Re State Public Services Federation; Ex parte Attorney General for WA, Qld; Re Electrical Trades Union of Australia & Ors; Ex parte State of NSW; Ex parte Sydney Electricity

[1992] HCATrans 162

.~

IN THE HIGH COURT OF AUSTRALIA	~
Office of the Registry

Perth	No P43 of 1991
In the matter of -

An application for a writ of

prohibition and a writ of

certiorari against the

Honourable JUSTICE PAUL MUNRO

and the Honourable J:.Q!lli

WILLIAM MACBEAN, Deputy

Presidents of the Australian

Industrial Relations

. Commission and COMMISSIONER

BEVAN ROSS JOHNSON, a

Commissioner of the

Australian Industrial
Relations Commission

First Respondents

STATE PUBLIC SERVICES

FEDERATION

Second Respondents

Ex parte -

THE ATTORNEY-GENERAL FOR THE

STATE OF WESTERN AUSTRALIA

Prosecutor/Applicant

Office of the Registry

Brisbane	No B42 of 1991
In the matter of -

An application for a writ of

prohibition and a writ of

certiorari against the

Honourable JUSTICE PAUL MUNRO

and the Honourable DEPUTY

PRESIDENT JOHN WILLIAM

MACBEAN, Deputy Presidents of

the Australian Industrial

Relations Commission and

COMMISSIONER BEVAN ROSS

JOHNSON of the Australian

Industrial Relations

Commission

First Respondents

Public 1 2/6/92

STATE PUBLIC SERVICES

FEDERATION

Second Respondent

Ex parte -

HER MAJESTY'S ATTORNEY-
GENERAL FOR THE STATE OF

QUEENSLAND

Prosecutor/Applicant

Office of the Registry

Sydney	No S19 of 1992
In the matter of -

An application for a writ of

prohibition and for a writ of

certiorari against

COMMISSIONER BEVAN ROSS

JOHNSON, a Commissioner of

the Australian Industrial

Relations Commission

First Respondent

THE ELECTRICAL TRADES UNION

OF AUSTRALIA, THE ASSOCIATION
OF PROFESSIONAL ENGINEERS AND

SCIENTISTS, AUSTRALIA, THE

FEDERATED MUNICIPAL AND SHIRE

COUNCIL EMPLOYEES UNION OF

AUSTRALIA, THE FEDERATION OF
INDUSTRIAL, MANUFACTURING AND

ENGINEERING EMPLOYEES, THE

METAL AND ENGINEERING WORKERS

UNION, THE FEDERATED ENGINE
DRIVERS, AND FIREMEN'S

ASSOCIATION OF AUSTRALASIA,

THE BUILDING WORKERS

INDUSTRIAL UNION OF
AUSTRALIA, THE OPERATIVE
PAINTERS AND DECORATORS UNION

OF AUSTRALIA, and THE
AUSTRALIAN INSTITUTE OF
MARINE AND POWER ENGINEERS

Second Respondents

Ex parte -

THE STATE OF NEW SOUTH WALES,

and THE ELECTRICITY

COMMISSION OF NEW SOUTH WALES

Applicants/Prosecutors

Public	2	2/6/92
Office of the Registry

Sydney	No S20 of 1992
In the matter of -

An application for a writ of

prohibition and a writ of

certiorari against

COMMISSIONER BEVAN ROSS

JOHNSON, a Commissioner of

the Australian Industrial

Relations Commission

First Respondent

THE ELECTRICAL TRADES UNION
OF AUSTRALIA, THE ASSOCIATION

OF PROFESSIONAL ENGINEERS AND

SCIENTISTS, AUSTRALIA, THE

FEDERATED MUNICIPAL AND SHIRE

COUNCIL EMPLOYEES UNION OF

AUSTRALIA, THE FEDERATION OF
INDUSTRIAL, MANUFACTURING AND

ENGINEERING EMPLOYEES, THE

METAL AND ENGINEERING WORKERS

UNION, THE FEDERATED ENGINE
DRIVERS, AND FIREMEN'S

ASSOCIATION OF AUSTRALASIA,

THE BUILDING WORKERS

INDUSTRIAL UNION OF
AUSTRALIA, THE OPERATIVE

PAINTERS AND DECORATORS UNION

OF AUSTRALIA, and THE
AUSTRALIAN MUNICIPAL

TRANSPORT, ENERGY, WATER,

PORTS, COMMUNITY AND

INFORMATION SERVICES UNION

Second Respondents

Ex parte -

SYDNEY ELECTRICITY,

LOCAL GOVERNMENT

ELECTRICITY ASSOCIATION OF

NEW SOUTH WALES,

CENTRAL WEST COUNTY COUNCIL,
ILLAWARRA COUNTY COUNCIL,

MACQUARIE COUNTY COUNCIL,

MONARO COUNTY COUNCIL,
MURRAY RIVER COUNTY COUNCIL,
MURRUMBIDGEE COUNTY COUNCIL,

NAMOI VALLEY COUNTY COUNCIL,

Public 2/6/92

NEW ENGLAND COUNTY COUNCIL,

NORTHERN RIVERINA COUNTY

COUNCIL, NORTHERN RIVERS

COUNTY COUNCIL, NORTH WEST

COUNTY COUNCIL,

OPHIR COUNTY COUNCIL, OXLEY

COUNTY COUNCIL, PEEL

CUNNINGHAM COUNTY COUNCIL,

PROSPECT COUNTY COUNCI,

SHORTLAND COUNTY COUNCIL,

SOUTH WEST SLOPES COUNTY

COUNCIL, SOUTHERN MITCHELL

COUNTY COUNCIL, SOUTHERN

RIVERINA COUNTY COUNCIL,

SOUTHERN TABLELANDS COUNTY

COUNCIL, TUMUT COUNTY
COUNCIL, ULAN COUNTY COUNCIL,

TENTERFIELD SHIRE COUNCIL

Applicants/Prosecutors

MASON CJ

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 JUNE 1992, AT 2.51 PM

Copyright in the High Court of Australia
Public	2/6/92

MR K.H. PARKER, QC, Solicitor-General for Western Australia:

May it please the Court, I appear with my learned

friends, MSC.A. WHEELER, and MR K.M. PETTIT, for

the Attorney-General for Western Australia.

