Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Limited

[1992] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S62 of 1992
In the matter of -

An application for writs of

prohibition and certiorari

against the Full Bench of the Australian Industrial Relations Commission

comprising JUSTICE PETERSON,

DEPUTY PRESIDENT MOORE,
COMMISSIONER MERRIMAN and

DEPUTY PRESIDENT RIORDAN and

PRINTING AND KINDRED

INDUSTRIES UNION

Respondents

Ex parte -

VISTA PAPER PRODUCTS PTY

LIMITED

Prosecutor

BRENNAN J

DAWSON J

TOOHEY J

GAUDRON-J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY. 23 SEPTEMBER 1992. AT 10.17 AM

Copyright in the High Court of Australia

Vista(4) 1 23/9/92

MR I.D.F. CALLINAN, QC:  May it please the Court, I appear

with my learned friend, MR R.G. KAYE, for the

applicant. (instructed by Brian Robinson & Co)

MR s.c. ROTHMAN:  May it please the Court, I appear with my

learned friend, MR M.J. WALTON, for the Union

respondent. (instructed by Turner Freeman)

MR D.J. ROSE. QC: If the Court pleases, I appear with my

learned friend, MR C.P. COMANS, for the

Attorney-General of the Commonwealth, intervening

to put submissions on constitutional issues if it

appears necessary to do so after hearing the

parties. (instructed by the Australian Government

Solicitor)

BRENNAN J: So you do not know at this stage whether you

wish to make any submissions or not?

MR ROSE:  No, Your Honour.

BRENNAN J: The Deputy Registrar certifies that she has been

who acts on behalf of Justice Peterson,	informed by the Australian Government Solicitor, and Commissioner Merriman of the Industrial
Relations Commission, the first-named respondents in these proceedings, that they do not wish to
enter an appearance in this matter, do not wish
representations to be made on their behalf and
submit to the jurisdiction of the High Court. Yes,
Mr Callinan? ·

MR CALLINAN: 

Your Honours, these are applications for

orders nisi for prerogative writs against the
Australian Industrial Relations Commission. Could

I ask Your Honours to look first at the chronology that we have provided to the Court. Could I draw

Your Honours' attention to one event which is not

referred to in our chronology, but which is

relevant.  It should be the first event in the

list, and that is that the service of the last log

of claims occurred in about 1981; that is the last

log of claims before the one with which this Court
is concerned. Your Honours, that appears in
evidence in the evidence of a Mr Reese at page 292,

line 1, in the second volume. It goes no further

than to say that the last log was served about

10 years before.  So one can take it that it was in

about 1981.

Could I ask Your Honours to look then at the

chronology because -

BRENNAN J: The scope of that log is irrelevant,

Mr Callinan.

Vista(4) 2 23/9/92

MR CALLINAN: Yes, Your Honours, except to this extent that

it contained no claim for reinstatement. Perhaps I
could say immediately that the first claim for

reinstatement in a retrospective sense is made by

clause 74 of the log with which this Court will be

concerned. There is another clause, clause 5,

which relates to reinstatement but it speaks

prospectively, whereas clause 74 is capable of

speaking both prospectively and retrospectively.

But, Your Honours, those claims, both as to

clause 5 and clause 74, first appear in a log of

claims of 7 March 1991, which were served after an

absence of the necessary interstate element was

raised by the advocate for the employer whom I
represent before the Commission at a hearing on

7 March, and Your Honours will see that those

matters appear from the chronology.

On 14 February an issue was raised by the

employer with respect to changes to working hours. There were then discussions in February as appears

from the reference to the dates 14 February to the

end of February. On 26 February notice was given

by the employer of the intention to implement the
proposed changes; there was a stoppage and in the

first couple of days in March the employer

delivered to each of the employees a letter

requiring those employees to acknowledge that they

accepted the changed hours of employment. Those

who refused to do so were dismissed. They were

dismissed on 4 March and proceedings were then

started by the Union against Vista. There was

notification of a dispute on 4 March and they came before Commissioner Donaldson on 7 March and there

is argument - I need not take Your Honours to it,

but there is argument in the transcript which shows

that the employer advocate clearly raised the

absence of the necessary interstate element.

DAWSON J: There is no log of claims apart from the old one

then at all?

MR CALLINAN:  No, not at that stage, no.

DAWSON J: Well, what was the claim that was being made?

MR CALLINAN: Just a notification of a dispute, Your Honour.

I will have it looked out and I will give

Your Honour a reference to it in a moment, but that

is all it in fact was.

GAUDRON J: A dispute about the restructuring, was it,

rather than the dismissals?

MR CALLINAN:  I think, Your Honour - I do not like to answer

that unequivocally. I will look it out, but I

Vista(4) 23/9/92

think it related to the dismissal. May I check

that and inform Your Hono.ur precisely of that? A

log of claims, however, did not come into existence

and was not served before the hearing before Commissioner Donaldson was embarked upon and
completed.

I think it is right to say that the attitude

of Commissioner Donaldson seemed to be that without
expressing any view of the matter there might be

something in the arguments of the employer and the

Commissioner really suggested to the representative

of the Union that perhaps the Union ought to

consider the matter, and granted an adjournment for

that purpose. It was following upon that that the

log of claims was compiled and served.

In response to Your Honour Justice Gaudron, at

page 568 the notification of the dispute is raised

and Your Honours will see that the notification is

of the:

existence of an alleged industrial dispute

between the said Union ••.•. and Nashua

Australia Pty Ltd trading as Vista Products

Pty Ltd.

I do not think anything turns upon it but in fact

there was no relationship between Nashua and Vista.

Vista had, I think, bought the premises. It had

not acquired any shares or interest in Nashua

Australia Pty Ltd. But nothing really turns on

that, I do not think. Your Honours will see that

the notification contends that the company has

dishonoured:

agreements reached between the Union its

members, and the Company and previous owners.

So I think if anything, although perhaps it is a

little imprecise, the notice does seem to relate to

the dispute which has just erupted - that is to

say, with respect to the dismissal of the men. So, progressively then, after the hearing

before Commissioner Donaldson, logs were

served - - -

TOOHEY J:  I am not sure why you say that, Mr Callinan.

What is there in the document that points to its

relevance to dismissal as opposed to changes of

hours and some other changes in work conditions?

MR CALLINAN: 

Well, Your Honour, could I immediately

concede that it is not clear? I think I said
before that it certainly is not precise, but it

does refer, Your Honour, to an alleged industrial

Vista(4) 

23/9/92

dispute and if one looks at the time, the date of
it and the date of the dismissals and the history,

although I agree, with respect, with any

proposition that Your Honour is putting to me, that

it is not completely clear, it really does rather

suggest that it relates to the dismissal, we would

put, rather than anything else. As Your Honour

will observe there is nothing in there about hours

or anything of that kind either.

TOOHEY J: No, it is just the use of the expression,

"dishonouring agreements reached", which is a

pretty pallid way of saying that somebody has been

dismissed.

MR CALLINAN:  Yes. I agree with Your Honour, and also I

might say that, of course, that was the matter that

led to the dismissal; that it was said that there

had been long standing agreements between the

employer and the men, with respect to the hours and

the employer wished to increased those hours and it
was only those men who refused to accept the
increase who were dismissed. So, in that sense,

with respect, what Your Honour puts to me is

correct, but it is certainly not inconsistent, we

would submit, with a dispute relating to dismissal.

