Re McIntyre
[1995] IRCA 491
•20 September 1995
INDUSTRIAL LAW - Industrial arbitration - Application to Australian Industrial Relations Commission for dispute findings - Alleged "paper dispute" arising out of non-acceptance by employers of log of claims served by a union - Effect of service of new log of claims amending a previous log - Whether this effected a termination of the dispute caused by non-acceptance of the earlier claims - Effect of deregistration of claimant union on its amalgamation with another union - Circumstances in which Court may grant prerogative relief - Relevance of individual opinions regarding wisdom, reasonableness and achievability of claims in determining genuiness of a log of claims.
Industrial Relations Act 1988, ss.101, 104, 192, 234, 253Q, 253U, 253V and 412.
Judiciary Act 1903, s.44.
No. VI.2885 of 1995
IN THE MATTER of an Application for Writs of Certiorari and Mandamus against THE HONOURABLE ANTHONY McINTYRE, a Vice President of the Australian Industrial Relations Commission, THE HONOURABLE JOHN MACBEAN, a Senior Deputy President of the Australian Industrial Relations Commission and THE HONOURABLE ANNE HARRISON, a Deputy President of the Australian Industrial Relations Commission - First Respondents, STATE OF VICTORIA - Second Respondent, STATE OF SOUTH AUSTRALIA - Third Respondent
EX PARTE: COMMUNITY AND PUBLIC SECTOR UNION
and
No. VI.3631 of 1995
IN THE MATTER of an Application for Writ of Prohibition against the HONOURABLE ANTHONY WILLIAM DONALD McINTYRE, the HONOURABLE JOHN WILLIAM MacBEAN and the HONOURABLE ANNE HARRISON, respectively, VICE PRESIDENT, SENIOR DEPUTY PRESIDENT and DEPUTY PRESIDENT of the Australian Industrial Relations Commission - First Respondent, COMMUNITY AND PUBLIC SECTOR UNION - Second Respondent
EX PARTE: STATE OF VICTORIA
CORAM: WILCOX CJ, KEELY J & MOORE J
PLACE: MELBOURNE
DATE: 20 SEPTEMBER 1995
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. VI.2885 of 1995
VICTORIA DISTRICT REGISTRY )
BETWEEN:IN THE MATTER of an Application for Writs of Certiorari and Mandamus against THE HONOURABLE ANTHONY McINTYRE, a Vice President of the Australian Industrial Relations Commission, THE HONOURABLE JOHN MACBEAN, a Senior Deputy President of the Australian Industrial Relations Commission and THE HONOURABLE ANNE HARRISON, a Deputy President of the Australian Industrial Relations Commission
First Respondents
STATE OF VICTORIA
Second Respondent
STATE OF SOUTH AUSTRALIA
Third Respondent
EX PARTE:COMMUNITY AND PUBLIC SECTOR UNION
Prosecutor
CORAM: WILCOX CJ, KEELY J & MOORE J
PLACE: MELBOURNE
DATE: 20 SEPTEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The following writs be issued directed to the Honourable Anthony McIntyre, a Vice-President of the Australian Industrial Relations Commission, the Honourable John MacBean, a Senior Deputy President of the Australian Industrial Relations Commission, and the Honourable Anne Harrison, a Deputy President of the Australian Industrial Relations Commission:
(a)a writ of certiorari requiring the record of proceedings in matters C No.34828 of 1994 and C No.50683 of 1994, being appeals against the decision of Senior Deputy President Riordan of 7 October 1994 in matter C No.31579 of 1993, to be brought in and the orders made on 19 January 1995 quashed; and
(b)a writ of mandamus requiring the said members of the Australian Industrial Relations Commission to hear and determine the said appeals according to law.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. VI.3631 of 1995
VICTORIA DISTRICT REGISTRY )
BETWEEN:IN THE MATTER of an Application for Writ of Prohibition against the HONOURABLE ANTHONY WILLIAM DONALD McINTYRE, the HONOURABLE JOHN WILLIAM MacBEAN and the HONOURABLE ANNE HARRISON, respectively, VICE PRESIDEN, SENIOR DEPUTY PRESIDENT and DEPUTY PRESIDENT of the Australian Industrial Relations Commission
First Respondent
and
COMMUNITY AND PUBLIC SECTOR UNION
Second Respondent
EX PARTE: STATE OF VICTORIA
Prosecutor
CORAM: WILCOX CJ, KEELY J & MOORE J
PLACE: MELBOURNE
DATE: 20 SEPTEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. VI.2885 of 1995
VICTORIA DISTRICT REGISTRY )
BETWEEN:IN THE MATTER of an Application for Writs of Certiorari and Mandamus against THE HONOURABLE ANTHONY McINTYRE, a Vice President of the Australian Industrial Relations Commission, THE HONOURABLE JOHN MACBEAN, a Senior Deputy President of the Australian Industrial Relations Commission and THE HONOURABLE ANNE HARRISON, a Deputy President of the Australian Industrial Relations Commission
First Respondents
STATE OF VICTORIA
Second Respondent
STATE OF SOUTH AUSTRALIA
Third Respondent
EX PARTE:COMMUNITY AND PUBLIC SECTOR UNION
Prosecutor
AND No. VI. 3631 OF 1995
BETWEEN:IN THE MATTER of an Application for Writ of Prohibition against the HONOURABLE ANTHONY WILLIAM DONALD McINTYRE, the HONOURABLE JOHN WILLIAM MacBEAN and the HONOURABLE ANNE HARRISON, respectively, VICE PRESIDEN, SENIOR DEPUTY PRESIDENT and DEPUTY PRESIDENT of the Australian Industrial Relations Commission
First Respondent
and
COMMUNITY AND PUBLIC SECTOR UNION
Second Respondent
EX PARTE: STATE OF VICTORIA
Prosecutor
CORAM: WILCOX CJ, KEELY J & MOORE J
PLACE: MELBOURNE
DATE: 20 SEPTEMBER 1995
REASONS FOR JUDGMENT
THE COURT: These reasons for judgment deal with two cases. Both are applications for prerogative relief. The first respondents in each case are the same three members of the Australian Industrial Relations Commission ("the Commission"): Vice-President McIntyre, Senior Deputy President MacBean and Deputy President Harrison. Both applications were instituted in the High Court of Australia and remitted to this Court by Dawson J pursuant to s.44 of the Judiciary Act 1903 and s.412(2) and (3) of the Industrial Relations Act 1988. We heard the two cases consecutively. They are related, in the sense that both arise out of a long-sustained attempt by unions representing State school employees to obtain a federal industrial award. Each case challenges a decision of the first respondents, sitting as a Full Bench of the Commission, concerning the existence of an "industrial dispute", as defined in s.4 of the Industrial Relations Act.
One proceeding (VI.2855 of 1995) is brought by Community and Public Sector Union ("CPSU"), a registered employee organisation formed by an amalgamation on 1 July 1994 of two other registered employee organisations, Public Sector, Professional, Scientific, Research, Technical, Communication, Aviation and Broadcasting Union ("PSU") and State Public Services Federation ("SPSF"). The second and third respondents to this proceeding are the States of Victoria and South Australia. Consistently with usual practice, the first respondents took no part in the hearing. The application for relief was opposed by the other respondents. At the end of the hearing, we reserved our decision.
The applicant in the other proceeding (VI.3631 of 1995) is the State of Victoria. The second respondent is CPSU. The first respondents did not participate in the hearing but CPSU opposed the application. One element in the applicant's proposed argument challenged the constitutional validity of some provisions of the Industrial Relations Act. The applicant gave notice of the proceeding to the Attorneys-General of the Commonwealth and the other States pursuant to s.78B of the Judiciary Act. When the matter was called for hearing, appearances were announced by counsel for the Attorney-General of the Commonwealth, the Attorney-General of Western Australia and the Attorney-General of Queensland. After hearing counsel for the applicant and each of the intervening Attorneys, we indicated that the application would be dismissed and we would give reasons later. Our reasons are here included.
The facts: history
On 18 November 1991, the then Federal Secretary of SPSF, Mark Smith, forwarded to numerous employers, including the States of Victoria and South Australia, a letter of demand. The letter referred to an attached log of claims and required each recipient to grant the claims to its employees and future employees, whether SPSF members or not. Mr Smith offered to confer for the purpose of reaching a settlement of the claims and said that, failing the granting of these claims or a settlement within seven days of the letter, "it will be assumed that the claims have been refused and the Industrial Registrar will be notified in accordance with Section 99 of the Industrial Relations Act 1988 of the existence of an industrial dispute within the meaning of the said Act".