(instructed by the Crown Solicitor for Western

Australia)

MR J.S. DOUGLAS, QC:  May it please the Court, I appear with

MR G.C. MARTIN, for the State of Queensland, and as intervenor in the Western Australian matter.

(instructed by the Crown Solicitor for the State of

Queensland)

MR S.R. MARSHALL:  May it please the Court, I appear for the

State Public Services Federation, together with my learned leaders, MR M.L.O. EINFELD, QC, and

MR F.L. WRIGHT, QC. (instructed by Lachlan Riches)

MASON CJ: Yes, that is for the second respondent in the

first of these cases, and for again the second

respondent in the second case?

MR MARSHALL: That is correct, Your Honour.

MR J.W. SHAW, QC:  May it please the Court, I appear with my

learned friend, MR M.J. WALTON, for various
respondents in the third and fourth cases, in

matter Sl9, for the first, second, third and

fourth-named of the second respondents, and in

matter S20 for the first, second, third, fourth and

eighth-named organizations amongst the second

respondents. (instructed by White Barnes &

McGuire)

MR K. MASON, QC, Solicitor-General for New South Wales: May

it please the Court, in matters S19 and S20, I

appear with my learned friends, MR J.L. TREW, OC,

and MR J.J.E. FERNON, for the prosecutor.

(instructed by the Crown Solicitor for New South

Wales) and (instructed by Freehill Hollingdale &	Page). In the first two matters I appear with the
same two persons on behalf of the Attorney-General
for New South Wales intervening. (instructed by the Crown Solicitor for New South Wales)

MR R. REITANO:  May it please the Court, I appear for some

of the second respondents in Sl9 and some of the
second respondents in S20, those being the fifth to

ninth respondents in S19 and the fifth to seventh

respondents in S20. (instructed by R.L. Whyburn &

Associated)

MR w.c.R. BALE, QC, Solicitor-General for Tasmania: May it

please the Court, I appear with my learned friend,

MR S.N. ALLSTON, intervening on behalf of the

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Attorney-General for Tasmania in the Queensland and

Western Australian matters, intervening in the

interests of the petitioners. (instructed by the

Crown Solicitor for Tasmania)

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

learned friend, MR T.J. GINNANE, for the
Attorney-General of the Commonwealth, intervening

in all the matters in the interests of the

respondent Unions. (instructed by the Australian

Government Solicitor)

MR B.M. SELWAY:  If it please the Court, I appear with my

MR M.D. WALTER, and Queensland matters in support of the prosecutors. (instructed by the Crown Solicitor for South Australia)

learned friend, intervening for the

MASON CJ:  The Deputy Registrar has been informed by the

Australian Government Solicitor, who appears for the first respondents in the Western Australian

proceeding, that they do not wish to enter an

appearance in this matter and will abide by any

order of the High Court. Likewise,. the Deputy

Registrar has been informed in the second matter

that the first respondents do not wish to enter an

appearance and will abide by any order of the High

Court. Yes, Mr Solicitor for Western Australia.

MR PARKER:  May it please the Court. This, of course, is

the return of an order nisi for writs of

prohibition and certiorari against the Australian

Industrial Relations Commission and the State

Public Services Federation. The order nisi appears

at pages 160 to 164 of the joint book of papers

Your Honours have in both the Western Australian

and Queensland matters. We do not, I believe at

the moment, need to turn to it.

would not propose to open the facts and deal with In view of the extensive written submissions I

argument as extensively as might otherwise have

been the case. Your Honours will perhaps

understand if, substantially, I speak to what is

before Your Honours already. But it is important,

I think, to set at least the basis facts so that

Your Honours can see those.

The SPSF by a letter of demand dated 28 April

1989, addressed to the Queen in Right of the State on Western Australia, required the granting within

seven days of claims set out in the log attached to

the demand. The claims were in respect of all

employees of the State who were members of the SPSF

or who were eligible or might in the future be eligible for that membership. The claims also

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extended to the Professional Officers Association. There were, however, as regards Western Australia, practical limitations about that as the

Professional Officers Association had no

constitutional coverage in respect of Western

Australia; it had though in respect of Queensland.

The SPSF, on the other hand, had no constitutional

coverage in respect of Queensland.

Now, in the course of argument, particularly

by my learned friend, Mr Douglas, for Queensland,

significances of that will be addressed and my

submissions will not stop to deal with that.	We
would, with respect, though, adopt those
submissions in anticipation.

I would mention that since the log, and before the finding of dispute, the SPSF and the POA

amalgamated and continue now as the SPSF.	The
eligibility rules of the SPSF imposed some

limitations on the scope of this demand, which was

otherwise in respect of the whole of the employment

by the Crown in Western Australia.

Now, the task of analysing the rules which are

quite incompletely set out in the decision in the

papers, but which will be more expensively put

before you by Queensland, would really be time

consuming to very little value for the purposes of

our submissions. Basically, where there were

pockets of federal award coverage in the case of

Western Australia, existing almost entirely in

limited areas of statutory corporations and the
like, not in the public service itself, then the

eligibility rules excluded SPSF from those

particular areas of existing federal coverage.

Examples would be nurses, except those in

public service, railway workers, many engineers -
professional that is - storemen and teachers.
Nevertheless, the Commission in its decision was

able to say, with substantial accuracy of WA, that

the log might properly be characterized as directed
at all those of whom the Crown in Right of WA as
employer, including all public servants, employees

of ministers et cetera.

Now, the terms there are set out in

paragraph 3 of our written submissions, and for the
purposes of our argument I think that will

sufficiently explain the position to Your Honours.