Your Honours, could I take you then to the last event referred to on the first page of the

chronology and I only do that, Your Honours,

because the fact that such a statement was made by

the two Commissioners concerned was a matter to

which the Deputy President had regard in his

reasons. With the greatest of respect, we do not

know whether very much turns upon it but it was a

matter that was relied upon by the

Deputy President. Perhaps I should just draw

Your Honours' attention to that - - -

GAUDRON J: Well, that is a different award with different

union parties to it, is it not?

MR CALLINAN: Yes, I think it is, Your Honour, yes. But the

learned Deputy President seemed to think that it

had some significance in the context here. The Deputy President seemed to think that it was in

anticipation of the making of such a statement that

perhaps the log of claim which came into existence

on 7 March - that anticipated the making of a

statement of this kind because there had been

earlier case in which ambit had been discussed, but
with the greatest of respect, we do not think
anything very much turns upon it but the Deputy

President seemed to think it had a relevance.

I think the relevance that the

Deputy President attributed to it was the fact that

Vista(4) 23/9/92

the making of such a statement might be anticipated
explained the preparation and the service of the

new log which, of course, in fact, took place some

seven days before.

DAWSON J: What does all that mean, Mr Callinan, what

appears in the letter of 14 March?

MR CALLINAN:  I think, Your Honour, what it means is that

unions ought to be vigilant to ensure that they

have in existence logs of claim which are broad

enough or sufficiently definitive to bring within

them various disputes and arrangements which are in

the course of being negotiated and have been

negotiated from time to time by unions and

employers.

DAWSON J: Or is it to underpin a restructuring process

which the Commission is undertaking?

MR CALLINAN:  It could well be that, although one would have

thought, with respect, that the restructuring

process, as I understand it, had started some time

before, but it may well have been that,

Your Honour.

GAUDRON J: But it does apply to the production award?

MR CALLINAN: Yes, Your Honour.

GAUDRON J: And to the unions, and to the PKIU? It is a

party to the production award?

MR CALLINAN: Yes.

DAWSON J:  In other words, the Commission found that what it

was doing was not underpinned by a log of claims?

MR CALLINAN:  I think that is exactly it. Log of claims,

yes, and that everybody ought to put their house in

order by getting out an appropriate log of claims.

That says nothing, we would suggest, about

reinstatement really, either retrospectively or

prospectively.

Your Honours, then on 14 March the Union

notified the Commission of the dispute between

Vista and the Union. That is at page 584. It is a

fresh notification, and for what it is worth it makes no reference to anything of an interstate

kind at all. Indeed, nothing could be more

specific than its reference to the alleged

industrial dispute between the Union and one

employer at one address. I should inform

Your Honours that it is common ground that this

employer only has one business and only one place

Vista(4) 6 23/9/92

of business relevantly, and that is in New South

Wales.

Your Honours, the dates, 9 April and 19 April, speak for themselves.	On the 2 May
'91 - - -

BRENNAN J: 

Mr Callinan, can I just take you back for a

moment? At 584, the last paragraph, "alleged
lock-out", does that to relate to the dismissal?

MR CALLINAN:  Yes, Your Honour. There was a great deal of

evidence. I do not think I need to take

Your Honours to it but fences were erected and

there was a picket and there were security guards.

TOOHEY J: A lockout would ordinarily fall short of

dismissal, would it not?

MR CALLINAN: Yes.

TOOHEY J:  It seemed to be a fairly curious use of language

in these notifications of industrial dispute.

MR CALLINAN:  Quite. I suppose one does not treat them like

a legal document, but for all that probably lockout

is a misnomer. Measures were taken, I think, as

the employer saw it, where the employer •.... to

prevent break-ins or entries.

GAUDRON J: Was not the validity of the dismissal notices in

issue? Is it not still in issue?

MR CALLINAN:  I do not think it is in issue, Your Honour.

It is difficult to see how it could be when reinstatement is the relief sought.

GAUDRON J: Yes, but it may have been in issue then.

MR CALLINAN:  Yes, quite. No doubt people were taking

advice and looking at their positions.	It could
well have been.	For our part we do not seek to

place too much weight upon the terms of the

notifications. The things we point to are

omissions, really, of any reference to any

interstate element. Not that we suggest that that

standing alone assumes any great significance. But

it certainly does indicate the perception of the

area of the dispute in geographical terms, in any
event.

Your Honours, then, I was about to take you to

the fact that on 2 May the Deputy President handed
down something in the nature of an interim decision

in the sense that he found that there was a

relevant industrial dispute, I think it is correct

Vista(4) 23/9/92

to say, leaving aside for final determination the

matter of whether there was clearly any interstate

element, although the reasons do embark upon that

issue to some extent.

BRENNAN J: Where do we find those reasons, Mr Callinan?

MR CALLINAN:  They commence, Your Honours, at page 223 and

they are fairly lengthy. I was going to take

Your Honours to various parts of them later.

Page 226, I think, states what the issue is at

about line 10:

I turn, therefore, to what was the

principal issue in the debate; whether Vista

is a party to an industrial dispute including

a likely, pending or probable dispute.

I will not take Your Honours to it at this stage,

but then there is a discussion about the business

of other employers in other States, and then the

Deputy President cites a body of authority.	He
then discusses, for example - can I take

Your Honours to page 230 in the last paragraph,

beginning about line 33:

There is some evidence that APPM has requested

certain of its administrative and office staff

to consider an increase in working hours -

this is an employer in another State. So the

Deputy President is looking at the interstate

question. Then over the page at 231, he holds: In these circumstances it would be impossible

to hold that there was no genuine inter-State

dispute as defined about this matter and

related issues.

His conclusion appears at page 234 in the last paragraph:

In all of the circumstances and, particularly

having regard to the evidence given in the proceedings, I have reached the conclusion

that there is in existence an industrial

dispute within the meaning of the Act between

the PKIU and the employers named in the

schedule attached to the log of claims in

respect of wages and conditions of

employment -

and so on. It seems to have been a finding made on

the way there. Although the debate seemed to start with a debate about whether there was a dispute, at

that stage the Deputy President was satisfied that

there was a relevant interstate character in it.

Vista(4) 23/9/92

There were proceedings in other courts in

relation to that matter, and I will not take
Your Honours to it because the matter did in fact

come back before the Deputy President after some of

those other proceedings had been disposed of.	On
9 July, a draft award was tendered in the
proceedings which were by then back before the

Deputy President. That appears, Your Honours, at
page 598, it shows 588 - I apologize for that.

Your Honours will see that the award which has been

tendered, or the proposed award, relates only to

Vista Paper Products and contains a schedule of the

names of the dismissed employees at page 600.

DAWSON J:	Mr Callinan, this probably takes you out of order, and ignore it if it does, but does a log of
claims necessarily only·create one dispute, or can
it create more than one dispute? What I had in mind, can it create one dispute of an intrastate
nature and another dispute of an interstate nature?
You will deal with that in due course, will you?
MR CALLINAN:	I do not think I could possibly dispute the

proposition that provided it is a properly made

demand and satisfies all of the relevant

requirements, indeed it may well form the

foundation for the proposition that there are

disputes of both an intrastate and interstate

character. But in our submission, that proposition

does not run counter to anything that we are going

to put to Your Honours, because this Court has to

make its own independent review, as we understand

it, of the evidence relied upon to establish the

genuineness of the dispute and its interstate

character.

