Re State Public Services Federation; Ex parte Attorney-General (WA)

[1993] HCA 30

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

RE STATE PUBLIC SERVICES FEDERATION; EX PARTE ATTORNEY-GENERAL FOR THE STATE OF WESTERN AUSTRALIA AND ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(1993) 178 CLR 249

3 June 1993

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Industrial dispute—Australian Industrial Relations Commission—Jurisdiction—Claim for increased wages payable to State government employees as determined by Commission—Whether capable of giving rise to industrial dispute—Whether award in terms claimed would impose special burden on State—Industrial Relations Act 1988 (Cth), ss. 4(1) "Industrial dispute", 6, 121.

Orders

Matter No. P43 of 1991 Order nisi for a writ of prohibition and a writ of certiorari made absolute.

Matter No. B42 of 1991 Order nisi for a writ of prohibition and a writ of certiorari made absolute.

Matter No. S19 of 1992 Order nisi for a writ of prohibition and a writ of certiorari made absolute.

Matter No. S20 of 1992 Order nisi for a writ of prohibition and a writ of certiorari made absolute.

Decisions

MASON CJ, DEANE AND GAUDRON JJ The facts relevant to the four matters before the Court are set out in the judgment of Toohey J We agree with his Honour, for the reasons that he gives, that the applications by the State of New South Wales and another (No.S19 of 1992) and by Sydney Electricity and others (No.S20 of 1992) should be dismissed.

2. We also agree with Toohey J that prohibition and certiorari should issue with respect to the finding of dispute made by the Australian Industrial Relations Commission ("the Commission") based on the log of claims served by the State Public Services Federation ("the Federation") and the Professional Officers' (State Public Services and Instrumentalities) Association ("the Association"). However, we would identify the primary question raised by the log as whether it gave rise to an industrial dispute, not whether it gave rise to a "genuine dispute". It is, thus, appropriate that we state our reasons for concluding that prerogative relief should be granted.

3. It is convenient to refer to the two matters involving the log of claims served by the Federation and the Association as "the SPSF matters" ((1) After service of the log the Federation and Association amalgamated. The amalgamated body will be referred to as SPSF.). The log of claims in the SPSF matters takes the form of a draft award, notionally titled "the State Public Services (Queensland, Western Australia and Tasmania) Award". Its claims are simple: a minimum wage of $5,000 per week for all employees; and an additional minimum allowance of $2,500 per week, again for all employees. As well, there is a claim that pay and allowances be adjusted quarterly to take account of increases in the cost of living as measured by the consumer price index.

4. It has long been recognized that an industrial dispute may be generated by a written demand ((2) Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 CLR 387, per Dixon J at p 428; Reg. v. Gough; Ex parte BP Refinery (Westernport) Pty. Ltd. (1966) 114 CLR 384, per Barwick CJ, Taylor, Windeyer and Owen JJ at p 386. Reg. v. Cohen; Ex parte Attorney-General (Q.) (1981) 157 CLR 331, per Wilson J at p 346.). Disputes of that kind are commonly called "paper disputes". They have sometimes been described with a touch of irony ((3) See, for example, Ex parte Professional Engineers' Association (1959) 107 CLR 208, per Windeyer J at p 268:

"The dispute here is a 'paper dispute'. To permit the creation of a malady so that a particular brand of physic may be administered must still seem to some people a strange way to cure the ills and ensure the health of the body politic.");

sometimes in terms suggesting that they are not quite the real thing ((4) R. v. Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428, per Dixon J at p 439:

"The time has gone by when the unreality of paper disputes formed a subject of inquiry or consideration and at this date it would be 'unreal' to attempt to insist on a quantitative standard of disputants across the border as a condition of the extension of a dispute beyond a State."