There you will see that, in respect of Queensland, the log is concerned with a wide range of Public

Service employees engaged in specialist and

professional callings, but not to the clerical,

administrative and associated support grades who

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constitute a significant section of the

departmental work forces.

In Western Australia the log covers those

employed by the Crown in Right of the State, by

statutory authorities, instrumentalities and

government controlled corporations. The log, in

respect of Western Australia, may properly be

characterized as directed at all of those whom the

Crown in Right of Western Australia is employer,

including all public servants, employers of all

ministers, unless excluded by the Union's

eligibility rules, and salaried staff of a motley

species of organizations associated with or

controlled by the State Government.

In Tasmania the log had application to the

Tasmanian Public Service. It was on those three

States that the log and the letter of demand were served: Western Australia, Queensland and

Tasmania.	The letter of demand is at page 173 of
the papers before Your Honours.	It is quite brief.

It requires the granting of the claims:

to your employees and. future employees who are

eligible for membership of -

the two Unions mentioned.

Failing the granting of these claims or a settlement of these claims within seven days -

a dispute will be notified.	The log of claims is
at page 175.	You will see that it is:

made in respect of all persons eligible for
membership of -

the two unions -

whether mernbers ..... or not, employed by any of

the respondents set out in the Schedule of

Respondents hereto. Any award made as a

result of the service of this Log of Claims

shall apply in all States and Territories of

the Commonwealth in which from time to time
employees of any of the respondents set out in
the Schedule of Respondents hereto may be
employed.

That of course is limited to employees of Western

Australian, Queensland and Tasmanian respondents.

What the log sought in respect of all of those

ranges of employees was a minimum wage of $5000 per

week and a minimum allowance of $2500 per week in

addition. Thirdly, it sought that those rates be adjusted in accordance with positive movements in

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the Consumer Price Index. So the subject-matter

was remuneration and remuneration only, and the

claim was a single claim in respect of all people

employed within the terms of the log in the three

States, and sought a single rate of pay and

allowances. Those claims of course were for pay

and allowances totalling $390,000 a year in respect

of each employee.

TOOHEY J:  Mr Solicitor, does the term "allowances" have

some generally understood meaning among the

parties?

MR PARKER:  No. There are of course a variety of allowances

that are in usage in Western Australian

governmental employment. Those allowances vary

considerably in type and extent according to the

type of employee. Those allowances would be in

some respect similar, in other respects quite

different, from those which would for the moment be
found in Queensland or Tasmanian government

employment. But some sorts of things would be

common, for example, a travelling allowance if

employees were to be away from their home station.

The nature of it, how it is calculated and in what
circumstances it is paid is a very very

wide-ranging experience. That is just taking an

obvious example such as travelling allowance.

DEANE J: Are you an employee of the Crown, Mr Solicitor?

MR PARKER:  I am. I believe, Your Honour, there is a very

neat question whether judges are within this log.

It turns on just how far the notion of employee

would go but it would certainly seem to include the

holders of statutory offices other than judicial.

DEANE J:	You have a bit of a conflict of interest here?
MR PARKER:	I do, indeed, Your Honour, and one part of me

wishes all success to the venture. In respect of

the Western Australian employees and employers, who

are within the terms of the log, there was no

previous award in favour of SPSF or POA or any

federal award of any type. In Western Australia,
except for the most senior officers, the wages and
conditions of all the WA employees within the log

were regulated by State awards, some 50 all told, to which a number of State registered unions were

parties; included among those State registered

unions for some of the awards was the Civil Service

Association of Western Australia, an associated

union with the SPSF, which is a federal union born

out of a number of State public services unions. In Western Australia, I mentioned that the

salaries of the most senior officers and statutory

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office holders are not covered by awards. They are

regulated under the jurisdiction of the Salaries

and Allowances Tribunal, a statutory body which is

established to deal with the salary and allowances
of the judiciary, the members of Parliament and the
most senior of government servants, whether in the

public service proper or the holder of statutory

offices.

The employers in the schedule of the log

differed as between each State. In the papers, at

pages 176 to 188, Your Honours will see listed the

Western Australian governmental employers. They

included the Queen, the Premier, all ministers, the

Public Service Commissioner, virtually every

statutory or public authority, instrumentality and

corporation of the State. I think, generally, if

any have been missed it is probably a matter of

oversight. There is a very extensive and

exhaustive listing. The heads of some public

service departments have been nominated, as well as

the Public Service Commissioner.

A number of those authorities, I might mention, are uniquely Western Australian and unique

in this log. Then, at page 184 and following,

unique entirely to Western Australia in the log are

all public hospital boards. In respect of very

many of them, it is the Minister for Health herself

who is the board of management of a large number of

public hospitals and, in respect of other

hospitals, the board of management itself is

specifically addressed and they seem to cover some

five pages of the papers before. Your Honours. So,

hospitals are uniquely a party in Western

Australia.

Now, I will leave to my learned friends a

detailing of the position in Queensland and

Tasmania, but with this general observation that

the log was significantly more extensively

addressed in Western Australia than in either of

the other States; in Tasmania it was the next most

extensive being addressed to the Public Service and

in Queensland the coverage contemplated was more

confined. No employers, other than the three

States and their agencies and instrumentalities,

were served. So the only respondents to the log were the States of Western Australia, Queensland

and Tasmania.

There was a notification of the dispute to the

Commission on 10 May 1989, as foreshadowed. The

President directed the Deputy President to report on jurisdictional issues; very lengthy hearings

were conducted before the Deputy President, in the

course of which the State of Western Australia

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presented exhaustive evidence as to the nature of the activities of each of its employers listed in the schedule of the log of claims; the number of

employees of each employer and the nature of their

respective activities, including details of the

statutory and award conditions applicable to each

class and category of employee of each employer. A
report of these hearings was presented to a

Full Bench of the Commission which, after

submissions on 28 August 1991, found that an

industrial dispute, extending beyond the limits of

any one State, existed. The finding is at page 158
of the papers - - -

DAWSON J:  I do not want to be technical, Mr Solicitor, but

does the Industrial Relations Act bound bind the

Crown in Right of the State?