The claims were not conceded or settled. SPSF notified the Industrial Registrar of a dispute. The Commission dealt with its claim for a finding of dispute as two separate matters, C No.33499 of 1991 and C No.336050 of 1991. Dispute findings were made but the evidence does not reveal their dates. The Commission's proceedings may have been delayed by the litigation in the High Court of Australia generally known as "the SPSF case", Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia, Re State Public Services Federation; Ex parte Attorney-General for the State of Queensland, Re Electrical Trades Union of Australia; Ex parte the State of New South Wales, Re Electrical Trades Union of Australia; Ex parte Sydney Electricity (1993) 178 CLR 249. As the titles indicate, "the SPSF case" comprised four separate proceedings. Together, they questioned the capacity of three logs of claims to give rise to an "industrial dispute", as defined. The High Court held that the log relevant to the first two cases could not give rise to an industrial dispute but the others could. It is not necessary for us to analyse the Court's reasoning. This was done by Wilcox CJ and Spender J in Attorney-General of Queensland v Riordan ("the Ambulance Officers' case")(4 July 1995, not yet reported). It is sufficient to say that the first log was held incapable of giving rise to an industrial dispute because its demand was "fanciful", rather than "genuine".
The claim made by Mr Smith on 18 November 1991 ("the 1991 log") was not one of the claims considered by the High Court. But the SPSF case decision had an effect on the claim. The High Court gave its decision on 3 June 1993. On 8 July 1993, the Federal Executive of SPSF authorised service of a new log of claims, which it referred to as "the schools log of claims", on employers to be agreed with Branch Secretaries and approved by the Federal Executive. On 30 July 1993, the log of claims ("the 1993 log") was served on numerous employers, including the States of Victoria and South Australia. Service was effected under cover of a letter of demand from the Federal Secretary, David Bunn, in similar terms to Mr Smith's 1991 letter. On 19 August, SPSF sent a further letter to some of the employers served with the 1993 log, including the States of Victoria and South Australia, advising that the log of claims was intended to relate only to those of their employees, eligible for membership of SPSF, who were employed in schools.
The employers served with the 1993 log did not accede to its demands. SPSF notified the Industrial Registrar of the existence of a dispute and the matter came before Senior Deputy President Riordan as matter C No.33193 of 1993. On 1 December 1993, the Senior Deputy President announced his satisfaction "that an industrial dispute exists in respect of the terms and conditions of employment of persons who are eligible for membership of the SPSF employed by the relevant State Government authorities in South Australia and Victoria and by the Minister for Public Sector Management in Tasmania". But he was not clear about the parties to the dispute or its extent. He invited submissions on these matters. Apparently, they were made. On 15 December, Senior Deputy President Riordan issued a further decision in which he said:
"I am satisfied that a dispute exists at present between the SPSF and the following:
1.the Minister for Public Sector Management in respect of persons eligible to be members of the Federation employed in Tasmania in or in connection with the delivery or provision of education services;
2.the State of Victoria in respect of persons eligible to be members of the Federation employed in or in connection with the delivery or provision of education services;
3.the State of South Australia in respect of persons eligible to be members of the Federation employed in schools in or in connection with the delivery or provision of education services other than school administrative officers;
4.But in each of the States of Victoria, South Australia and Tasmania the dispute does not involve persons who are employed by technical and further education colleges in or in connection with the delivery or provision of the said education services.
The dispute exists in the States of Tasmania, Victoria and South Australia. A formal record of this finding will be made."
The formal finding, issued on 22 December 1993, followed almost the same wording but added an additional paragraph:
"2.That the subject matter which forms the said dispute relates to wages and other conditions of employment as set out in the log of claims appended hereto."
The appended log of claims was the 1993 log.
On 14 February 1994 the Federal Executive of SPSF passed a resolution in the following terms:
"That Federal Executive amend the demands made upon employers served by the SPSF in C No.s 33499 of 1991 and 33605 of 1991 so that the demands made are in the terms of attachment 'B' hereof, and that the Federal Secretary be authorised and directed to serve the amended demands upon the extant employers party to the dispute in C. No.s 33499 of 1991 and 33605 of 1991, together with a letter of demand in the terms of attachment 'A' hereof.
Federal Executive notes that the judgement of the High Court in the SPSF case has raised the possibility that some of the demands made by the SPSF in the log served in C No.s 33499 of 1991 and 33605 of 1991 may be open to challenge. Whilst maintaining that each and every demand previously made is a valid demand, Federal Executive now determines to make the amended demands to ensure that such demands for the provision of improved salaries and conditions of employment are not open to challenge."
It will be recalled that the two 1991 matters concerned the 1991 log.
On 18 February, Mr Bunn wrote a letter to the employers served with the 1991 log (including, of course, the States of Victoria and South Australia) in the following form:
"The judgment of the High Court in the SPSF Case has raised the possibility that some of the demands made of you by SPSF on 19 November 1991 may be open to challenge. Whilst maintaining that each and every demand previously made is a valid demand the SPSF now makes amended demands upon you to ensure that such demands made by the SPSF for the provision of improved salaries and conditions of employment are not open to challenge.
The amended demands are contained in the attached list of claims and are found in numbered paragraphs as follows ('the amended demands'):
[These were listed]
The other demands in the attached list ('the continuing demands') are respectively in the same form as those made in the SPSF letter of demand dated 19 November 1991 and are included in the attached document to make it clear to you that SPSF continues to pursue each and every demand. The continuing demands are found in the paragraphs numbered as follows:
[These were listed.]
In respect of each and every one of the further demands made upon you, the SPSF demands of your organisation that it provides the improved salaries and conditions of employment contained in each and every demand to all persons employed by your organisation who are eligible to be members of SPSF (whether they are members or not).
Should you not indicate agreement to any of the amended demands within 7 days of receipt of this letter the SPSF shall seek to notify the Australian Industrial Relations Commission that it is additionally in dispute with you as to any of the amended demands which are not acceded to within the time specified."
The lists of amended and continuing demands in the letter ("the 1994 log") identified the relevant paragraphs by reference to number and subject. The terms of the paragraphs were stated in two attached documents, one headed "The Amended Demands" and the other "Continuing Demands". Read together, the documents constitute a comprehensive log of claims containing 64 paragraphs. An analysis by counsel in the proceeding before us demonstrates that there was no substantial difference between the demands of the 1994 log and those of the l993 log.
On 24 February, a Full Bench of the Commission (Justice Boulton, Deputy President Harrison and Commissioner Frawley) heard an appeal against the finding of Senior Deputy President Riordan in matter C No.33193 of 1993 concerning the 1993 log. The appeal was brought by the State of Victoria and the Director of School Education (Victoria). It raised questions about procedural fairness and the capacity of SPSF to create an industrial dispute with respect to all the classes of employees covered by the 1993 letter of demand and log of claims. The Full Bench reserved its decision.
The employers served with the 1994 log did not accede to its demands. On 2 March 1994, SPSF notified the Industrial Registrar of a dispute and applied for orders varying the findings of dispute made by the Commission in relation to the 1991 log. Before that application could be heard, SPSF amalgamated with PSU to form CPSU.
On 19 August 1994, the Full Bench dismissed the appeal heard in February concerning Senior Deputy President Riordan's finding of December 1993.
On 12 September 1994, the first respondents to each of these proceedings (Vice-President McIntyre, Senior Deputy President MacBean and Deputy President Harrison) delivered judgment in a matter referred to a Full Bench by the President. The judgment did not relate to matter C No.33193 of 1993 but it involved questions relevant to that proceeding. The Full Bench described the question it had to determine as "whether the making of certain claims by a union constitutes the abandonment of earlier claims made by the same union". The relevant union was SPSF. The relevant claims were its 1991, 1993 and 1994 logs. The Full Bench gave an affirmative answer to the question it posed for itself. As the same Bench drew heavily on its 12 September reasons in making the decision challenged in the first proceeding before us (matter VI.2885 of 1995), we will return to those reasons.