DAWSON J: What I had in mind was that the interstate

employers may be in dispute about those conditions
of employment or prospective conditions of

employment which gave rise to the dismissal of the

employees by Vista Products, but the actual

dismissal and the dispute about that is confined to
Vista Products and its employees.	Is that a
possibility?

MR CALLINAN: Yes, and indeed, we would submit that that is

what the evidence really shows here because both

the Deputy President and the Full Bench relied upon

what they describe as the Tasmanian evidence. I

think it is right to say that the only suggestion
of any similar type of - I will not even say
dispute - but any similar type of difference,

related to the hours of work of some administrative

staff who are not even bound by the same award.

And indeed, the evidence showed that that

difference had been and was in the course of being

resolved; that it had never reached the stage of

Vista(4) 9 , MR CALLINAN, QC 23/9/92

any industrial dispute; that there were

negotiations going on. Indeed, the evidence

DAWSON J: But really, even confining it more than that,

interstate people are concerned that they should be

not treated in a like manner in the process of this

restructuring, that is, they are not being

altruistic but they are concerned with their own

position and not with the actual reinstatement or

not of the people employed by Vista Products. Is

that a way in which it is put?

MR CALLINAN:  Yes. I am a little worried about an

unqualified acceptance because there seem to be

some cases which, as I understand it, suggest that

if in fact the contagion can be regarded as being

likely to spread, then that may constitute
sufficient basis for a finding that there is an

interstate dispute.

DAWSON J:  No doubt there is, but it is a question of about

what? About a reinstatement or dismissal of other

employees?

MR CALLINAN: Well, the evidence, such as it is - and I do

not have to take Your Honours to a lot of evidence

but there is some evidence that I will take you

to - we would suggest certainly does not go any

further than that. Indeed, it falls short even of

that.

DAWSON J: Well, that is why I am asking can you have more

than one dispute created by the one log of claims,

one interstate and the other not.

MR CALLINAN: Yes. And, as Your Honour has said to me,

disputes of a different kind. They may be entirely

different concerns.

BRENNAN J: Does that mean that you may sometimes have an

industry which is covered by a federal award and in

that industry there will be disputes which are not

amenable to conciliation or arbitration by the

Industrial Relations Commission?

MR CALLINAN:  Your Honour, my difficulty with that is the

premise that the matters are within the award but

are not amenable to resolution - - -

BRENNAN J:  I am not suggesting - my question to you was

that you could have an industry which is covered by

a federal award as to its general terms and
conditions and if a local dispute breaks out in
that industry it is not amenable to conciliation

ord arbitration by the Industrial Relations

Commission.

Vista(4) 10 23/9/92

MR CALLINAN:  If it is entirely of a local character and

there is no interstate element, yes, we would

submit that that is a possible result and not a

result offensive to the notion of industrial law

either.

DAWSON J:  Normally it would be covered by a log of claims,

a paper dispute, in other words there would be

ambit, but you can hardly cover reinstatement in

advance, it is something of a peculiar nature by a

log of claims. A log of claims will refer to a

regime, not to the particular situation.

MR CALLINAN:  Quite, and the log which was delivered here

really makes, with respect, the distinction that

Your Honour is putting to me because clause 5

speaks prospectively which, we would submit, is

designed to establish a regime, whereas clause 74,

we would submit, really is aimed at achieving a

legal result and the enforcement of legal rights

rather than the establishment of a regime. It goes

very much to the heart of our argument but it is

interesting to see the two clauses proposed and

their different legal effects in the same log of

claims. One, we would suggest, will pass the test,
the other one, we would submit, does not, it

involves judicial power.

Your Honours, just returning to our

chronology. From July until November 1991 there
were further days of hearing and there was further

evidence, and it is correct that there is a much

stronger attempt, as it were, to try to establish

the necessary interstate element. We would submit

it failed in fact. But it is interesting,

obviously there was some concern, notwithstanding

the finding of the Deputy President on 2 May to

which I have already referred Your Honours, there

was obviously some concern on the part of those

representing the parties that perhaps that finding

was not justified by the evidence which had been led until 2 May, because a great deal more evidence

was presented during those further hearing days

before the conclusion of the matter in November,

and I will be taking Your Honours to that evidence

in due course.

The Deputy President handed down his decision

on 13 December and his decision, quite a lot of it,

is taken up with an explanation, certainly not a

qualification, but an explanation, an elaboration

and, indeed, a re-enforcement of his findings and

what he had earlier said in his reasons of 2 May.

TOOHEY J: There seems to be something wrong with the

pagination there, Mr Callinan. The decision of

Vision(4) 11 23/9/92

13 December does not seem to appear on page 97, it

starts quite a bit earlier.

MR CALLINAN:  It starts at page 48. I do not know how these

errors crept in. It is 48, Your Honours, I am

sorry, and if I can just take Your Honours to some

parts of it briefly. Could I take Your Honours,
for example, to page 61, where the Deputy President
again embarked upon a discussion and makes a

finding with respect to the interstate character.

Right at the beginning of the page:

The evidence is clear that in at least in one other State of the Commonwealth, namely

Tasmania, the events which occurred at Vista are regarded as being potentially a harbinger of events in that State. This aspect was discussed in my earlier decision. This
evidence whilst not accepted as pertinent by

Vista is uncontradicted in the evidentiary sense. That is to say the evidence of

apprehension and concern is very real and

nothing has been produced to show otherwise.

And, again it is taken up at page 66, line 7: Care needs to be taken also to ensure that

there is not a fabricated situation, the

expression of sham concern of even genuine

sympathy, which is intended to be taken no

further, in an attempt to attract

jurisdiction. But this calls for judgment and

experience in assessing the evidence -

and so on.	I am not reading, Your Honours, very
many passages of it.	I am really only pointing to

some passages to convey the flavour of it and I

think I have sufficiently done that at this stage.

Well then, the rest of our chronology is

really concerned with procedural matters

with respect, that the award is actually made on	thereafter. However, Your Honours should notice,	18 December, but is said to be operative from 16 December, that is to say two days before. There is no doubt, we would submit, that the reasons are ambiguous. Indeed the Full Bench found them to be ambiguous and the matter had to be reconsidered by
the Full Bench and I will take Your Honours to that shortly, but the hearing - there was then an
appeal; the appeal was conducted on 20 to
24 February. There was a further hearing on 11 May and then an application was made and heard by Your Honour Justice Gaudron, which led to the
service of the notice of motion seeking the orders
nisi here. ·

Vista(4) 12 23/9/92

But after that was filed, if Your Honours go

to page 3, the hearing was continued before the

Full Bench because the Full Bench had earlier

raised the question that although the matter had

been, I think, thought by all of the parties to

have been fully argued, it was still ambiguous and

the Full Bench wanted to hear further submissions

in relation to the matter and there were further

submissions and those resulted in what we would

submit was an order which was not within

jurisdiction. We handed up to Your Honours some

supplementary material which contained the further

decision of the Full Bench.

