just let Mr Uren finish. I do not think

he is quite finished yet. Have you, Mr Uren?

MR UREN:  I was going to suggest as an alternative that we

put a submission in writing to Your Honour, but it

may be, in view of Your Honour's comments, that the
matter might be sufficiently important for a

Full Bench to look at it, because we are -

HIS HONOUR:  As you are no doubt aware, it is done

reasonably regularly, that when a Judge, at first
instance, is asked to grant an order nisi, does not
think it is an arguable case, rather than
dismissing the application outright and then having

an appeal against his refusal or an order nisi, it

Unions(2) 17 17/3/93

is adjourned into the Full Court, then it is a

matter for the applicant whether that person wants

to pursue it.

MR UREN Your Honour, I wonder if I could indicate this -

Without taking Your Honour to the complete verbiage of our argument - we do in fact submit that each of these categories of employee do fall squarely

within the principle upon which we, ourselves,

would put the constitutional implication as

resting.

HIS HONOUR: 

I can understand that but take a category such

as government school cleaning: well, if government
school cleaning is not within the federal

arbitration power, it is a fairly difficult to

think of any State government activity which is

within the arbitration power, other than some

profit or trading, and I understand that is the

distinction - - -

MR UREN: That is largely our submission, yes.

HIS HONOUR:  That is largely your submission. But in the

existing state of the authorities, as a single

Judge, I think I have to regard the argument as unarguable as far as I am concerned, Mr Uren.

MR UREN: Well, in that event, I would ask Your Honour to

make the order that the matter be referred to a

Full Bench.

HIS HONOUR: Yes. Yes, Mr Bell.

MR BELL:  Your Honour, in M20 of 1993, a dispute finding was

made in relation to school cleaners on

18 December 1992. There has been no appeal from

that dispute finding, and to grant leave,

Your Honour, would permit the applicant to

ventilate the issue in this Court without having

exhausted the procedures of the Commission.

In relation to matter M21 of 1993 in relation to child care workers, there has been no dispute

finding at all, and so Your Honour would be

granting leave for the matter to be ventilated

before a Full Court of this Court without a dispute

finding having been made. The only application

that has been made in that matter, Your Honour, is

the section lll(l)(a) application.

In matter M22 of 1993, a dispute finding was made by Commissioner Frawley on

13 January 1993 - - -

HIS HONOUR:  Which matter is that?

Unions(2) 18 17/3/93

MR BELL: That is M22, Your Honour, teacher aides - by

Commissioner Frawley on 13 January 1993.	An appeal
was issued against that dispute finding,

Your Honour, and it has actually been listed next

week before a Full Bench on 24 March 1993, thus the

process has not been exhausted. Lastly,

Your Honour, in relation to government cleaning and

security, M23 of 1993, a dispute finding was made

by Deputy President Hall on 18 December 1992. That

was appealed from and the appeal is reserved

pending written submission. So the process has not

been exhausted there either, Your Honour.

Your Honour, it is one thing to grant an order

nisi because of the importance of a case, even

though the processes of the Commission have not

been exhausted, as happened in other cases, but it

is quite another, in my submission, to grant leave to take a matter to the Full Court when the matter

has bee~ rightly - - -

HIS HONOUR:  Mr Bell, I am not granting leave. What I am

doing is I am adjourning the proceedings into - I am not even sure I should be hearing you on this,

Mr Bell. The application for an order nisi, in

substance, has not been accepted by me and I am

allowing Mr Uren, in effect, to file his documents in the Full Court and it is no more than that. It

is purely an administrative matter.	He has to
argue for his order nisi in the Full Court.	When
the matter comes before the Full Court,
technically, you will not even be a party -

MR BELL:	No, I follow that, Your Honour.
HIS HONOUR:	- - - although it will be a direction of mine

that all interested parties be served before - - -

MR BELL:  I am grateful, Your Honour. Your Honour, I make

the same submission in relation to what Your Honour
proposes, that is, I say no more about it.	Can I

say this, however, Your Honour, which is a separate

point, Your Honour, in M21, that the order nisi is

too wide because it is not confined to the

applicant and I would ask, if Your Honour goes to

page 2 of the order nisi in that matter, M21 - - -

HIS HONOUR: Well, it is really a matter for - because no

order nisi is going to be granted, it is a matter

for Mr Uren to - - -

MR BELL: Yes, I follow Your Honour's point.