Following this decision, the State of Victoria and the Director of School Education (Victoria) applied to Senior Deputy President Riordan to revoke his 15 December 1993 finding of dispute. Senior Deputy President Riordan refused the application. In his decision, of 7 October 1994, he mentioned that CPSU was actively pursuing the "schools log" claim of its predecessor and pressing for interim awards. This he said, "is not evidence of the demands contained in the 'schools log' having been abandoned" but "clear evidence to the contrary". He referred to several High Court decisions, including The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Australian Boot Trade Employees' Federation ("the Boot Trades case")(1966) 114 CLR 548, a case that was critical to the 12 September Full Bench decision. He went on:
"The present circumstances with respect to the 'schools log' is that the demands contained therein, or certain of them, are being actively pursued before the Commission by the CPSU to the extent that the Commission's current principles of wage fixation will allow.
Although the current situation represents a tangled web of demands and further demands made by the SPSF/CPSU there appears to be no doubt that the demands contained in the schools log are very much alive and continue to be rejected by the relevant employers. Those demands, therefore, remain in dispute. In such circumstances it is appropriate to recognise the continued existence of a live and real industrial dispute between relevant parties.
In all of the relevant circumstances there is only one conclusion that is reasonably open to me: there remains in existence an industrial dispute, the nature of which was described in my finding referred to earlier herein. In such circumstances it would be improper for me to revoke the earlier finding of the existence of such a dispute.
The effect of the service of the 1994 log of claims is a matter which, in all of the circumstances, I have been unable to form a view. Having regard to the available evidence in these proceedings I doubt if it has had any real effect. It may, however, transpire that the dispute has been expanded or narrowed and that may be a matter for further inquiry."
The 1994 log of claims was not tendered at the hearing before Senior Deputy President Riordan. This was the reason he could not form a view about its significance. The "schools log" is the log of claims referred to in para.2 of the Commission's formal finding of 22 December 1993.
The States of Victoria and South Australia appealed against this decision. The appeals came before the same Full Bench that had given the 12 September decision, the present first respondents. For reasons to which we will return, on 19 January 1995 the Full Bench allowed the appeals and revoked the finding of dispute in matter C No.31579 of 1993 as from the date of the 1994 claims.
This decision did not affect the 1994 log. CPSU claimed that a dispute finding ought to be made in connection with that log. To prevent such a finding, the States of Queensland, South Australia, Victoria and Western Australia sought a Commission decision that, if the making and non-acceptance of the 1994 log created an industrial dispute (which they disputed), the de-registration of the SPSF on 1 July 1994 (consequentially upon its amalgamation with PSU) brought that dispute to an end. This application also came before the first respondents. On this occasion, the States were unsuccessful. On 17 May 1995, the Full Bench rejected their argument. The second proceeding in this Court challenges that rejection.
The facts: current position
Counsel told us that the first respondents are currently inquiring about the existence of an industrial dispute arising out of the service of the 1994 log. The inquiry has proceeded on a discontinuous basis and already occupied 30 hearing days. Counsel said "there is still a long way to go". They said the reason for the lengthy hearing is that the respondent State governments have called numerous officers and ex-officers of CPSU, and its predecessor organisations, and invited them to express opinions about aspects of the claims. They have justified this course to the Full Bench on the basis that the evidence goes to the genuineness of the claims. The argument seems to be that, if enough officers or ex-officers think that particular claims are unrealistic or unwise, the Commission should find they are fanciful and incapable of giving rise to an industrial dispute.
This information causes us concern. Any 30 day hearing is extremely burdensome; perhaps not for governments able to litigate with public funds, but certainly for a claimant union and the Commission itself. The Act requires the Commission to act quickly and according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms: see s.110(1) and (2). Some of its powers in this respect are found in s.110(3) and (4) which provide:
"(3)The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an industrial dispute or other proceeding and require that the cases be presented within the respective periods.
(4)The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument."
The course the litigation has taken in this matter appears to be an extension of the course taken in the Ambulance Officers' case. There, two or three past or present union officers were called at the dispute hearing to say whether they thought it wise or unwise for the claimant unions to seek a federal award rather than stay in the State system and to express views about the reasonableness and achievability of items in the log of claims. In that case the evidence was relatively short. The Full Court that determined the States' challenge to the Commission finding made no comment about it. However, in the present case, we must say something, having regard to the volume of evidence being adduced.
Determining whether an industrial dispute exists ought be a simple matter. Where a party claims that a dispute exists because of someone's failure to accede to a log of claims, there is not much room for legitimate argument. The claimant has to establish that the log of claims was served. The respondents' attitude to the claims will normally be clear. If there is any doubt, it can immediately be resolved by the Commission asking the respondents' representatives whether or not they concede them. Occasionally, there may be a question about authority to make the claim: see Re Construction, Forestry, Mining, Energy Union; Ex parte W J Deane & Sons Pty Ltd (1994) 181 CLR 539 at 545-546. That question will ordinarily be resolved by tender of the claimant organisation's rules and other relevant documents, such as minutes of meetings. The evidence should not take long to adduce. Where there is no allegation of abuse of power by those entitled to act on behalf of the claimant organisation, it is difficult to see the necessity or relevance of any other evidence.
Where there is an allegation of abuse of power, other evidence may be relevant. Even here, there are limits. The pertinent principles have been stated in cases concerning commercial corporations. They apply equally to registered organisations, which are bodies corporate: see s.192 of the Industrial Relations Act. A corporation, of course, has no mind or will of its own. It is incapable of possessing a purpose or motive. Its purposes and motives are those of the people who constitute its mind and will and make its decisions. In a case where it is suggested that those people have abused their power, it may be relevant to examine their motives. The principle was stated by Viscount Finlay in a passage in Hindle v John Cotton Ltd (1919) 56 Sc LR 625 at 630-631 that was adopted by the Judicial Committee of the Privy Council in Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 at 835:
"Where the question is one of abuse of powers, the state of mind of those who acted, and the motive on which they acted, are all important, and you may go into the question of what their intention was, collecting from the surrounding circumstances all the materials which genuinely throw light upon that question of the state of mind of the directors so as to show whether they were honestly acting in discharge of their powers in the interests of the company or were acting from some bye-motive, possibly of personal advantage, or for any other reason."
However, as Dixon J pointed out in Mills v Mills (1938) 60 CLR 150, there is a practical limit on such evidence. At 185-186 his Honour said:
"When the law makes the object, view or purpose of a man, or of a body of men, the test of the validity of their acts, it necessarily opens up the possibility of an almost infinite analysis of the fears and desires, proximate and remote, which, in truth, form the compound motives usually animating human conduct. But logically possible as such an analysis may seem, it would be impracticable to adopt it as a means of determining the validity of the resolutions arrived at by a body of directors, resolutions which otherwise are ostensibly within their powers. The application of the general equitable principle to the acts of directors managing the affairs of a company cannot be as nice as it is in the case of a trustee exercising a special power of appointment. It must, as it seems to me, take the substantial object the accomplishment of which formed the real ground of the board's action. If this is within the scope of the power, then the power has been validly exercised. But if, except for some ulterior and illegitimate object, the power would not have been exercised, that which has been attempted as an ostensible exercise of the power will be void ... "
It will be noted that, although Dixon J was concerned with the wide topic of the "validity" of directors' acts, he confined admissible evidence to that which bore on the purpose of the people exercising the power. If an exercise of power is within its scope, as distinct from being "for some ulterior and illegitimate object", it is validly exercised, whether or not wisely exercised.
In cases where a claimed dispute is said to arise out of a failure to concede the demands of a log of claims, there may occasionally be circumstances requiring the Commission to consider whether the power to make the claim was exercised for an ulterior or illegitimate object. In that case the evidence of those who exercised the power may be relevant. The Queen v Cohen; Ex parte Attorney General of Queensland (1985) 157 CLR 331 is an example of such a case: see the comment by Gibbs CJ at 340-341 and compare Howard Smith at first instance, Ampol Petroleum Ltd v R W Miller (Holdings) Ltd [1972] 2 NSWLR 850. People who did not participate in the exercise of power may, perhaps, prove objective facts relevant to the determination of ulterior purpose, but we do not see how their opinions will ever be relevant. Within a particular organisation, there may be a range of opinions as to the desirability or otherwise of obtaining a federal award or the reasonableness or achievability of particular claims. This does not matter. A decision of an organisation's executive, made within power and untainted with ulterior purpose, will ordinarily be valid even if the organisation's officers, and indeed a minority of the executive itself, consider it unrealistic, unwise or even downright foolish.
Having regard to the burden of lengthy dispute finding hearings, it is important that parties analyse rigorously the relevance of the evidence they propose to present and that the Commission confine them to admissible evidence.
Revocation: the Commission's reasoning
In summarising the reasoning that led the Full Bench to revoke Senior Deputy President Riordan's 1993 dispute finding, it is necessary to refer to the 12 September decision, as well as that of 19 January.