MR PARKER:  The answer is yes, sir, the section number I

will get you in a moment. It used not, except

perhaps from any implication that might arise from

its definitions of public sector employment, but

now section 6 provides that the:

Act binds the Crown in right of the

Commonwealth and each of the States and the

Northern Territory -

and the Australian Capital Territory.

DAWSON J: Thank you.

MR PARKER:  On page 158 in the finding, Your Honours will

see that the Commission found and recorded that

the:

dispute exists between the SPSF and certain

employers served with a letter of demand and

log of claims ..... and who have refused or not

acceded to the claims made.

I might mention that there was no act of accession

by any of the Western Australian employers to the

demands.

The subject of the dispute is the industrial

matters raised in the letter of demand and the
attached log of claims; that is the remuneration of

the employees of the employers' log.

The parties are the SPSF, on the one part, the

premier and ministers are mentioned there down to

Western Australia, and then if Your Honours skip to

line 43:

and the Ministers and public officers listed

in the schedule of the log of claims, subject

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to the deletion therefrom of the public

officers corresponding to the agencies listed

in Exhibit.

They were a very small number of agencies shown to

have no employees.

The dispute extends beyond any one State and

exists particularly in relation to the States

of Western Australia, Queensland and
Tasmania -

is the final conclusion of the finding. So that there is found to be a dispute, extending beyond the limits of any one State, between SPSF and the

employers concerning the matters raised in the log

of claims, and that finding was varied at page 159,

simply to include Her Majesty The Queen in right of

Crown's employment, within any of those

the State of Western Australia and, similarly, for the

confined limitations imposed by the Union's

eligibility rules, is within the scope of the

dispute as found.

The Commission gave reasons for its finding

and its decision that the dispute existed, I will

return to them in some measure as my submissions

proceed, the reasons extend between pages 117 and

157 of the papers.

Of significance, in our submission, is that

despite the extensive evidence taken by the of dispute, the Commission was in the end left to

proceed on the basis that the only evidence it had

of the existence of an industrial dispute, or of
the threat of an industrial dispute, was the
existence of the log of claims and the letter of

demand, their contents and the failure of the

respondents to comply with the demand.	The
Commission did not refer at all to any dispute,

demands, discontent, industrial action or the like,

whether real or threatened, there was lacking any

evidentiary basis for it to do so.	We are,
position of a classic paper dispute, and solely so.	therefore, if it please Your Honours, in the industrial reality of which the paper dispute could
be said to be a reflection.

Now, in the course of the decision, the

Commission, in part, dealt with the fact that only

the POA had constitutional coverage in Queensland

and the SPSF in WA. As I have indicated, my

learned friends for Queensland will develop our

submissions in respect of that.

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At page 123, commencing at about line 36, the

Commission noted that the extensive evidence led by

Western Australia was:

to establish that the log related to the

administrative services of the State -

however, no attempt was made to make the findings

which this evidence was led to enable. The reason

for this, which I will return to in some detail, is

the conclusion of the Commission which appears at

page 146, that it should act upon a preliminary

view expressed by three of Your Honours in Re Lee,

the Teachers case, 160 CLR 430 - I will not take

Your Honours to it at the moment - which is set out

extensively in the reasons.

It appears particularly that the Commission

took the view that in view of that preliminary
expression of view any implied limitations that

might operate to limit the capacity of the

Commission to make an aware operating in respect of

the States, was not one that required any

identification of the administrative services of

the State or any identification of those whose
functions might be thought to be essential to the

functioning of a State as government. Hence, no

attempt was made in the reasons to consider the

evidence and to identify how these factors were

reflected in the actual employees and their

functions, among those that were identified in the

log.

The Commission, of course, found that there

existed a genuine interstate dispute, if I could

put that in shorthand, that is a real dispute, an

industrial dispute, which extended beyond any one

State. That involved necessarily a conclusion that

there was a dispute, one dispute and that dispute

existed in more than one State. Our written

submissions, commencing at paragraph 8 and

extending quite considerably, attempt to deal with

the finding and the law in dealing with

interstateness and dealing with genuineness and in

the course of that, giving consideration to both

the paper dispute doctrine and the ambit doctrine

in so far as they are relevant and appear to have

been relied upon in this case.

TOOHEY J:  Mr Solicitor, before you embark on that analysis,

the finding speaks of employers who have refused or

not acceded to. Does that purport to draw a

distinction between employers, or is it a sort of

catch-all phrase?

MR PARKER:  I think it is just a global phrase, if it please

Your Honour. I believe I am correct in saying that

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in respect of Western Australian employers, there

is no relevant distinction. There has simply been

no Act to accede or comply with the demands that

were made.

If could take Your Honours to some of the core

part of the decision, commencing at about 130 of
the papers, Your Honours will see that the

Commission posed for itself the issues for

determination. We do not dispute those in any way:

whether having regard to the effective refusal

of the letter of demand, and to the content

and character of the demand, an industrial

dispute can and ought be found.

It then directed itself, over the page on 131, as

to interstateness by canvassing in summary its

understanding of the submissions by the respective

parties. At the foot of page 131:

We do not accept that consideration of the existence of a dispute ought be confined

to the circumstances existing at any one time

prior to the date on which a finding of

dispute is made or rejected.

It was here dealing primarily with the nature of

the POA log and the fact that it was the SPSF by
this time which was persisting in the log before
the Commission. Over the page on 132, having dealt

with that point, it determined what it felt would

be - that the proper time for reference included
the time of finding the dispute. After some

references to authority, at the foot of page 132:

In the circumstances of this case, the

demand made in the log served by the 2

organisations has been maintained and

continued up to the time of the proceedings

before this Bench, and has effectively been	adopted by the SPSF ..... the SPSF now has
capacity to represent the industrial interests
of employees of all three State Governments
upon whom demand was made. In the circumstances we are satisfied that a dispute
over the industrial matters raised in the log of claims exists between the SPSF and the
employer parties logged.