5. See also Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) 96 CLR 317, per Fullagar J at p 333.). However, the Constitution, in s.51(xxxv), speaks of "industrial disputes", not "industrial disturbances". Leaving aside questions that may arise with respect to the parties to a dispute, its subject-matter and interstateness, all that is necessary to constitute an industrial dispute is disagreement as to the terms or conditions that should, in fact, apply as between employer and employee. Obviously, disagreement of that kind may come about as the result of a written demand and, thus, there is nothing inherently artificial about a "paper dispute" ((5) But cf. Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) 96 CLR, per Dixon CJ, McTiernan and Kitto JJ at p 324; Reg. v. Portus; Ex parte McNeil (1961) 105 CLR 537, per Dixon CJ, Kitto, Taylor and Windeyer JJ at p 544; Reg. v. Cohen; Ex parte Attorney-General (Q.) (1981) 157 CLR, per Gibbs CJ at p 336; Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. (1984) 159 CLR 163, per Wilson and Dawson JJ at p 172.).

6. It is sometimes said that a "paper dispute" must be a "genuine dispute". That means no more than that written demands must be genuine demands ((6) Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) (1938) 58 CLR 436, per Evatt J at pp 442-443.). If not - if, for example, they are part of a hoax or if they are intended to dress up a purely intrastate dispute ((7) See, for example, Reg. v. Gough; Ex parte BP Refinery (Westernport) Pty. Ltd.) - their rejection will not involve any disagreement and, thus, will not result in a dispute at all.

7. To ascertain whether demands are "genuine demands", it is sometimes asked whether the demands are seriously advanced ((8) See, for example, Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.2) (1930) 42 CLR 558, per Isaacs J at pp 570-571; R. v. Blakeley; Ex parte Association of Architects etc. of Australia (1950) 82 CLR 54, per Fullagar J at p 94; Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, at p 181.) or, in the case of demands by or on behalf of employees, whether they are advanced with a view to "obtaining improved terms and conditions ... within the framework of the claims made" ((9) Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR, at p 183.). This last formulation is one that takes account of the doctrine of ambit ((10) Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. (1984) 159 CLR, per Wilson and Dawson JJ at pp 172-173, per Brennan and Deane JJ at p 176; Reg. v. Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68, per Mason J at p 76.) and allows that a demand may be genuine notwithstanding that neither the union making it nor its members are "intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log" ((11) Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR, at pp 182-183.).

8. Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or "paper disputes", it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand. Generally speaking, and whether the question falls for decision in this Court or in the Commission, a demand, as to the wages or conditions of employees made by an organization of employees and authorized by its rules and in accordance with its procedures, will be treated as a genuine demand unless it is plainly fanciful or unless it appears that the demand was made merely to dress up some other claim which, on its own, would not constitute a dispute as defined in s.4(1) of the Industrial Relations Act 1988 (Cth) ("the Act") ((12) Section 4(1) defines "industrial dispute" to mean:
"(a) an industrial dispute (including a threatened,

impending or probable industrial dispute): (i) extending beyond the limits of any one State; and

(ii) that is about matters pertaining to the relationship between employers and employees; or

(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a);

and includes a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State)".).

9. The question whether a claim is properly described as fanciful is one that can only be answered in the light of general industrial standards and general patterns of industrial regulation. These are matters peculiarly within the experience and expertise of the Commission and, thus, this Court accords considerable weight to its findings with respect to the genuineness of demands and the existence or otherwise of a dispute arising out of those demands ((13) See Reg. v. Cohen; Ex parte Attorney-General (Q.) (1981) 157 CLR, per Wilson J at p 346; Reg. v. Alley; Ex parte N.S.W. Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376, per Mason J at p 390; R. v. Blakeley; Ex parte Association of Architects etc. of Australia (1950) 82 CLR, per Fullagar J at pp 92-93.).

10. Notwithstanding that the Commission found there was a dispute arising out of the log of claims involved in the SPSF matters, there are features which indicate that its demand, if read according to its terms, is, in truth, fanciful. The notion of weekly earnings of $7,500 for all employees, regardless of skill, qualification, or the nature of the work performed, is one that is at odds with established wage fixing principles. And, unless one subscribes to some extravagant, post-modern notion of equal pay involving the same rate of pay regardless of the work or the worker concerned, it is one that is at odds with those general theories and concepts that fashion those principles. Nor is the claim explicable as an ambit claim in which there is some in-built allowance for inflation for the claim contains an express stipulation that wages and allowances should be adjusted for cost of living increases. These matters persuade us that the demand, if read strictly according to its terms, must be treated as fanciful and, hence, not a genuine demand.