After its opening statement as to the issue, the Full Bench said in its 12 September reasons that a "central consideration" is whether the Boot Trades case applied. The Full Bench quoted a passage in the joint judgment in that case of Barwick CJ, McTiernan, Taylor and Owen JJ at 554:
"Further, we think that the dispute which arose upon the rejection of the 1950 log came to an end, at the latest, when the 1959 log of claims was served upon the employers. It is clear, we think, from the terms of that log and the accompanying letter, that it was a claim for the prescription of general conditions of employment which should exclusively operate to regulate the employment of employees in the industry. Implicitly, at least, it amounted to an abandonment or withdrawal of the earlier log and it contained no claim for long service leave. That being so, it is, we think, impossible to assert that the dispute which arose upon the rejection of the 1950 log still continued."
In setting out the facts, the Full Bench commented that the terms of the 1993 log differed from the 1991 claims but were similarly comprehensive. The same comment was made concerning the relationship between the 1994 log and the 1993 log. After referring to evidence given by Mr Bunn, the Full Bench said:
"We accept Mr Bunn's evidence so far as it relates to events and the intentions of SPSF. We accordingly, accept that SPSF, in making the 1993 claims and the 1994 claims did not intend to abandon, respectively, the 1991 claims and the 1993 claims. The question is, however, whether SPSF's intentions were achieved.
The 1991 claims, the 1993 claims and the 1994 claims are 'paper claims' and any disputes arising from their non-acceptance are what are commonly called 'paper disputes'. This is a term of description; not of criticism. Where, however, an industrial dispute is solely a paper dispute, the nature of it can be determined only by considering the meaning of the written claims at the time they are made.
In late 1991 the employers received the 1991 claims. There followed subsequent proceedings before the Commission. In July 1993 the employers received the 1993 claims. The 1993 claims, ... comprised a letter of demand (in very similar terms, apart from the date, to the 18 November 1991 letter of demand) to which a comprehensive log of claims was attached. When SPSF made the 1993 claims it did not tell the employers of the terms of the resolutions of 8 and 15 July 1993 or that the 1991 claims were being served 'out of an abundance of caution' to advance the interests of SPSF's members 'in the light of the decision of the High Court in the SPSF case'.
In our view it is clear, in these circumstances, that the making of the 1993 claims constituted an abandonment of the 1991 claims.
The facts are similar to those in the Boot Trades Case. The 1993 claims were, to use the words of the High Court in the Boot Trades Case (114 CLR at p554) 'a claim for the prescription of general conditions of employment which should exclusively operate to regulate the employment of employees in the industry'. As with the later claim in the Boot Trades Case the 1993 claims 'Implicitly, at least, amount to an abandonment or withdrawal of the earlier log of claims ...' (114 CLR at p554)."
After referring to an earlier Full Bench decision involving the same logs of claim, the Full Bench said it was not necessary to determine whether the 1993 claims were genuine, in order to determine whether the 1991 claims were abandoned; it was "sufficient that SPSF made them".
The Full Bench then mentioned the decision of Senior Deputy President Riordan in the Ambulance Officers' case and said it "emphasises that the question of abandonment is essentially one of fact". The Bench went on:
"We have considered the matter before us on the basis of the facts we have stated in this decision. We remain of the view that those facts bring the matter clearly within the circumstances found to exist in the Boot Trades Case, and that, accordingly, the service by SPSF of the 1993 claims constituted an abandonment of the 1991 claims and the service by SPSF of the 1994 claims constituted an abandonment in the 1993 claims."
Dealing specifically with the effect of the 1994 log, the Full Bench said:
"In our view, in these circumstances, the making of the 1994 claims constituted an abandonment of the 1993 claims for the same reasons as, in our view, the making of the 1993 claims constituted an abandonment of the 1991 claims. The 1994 claims were, as were the 1993 claims, claims for 'the prescription of general conditions of employment which would exclusively operate to regulate the employment of employees in the industry' (Boot Trades Case 114 CLR at p554)."
The Full Bench concluded:
"Whether or not a claim has been abandoned by the making of a subsequent claim is to be determined by considering whether the facts indicate that such an abandonment has occurred. The key facts in this case are, in our view, the terms of the various claims and their service at particular times on the employers. The 1993 claims were similar in scope to the 1991 claims and were attached to a letter of demand in very similar terms (apart from the date) to the 1991 one. Had the SPSF in its 1993 claims made it clear to the employers served that it was seeking to amend its 1991 claims the result may well have been different. But it did not do so. The letter of demand in the 1994 claims, as we have previously said, is quite different from the letter of demand in the 1993 claims. This suggests to us that, between July 1993 and February 1994, SPSF may have formed the view that its 1993 claims failed to achieve SPSF's intended objective of amending the 1991 claims. Hence the making by SPSF of the 1994 claims, which as we have previously said, constituted the abandonment of the 1993 claims."
When they wrote their 19 January reasons, the first respondents drew heavily on their earlier reasons. They summarised the evidence tendered to Senior Deputy President Riordan, his decision and the submissions put by CPSU's counsel on the appeal. The Full Bench held that the findings of fact made on 12 September were applicable to the "schools log" and none of the new evidence affected those findings. The Full Bench said:
"The facts referred to may show that SPSF did not intend to abandon the claims it made in matter C No 31579 of 1993. But ... our decision of 12 September 1994 was not based on the view that SPSF had intended to abandon the 1993 claims. It was based on our view of the legal consequences of the making by SPSF of the 1994 claims." [Original emphasis]
After referring to other matters, the Full Bench said:
"We accordingly are of the view that our decision of 12 September 1994 that the making of the 1994 claims constituted an abandonment of the 1993 claims is applicable also to the claims in matter C No 31579 of 1993."
After stating this conclusion, the Full Bench rejected some contrary arguments put by counsel. The first was that the 1994 log had not been tendered before Senior Deputy President Riordan. The Full Bench referred to the contents of its 12 September decision and the fact that s.110(2)(b) of the Industrial Relations Act authorised the Commission to "inform itself on any matter in such manner as it considers just". The Full Bench then considered whether the 1994 claims were the same as the 1993 claims. It concluded they were, although this was not obvious without a detailed comparison of the two logs. The Full Bench commented that "the main difference between the 1994 claims and the 1993 claims is in the respective letters of demand". This was said to be of particular significance to recipients of the claims:
"Whereas the 1993 letter of demand is, we think, clear enough, the same cannot be said of the 1994 letter of demand. Whether or not this letter and the attached log was intelligible was the subject of our decision of 18 November 1994. While concluding that the 1994 demands were intelligible we expressed the opinion that different persons could well have different views as to their meaning."
The Full Bench went on:
"We accordingly do not agree with Mr North's submission that the 1994 claims and the 1993 claims were the same, or even substantially the same. But had they been the same we would not have accepted Mr North's submission that this would have meant that the 1993 claims were not abandoned by the making of the 1994 claims. In our view, the 1994 claims, being claims 'for the prescription of general conditions of employment which should exclusively operate to regulate the employment of employees in the industry' (Boot Trades Case 114 CLR at 554), would, if they were the same as the 1993 claims, still, in our view on the authority of the Boot Trades Case, have constituted an abandonment of the 1993 claims."
After referring to other matters, the Full Bench concluded that "the making by SPSF of the 1994 claims constituted the abandonment of the claims before Riordan SDP in matter C No.31579 of 1993 ...". The appeal was allowed and an order made revoking the finding of dispute in that matter.
Revocation: the submissions of counsel
Counsel for CPSU argue that the Full Bench erred in treating the Boot Trades case as erecting a general principle that a claim for prescription of general conditions of employment in an industry had the effect of abandoning or withdrawing an earlier claim by the same union regardless of the nature or comparability of the claims, the identity of the parties served with them, the time that had elapsed since service and the circumstances in which the claims were served. They say Boot Trades was a decision made on its own facts. The Full Bench addressed the wrong question, according to counsel. It considered whether the facts of the case before it were the same as in Boot Trades; it should have asked whether the union had abandoned its claims. If the right question had been addressed, counsel say there could have been only one answer: the union had not abandoned its claims. The High Court decision in the SPSF case caused SPSF to revise its 1991 claims but the revised (1993) claims were served on some only of the employers served in 1991. The evident purpose of the 1994 claims was to assert the 1993 claims against all relevant employers - being those served in 1991. Counsel say this is the opposite of abandonment. The Full Bench failed to take account of four matters: first, the 1993 and 1994 claims were in substance virtually identical, second, some of the parties served with the 1994 log were not served with the 1993 log, third, the decision in the SPSF case and, fourth, the uncontradicted evidence that the union did not intend to abandon its claims. Counsel also say that the Full Bench erred in failing to hold that the absence from evidence of the 1994 log was fatal to the employers' argument.