That finding is reached having canvassed simply the service of the log, the failure to accession, dealt

with the movement between POA and SPSF, and then a

conclusion is stated:

we are satisfied that a dispute over the

industrial matters raised ..... exists -

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They mention that an interstate character of the dispute - and Your Honours will notice that it

is referred to in a terminology that assumes the

interstate character - is not precluded because of

the SPSF/POA joint form of the original demand.

The Commission then continues:

It is necessary to consider also the

further contention that the division of

coverage within the SPSF rule and the purely

intrastate function and operation of the

employers logged in each State denies the

common refusal of the demand the character

necessary if the dispute is to be held to

extend beyond the refusing State.

Your Honours will already perceive in that, in our

submission, a reversal of onus.

We are not persuaded we should take such a

view of the refusal of the log. The demand

made is literally a demand for observance

within each State of a national standard rate

of pay.

I will pause there to mention that there was no

such literal demand whatever. Your Honours have seen the log and the letter of demand. That was

not literally the demand, and that, in our

submission, is a most material misdirection by the

Commission and wrong finding.

In relation to such a demand -

that is, a demand for a national standard rate of

pay -

there is ample authority for looking beyond
the purely intrastate character of the

individual employers.

So the Commission is saying that because this, as

they have concluded, is a demand for a national

rate that then of itself transcends what might

otherwise be intrastate characteristics of the

employers. Their Honours then say:

In this instance the employers have in common

the public sector background which entails

some of the industrial characteristics which

the objecting States rely on in this case in a

different context.

In opposition to the notion of private sector

background, accurate, we will submit in a little

more detail in a moment, of no materiality though

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for the purposes that the Conunission was directing

attention to that fact.

Although there are several differences of importance between the functions and character

of employers in the respective States we
consider that the nature of the demand, and
the community of interest of the employees
represented by the SPSF are sufficient to
oblige the Commission to find that the dispute
extends beyond the limits of any one of the

three States involved.

So far the course has been to find that there is a

dispute, to focus then on whether it extends beyond
the limits of a State, having found there was a

dispute to say, "Yes, there is a national standard

rate of pay and it is all public sector employment.

The nature of the demand, the conununity of interest

of the employees are sufficient to oblige a finding

of interstateness."

The next step in reasoning is to look at

genuineness and there is consideration of a -

failure of the log to particularize

claims ..... to take account of the diversity of

conditions -

as between employment and regulations within the

States as between different employees and a number

of other factors; to submission that the sole
purpose of the log was to attempt to sustain a

federal award to operate in Queensland; concluding

that inference was not, by itself, sufficient to

lead to the conclusion that the dispute is not

genuine. And then to dealing with submissions of

Mr Einfeld, toward the top of 134; directed itself

in law, at the top of 135; identifying, at about

line 30 and following that the:

demand is simple and crude.

And at about line 38:

Those aspects of the log certainly do little

to reduce the scope for challenge to the

genuineness of the dispute alleged to have

been generated by the employers in refusing

the log.

A statement again which is implicit with the reversal of onus. And then at the foot of the

page, it is mentioning at about line 50 that as the

log had been persisted in over some extensive

argument before the Conunission, it suggested that

the:

Public 16 2/6/92

log was not sincerely propounded as a demand

upon which the SPSF is resolved to insist -

which of course fails to identify whether it is

insisted upon to obtain what is demanded, or

insisted upon for some other purpose, such as

securing federal coverage, each of which reasons

would fully and adequately explain the persistence

which the Commission had identified.	And then at
the last three lines of 135:

It is with some hesitation, and on a fine

balance, that we have concluded that the
dispute generated ..... is real and genuine in
the sense that the SPSF wants and is actively

pursuing what it claimed in the log.

Then follows some reasons identified by it for that

proposition, which I will turn to in detail in a
little while. Then follows some consideration of

whether it is appropriate and within power to make

a finding and an award which goes in the way

contemplated by the demand to the public services

of the States, and I will return to that reasoning

in the end.

But if I could now address some submissions to

that part of the reasoning to which I have just

outlined to Your Honour, the course followed by the Commission, in our submission to identify errors of law and one or two matters of fact, but essentially

errors of law in the approach of the Commission to

its task. Your Honours will have noticed that at

page 133, the Commission indicated that it was

obliged:

to find that the dispute extended beyond the

limits of any one of the three States.

And it did that for reasons which included the

community of interest and because of the

interstateness of the service of the logs. Our

submission is that, in these matters, the Court
applied both artificial and erroneous tests. It

took as its starting point a passage in the

judgment of Sir Harry Gibbs, which is in Cohen,

157 CLR 331 at pages 337 to 338. And toward the

foot of page 337:

Although a dispute may be contrived, it

must be real and not a mere fiction. The

demands must be genuine, in the sense that the

organization making them really wants what it

demands.

I remind Your Honours of the significance of the

finding I mentioned a few moments ago, that the

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Commission was impressed with the persistence of

the Union, but the issue really is whether the

persistence of the Union is in securing that which

is demanded:

If the log is not sincerely propounded as a

demand on which the union is resolved to

insist, and is nothing more than a step

towards enabling the Commission to exercise

jurisdiction, it will not create a real

dispute.

Over the page on 338:

The question whether a dispute is real and genuine is a question of fact, and when

prohibition is sought it is for this Court to

determine whether or not the fact on which the

jurisdiction of the Commission depends

exists ..... A formal demand will prima facie be

regarded as real and genuine, unless the

contrary is established.

In our submission, Your Honours will appreciate

that what is being dealt with there is proceedings

before this Court on prohibition, where it is

sought to establish that there was not a real and

genuine dispute, and the former Chief Justice is

pointing out that where prohibition is sought in

this Court, where there is a demand and it is not

acceded to, then prima facie that is real and

genuine unless the contrary is established to the

satisfaction of this Court as a basis for grounding

prohibition, et cetera.