TOOHEY J: Mr Callinan, when you describe that document of

2 September as a further decision, are we to take

it that a decision was handed down immediately at

the conclusion of the hearing on 24 February?

There is nothing in the chronology that speaks of a

decision following the hearing before the Full

Bench.

MR CALLINAN:  No, it was not; it was a reserved decision,

Your Honour.

TOOHEY J: When was that first decision handed down?

MR CALLINAN:	Of the Full Bench?
TOOHEY J: Yes.
MR CALLINAN:	Page 15, Your Honours, on 7 April.  Could I

take Your Honours to the supplementary material

that was filed. It is in a small separate bundle.

It was filed in Sydney, but I think Your Honours

were provided with a copy of it this morning.

MR ROTHMAN:  Your Honours, it may be of use. My instructing

solicitor has extracted all of the decisions that

are relevant and are also contained in the appeal

books.	We have that in book form if that is
convenient to the Court.

BRENNAN J: That would be of assistance, thank you,

Mr Rothman.

MR CALLINAN:  Your Honours, my learned friend tells me that

the decision to which I wanted to take you begins

at page 88 of that book.

MR ROTHMAN:  Can I just explain the number system.

Your Honours, I apologize. Not all of these

decisions are in the appeal book, so there are two numbers for that reason. The number on the top of the page is the number in the appeal book, so that the Court can cross reference it. The number at

Vista(4) 13 23/9/92

the bottom of the page is the number of this

extract.

BRENNAN J: Thank you, Mr Rothman.

MR CALLINAN:	Your Honours, just again so that you can get the flavour of the decision on the further
consideration, could I ask Your Honours to look at - I am looking at page 8 of the reasons. That
number will not correspond with the number in the
book, but it is page 8 at the top of the page of
the decision of 2 September of the Full Bench, the
last paragraph:

It appears to us that

Deputy President Riordan may have had in mind

that clause 3 would operate in the following

way on 16 December 1992: Vista had to offer

to each of the employees ••... a position

equivalent to that held at 4 March 1991 - I will not read any further, but what is clear is

that the Full Bench was in some doubt as to what

Deputy President Riordan had decided and intended.

Indeed, they said so in terms, that it was

ambiguous. In the end, at page 10 of their

reasons, they made the order that appears in the

final paragraph of the reasons:

In our view the appropriate course for us

to follow is to direct, pursuant to

s 45(7)(c), Deputy President Riordan to make

such variations to the Reinstatement Award as

he considers appropriate in exercise of powers

under s 113 for the purpose of removing
uncertainty or ambiguity in that award.

. Now, we challenged this decision on two bases.

We said first that if the principal decision falls

then this one must also, but we raised, I think

before Your Honour Justice Gaudron, a second point,

and that is that neither 45(7)(c) nor section 113,

nor a combination of them may authorize the course

which was directed here; that really what the bench

was doing, if one reads the reasons, the

Full Bench, was telling Deputy President Riordan to

have another go at it. It was not in the nature of

a variation. But Your Honour Justice Gaudron, I

think, ordered that that matter stand over and

whether we are entitled to argue it or not today

may be a different question and it may be entirely

unnecessary to do so. That completes the history

of the matter.

If I can go then to our outline, and I

apologize for its length but the contentions are

set out in bold type or in the sentence immediately

Vista(4) 14 23/9/92

following them. Otherwise, I am afraid that

perhaps the outline is a little longer than it

should be. But, Your Honours, our first contention

is that this was simply not an interstate dispute

and, to make good that proposition, I have to go to

the proceedings.

May I ask Your Honours to look first at

page 158 in volume one of the appeal book and there

Mr Cahill, on 19 April, is addressing the

Deputy President. Mr Cahill was the advocate at

that stage for the Union. Then, towards the end of
the page, line 33, the discussion starts:

And there's quite a number of subject matters, which the commission needs to vested with

jurisdiction, in order for it to make an

award, and my point, if I could stress it, is

that Mr Tamplin is wrong to assume that the

purpose of this log is solely to make the

employer respondents, which he represents,

respondent to the Graphic Arts Award. That

there could be other purposes in relation to

the log, and I alluded to making those

employers which he represents respondents, for
example, to the Printing Industry

Superannuation Award.

Then lower down on page 159, His Honour the Deputy

President intervened, at line 30:

Yes, but Mr Newell -

who was the employer's advocate -

has suggested that he's disadvantaged by the

fact that he's respondent to two set of

proceedings at the one time, and that he

shouldn't be in that position, and the way to

overcome that is to join it, and he says yes,

that's a good idea, and Mr Tamplin agrees with

it. What do you say?

Now, the two proceedings, Your Honours, were the

two notifications of dispute to which I have drawn

your attention; that is what the reference is

there.

Then Mr Cahill said:

Well, Mr Commissioner, if I could explain how

these proceedings eventuated, then it may

assist the commission in understanding my

reservations in relation to joining the

matters. I'm very much concerned that it - if

it doesn't cloud the water, so to speak.

Vista(4) 15 23/9/92

Commissioner Donaldson, in those proceedings I

refer to at page 18 of the transcript, advised

the unions in those proceedings that it be

reasonable for them to seek advise in relation

to the matter generally. Mr Newell raised the

issue of jurisdiction in those proceedings.

Mr Donaldson, thought it reasonable that they

should have the opportunity of seeking advice

in relation to any response that they might

wish to put in relation to the submissions

before him, and that concerns, as I said,

jurisdiction.

The commissioner expressed concern as to the

serious nature of the issue, and without any

sense as he put it, claiming jurisdiction,

that it would be in all the circumstances in

the best interest of everybody involved in

meeting at federal level.

So the Commissioner at that stage is really

inviting, according to that account by Mr Cahill,

federal consideration of the matter.

Subsequent to the commissioners statement in

transcript, on 7 March, he and
Commissioner Merriman issued a statement to

all unions, respondent to the Pulp and Paper Industry Production Award 1972, and the Pulp

and Paper Industry Maintenance and Service

Agreement -

and that is the statement of 14 March to which I

referred Your Honours. And then:

I'll just interpose, Deputy President and say

that that's reported •••••

The Commissioners then go on to say ••...

Now Mr Commissioner, as I said, that these

awards relate to early 1970s.

HIS HONOUR: Yes. Well, now in respect of

that statement, several unions concerned with

the production and maintenance of awards in

that industry have served logs with demands

against various employers, and I have that

listed in the very near future ..•.•

MR CAHILL: Yes, Mr Deputy President. If I

could say, that the intention to pursue a
dispute finding in these proceedings, is to

bring jurisdiction to this commission; to

bring the unions claims in settlement by award of the commission, and in so doing, precluding as Mr Newell did in the earlier proceedings,

Vista(4) 16 23/9/92

an employer from rebutting the validity of an

award, in it lacking constitutional

foundation.

Now, we would submit, that that is a very clear

indication that the sole purpose of what was done

was to cure a deceived constitutional defect. That

is an escapable concession, we would submit, that

is made by the Union advocate and it shows clearly

that there was not a genuine interstate dispute,

that what was done was done simply and solely for
the purpose of presenting the appearance of an

industrial dispute of an interstate character.