Counsel for Victoria point out that an industrial dispute may be altered, or may cease to exist altogether, by reason of parties' subsequent conduct. They refer to The Queen v Bain; Ex parte Cadbury Schweppes Australia Limited (1984) 159 CLR 163 at 168 and Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 113 ALR 421 at 433. Counsel say the withdrawal of demands by the union that made them brings a dispute to an end, citing The Queen v Blackburn; Ex parte Transport Workers' Union of Australia (1953) 88 CLR 125 at 137. Referring to Boot Trades, counsel say that it is always a question of fact whether later claims amount to a withdrawal or abandonment of earlier claims. In this case, they say, the Full Bench correctly approached the question as one of fact, looking at matters such as the comparability of the relevant logs, the parties on whom they were served and the timing of service. The Full Bench having held that the demands in the 1994 log were for the prescription of general conditions of employment that should exclusively operate to regulate employment in the industry, counsel contend it would not have mattered whether or not the substance of the demands differed from that of the earlier log; but the Full Bench did look at this. It was entitled to find abandonment.
Counsel for South Australia adopt the Victorian submissions. They add a defence of the Full Bench's action in considering the content of the 1994 log notwithstanding that it was not tendered in the hearing before Senior Deputy President Riordan.
Revocation: conclusions as to the Full Bench's decision
In assessing the submissions of counsel concerning the Full Bench's decision, we read together its two statements of reasons. The Full Bench obviously intended its 19 January reasons to be read with the 12 September reasons.
In its 12 September reasons, the Full Bench described the issue in this way: "The issue before us is whether the making of certain claims by a union constitutes the abandonment of earlier claims made by the same union". We do not quarrel with that formulation so long as it is remembered that the ultimate issue was a wider one: whether the dispute already found to exist by reason of the employers' rejection of the 1993 log was brought to an end by the service of the 1994 log. The existence of an interstate industrial dispute is the lynchpin of the Commission's jurisdiction. In the case of a "paper dispute", there must have been a document; but jurisdiction depends upon the attitude of the parties, not on a particular document. Documents only crystallise and evidence attitudes. A dispute that emerges out of non-acceptance of a log of claims is not tied to that log. As Murphy J observed in Bain at 168:
"The Commission has power to determine what in fact is the industrial dispute and is not circumscribed by the procedures for rejection of paper demands. Thus an industrial dispute may be diminished or ended or enlarged or altered during the course of the proceedings in the Commission."
We make these observations because of the Full Bench's tendency to concentrate upon the fact that the 1994 log was framed as "a claim for the prescription of general conditions of employment", as if this alone determined the matter. Although the Full Bench said, more than once, that the issue was one of fact, neither of its decisions explored the factual context in which the 1994 log was served. The Full Bench did not make an analysis of the parties on whom the respective logs were served, or consider the significance of the differences or of the times when service occurred. In its 12 September decision, the Full Bench quoted the 18 February 1994 letter of demand but made no comment about the significance of the opening paragraph, and especially the words we have underlined below:
"The judgment of the High Court in the SPSF Case has raised the possibility that some of the demands made of you by SPSF on 19 November 1991 may be open to challenge. Whilst maintaining that each and every demand previously made is a valid demand the SPSF now makes amended demands upon you to ensure that such demands made by the SPSF for the provision of improved salaries and conditions of employment are not open to challenge."
The first sentence of this paragraph clearly indicated that the demands made by the enclosed document were a variation of those originally made on 19 November 1991 and, as the recipients knew, already amended in 1993. The reason for the variation was stated. It was a reason germane to the nature and content of the earlier log of claims. It was not consistent with their abandonment or withdrawal. The letter proceeded to maintain the validity of the previous demands and to state that the enclosure constituted amendments of them. The word "amended" is significant. It implies that what has gone before is maintained, although in a different form. If the writer had intended to indicate that the previous demands were abandoned, it would have been appropriate for him to use a word like "substitute".
The failure of the Full Bench to deal with the use of the word "amended" in the letter of 18 February contrasts with its comment about the absence of such a word in the letter enclosing the 1993 log. It may be recalled that, in these same reasons, the Full Bench said:
"Had the SPSF in its 1993 claims made it clear to the employers served that it was seeking to amend its 1991 claims the result may well have been different. But it did not do".
The Full Bench later observed that the 1994 letter of demand "is quite different" to the 1993 letter, but apparently failed to realise the significance of the major difference.
If the relevant question was whether the claim made in the letter of 18 February constituted "a claim for the prescription of general conditions of employment", there could only be one answer - of course it did. SPSF took the trouble to collect together the whole of its current demands, both the new demands (since 1991) and the old. But if, as we believe, the question was whether the letter of 18 February evinced an intention to bring to an end the dispute arising out of non-acceptance of the 1993 log, the opposite answer obtained - of course it did not. On the contrary, the letter indicated that SPSF continued the dispute by maintaining the validity of the previously-rejected claims and re-asserting their substance. We agree with the Full Bench that, if the letter had evinced an intention to abandon the earlier claims, it would not matter that relevant SPSF officers did not have that subjective intention, but we cannot conclude that the letter did this.
We would hesitate to differ from a Full Bench on a finding of fact. In this case, we are not doing that. We do not accept all counsel's criticisms of the Full Bench decision. But it is apparent that the Full Bench did not address the correct question. Instead it concentrated on the quoted passage from the Boot Trades case and referred on several occasions to the notion of "a claim for the prescription of general conditions of employment in an industry". The formulation of such a claim is not antithetical to the continuation of a dispute. It is common practice for parties to all kinds of dispute, from time to time, to collect in a single document the whole of their demands and present them to their opponents. This course often assists to clarify issues and advance settlement negotiations.
Under some circumstances, of course, service of a new set of demands may give rise to an inference that the serving party has dropped its previous demands and the previous dispute is at an end. The High Court held Boot Trades to be such a case. However, this was a finding based upon the facts of that case; the High Court did not propound any general rule. The facts in Boot Trades were very different from those of the present case. They included the circumstances that awards had already been made (in 1951) in response to the earlier (1950) log of claims, that nine years had elapsed between the rejection of the earlier log and the service of the later log, during which there had apparently been no industrial activity or Commission hearing, and that the later log omitted an important claim of the earlier log - long service leave.
Agreeing with counsel for CPSU, we respectfully think the Full Bench erred in treating Boot Trades as a case establishing a principle that a claim for prescription of general conditions of employment in an industry necessarily involves abandonment of all previous claims. It did not do so. That was one aspect of Boot Trades' facts, but no more. All relevant facts must be examined and the proper question applied: on those facts, can it be said that the party serving the new claim evinced an intention to abandon its earlier demands and thereby end the existing dispute? If the Full Bench had taken this course, it seems to us, it must have concluded that the 1993 dispute remained in existence. It would have dismissed the appeal.
In view of that conclusion, it is not necessary for us to determine whether the Full Bench erred in having regard to the 1994 log of claims, despite the fact that it was not in evidence.
Revocation of the 1993 dispute finding: jurisdictional error
Counsel for Victoria argue that, even if the Full Bench erred in deciding to revoke the dispute finding made by Senior Deputy President Riordan, the CPSU is not entitled to relief. They say that s.101(3) of the Industrial Relations Act applies to the case. That subsection provides:
"(3)A determination or finding of the Commission on a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by the question."
Counsel accept that s.101(3) does not immunise a Commission decision that is unconstitutional. They refer to The Queen v Portus; Ex parte Transport Workers' Union of Australia (1977) 141 CLR 1 and O'Toole v Charles David Pty Ltd (1990) 171 CLR 232. But they say that, in the present case, the decision was not unconstitutional; if the Full Bench erred at all, this was only in relation to a question of fact.
Counsel for South Australia support these submissions. They also say that, if there was error, the appropriate order is certiorari and this is only available in respect of an error of law on the face of the record or absence or excess of jurisdiction. They refer to The Queen v Cook; Ex parte Twigg (1980) 147 CLR 15 per Gibbs J at 26-28. There is no error of law, they say, in making a wrong finding of fact, citing Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356-357. In the present case, counsel say, there was no error of law on the face of the record or absence or excess of jurisdiction.