The Commission, in its direction on this

point, cited that passage but omitted from its

citation the passage at the top of 338, "when

prohibition is sought" in this Court, so that it

concluded its citation with the statement:

A formal demand will prima facie be regarded

as real and genuine, unless the contrary is

established.

In our respectful submission, that may be the clue

to how it is that the Commission in fact has

concluded, in this case, that there is a genuine

interstate demand, because following the form of

citation that it made from that case, the course of

its reasoning, which I have quickly tried to

outline, is essentially, "There was a dispute. Now

do any of these things, such as interstateness and
genuineness, displace that finding, the finding

arising from the existence of a log and its

non-acceptance?"

Public 18 2/6/92

DEANE J:  Mr Solicitor, is what you say about - mean to be

given the Chief Justice's comment there correct, in

that if you look at the Felt Hatting case, which is

obviously making that comment in a context of the
the first authority he quotes, there this Court was
dealing with a case stated from the old

primary fact finder. Do not pause to deal with it

now, but you might, subsequently, have a look at

the case and see whether what Chief Justice Gibbs

said is to be confined in the way you suggest?

MR PARKER:  Thank you for that. If it please, Your Honour,

we would, for the moment though, content ourselves

with drawing to the attention of the Court the fact

that what is expressly stated there is in the

context of prohibition in this Court and indicating

the factual background against which issues of

prohibition might be approached by this Court.

Could I perhaps, not at the moment being able to deal with Felt Hatters directly, nevertheless, turn

to our written submissions at paragraphs 20 and 21

on pages 12 and following, which may assist

Your Honour Mr Justice Deane. We there identify

cases which we respectfully submit that it is made

clear that a log of claims and a failure to agree

in that log is evidence of a dispute which may be

considered together with other relevant
circumstances in considering whether a genuine
dispute exists.

Now, Saw Millers is mentioned but there has been omitted in the typing, I apologize the next

line. It should be Builders Labourers Federation;
Ex parte Jones, 18 CLR 224, at 255 per

Justices Gavan Duffy and Rich. I am sorry for that

omission but, in our submission, those cases

indicate clearly that proposition, in particularly,

corning up into more current times, Heagney, the

last of those that are listed, particularly at

pages 93 and 100, the former Sir Garfield Barwick,

the latter Your Honour the Chief Justice and

Justices Stephen and Jacobs agreeing, indicated

that proposition.

It has been alternatively put, if I could,

perhaps without asking Your Honours to turn to it,

just read you quickly what is said at 93 and

at 100:

There is one other fundamental

requirement of a relevant dispute, namely,

that the dispute be a genuine dispute. As I

have indicated, a written and unsuccessful

demand for terms and conditions of employment

may give rise to a relevant dispute: but it

does not necessarily do so. It may be

Public 19 2/6/92

established by evidence that the demand was
not authorizedly made or that its terms do not

represent what really the members of the union

desire or require, or it may appear that, upon

its face, the demand was made in terms not

really to seek their acceptance but merely to

endeavour to attract the jurisdiction of the

Conciliation and Arbitration Commission.

I mentioned that the Chief Justice there was in dissent in the judgment on the question of intelligibility of the log. His comments as to

genuineness were obiter, and that issue was not

dealt with by the other members of the Court, but

the reference indicates his position and the

reference at page 100 is at the very top of the

page and is very brief:

The longstanding doctrine of this Court is

that refusal or non-acceptance of a paper

demand is evidence of a dispute.

Now, at paragraph 21 we have cited two cases where

it is put that service and refusal is prima facie
evidence, or that the demand may be prima facie

considered to be genuine.

The reference to the first case, Jones, should

be to 18 CLR 224. I am sorry, not every reference

in these submissions is incorrect but the first two

I have turned to include errors. It is 18 CLR 224,

particularly at page 246. In our submission, the

two different ways that we have identified in those

line of authorities of putting the proposition

indicate that all of them really take the view that

the existence of a paper dispute shown by service
of a demand and its non-acceptance. In the absence
of any other factors, to show that the parties were

in dispute may be accepted, but if any other

factors, either in the log itself or in evidence

led by any party, pointed to the absence or

presence of a genuine dispute, it was for the

Commission to consider all of the circumstances and

to decide for itself whether the jurisdictional

fact was established.

Your Honours will appreciate that this is a

jurisdictional fact. "Is there a dispute of the

necessary interstate character in existence?" At

paragraph 23, we have submitted that the principle

does not place an onus on the respondent to prove

lack of jurisdiction. In other words, merely the

service of the log and its non-acceptance does not

then put the respondents to the log in the position

of having to disprove that there is genuineness.

We are looking at the establishment of a

jurisdictional fact. If there is other evidence or

Public 20 2/6/92

if the terms of the demand itself provide a basis

for questioning genuineness, then that must all be

weighed in coming to the necessary jurisdictional

finding that a dispute exists.

That approach, we would submit, is consistent of course with principle in dealing with

jurisdictional facts. To conclude otherwise would

be inconsistent with the usual understanding of

prima facie evidence which some of the cases refer

to as their explanation of the position, and we

also submit that it would be inconsistent with

well-established constitutional principle to allow

what is a constitutional jurisdictional fact to be

transgressed by some fiction. We have given

Your Honours a reference there to Justice Windeyer

in the Professional Engineers case.

BRENNAN J:  Does the word "genuine" do anything to add to

the meaning of dispute?

MR PARKER: If it please Your Honours, I believe "genuine"

primarily is intended just to draw attention to

what is within the constitutional concept, "Is

there an industrial dispute which extends beyond
the limits of any one State?" Quite obviously, if

what is there is a fiction or a sham, it would be

wrong to conclude of that that there was an

industrial dispute. We would understand "genuine"

to be focusing attention to the constitutional

requirement. It is not some additional statement

over and above that which the Constitution would

require.

TOOHEY J:  How would the idea of a sham operate in this

context, Mr Solicitor?

MR PARKER:  In respect of this particular log?