TOOHEY J:  Mr Callinan, when you say "what was done", what

specifically are you referring to?

MR CALLINAN:  I am referring, Your Honour, to the service of the log of claims after jurisdiction was raised on 7 March.

TOOHEY J:  Do you mean the service of a log of claims on

employers other than Vista?

MR CALLINAN: Yes, on all employers including Vista.

BRENNAN J: But if an award was sought or what appears there

is no more than what is necessary to found the

making of an award, the question really is, I

should have thought, whether there was a genuine

dispute with respect to the matters that were thus
claimed in the log of claims, is that not right?

MR CALLINAN: Your Honours, there may be an alternative and

that is that if the log of claims was a precursor

to a dispute, in the sense that if its demands were

not met, there would be a dispute.

BRENNAN J: That is what a paper dispute is, is it not?

MR CALLINAN: Yes, and, of course, one of our submissions is

that this Court has, with the greatest of respect,

attached far too much weight to the presumptive

effect to be given to a paper dispute. I realize

that this is a matter that this Court has debated

on many, many occasions and expressed very clear

views about, but later on in our submissions we

will come to that.

But, Your Honours, let me accept what

Your Honour says, yes, with respect, assuming a

paper dispute is adequate as a number of the cases

say, none the less it still must be a dispute which

the Union genuinely intends to pursue.

BRENNAN J: For the purposes of understanding your argument,

let it be assumed that each of the items in the log

Vista(4) 17 23/9/92

of claims was intended to be pursued by the Union
and was disputed by the employers. Would the

rejection of that log of ·claims not have given rise

to jurisdiction to make an award within the ambit

of that log?

MR CALLINAN:  Subject to the other things that we say later

about a paper dispute, yes. But, Your Honour, I
suppose I should state the other qualification that

the log of claims must have been a genuine log of

claims. It cannot be a log of claims which is no

more than merely a cloak behind which some other

claim lurks that is not truly of an interstate

character.

BRENNAN J: You mean by that, I take it, that if the purpose

of the service of the log of claims is to pursue no
claim, save that of an intrastate character, then

it is not a genuine dispute?

MR CALLINAN:  It seems to be the situation, as I understand

it, on the authorities. Unless one can say that

that is the sole purpose on the authorities then my

argument on this aspect of the matter would fail.

I have to show, as I understand it on the

authorities, that that was the sole purpose.

BRENNAN J: Well, that is what you will be directing us to,

I take it?

MR CALLINAN: Yes, I will be.

BRENNAN J:  And this passage started ...•. in the sense that

it shows you that this is one of the objects that

they had in mind.

MR CALLINAN: Quite. I do not suggest for a moment it takes

~e all the way there, but it is a starting point,

exactly. Your Honours, I do not think I need take

you to them, but if I can just give you the page

references. The Deputy President at page 223,
volume one, discusses interstate matters.	He

discusses the nature of a dispute; whether it may

be a likely, pending or probable dispute at 226,

lines 10 and the following lines. Then, if I can

take Your Honours to page 227. His Honour seems to

accept there that the mere service - really, one has to read 226 and 227, but the mere service of

the log is sufficient. That seems to be the effect

of it.

He really relies upon two matters. He relies

upon the service of the log. That appears from

pages 226 and 227. And then at page 230 he relies

upon what we would describe as the Tasmanian

evidence, and that particularly is discussed at a

passage that I have already referred Your Honours

Vista(4) 18 23/9/92

to, line 30 on page 230, and the first paragraph on

page 231. The two matters relied upon are the

service of the log of claims and the Tasmanian

evidence. The highest, we would submit, that the

Tasmanian evidence came for the Union was in the

evidence of Mr Spinks, and that evidence begins at

page 174, about line 28. Mr Spinks was president

of the Tasmanian branch of the Union, who was

employed by APPM at Wesley Vale, and then on

page 175, at line 13, after saying he had been to

visit the Burnie sub-branch, he said:

there was a branch executive meeting last

Monday -

and that was the Tasmanian branch. Then at

line 24:

And discussed at that branch executive meeting were issues pertaining to the pulp paper industry? ---Yes. There was quite a lengthy

report given .•.••

And what did that report involve?---The report involved the dispute at Vista, what was

happening to the workers in general -

and then we rely upon the next phrase, or next
clause:

and how Tasmania as a branch of the PKIU could

assist.

Now, standing alone, that would suggest a clear instance of a sympathy action, sympathy vote,

sympathy activity.

The report on the dispute at Vista; what

details were given and what was said •••.. ?---

The issues that were concentrated more on

were things like the fact that the fellas

there had lost the hourly rate. They were

losing conditions generally out of their award

which were going to have a great effect on us,

as we perceived them, being in the same award.

And in what way? Any particular way?---Well, I

suppose the structural efficiency that we're

all going through at this present stage. It

had big ramifications -

page 176 line 4:

Is there any issues within APPM concerning the
implementation of the structural

efficiency?---Yes. Presently where we're

Vista(4) 19 23/9/92

starting to implement career paths and

different areas on site, the management has

taken it upon themselves to promote outside of

those careers paths and without any sort of

consultation with the chapel.

And Your concern on the Vista dispute, does

that relate to the issues on structural

efficiency within APPM at Wesley Vale?---It

most certainly does.

Could Your Honours notice that there is no

suggestion so far of any dispute in relation to

structural efficiency? And then there is an

objection, and then at line 28 -

DAWSON J:  Why do you say there is no dispute, Mr Callinan?

There is a dispute with Vista.

MR CALLINAN:  I am sorry, apart from Vista.

DAWSON J: Well, may there not be a dispute with the

Tasmanian people and Vista based upon the

apprehension at what is happening there will flow

on to them.

MR CALLINAN:  Not if events in Tasmania, in fact, show that

there is no dispute in Tasmania, that indeed as

this evidence and other evidence will show that

management and the workers were satisfactorily

working through solutions, to solutions without

disputation.

GAUDRON J: What were they trying to solve, if not a

dispute? They may not have actually been locked

out or refusing to work or the like, but obviously

there was something going on which they were

seeking to solve, and which led to the statement by

Commissioners Donaldson and Merriman earlier in the

piece.

MR CALLINAN: There may be discussions, we would submit,

without a dispute.

DAWSON J:  But that may be a pending or threatened dispute

even if it is only discussions.

MR CALLINAN: 

It may be, but it is unlikely to be if, in

fact, as matters arise they are being resolved by
discussion. With the greatest of respect, we would

submit, it cannot simply be that because parties to

contract of employment are not precisely ad idem at

the outset of negotiations and discussions, there
is a dispute. That really is taking the notion of

a dispute, we would respectfully submit, much too

far.

Vista(4) 20 23/9/92

DAWSON J:  Can you not look at it the other way and say

there was a dispute between Vista and its employees

and there was the fear on the part of these people

in Tasmania that that would spread to Tasmania, and

perhaps prejudice their negotiations. Why then is

it not industrial dispute extending beyond - - -

MR CALLINAN:  We say two things: we say, first of all, fear

is not enough. But if, contrary to that

submission, fear is enough - if however the fear is

shown to be an unrealistic fear by the evidence,

indeed that there is no real basis for it then, in

our submission, that cannot constitute the

necessary element of an interstate dispute.