Counsel for CPSU say this is not a case of a tribunal making an error of fact. They say the error arose because the Full Bench asked itself the wrong question; it misconceived the issue it had to address and this was a jurisdictional error. Moreover, say counsel, the question before the Full Bench concerned the existence of a jurisdictional fact: an interstate industrial dispute. The Full Bench held that a jurisdictional fact did not exist when it did. The effect of the Full Bench decision was to preclude the Commission performing its statutory duty to resolve the dispute that Senior Deputy President Riordan had found to exist.
We are of the opinion, contrary to the submission of counsel for Victoria and South Australia, that the Full Bench's error was an error of law, not of fact. Although, in Australian Broadcasting Tribunal v Bond at 356, Mason CJ endorsed previous High Court statements to the effect that "there is no error of law simply in making a wrong finding of fact", he preceded this with statements (at 355) that "(t)he question whether there is any evidence of a particular fact is a question of law" and "the question whether a particular inference can be drawn from facts found or agreed is a question of law". He cited authorities establishing these propositions and explained their rationale. So it is a question of law, in the present case, whether there is any evidence that SPSF abandoned the 1993 log or terminated the dispute that arose out of non-acceptance of the 1993 log by the employers on whom it was served. And it is a question of law whether an inference of abandonment or termination can be drawn out of the fact that the 1994 log was served and the terms of the accompanying letter and the log. In our opinion the view reached by the Full Bench in relation to the critical issue amounted to more than a wrong finding of fact; it constituted an error of law. The error appeared in the Full Bench's reasons, so it was an error on the face of the record, as this term was explained by Gibbs J in Cook.
Moreover, it seems to us that the relevant error was not merely an error of law in the exercise of the Commission's jurisdiction; the error concerned the nature and extent of the jurisdiction itself. The situation is not unlike that which arose in Public Service Association of South Australia v Federated Clerks' Union of Australia ("PSA") (1991) 173 CLR 132. We need not analyse that decision in detail. It was discussed by Wilcox CJ in The Queen v Keely; Ex parte Kingham (1995) 129 ALR 255 at 276-278. It is sufficient for present purposes to say that the High Court, by majority, held inapplicable a privative provision concerning the South Australian Industrial Commission that excepted challenge or review "on the ground of excess or want of jurisdiction". The majority held that the exception applied where the Commission "misconceived its jurisdiction and failed to consider the true question which they had to decide" (per Brennan J at 144) or "acted in excess of jurisdiction" (per Dawson and Gaudron JJ at 161). The case may be contrasted with Walker v Industrial Court of New South Wales (1994) 53 IR 121 where the New South Wales Court of Appeal unanimously held that the New South Wales Industrial Court had fallen into error of law but, by majority, that the error was not jurisdictional in nature. The reason for this distinction was explained by Sheller JA, speaking for the majority, at 153-154.
In the present case, unlike PSA, the privative provision, s.101(3), is unqualified. Does that mean that the provision excludes prerogative relief, even where there is jurisdictional error? Plainly the statute cannot exclude the power of the High Court to grant prerogative or injunctive relief under s.75(v) of the Constitution: see per Mason CJ in O'Toole v Charles David at 250. His Honour was there speaking of s.60 of the Conciliation and Arbitration Act 1904 which contained two subsections. Subsection (1) concerned the finality of awards. It was in the same form as s.150(1) of the present legislation, the Industrial Relations Act. Subsection (2) of s.60 was identical to s.101(3) of the present Act, except that it concluded with the words "that question" rather than "the question".
Counsel for Victoria concede that it follows from the principle stated by Mason CJ that the High Court may restrain acts in excess of jurisdiction by the Commission; for example, by finding an industrial dispute where none exists. They also accept that the same statement is true of this Court when it is determining a case remitted by the High Court under s.44 of the Judiciary Act and s.412(2) and (3) of the Industrial Relations Act. In such a case the Court exercises the jurisdiction vested in the High Court by s.75(v) of the Constitution. However, they say a distinction must be made between a case of excess of jurisdiction and failure to exercise jurisdiction. They argue that, although there is a good constitutional reason to restrain the Commission from making an award in a case where there is no interstate industrial dispute, there is nothing in the Constitution that requires the Commission to intervene every time there is an industrial dispute.
A difficulty about this argument is that s.75(v) extends to mandamus. By conferring on the High Court jurisdiction to grant mandamus against Commonwealth officers, the Constitution evinces concern that such officers perform the functions, and exercise the powers, conferred on them. There is no reason to regard this as less constitutionally imperative than that Commonwealth officers not act in excess of jurisdiction.
Whether or not this is the explanation, the decided cases do not make the distinction suggested by counsel. We are aware of several cases in which the High Court ordered mandamus against the Commonwealth Court of Conciliation and Arbitration or the Australian Conciliation and Arbitration Commission: see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; The King v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54; The Queen v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 413 and Re Coldham; Ex parte Brideson (1989) 166 CLR 338.
The decisions in Blakeley and The Queen v Coldham are of particular interest. In each case, privative provisions were discussed. In Blakeley at 71, Latham CJ referred to s.75(v) of the Constitution and commented:
"The exercise of the jurisdiction created by the Constitution is not affected by such a statutory provision as s.16 of the Commonwealth Conciliation and Arbitration Act 1904-1949, which provides that an order of a Conciliation Commissioner shall not be subject to prohibition, mandamus or injunction in any court of any kind whatever."
The Chief Justice said at 72 that "mandamus will go to compel the performance of a public legal duty which the person who is subject to the duty has refused to perform in a case where the performance of the duty cannot be enforced by any other adequate legal remedy". He referred to s.38 of the then Act, which required the Court to hear and determine a dispute. He said:
"The duty is to hear and determine, not to determine in a particular way, and an order could not be made that he should determine a dispute in a particular way."
At 73 Latham CJ said that, on an application for a prerogative writ under s.75(v), "it is for this Court to determine for itself whether a dispute really exists and to determine that upon evidence placed before this Court".
Fullagar J, at 91-94, made a number of points apposite to the present case. The passage is extremely helpful. It should be read in full but is too long to quote. A summary must suffice:
(i)When the High Court is invited to issue mandamus or prohibition under s.75(v), it exercises original, not appellate jurisdiction. It has "the task of deciding for itself on the material placed before it every question of law and ... fact on which jurisdiction depends".
(ii)The High Court must consider all relevant material, whether that material was before the inferior tribunal or not. In the case of prohibition, it would generally not matter (except as to costs) that the material was not put before the inferior tribunal. In the case of mandamus, this may be relevant to the High Court's exercise of discretion.
(iii)Although the High Court must look at the material and decide for itself every question of law and fact, there is a difference in its attitude to the decision of the inferior tribunal depending on whether the question of jurisdiction depends on a question of law or a question of fact. "If it depends on matter of law the question must simply be decided like any other question of law. But, if the jurisdiction depends on matter of fact, considerable weight is attached to the view of the facts taken by the inferior court."
(iv)"If the fact which the Commissioner has determined were a fact on which he had power to give a binding decision, mandamus could not go to direct him to decide it otherwise, even though this Court thought his finding erroneous. Mandamus could only go to direct him to reconsider the matter, and could only go if this Court thought that he had misdirected himself as to the real question to be decided or had taken into account some irrelevant matter or that for some other reason his decision could not be regarded as a real decision ... But where ... the fact which the Commissioner has determined is a fact on which his jurisdiction depends and therefore a fact on which he has no power to give a binding decision, the position is wholly different. This Court must in such a case consider the position for itself, and, if satisfied that he was wrong, will not normally direct him to hear and determine the question of jurisdiction again, but will direct him to proceed or to abstain from proceeding with the substantive matter before him."
Kitto J expressed similar views at 96-100. He concluded by expressing agreement with the judgment of the Chief Justice.
The Court granted mandamus directing the Conciliation Commission to hear and determine the two disputes that he had held not to exist.
In considering the significance of Blakeley to the present case, it is relevant to note, not only the actual result of the case, but that s.104 of the present Act imposes on the Commission a duty similar to that under s.38 of the Conciliation and Arbitration Act, referred to by their Honours. Section 104(1) provides that, where a dispute is not fully settled at a conciliation proceeding, "the Commission shall proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration."