TOOHEY J:  No, generally. You used "sham" as an indication

of something that may not be genuine, which is, of

course, a meaning it has in certain contexts. I am

just having some difficult with seeing what would

be meant by a "sham demand"?

MR PARKER:  One, the purpose of which was not to secure that

which was demanded, is one example, in our

submission. That is a position quite likely in the

circumstances of this case.	I will develop that
in -

TOOHEY J:  It is not that the demand is not what it purports

to be but that the object to be secured is not what

it purports to be.

MASON CJ: But it is a requirement linked to interstateness,

maybe, is it not?

Public 21 2/6/92

MR PARKER:  Genuine?

MASON CJ: Yes.

MR PARKER: In our submission, it must link to both. It

must link to there being an industrial dispute and

it must link to that dispute being one which

extends beyond the limits of a State.

MASON CJ:  I can follow it, perhaps, in relation to the

characteristic of interstateness that you may make

a demand which, on its face, if not complied with

attracts the interstate quality but I have more

difficulty in seeing its significance in relation

to the requirement for a dispute itself.

MR PARKER:  If it please Your Honours, if a formal demand is

made, and not acceded to and there is no more to it

than that, the Court, for reasons of some

substantial convenience in the functioning of the

Act, has seen that that will be evidence and, in

the absence of more, sufficient evidence to reveal
that there is a dispute, an industrial dispute in

existence.

But if that demand is made either for some

purpose other than to secure its compliance, or if

the demand that is made is one which is manifestly
unreal or ridiculous, in our respectful submission,

the evidential value of the demand and its

non-acceptance is one that falls short of revealing

that there really is a dispute, an industrial

dispute.

We would have thought that notion of

genuineness is as relevant, although perhaps less

often applicable, in the case of an industrial

dispute simpliciter as it is in respect of

interstateness. It possibly never arises in

isolation because, necessarily, the constitutional

requirement is twofold. There must be a dispute

and it must be one that extends beyond the limits
of a State.	So that it may be that in almost every

case the interstateness is the consideration to

which questions of genuineness might more obviously

be attracted.

TOOHEY J: Except that I rather took your argument to be

that there is a first step, namely that there must

be a genuine dispute and if the case breaks down at

that point then it is unnecessary to go on to

consider the interstateness of what is involved.

MR PARKER:  In our respectful submission, to find that there

is an industrial dispute which extends beyond the

limits of the State, one has first to find a

dispute to identify what it is, and then to see

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that that dispute and none other is to be found in

more than one State. I do not know that that

process of reasoning has always to follow step 1,

step 2, step 3, but it must embrace all of those

considerations. In our respectful submission, if

one is not able to find that there is in truth a

dispute, either at all or in, as it were, the

second State, then there is lacking an industrial

dispute for the relevant purpose of the inquiry.

BRENNAN J: What purpose do you attribute in your argument

to the service of the log of claims upon those whom

you represent?

MR PARKER:  We do not have to attribute a particular

purpose. One which is manifest is the securing of
federal coverage for this Union in western

Australia, or in either of the other States served,

or all of them.

BRENNAN J: What do you mean by federal coverage?

MR PARKER:	That is securing an award.
BRENNAN J:	An award?
MR PARKER:	And that expanded means any award, any sort of

award dealing in any way with, in the case of this

award, salaries and allowances. So that it is not,

in our submission, and I will develop this in a

little time, an award which is genuinely seeking

that which is sought, whether one has regard to the

ambit doctrine or not. And that is something that

arises from the nature and terms of the demand

made, and I will develop that in a little while.

DAWSON J:  Why can you not have a genuine dispute about

federal coverage which is an industrial dispute?

MR PARKER: Well, the essence of an industrial dispute

appears to be the terms and conditions under which

employees and employers have their relations, the

employer/employee relation. And those terms and

conditions need to be of the subject-matter of

dispute. It would take - - -

DAWSON J: It is a dispute, but not an industrial dispute.

It is a dispute about power.

MR PARKER: It is a dispute inter-union, perhaps, or federal

versus State union. It is not a dispute going to

the heart of the employer/employee relationship.

TOOHEY J:  I am not sure that I follow that. I mean, it

might or might not be. But if a union was

unsuccessful through a State tribunal in obtaining

some particular condition of employment, and it

Public 23 2/6/92

turned its attention to the federal arena and

sought an award from the federal Commission, would

that of itself be enough to preclude the existence

of an industrial dispute?

MR PARKER:  No, Your Honour, because the case you have

postulated involves a genuine issue involving the

employer/employee relationship. The union is

seeking a particular aspect of conditions to be

determined in a certain way. It may be wanting a

condition about leave or promotion, or a

recognition that salaries or wages in this area

should be related to some other group. It has been

unsuccessful in securing that genuine ambition that

affects the employer/employee relationship, so it

turns to an alternative tribunal in an attempt to

secure that which is sought, a mere turning to an

alternative tribunal simply to have a different

form of coverage without any particular present

ambition as to the content of that coverage. Any

real desire to secure that which is advanced as the

justification for securing the federal award, in

our submission, is not sufficient to constitute an

industrial dispute.

TOOHEY J:  I just ask you this, Mr Solicitor, if it is not

taking you into areas that you propose to deal with

later, but if it is just say so and it can wait.

But what is it that makes an outrageous demand, in

a sense a demand for what might be regarded as

outrageous terms, incapable of constituting a

genuine dispute?

MR PARKER:	One is asking, is this demand, which is the subject-matter said to constitute the dispute, one
which is a real demand. If it is quite outrageous,
ridiculous, there is manifestly raised a question,
"If they are really seeking something of this nature how is it that they put their demand in
terms which is so outrageous or ridiculous?".

DAWSON J:  It is really not so much the amount because they

may be asking for that or something less, but the

fact you are only asking one amount for every

employee.

MR PARKER:  If Your Honour is asking about this particular

case, yes.

TOOHEY J:  No, I was not, I was putting the question more

generally.

MR PARKER:  And His Honour Justice Dawson has foreshadowed

our more detailed submissions about this particular

demand.