I mean, people may have very different

thresholds of fear. Some people might fear things

without any good reason for it at all.

Unreasonable people might fear things that are

completely contradicted by events.	It cannot be
the mere holding of an apprehension.	It must be,

we would submit, an apprehension held on reasonable

grounds. It is taking matters too far. I mean, it

would just make, we would submit, a farce of

industrial law if it were sufficient simply to

produce somebody who said, no matter how

unreasonably, "I am concerned that this may

spread."

I suppose a dispute in any industry may cause

in the minds of some people apprehension, no.matter

how remote they are from that industry or that

activity.

BRENNAN J: Mr Callinan, I understand the way you put it,

but looking at the evidence at 176, there has been some working out of structural efficiency problems

in Tasmania, but outside the areas of agreement it

is said the company has departed and has itself

promoted outside those career paths and without

consultation and then that unilateral action on the

part of the company is linked by the witness to

concerns arising at Vista with respect to the Vista

company's unilateral abrogation of what is said to

be award conditions. Does that not indicate the

identity of the concern?

MR CALLINAN: But no more than that, with respect, yes. But

we say it is a totally unrealistic concern. It is

an unreasonable concern and it, in truth, relates

to a different matter. I do not dispute that it is

the witness's link, or attempted linkage.

BRENNAN J: Yes.

MR CALLINAN: But, I will not repeat myself, I think

Your Honour appreciates the way we put it; it is

Vista(4) 21 23/9/92

not simply sufficient for the witness to say, "I

connect that with that".

BRENNAN J: No, but then one comes to the problem of panel

members' expertise and, as I understand what the

learned Deputy President has said, it is, here is

one employer, namely Vista, acting unilaterally to

abrogate award conditions. In Tasmania, APPM,
according to the evidence, is acting outside an

award and outside union agreement to restructure.

MR CALLINAN:  Yes.

BRENNAN J: From my knowledge of the industry, it looks to

me as though this may be a policy adopted by

employers in this industry to create structural

efficiency outside the awards.

MR CALLINAN:  Your Honour, let me accept, with respect, that

that is the effect, and I think it clearly is of

one matter, certainly, that the learned

Deputy President states. But Your Honour used the

expression "policy of employers", and there is

absolutely nothing to show that what was done at

Vista was the implementation of, if I can put it

this way, an interstate policy, or the policy of

employers engaged elsewhere, that is, other than in

New South Wales. Now, that is the problem about

it, we would submit.

BRENNAN J: That is the missing link, is it not?

MR CALLINAN: Yes, it is.

BRENNAN J: And the question is whether the missing link is

filled by the experience of the Deputy President.

MR CALLINAN: This Court has always said, as I understand

it, that it is bound to and will examine the

evidence itself, giving due weight of course to the experience of commissioners who specialize, and are

highly specialized, in knowledge.

GAUDRON J: The link is to some extent filled, is it not, by

the fact that it is a single award operating

throughout the industry in the different States in

which the industry is located. Any alteration in

award conditions in one establishment is likely to

cause other persons bound by the award to look

enviously to the same conditions.

MR CALLINAN:  On the evidence - - -

GAUDRON J: Whether they be employers or employees, they are

going to look enviously to whatever is secured

elsewhere in the industry.

Vista(4) 22 23/9/92

MR CALLINAN:  They might be going to look enviously, but

whether they are then going to take a step to

achieve the same result is an entirely different

question and requires evidence, we would submit;

not speculation.

GAUDRON J: In this industry; a single award operating

throughout the industry?

MR CALLINAN:  But the evidence showed, I think it is right

to say, that there were different conditions. For

example, Your Honour puts to me the award. The
award made provision, I think, for a 40 hour week.
The men at Vista, before the dispute, were working

32 hours and 50 minutes and the proposal of the

employer was, I think, that the hours be increased

to 37 and a half, something of that order in any

event. There was no evidence to show what hours

the APPM people were working. The evidence, if

anything, tended to suggest that this was no more

than a localized concession which had been made by

the predecessor of my client. So with the greatest

of respect, Your Honour, one could say that - - -

GAUDRON J: Even though we are talking about award

restructuring?

MR CALLINAN: Yes, even if we are, because there is other

evidence, I might say, uncontradicted here, to

which I will take you shortly, which shows in fact

that the restructuring process was operating very

satisfactorily in Tasmania.

GAUDRON J: And we do not look to what happened subsequently

in Tasmania?

MR CALLINAN:  I do not know what happened there,

Your Honour. If Your Honour is referring to

publicity that has been given about problems there,

I do not know what the nature of those are, and

this Court certainly does not either. Whether they

different matter. But the link cannot be	have got any relationship with Vista is an entirely	satisfied, we would submit, by speculation. There really has to be some evidence. As I say,
different people will be apprehensive about
different matters. Your Honours, if I can go on
with Mr Spinks' evidence, there is a reference, I think by Your Honour the president Judge, at the top of page 176. After that I was going to take the Court to line 29:

the dispute at Vista Paper Products, how that

connected itself to the issues at Wesley Vale

with APPM?

Vista(4) 23 23/9/92

HIS HONOUR:  Yes. Well, what's the answer to

that question, please, Mr Spinks?---Well, it's

tied in with the award modernization clause;

it's in the structural efficiency decision.

In what way?---Oh, well, there's things like, hours of work and the right to negotiate with the company on any issue.

If I can just pause there, that does not, we would

submit, supply the linkage; it is just far too

general.

At APPM Wesley Vale, have you a consultative

committee established?---We have but it's

presently not in operation because that same

committee became the restructuring committee.

So as a consultative committee, we don't meet

as such.

Well, when was that established?

And then, line 7:

that committee became the restructuring

committee, it just carried through.

Now, it is the next passage that I wanted to refer

to particularly:

Is there a concern by the members at Wesley

Vale as to the direction of the Vista Paper dispute?---Yes. The members are concerned that the way that the dispute, as we see it,

started at Vista, was going to follow through

to APPM at Wesley Vale and we don't want to be

put in a position where we're working on a

fairly good ground with the company -

and that is important, we would submit -

and then all of a sudden we're told all these

different changes are going to happen.

Now, he is saying there that he is concerned that

he is going to be told that. He is not saying, of

course, that he has been told that.

But the evidence that they are working on

fairly good ground contradicts, we would submit,

any realistic or genuine basis for apprehension,

particularly when one takes it with some of the

other evidence and with the concession that was

made as to the purpose of the service of the log of

claims. Then if one goes on, to finish it, at

line 27:

Vista(4) 24 23/9/92

Well, the Vista dispute to a lot of our

members is no different to what happened -
sorry, to what happened at King Island
scheelite and the same company which is the

parent company for the company that I work

for, North Broken Hill Peko, then carried on

further on the Western state in Robe River,

and that's being very, very mindful to the

members of that happening. So when this Vista

dispute came up, we just seen it as a Robe

River re-run type dispute.

Now, with the greatest of respect that just cannot

supply a linkage.

BRENNAN J: What does that mean?

MR CALLINAN: Well, exactly. It is - - -

BRENNAN J: No, but it does mean something, obviously, to

those who fear it and I appreciate that it is for

this Court to review the evidence, but one needs to

know, as it were, what are the industrial

frameworks within which that evidence is being

given. Does that mean, for example, that the

ultimate holding company for APPM is a company that

is likely to take advantage of any improvement in

employer conditions achieved under the same award

by another company elsewhere in Australia?