The Queen v Coldham concerned a demarcation dispute in relation to a bauxite project. The Conciliation and Arbitration Commission intimated its intention to make an order under s.142A(1) of the Conciliation and Arbitration Act giving an exclusive right of representation on the project site to one union, BLF. The other union, AWU, sought prohibition and mandamus in the High Court, arguing that employees on the project were not eligible for BLF membership under its rules, so the Commission erred in giving it the right of representation. By majority, Murphy J dissenting, the High Court granted the writs. For the majority, there were two joint judgments. Both referred to s.60. Mason ACJ and Brennan J said at 418:
"The jurisdiction of the Court conferred by s.75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause. However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s.60 of the Act will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled '... namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) ...'"
After referring to other decisions, their Honours went on at 419:
"But a clause like s.60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a clause like s.60 is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints."
Deane and Dawson JJ said at 427:
"Section 60(1) of the Act provides that, subject to the Act, an award (which, by definition, includes an order) of the Commission is final and conclusive and shall not be challenged, appealed against, reviewed, quashed or called in question in any court. The subsection expressly provides that such an award 'is not subject to prohibition, mandamus or injunction in any court on any account'. Such a statutory provision is effective to exclude any general judicial review of the proceedings of the Commission. It is not, however, effective to preclude this Court from exercising the powers directly conferred upon it by s.75(v) of the Constitution. The members of the Commission are officers of the Commonwealth and, if the Commission purports to exceed its powers or fails to perform its lawful functions, they are, as such officers, subject to the jurisdiction which the Constitution confers on this Court in all matters in which a writ of prohibition or mandamus is sought against an officer or officers of the Commonwealth." [Emphasis added.]
In the light of these authorities, it seems that our duty is clear. In dealing with CPSU's application for prerogative relief, this Court stands in the position of the High Court. Everything said in these cases about the duty of the High Court applies to us. We must determine for ourselves whether the Commission has jurisdiction. If it has, we have power to grant mandamus notwithstanding s.101(3) of the Act.
In our opinion, the Commission has jurisdiction to determine the dispute that arose, as Senior Deputy President Riordan found, out of the employers' non-acceptance of the 1993 log. The only reason why it is said that there is no current dispute, so that the Commission lacks jurisdiction to make an award arising out of the 1993 log, is that the 1993 claims were abandoned and the 1993 dispute thereby terminated. If that is wrong, as we believe, the Commission has jurisdiction to make an award. If conciliation proves unsuccessful, the Commission will be obliged by s.104(1) to deal with the dispute by arbitration.
The draft Order Nisi filed in the High Court sought orders that the respondents show cause:
"WHY a Writ of Certiorari should not issue out of this Court directed to the First Respondents to quash the order of the First Respondents whereby the finding of dispute in matter C No.31579 of 1993 was revoked and WHY a Writ of Prohibition should not issue out of this Court directed to the First Respondents to prevent them from acting on the basis that the said dispute has been revoked and WHY a Writ of Mandamus should not issue out of this Court directed to the First Respondents to hear and determine according to law the appeal against the refusal of former Senior Deputy President Riordan to revoke the finding of dispute in matter C No.31579 in the Australian Industrial Relations Commission."
It will be noted that the drafter did not seek mandamus directing the Commission to perform its duty under s.104. That decision was correct. The s.104 stage has not yet been reached.
We propose to order the issue of a writ of certiorari requiring the record of the proceedings before the first respondents to be brought in and its orders quashed and a writ of mandamus requiring the first respondents to hear and determine the appeal according to law. No doubt the further hearing will be a mere formality, there being apparently no issue in the appeal except the alleged abandonment. However, it is for the Full Bench - not for us - to dispose of the appeal. Prohibition is not necessary.
The 1994 dispute
We turn to proceeding VI.3631 of 1995 in which the State of Victoria seeks an order prohibiting the first respondents from proceeding in matters C Nos.33499 of 1991, 33605 of 1991 and 32833 of 1995. Its ground is "that any industrial dispute which might have come into existence" upon the service by SPSF of the 1994 log of claims ceased to exist upon the deregistration of SPSF on 1 July 1994, consequentially upon its amalgamation with SPSF. As indicated, we told the parties at the end of the hearing that this application would be dismissed.
Counsel for Victoria argue that, once SPSF ceased to exist, there was no proponent of the 1994 log; accordingly, any dispute that came into existence on service of the log was terminated. They say:
"For an industrial dispute to come into existence and to continue in existence, there must be parties to that dispute who are adversaries. If, on the one side of the dispute, there is only a single party and that party ceases to exist, then it is submitted that it cannot be said that the dispute continues in existence as an 'industrial dispute'."
Sitting as a Full Bench of the Commission, the first respondents rejected this argument. They drew attention to some of the provisions of Division 7 of Part IX of the Act concerning the amalgamation of organisations. Section 253Q(1) provides that a scheme of amalgamation approved pursuant to the Division "takes effect in accordance with this section". If satisfied of certain specified matters, the designated Presidential Member must fix a day, the "amalgamation day", on which the amalgamation is to take effect: see s.253Q(2). On that day, "the Presidential Member must de-register the proposed de-registering organisations" and the persons who, immediately before that day, were members of a proposed de-registering organisation "become, by force of this section and without payment of entrance fee, members of the proposed amalgamated organisation": see s.253Q(3). Following sections deal with other effects. We mention some of them. Section 253R(1) provides that, on amalgamation day, all assets and liabilities of a de-registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation. Section 253S relates to resignations from membership. Section 253T makes an award or order of the Commission that applied to a de-registering organisation immediately before amalgamation day binding on the proposed amalgamated organisation and its members. Section 253U was relied on by the Full Bench:
"253U(1) On and after the amalgamation day, an instrument to which this Division applies continues, subject to subsection (2), in full force and effect.
(2)The instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after that day as if a reference in the instrument to a de-registered organisation were a reference to the amalgamated organisation."
The term "instrument to which this Division applies" is defined by s.234 as meaning:
"an instrument:
(a)to which a de-registered organisation is a party; or
(b)that was given to, by or in favour of a de-registered organisation; or
(c)in which a reference is made to a de-registered organisation; or
(d)under which any money is or may become payable, or any other property is to be, or may become liable to be, transferred, conveyed or assigned, to or by a de-registered organisation;"
The word "instrument" is defined by the same section
as:
"an instrument of any kind, and includes:
(a)any contract, deed, undertaking or agreement; and
(b)any mandate, instruction, notice, authority or order; and
(c)any lease, licence, transfer, conveyance or other assurance; and
(d)any guarantee, bond, power or attorney, bill of lading, negotiable instrument or order for the payment of money; and
(e)any mortgage, charge, lien or security;
whether express or implied and whether made or given orally or in writing."
The Full Bench also referred to s.253V which reads:
"Where, immediately before the amalgamation day, a proceeding to which this Division applies was pending in a court or before the Commission:
(a)the amalgamated organisation is, on that day, substituted for each de-registered organisation as a party; and
(b)the proceeding is to continue as if the amalgamated organisation were, and had always been, the de-registered organisation."
The reasoning of the Full Bench was expressed in this way;
"In our view ss.253U and 253V operate so that any dispute created by the making and non-acceptance of the 18 February 1994 demands did not come to an end with the de-registration of the SPSF on 1 July 1994.
In our view the 18 February 1994 demands are an 'instrument' within the definition of that word in s.234, being within the words 'instrument of any kind' in that definition. This being so, the 18 February 1994 demands, in our view, are 'an instrument to which this Division applies' as that term is defined in s.234, being an instrument to which the SPSF is a party (para.(a) of the definition), an instrument that was given by the SPSF (para.(b) of the definition) and an instrument in which a reference is made to the SPSF (para.(c) of the definition). Section 253U(1) accordingly, in our view, operates to continue the 18 February 1994 demands in full force and effect subject to s.253U(2), pursuant to which the demands have effect as if the reference in them to the SPSF were a reference to the CPSU.
Section 253V also, in our view, operates on the facts before us so as to cause us to reject the argument of the States. The proceedings before us are, in our view, a proceeding within s.253V. Proceeding is not defined in the Act. Section 101(1) however, provides:
'101(1)Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:
(a)determine the parties to the industrial dispute and the matters in dispute; and
(b)record its findings;
but the Commission may vary or revoke any of the findings.'