HIS HONOUR:  - - - take up in the Full Court. But I must

say, Mr Uren, there were a couple of matters there

where it seemed to me that - - -

Unions(2) 19 17/3/93

MR UREN:  Yes, Your Honour is quite right in what

Your Honour is going to say. Two of the orders

which have been filed have lamentably, I think,

been earlier drafts, and the one that Mr Bell

referred to has got an omission from it which I was

going to tell Your Honour about later, which would

confine the matter to the matters and hearings

which concern the State of Victoria or its

agencies.

HIS HONOUR: Yes. Just to formalize the matter, I will

adjourn the following matters so that you can make

your application to the Full Court, Mr Uren; that

is matter M20, matters M21, M22, M23, M24, M25 and

M26.	Now, could I just ask you to deal with M27,
Mr Uren.	You have the section lll(l)(a) point

raised in that particular case. That point, of
course, is a general attack on the section, in no
way confined to the State government or its

agencies, but I have granted a general order nisi

in relation to that. Now, would any useful purpose

be served by that matter?

MR UREN:  Yes. Your Honour has already granted an order

nisi in M13, which relates to that point.

HIS HONOUR:  Yes.

MR UREN: Well, I think, in view of what Your Honour said,

the answer is, no.

HIS HONOUR:	No. So I will adjourn on that.
MR UREN:	I think that is the whole lot then, Your Honour.

HIS HONOUR: Yes. Well then, I will make these formal

orders. Matters M14 and Ml6, I will adjourn

generally with a liberty to apply. Matters M15 and

M17, I will grant orders nisi, but no stay, which

is not asked for.	The orders nisi will be confined
to the State of Victoria and its agencies. In

matters M20, 21, 22, 23, 24, 25 and 26, I direct,

pursuant to Order 55 rule 2, that the application

be made by notice of motion to a Full Court, and in

relation to matter M27, I adjourn that matter with

liberty to apply. Is there anything further,

Mr Uren?

MR UREN: There is just the direction that Your Honour said

Your Honour was going to make with respect of

service.

HIS HONOUR:  Yes. In relation to the matters adjourned into

the - sorry, it is not actually adjourned into the

Court. Technically speaking, it is a direction

that application be made on notice of motion to the

Full Court. I direct that service of notice of

Unions(2) 20 17/3/93

motion be made on all the respondents.

MR HINKLEY:  Your Honour, in relation to MlS and 17, in

which Your Honour will be granting an order nisi,

Your Honour, of course, confines that to the State of Victoria and its agencies. Without detailing

it, Your Honour, there is some subtlety in the

identification of those which may not be quite

apparent on the face of the draft as it is. We

would hope, in those circumstances, Your Honour,

that we would have the opportunity to look at the

final draft that is forwarded to Your Honour so

that we might make such suggestions as are

appropriate or, if we had any matter of real

concern, we could draw that to Your Honour's

attention in writing as to whether or not the order

nisi, granted the complexities of the

identification of some respondents, did, in fact,

comply with what Your Honour has ordered.

HIS HONOUR:	Yes, well - - -
MR UREN:	We will let our learned friend see a copy.

HIS HONOUR:  I was just going to say that, yes. Perhaps you

could discuss it among yourselves. If any real

difficulty comes about it, then I can deal with the

matter in chambers, perhaps, at some stage.	Does
that satisfy you.

MR HINKLEY:  We are grateful for that, Your Honour.

HIS HONOUR: Is there anything further in these matters.

MR MARSHALL:  No, Your Honour.

HIS HONOUR: Adjourn the Court.

AT 5.09 PM THE MATTER WAS ADJOURNED SINE DIE

Unions(2) 21 17/3/93