MR CALLINAN: Well, it may do, Your Honour, but a different

industry, presumably.

BRENNAN J: I appreciate that, but I mean, if it does, then

that is a very real factor, is it not?

MR CALLINAN:  Well, you would need to know when it happened,

Your Honour, and you need to know the circumstances

of it.

BRENNAN J: I do not, Mr Callinan.

MR CALLINAN:	Nor do I, Your Honour, that is why we say one cannot attribute any weight to it unless one does.
And there must be a limit to the extent to which a Commissioner or a Deputy President can use his own
personal knowledge. But let me accept immediately
that it does have some meaning of the kind that
Your Honour says and a meaning of which the
Deputy President is well aware.  It still does not
lead anywhere unless one knows what the
circumstances were.
One does not know - of course, one could not read the papers and not remember that a lot was
written about the Robe River dispute, I think at
about the same time as the Mudginberri dispute, but

Vista(4) 25 23/9/92

I cannot remember when it was. It was certainly

some years before the events here with which we are

concerned. There might be an entirely different

board. There might be a board of directors who

have got an entirely different attitude to

industrial relations. You really need to know the

circumstances. One might, for example, have the

view that the chief executive of Robe River, a

Mr Copeland or somebody, was regarded by some

perhaps as having a very confrontationalist

attitude.

So that is why, in our respectful submission,

these general matters do not lead anywhere. There

has to be some real evidence to provide a basis for

a legitimate concern. That is why we would submit

that this does not lead anywhere.

And if one reads the following passages one

could see that the witness is being continually

pressed, if I might say, with respect, by the

Deputy President to some extent, to try to find a

connection. Everybody is groping around trying to

find one and it is very difficult to do so.

HIS HONOUR:	Some connection?---Some
connection?

Is there some connection?---Well, I suppose - I mean, that is how bad it is, with respect -

Well, I suppose the way it was carried out, that one day you've got a job and the next day you haven't. Or your conditions are eroded.

HIS HONOUR: Well, very well.

MR CAHILL: It goes further than that, does

it, in relation - - -

he is told not to lead, and then there is a long

passage at page 61, line 8:

Well, you said earlier in relation to your restructuring committee and how that used to operate following the structural efficiency

negotiated agreement, is the dispute at Vista

Paper Products have any bearing on how it

could operate -

"how it could". Now, bear in mind that

Your Honours have already seen the evidence where

it appears that it is working fairly well:

In the first instance we'd see that fairly well dissolving because at present there's

Vista(4) 26 23/9/92

myself, as father of the chapel, and the clerk

of the chapel are full time on restructuring.

So it's a case of we're drawing up different

things as far as career paths and stuff like

that and we actually sit down and talk to the

company with them and of course with the
company telling us about the recession in the

industry, we've got things like that to

address and it's been a hard job for the

company.

I mean, really one can see a most conciliatory

attitude on both sides.

McHUGH J: That is not consistent with the resolution that

was carried and which appears at 594 of the appeal

book, is it?

MR CALLINAN:  I was going to come to that resolution because

we submit it is quite artificial in the light of

the evidence, but if Your Honours want to me to go
to it now I will. The first paragraph is

absolutely contradicted by the evidence and,

really, we would submit that the fact that it is

contradicted by the evidence just shows how

artificial and how much of a sham the whole dispute

was.

McHUGH J:  I am not sure that that is a fair account of the

evidence. I mean if you go ahead, say, at page 180

in the book, line 25, it says a statement that:

unless something isn't done about it fairly

smartly, we are going to be caught up in the

same dispute.

MR CALLINAN: Yes, I was going to take Your Honours to that

passage.

MCHUGH J: Yes, I am sorry.

MR CALLINAN:

But if I can just go on, on page 178, and what

I was saying was that the evidence really shows a

high degree of conciliation on the part of the

employer. You already have the passage that they

are working fairly well together. Here you have

got the passage:

been a hard job for the company as well as the

union ••••• you got the blokes on the shop
floor, you talk to them, you tell me all about

the situation ••••• we've had situations where

we've worked shifts - five by three -

and so on -

Vista(4) 27 23/9/92

And the blokes on the floor are frightened

you know, we want to have a got at your	it's just the company's way of saying that,
conditions. Like, we've got no money.
And is that how you've connected the company's
attitude at Wesley Vale to Vista Paper
Products?---That and also both managers at
Wesley Vale and Burnie are currently on - are
given the job by the corporate people, I take it ..••. inaudible ••••. to have savings in the
vicinity of 16 million and there was letters put on to the shop floor about how the staff
people are going to have their hours increased
to fall in line with what's happening at head office.

Your Honours might remember I said before, and this

is the evidence of it, that there was some evidence

that people employed in entirely different

situations had had alterations made to their hours,

Your Honour Justice Dawson has made the

suggestion that in so far as paragraph (b) applies

to the persons already dismissed, and given, at

least the assumption, that the only ones involved

in that category are those in the one State and the

suggestion that they are in a qualitatively

different situation from the rest of those

encompassed by paragraph (b), that is, the ones

that might be dismissed in the future, that the

claim should be seen as severable in respect of those past dismissals and, in other words, as I

understood the suggestion, that there is an

interstate dispute as regards the future but a
severable intrastate dispute as regards the Vista

employees who had already been dismissed.

In my submission, the question whether for

constitutional and statutory purposes, one should

view such a situation as involving the one

interstate dispute to be settled in part by an award

in reward in relation to the intrastate people, or

whether it should be regarded as two separate

disputes, depends on the circumstances in each

particular case.

If the claim relating to those who have

already been dismissed in then the whole context in

the whole industrial situation that exists, if that

claim is seen as sufficiently related to the
general prospective claim, one might conclude that

there is but one dispute, and the test as to

Vista(4) 89 23/9/92

whether there is one dispute or several disputes

will turn on the criteria of community of interest

as was discussed in this Court in the recent

argument in the Aberdeen Beef case, and one could

say that the employees in Tasmania do have an

interest in their own security of employment and

that their industrial situation vis-a-vis the

employer could be affected by what happens in

relation to the recently dismissed employees at

Vista Products.

Those recently dismissed employees, if one

sees the situation as being an ongoing industrial

situation in which - - -

DAWSON J:  So that they are motivated to make a claim that

there shall not be dismissals and, if you like,

that if there is a dismissal, they would be

reinstated. But, that is in relation to them.

MR ROSE:  But if the approach to the recently dismissed ones

were to involve the consideration of the same

criteria, the same principles, given that it is

arising out of the ongoing situation, one might

characterize it as but the one interstate dispute.

If one did arrive at that conclusion then, in my

submission, one could go on to the next stage and

albeit only involving a very few people but nevertheless, in my submission, coming within the

regard the settlement in relation to the dismissed

principle that an interstate dispute can be settled
bit by bit, sometimes even by very little bits at a

time, and that would be the conceptual framework in

which, in my submission, we would see it as

appropriate to deal with this case.