In our view, the word proceeding in s.253V has the same meaning as in s.101(1) and, accordingly, the proceeding before us is a proceeding under s.253V. The proceeding before us is, it follows, a 'proceeding to which this Division applies' as that term is defined in s.234, being proceedings to which the SPSF was a party immediately before 1 July 1994. (We take the view that the word 'party' in this definition and in s.253V is to be given an ordinary and non-technical meaning so that the SPSF until 1 July 1994 and the CPSU since that date are each to be regarded as a party in the proceeding before us.) Accordingly, in our view, pursuant to s.253V(a), the CPSU is substituted for the SPSF and, pursuant to s.253V(b), the proceeding is to continue as if the CPSU were, and always had been, the SPSF.)
As mentioned earlier, the States submitted that, if ss.253U and 253V on their correct interpretation had the effect which in our view they do have, they were invalid as being beyond the power of the Commonwealth Parliament. This is not a matter appropriate for this Commission to decide ... We act on the basis that the legislation is valid. We do not, therefore, consider the submissions of the States and the response of the CPSU ... as to the validity of ss.253U and 253V."
The assumption that underlies this passage is that the 1994 dispute created a new dispute between SPSF and the employers on which it was served. As will be apparent, we do not accept that view, at least in relation to the employers who had been served with the 1993 log. In relation to those employers, we see the 1994 claims as a mere shot in an on-going war, whereby the previous demands were set out in an amended form. However, we will deal with this application on the basis that the assumption is correct. Even so, we do not agree with everything stated in the Full Bench's reasoning.
We accept that a log of claims is an "instrument" within the definition of that word in s.234. The definition refers to "an instrument of any kind", thus importing the ordinary English meaning of the word "instrument". This meaning is very wide. According to the Shorter Oxford English Dictionary, it includes: "A thing used in or for performing an action; a means". This description is apposite to a log of claims. It also includes, in a legal context: "A formal legal document". This is a fair description of a document intended to create an industrial dispute. Anyway, the definition refers specifically to a "notice". A log of claims is a notice of the claimant's demands.
If the log of claims was an "instrument", within s.234, it is apparent that it was also an "instrument to which this Division applies", as that term is defined by s.234. The log of claims was an "instrument ... given ... by ... a de-registered organisation".
However, we have difficulty in applying these definitions to s.253U, in the context of a dispute that arose before amalgamation day. It is a mistake to concentrate attention on the piece of paper, rather than the resultant dispute. The instrument did its work before amalgamation day by conveying the demands of SPSF and providing a basis for a subsequent contention that there was in existence an interstate industrial dispute that the Commission could and should settle by making an award. We do not think that the log of claims, as a written instrument, had a continuing effect after amalgamation day. So there was no room for s.253U to operate.
The Full Bench was on sounder ground in applying s.253V to the case. The word "proceeding" is not defined by the Act, except by s.360 for the purposes of Part XIV. That definition is not relevant. In its ordinary English meaning, it has a wide connotation. See Grout v Gunnedah Shire Council (1994) 129 ALR 372 at 383-385. Moore J there suggested that the "primary technical legal meaning" of the word "is as the invocation of the jurisdiction of a court by a process other than a writ". In relation to a proceeding in the Commission, of course, it is necessary to substitute a reference to "the invocation of the jurisdiction of the Commission". This suggestion is consistent with the Shorter Oxford English Dictionary definition of the word: "The fact or manner of taking legal action; a legal action; ... a step taken by a party to a case".
SPSF notified the Commission of the existence of an alleged industrial dispute on 2 March 1994. On that day, a proceeding in relation to an alleged dispute came into existence. That such a proceeding pre-exists the dispute hearing is evident from s.101(1) itself. That subsection stipulates the circumstances "where a proceeding in relation to an alleged dispute comes before the Commission". It follows from this that a proceeding was in existence before amalgamation day. SPSF was the applicant, and so a "party" to it. Consequently, the application was a "proceeding to which this Division applies" within the meaning of s.234. The proceeding was pending before the Commission immediately before the amalgamation day. So s.253V(a) applies to substitute the amalgamated organisation (CPSU) for the de-registered organisation (SPSF) as a party and s.253V(b) allows the proceeding to continue as if CPSU were, and had always been, SPSF.
Contrary to the submission of counsel for Victoria, the above reasoning does not mean that the statute is unconstitutional. There would be a problem about constitutional validity if the statute deemed a dispute to exist where none existed in fact. As the Commission's jurisdiction is constitutionally dependent upon the existence, in actual fact, of an interstate industrial dispute, it could not be extended by a legal fiction. However, nothing in Division 7 of Part IX creates a legal fiction. The Division says nothing about disputes. In its application to a case like the present, the Division assumes a claim of the existence, before amalgamation day, of an actual dispute. It assumes the Commission has its ordinary jurisdiction. It does not purport to confer jurisdiction where none already exists. Section 253V merely deals with any pending application for a dispute finding, automatically substituting the amalgamated organisation as the party contending that a dispute already exists. If the dispute does exist, this is because of a combination of two things. The first is that a dispute came into existence, before amalgamation day, when the served employers failed to accept the de-registered organisation's log of claims. The second ingredient is that the dispute was then continuously maintained, until amalgamation day, by the de-registered organisation; and thereafter by the amalgamated organisation. Provided that the claims have been maintained, it does not matter that there has been a change of parties. As is the case with any dispute, parties may join and leave the fray. Gaudron J pointed this out in Vista Paper Products at 433 when she said "an industrial dispute is not necessarily fixed and definite ... in terms of the parties to it". She also called for attention to "the actual industrial situation". Nothing could be more unreal than to say that a dispute is brought to an end merely because of the amalgamation of the initial protagonist party with another organisation, where that organisation takes over the members of the original protagonist and immediately takes up the claim on their behalf.
It was for these reasons that we reached the conclusion that the application in matter VI.3631 of 1995 should be dismissed. We will so order.
I certify that this and the preceding fifty-one (51) pages
are a true copy of the Reasons for Judgment of the Court.
Associate:
Dated: 21 September 1995
APPEARANCES
Counsel for CPSU: A North QC and S Howells
Solicitor for CPSU: Gill Kane & Brophy
Solicitor for the 1st Respondents: Australian Government Solicitor
Counsel for the State of Victoria: C Jessup QC and M
McDonald and L Kaufman
Solicitor for the State of Victoria
(2nd Respondent): Minter Ellison
Solicitor for the State of Victoria
(Prosecutor): Victorian Government Solicitor
Counsel for South Australia: M D Walter and T J
Hamakin
Solicitor for South Australia: Crown Solicitor
Counsel for Western Australia: Robert Cock
Solicitor for Western Australia: Crown Solicitor
Counsel for Queensland: J S Douglas QC
Solicitor for Queensland: Crown Solicitor
Counsel for the Commonwealth: G Griffith QC and T J Ginnane
Solicitor for the Commonwealth: Australian Government Solicitor
Date of hearing: 24 August 1995
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. VI.2885 of 1995
VICTORIA DISTRICT REGISTRY )
BETWEEN:IN THE MATTER of an Application for Writs of Certiorari and Mandamus against THE HONOURABLE ANTHONY McINTYRE, a Vice President of the Australian Industrial Relations Commission, THE HONOURABLE JOHN MACBEAN, a Senior Deputy President of the Australian Industrial Relations Commission and THE HONOURABLE ANNE HARRISON, a Deputy President of the Australian Industrial Relations Commission
First Respondents
STATE OF VICTORIA
Second Respondent
STATE OF SOUTH AUSTRALIA
Third Respondent
EX PARTE:COMMUNITY AND PUBLIC SECTOR UNION
Prosecutor
AND No. VI. 3631 OF 1995
BETWEEN:IN THE MATTER of an Application for Writ of Prohibition against the HONOURABLE ANTHONY WILLIAM DONALD McINTYRE, the HONOURABLE JOHN WILLIAM MacBEAN and the HONOURABLE ANNE HARRISON, respectively, VICE PRESIDEN, SENIOR DEPUTY PRESIDENT and DEPUTY PRESIDENT of the Australian Industrial Relations Commission
First Respondent
and
COMMUNITY AND PUBLIC SECTOR UNION
Second Respondent
EX PARTE: STATE OF VICTORIA
Prosecutor
CORAM: WILCOX CJ, KEELY J & MOORE J
PLACE: MELBOURNE
DATE: 20 SEPTEMBER 1995
CORRIGENDUM
Correction to the Full Court joint judgment of their Honours Chief Justice Wilcox, Justice Keely and Justice Moore on 20 September, 1995:
Page 6, line 18 Delete "C33193 of 1993" and replace with "C31579 of 1993".
Page 10, line 7 Delete "C33193 of 1993" and replace with "C31579 of 1993".
Associate:
Dated: 20 October 1995
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