Public 24 2/6/92

BRENNAN J: But the dispute that is purportedly generated by

the non-accession to the demand is one which is

capable of settlement only within the terms of the

demand made, is it not?

MR PARKER:  Our submission, that is certainly a position at

present taken. Our submissions invite Your Honours

to look at that, and we respectfully put the

submission that it should be enough to attract the

jurisdiction of the federal Commission, leaving

aside questions of interstateness and genuineness,

that a demand is made which, reasonably or honestly

or fairly, presents that which is now sought on

behalf of the employees, that which they are really

wanting to achieve. And if that is done the more

proper development of both the constitutional

principle and the statutory scheme would be to

recognize that as sufficiently exciting the

jurisdiction of the Commission to resolve then the

dispute, and if in the course of resolving that

dispute genuinely bought forward, the Commission

should find that to resolve it adequately really
something different here or there or something more

than is sought is needed to resolve the genuine

dispute before it, then that ought to be within the
capacity of the Commission to find ·an award, and

our submissions, just to preface them, is to

suggest that it is not only consistent with the

statute and with the constitutional scheme, but it

would be far more beneficial to their working and

to industrial relations, if that approach were

accepted by the Court as appropriate in this field.

In other words, in simple language, to

introduce a little reality into what is brought

before the Commission and the way unions might

approach employers seeking some change in

improvement in their conditions, and if there is a

real dispute then allow the Commission to resolve

that without a line being drawn simply in terms of

the formal demand to say, "Well, that cannot be

exceeded".

be consistent with the statutory scheme, with the We would respectfully submit that would

constitutional principle, and with an efficacious

working of the intention of the scheme.

BRENNAN J: Your proposition is that a present desire to

achieve that which is claimed in the log is

essential to the conversion of a paper dispute into

a genuine dispute?

MR PARKER:  Yes. In our submission, virtually every

reference	indicates, and from earliest times, that
while the	log and its non-acceptance may be
evidence,	the dispute must be real and genuine in
the sense	that that which is claimed is genuinely
pursued.

Public 25 2/6/92

DAWSON J:  Does that mean that every simple ambit claim is

outside jurisdiction?

MR PARKER:  Ambit may be viewed as simply an extravagant way

of expressing that which is truly claimed and upon

that notion and upon the utility notions of

ensuring that you will not too quickly reach a

point where the ambit of the original dispute has been exceeded by the progress of time, the values

of money and new circumstances, there is a natural

extravagance in the formulation of claims. We

submit that under the present doctrine, clearly

just that sort of extravagance is not too wide, and

one looks to the reality that is reflected

underneath the extravagant cautionary statement of

what is the present demand, and one can perceive

the genuineness.

We will invite the Court, with respect, to

reconsider whether that is the most appropriate way
for the future, but we will quite separately be
putting that in this case the demand here is not

merely explained in terms of an extravagant

statement of that which is genuinely pursued. For

that reason, the ambit doctrine does not validate

the present claim and demonstrate its genuineness.

Just for completeness, without going through

them, paragraphs 24 and 25 deal with the only two

passages we have discovered - perhaps Felt Hatting

is another - which contain something which

suggested the position might be differently put

from that which we have said is fairly

authoritatively put.

DEANE J: Felt Hatting is one of them.

MR PARKER:  Yes, I am happy to see that, Your Honour. The

position as we put it is that the passage in Portus

is really trying to deal with another issue and

should not be understood as stating something

different from our general proposition. It is Felt

Hatting which contains the statement which is

directly contrary to the views expressed in all the

other cases.

On page 16 at the end of our 25th paragraph,

we would submit that passage is too broadly

expressed and cannot stand with the other passages

to which we have given reference. For the other

reasons there indicated, we would respectfully

submit that it should not be followed or applied

and should be seen as a unique statement and one

that is just unfortunately expressed. I am

thankful to Your Honour for bringing to my

attention what it was that I was to put.

Public 26 2/6/92

The other aspect of the dispute, of this

finding process of the Commission, to which we

would draw attention, is interstateness. Now,
there has, in our submission, on the authorities,
clearly to be an industrial dispute which is to be

found in more than one State. Now that is not to say that there may be a dispute that is comprised of more than one component; in other words, several

disputes can come together in the one demand, but

each of them must have that interstate quality

before each of them may be within the jurisdiction

of the federal Commission. If there really are a

number of demands that have manifested themselves

in the one industrial issue, it must be that before

any one of those demands is within the jurisdiction

of the Commission that the necessary element of

interstateness is to be found.

The process of identifying whether there is

one dispute, whether of a single component or a

number, of course starts with an analysis of what

it is that is said to constitute the dispute. Then

one comes to see where there are manifestations of
unrest concerning, say, the one issue in more than

one State, the inquiry is to see whether those

different manifestations in different States, or in

two different States, really are the one issue

being pursued with the community of interest.

Now, Your Honours are well aware that the

notion of industry has had more than one relevance in the development of section 51 (xxxv). There is the notion of productive industry, if I could put

it shortly, which prevailed for long, but which

this Court displaced in the CYSS case, as limiting

the reach of the constitutional power.

There is, in our submission, a distinct

relevance to be found through the cases in the

context of determining whether, in terms of section

51 (xxxv), an industrial dispute extends beyond the

limits of any one State. Here the issue is often,

are there distinct disputes, each intrastate, which

in combination merely appear as the one interstate
dispute, or whether there really is the one

dispute, one to which State boundaries have no

relevance.

Industry has its relevance here as an

important and helpful, although not, of course,

determinative factor in determining whether there

really is one interstate dispute. Here, in

examining whether there is a common cause which has

brought together the employees of different

employers in more than one State, one can be
considerably assisted in a finding that there is a

common interest, a single issue being pursued, to

Public 27 2/6/92

find that they share the one vocation, they share
the one calling, that they are united in the

industry of their employers.

MASON CJ:  Mr Solicitor, it may be convenient to adjourn

now.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 3 JUNE 1992

Public 28 2/6/92