DAWSON J:  If the prospective claim and the claim of all the

other employees except - in relation to all the

employees except Vista is prospective, can be

settled bit by bit. It cannot be settled bit by

bit by settling a claim which is to operate

retrospectively, since their claim is entirely

prospective.

MR ROSE:  But, in my submission, it is entirely prospective

and different in that respect, but the criteria

that might be brought to bear to settle it and the

total industrial situation within which that has

got to be done.

DAWSON J: They are not claiming anything for the past, they are claiming for the future, that is, in relation to employers other than Vista.

MR ROSE:  My submission, with respect, Your Honour, is that

in that situation we were dealing with recently

Vista(4) 90 23/9/92

dismissed employees and a claim is made in that

industrial situation in relation to any other

employees who might be dismissed in the future,

that the same principles may well be brought to

bear, the same criteria as to the circumstances in

which it is appropriate to reinstate them. I think

it has already been said by one of my learned

friends that it would be rather odd to have the

Commission making an award in the stark terms, the

unqualified terms, of paragraph 70(b), so the

question would always arise as to what the criteria

should be, what are the circumstances in which

reinstatement - - -

DAWSON J: No, it is certainly just as odd to have an award	made relating to however many individual employees
who are the employees of an employer in a
particular State and say that that is settlement of
an interstate industrial dispute.
MR ROSE:	My submission, with respect, Your Honour, is that

in, for example, devising criteria for the

obligation that is to be imposed for the future

concerning reinstatement, there would be a natural

connection there with the criteria that would be

applied in deciding whether, in this case, the

Vista employees should be reinstated. I can

certainly say that in many situations where there is not this link of the ongoing dispute, it would

be quite artificial to regard the attachment of an

intrastate dispute concerning people who have

already been dismissed with a claim for the future,

and regard that as all the one interstate dispute.

But in my submission, in some circumstances - and I

do not wish to involve myself in the detailed facts

of this situation - of which this may be one, it is

not at all artificial to regard those two aspects,

past and prospective, as being comprised within the

one dispute.

If the Court pleases, I would wish to make some brief comments concerning sympathy strikes in

general, because one does see from time to time

rather unqualified statements that sympathy strikes

and sympathy claims and so on are necessarily
outside the jurisdiction. Again, it all depends

upon the circumstances, it depends on what claims

are made. The Caledonian Collieries cases, of

which there are two in 42 CLR, the first at

page 527, case No 1 concerned a situation where

there was a claim by employers in New South Wales

to reduce wages, and employees in Victoria and

Queensland simply went on strike, a sympathy strike

in the baldest sense. The Court, at page 555, make clear the reason why they decided that there was no interstate dispute there. They said:

Vista(4) 91 23/9/92

But the truth is that the conduct of the men and of their leaders imported no request or

demand upon their employers in either of these

two States.

They just went on strike as a protest against what

was being done in New South Wales.	They were
making no claims themselves.

There is a sequel in the Caledonian Collieries

case (No 2), beginning at page 558, in which a log

of claims had been served on the employers in

Victoria and Queensland claiming something, that

was claiming increases in wages. But the reason
why that was held not to create with the New South

Wales situation an interstate dispute was that the

Court said it was simply not credible that at that

time in the history of the disputation that the

Victorian and Queensland employers sincerely wanted

a wage rise. Quite the contrary, they thought, it

was simply not credible and the Court will see that

remark at the bottom of page 579, at point 7.

In dealing with sympathy strikes, one could go

on from those cases and say, "Well, if the
Victorian employees, for example, had genuinely

claimed that their employers in Victoria should use

their best endeavours to influence the New South
Wales employers to do the right thing in New South

Wales, that would be a case where claims were made, we will assume genuinely advanced.".

The difficulty, though, that the unions would have to face there is that there would be different

claims made in New South Wales, ie that wages not

be reduced from the claims being made in Victoria,

namely that the employers use their best

endeavours. But there again, the question, "Is

there one dispute so as to be an interstate

dispute?", depends on whether there is a sufficient

community of interest in the sense which was

discussed in the Aberdeen Beef case and one may

well find that depending upon the circumstances.

Of course, there can be statutory restrictions

so that sympathy claims of that kind are outside

jurisdiction on a statutory basis; for example it

is conceivable that legislation might say that

claims are not within jurisdiction unless they are

claims about the claimant's own terms and

conditions of employment and that claims that their

employers use their best endeavours, et cetera,
would be outside that concept. But, in my

submission, that would be a statutory limitation

and not one required by the Constitution.	If the
Court pleases.

Vista(4)	92	23/9/92
BRENNAN J:	Thank you, Mr Rose.	Mr Callinan?

MR CALLINAN:  Your Honours, we would submit that our case is

to be distinguished from the Ranger case, that is

Re Ranger Uranium Mines Pty Limited & Ors; ex parte

Federated Miscellaneous Workers Union of Australia,

(1987) 163 CLR 656, by virtue of the passage which

appears at page 664, the paragraph in the middle of

the page there, where the point is made that:

the relevant award imposes no obligation upon

an employer to reinstate a dismissed employee

or class of employees -

and it was a case in which section 5 of the old Act

could not be invoked. That was the section which

prohibited discrimination against employees on

various grounds, particularly grounds of membership

or participation in union affairs, matters of that

kind.

Your Honours, the only other matter we want to

say is this - and we appreciate that it does not

take us too far, but Your Honour the presiding

judge asked my learned friend whether Mr Cahill was

cross-examined in relation to some evidence to

which the Court's attention was drawn. Mr Cahill

was in fact called, I think principally to produce

some documents, but counsel who was representing

the employer made perhaps the mistake of asking him

some questions in chief. The result was that he

then was clearly the employer's witness and he was

in fact cross-examined, quite properly so, by the

Union. It does not lead very far, but it might

indicate why there has not been cross-examination

on that matter.

GAUDRON J:  I do not understand what you said about the point of distinction between Ranger. I had

understood that passage in Ranger to be referring

to the pre-existing award, if you like, and we do

award here. not seem to have any evidence of the pre-existing

MR CALLINAN:  I think we do, Your Honour, in the sense that

we know that it did not contain anything in

relation to reinstatement.

GAUDRON J: The production award did not have anything?

MR CALLINAN: Yes.

GAUDRON J:  How does that distinguish this case from Ranger?

I am lost.

MR CALLINAN:  I must say I did not read it in the way in

which Your Honour did, but if one reads it the way

Vista(4) 93 23/9/92

in which Your Honour puts it to me, there is not a

distinction. However, I must say I did not read it

as referring - perhaps it is my fault, but I did
not read it as referring to the pre-existing award.

I must say I read it as referring to the award, as

it were, being contended for. But if I am wrong

about that, then that is not a point of

distinction.

However, there are other passages - could I

put it this way. There are circumstances which I

need not go into, because I hope I would have

canvassed them, that distinguish the factual

situation, the jurisdictional factual situation

here, from Ranger. But as a matter of principle,
if the way in which Your Honour, with respect,
reads the case is correct - and I do not mean any

disrespect when I say that - then the distinction as a point of principle is not available to me in

the way in which I put it. Thank you,

Your Honours.

BRENNAN J: Thank you, Mr Callinan. The Court will consider

its judgment in this matter.

AT 4.21 PM THE MATTER WAS ADJOURNED SINE DIE

Vista(4) 94 23/9/92