Re McKenzie;

[1984] HCA 37

HIGH COURT OF AUSTRALIA

Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND MANDAMUS AGAINST MR COMMISSIONER McKENZIE, A COMMISSIONER OF THE AUSTRALIAN CONCILIATION AND ARBITRATION COMMISSION AND THE MEAT AND ALLIED TRADES FEDERATION OF AUSTRALIA; EX PARTE THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

15 June 1984

Decision

GIBBS C.J., MURPHY, WILSON, DEANE and DAWSON JJ. This is the return of an order nisi for a writ of prohibition directed to Mr. Commissioner McKenzie, a Commissioner of the Australian Conciliation and Arbitration Commission and to the Meat and Allied Trades Federation of Australia ("the Federation"), prohibiting them from continuing proceedings under ss. 22 and 30 of the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act") in a manner contrary to or inconsistent with or outside the Act, and for a writ of mandamus directed to Mr. Commissioner McKenzie compelling him to disqualify himself from hearing proceedings C. No. 4342 of 1981 and C. No. 2745 of 1983. The prosecutor is the Australasian Meat Industry Employees' Union ("the Union").

2. A brief chronology of the material events is as follows:

1. On 28 October 1981 Mr. Commissioner McKenzie found a

dispute to exist between the Federation and the Union in matter C. No. 4342 of 1981 and directed the parties to confer, with access to the Commission if necessary. No request for access was made.

2. On 12 April 1983 Mr. Commissioner Gough found a dispute

to exist in matter C. No. 2745 of 1983 between the Union and a number of employers engaged in the meat industry in the Northern Territory. The Commissioner exercised the powers of the Commission with respect to conciliation between April and July 1983.

3. On 28 July 1983 Mr. Commissioner Gough was about to

commence the arbitration of matter C. No. 2745 of 1983 when a representative of several of the employers who were parties to the proceedings objected, pursuant to s. 22(2) of the Act, to the Commissioner exercising the powers of the Commission with respect to arbitration in relation to that industrial dispute. Mr. Commissioner Gough thereupon disqualified himself and the matter was adjourned.

4. On 15 August 1983 matter C. No. 4342 of 1981 was again

before Mr. Commissioner McKenzie, having been relisted by the Federation for the purpose of proceeding to arbitration. On that day a number of matters were discussed including the relationship of matter C. No. 4342 of 1981 to matter C. No. 2745 of 1983.

5. On 25 August 1983 Mr. Commissioner McKenzie held further

discussions with the parties in relation to the issues and with the consent of the parties he joined matters C. No. 4342 of 1981 and C. No. 2745 of 1983. Thereafter he dealt with both matters together.

6. On various dates in September 1983 Mr. Commissioner

McKenzie conducted hearings in the course of which evidence was given and inspections made in relation to both disputes. On two occasions he chaired private conferences at which matters in issue between the parties were discussed.

7. On 18 November 1983 the Union submitted that the

Commissioner had exercised the powers of the Commission with respect to conciliation and it objected to his exercising the powers of the Commission with respect to arbitration in relation to the disputes. The Federation and certain of the employers opposed the Union's initiative. On the same day, the Commissioner ruled that he had not participated in conciliation in a manner contemplated by s. 22 of the Act and he declined to disqualify himself from arbitrating the dispute.

3. The material part of s. 22 of the Act reads as follows:

"(2) Where a member of the Commission has

exercised the powers of the Commission with respect to conciliation in relation to an industrial dispute, he shall not exercise, or take part in the exercise of, the powers of the Commission with respect to arbitration in relation to that industrial dispute if a party to the arbitration proceedings objects to his so doing."

4. In the course of argument important questions touching the proper construction of s. 22(2) of the Act and related sections were discussed but on the view we take it is unnecessary to examine those questions. Assuming a construction of the Act most favourable to the Union, an essential condition precedent to its success in showing a case for the issue of writs of prohibition and mandamus is that it establish that Mr. Commissioner McKenzie exercised the Commission's conciliation powers in either of the matters in respect of which relief by way of prerogative writ is sought.

5. The Commissioner himself did not think he had done so. In giving his ruling on the objection of the Union on 18 November 1983, the Commissioner referred to the fact that on 15 August 1983 matter C. No. 4342 of 1981 had been relisted at the request of the Federation which had then asked that the matter proceed to arbitration. By that time matter C. No. 2742 of 1983 had been referred to him following the cessation of proceedings before Mr.Commissioner Gough. He said that when both matters came before him in August 1983

"it was my view that the conciliation processes had been exhausted and as the industrial disputes had not been wholly settled I was obliged to proceed to deal with them by arbitration.

During the early hearings of the joined matters in August 1983, I did sit down with the parties to discuss the question of ambit, respondency, programming and the position of proper agreement in future proceedings, especially inspections at that site.

None of that may be regarded as conciliation in terms of section 22(2) of the act (sic), it was merely progressing the arbitration in the most convenient and expeditious way. The point the union has sought to make good is, accordingly, not a proper one here under s. 22(2), and I will proceed with the arbitration as programmed."

6. The Commission has wide powers which it may exercise in relation to an industrial dispute: s. 41(1). These powers are available to the Commission in the exercise of its powers with respect to arbitration. Among them (s. 41(1)(o)) is the power to

"generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the dispute."

The participation of the Commissioner in conferences with the parties where various matters pertaining to the disputes are discussed with a view to clarification of the issues and the selection of appropriate procedures for their determination would appear to fall squarely within such a power.

7. The Union submits that much of what occurred on 15 and 25 August 1983 and the inspections that took place in September 1983 amounted to conciliation within the meaning of s. 22(2). We have examined the materials upon which the Union has relied to establish those submissions but we are not persuaded that Mr. Commissioner McKenzie erred in his understanding of the events that had occurred, or that on those occasions the parties came together for the discussion of the questions with a view to the settlement of the disputes by agreement rather than with a view to assisting in their resolution by the Commissioner. That being so, he was not required to disqualify himself from exercising or taking part in the exercise of the powers of the Commission with respect to arbitration when requested so to do.

The order nisi must be discharged.

Orders

Order nisi discharged.