11. Given that the matter has been pursued this far, presumably at considerable expense, it is reasonable to assume that SPSF is pursuing some more realistic claim than the one that emerges from a strict reading of its demand. In our view, it is reasonable to assume that SPSF's claim is for increased wages and allowances as determined by the Commission. It is also reasonable to assume that it would have been so understood by those bodies on whom it was served. On that basis, it is necessary to consider whether a bare claim for increased wages and conditions as determined by the Commission gives rise to an industrial dispute as defined in s.4(1) of the Act.

12. There are two interrelated matters that serve to indicate that a bare claim for increased wages and allowances as determined by the Commission is not a claim that gives rise to an industrial dispute. The first is that the Commission is not a general regulatory body. It is a tribunal established for the conciliation and arbitration of disputes. The existence of a dispute as defined in s.4(1) of the Act "is basic to (its) jurisdiction" ((14) Reg. v. Heagney; Ex parte ACT. Employers Federation (1976) 137 CLR 86, per Barwick CJ at p 90. See also Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1957) 96 CLR, per Fullagar J at p 337.). Its regulatory powers are activated only in consequence of a dispute and only with respect to the matters in dispute ((15) For a discussion of the provisions that may be made with respect to matters in dispute, see Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. (1989) 166 CLR 311, per Mason CJ at pp 318-319.). A bare claim that employees should be paid increased wages and allowances as determined by the Commission is, in effect, a claim that the Commission should have general regulatory powers with respect to the wages and allowances of those employees.

13. The Commission has only those powers that the Act confers upon it. It is well settled that a claim that it should have other or additional powers is not a claim that is "about matters pertaining to the relationship between employers and employees" as required by the definition of "industrial dispute" in s.4(1) of the Act ((16) Reg. v. Portus; Ex parte City of Perth (1973) 129 CLR 312, per Barwick CJ at p 315, per Menzies J at p 319, per Gibbs J at pp 324-326, per Stephen J at p 328. See also Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228, per Taylor J at pp 247-248; Re Amalgamated Metal Workers Union; Ex parte Shell Co. of Australia Ltd. (1992) 174 CLR 345, per Mason CJ, Deane, Toohey and Gaudron JJ at p 362.), no matter that the powers in question, if exercised, might affect matters pertaining to that relationship. Thus a claim that the Commission should have or should exercise general regulatory power, whether made in terms which predicate an improvement, a reduction or, even, maintenance of existing wages and conditions, is not a claim that gives rise to an industrial dispute as defined in s.4(1) of the Act. That is not to deny that there may be circumstances involving a bare claim of that kind amounting to an industrial dispute as defined in s.4(1) of the Act - particularly, if regard is had to that part of the definition that speaks of "a situation that is likely to give rise to an industrial dispute". But in that event, it will be the overall circumstances that constitute or give rise to the dispute, not merely the rejection of a claim for wages or conditions as determined by the Commission.

14. The second matter that indicates that a bare claim for increased wages and allowances as determined by the Commission does not give rise to an industrial dispute is that the assent or dissent of employers is entirely irrelevant to what is demanded. Indeed, the claim proceeds on that very basis. And assuming jurisdiction were thus attracted, increases awarded by the Commission would take effect by virtue of the Act and quite independently of the assent of the employers concerned. The irrelevance of the assent or dissent of employers flows from the assumption which is embedded in the claim, namely, that the Commission has or may acquire general regulatory power as the result of a claim of the kind under consideration. The validity of that assumption is denied by the decisions of this Court in which it has been held that a demand as to a matter on which assent or dissent is irrelevant may give rise to "a contrariety of opinion" ((17) Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) 96 CLR, per Dixon CJ, McTiernan and Kitto JJ at p 323; Re Amalgamated Metal Workers Union; Ex parte Shell Co. of Australia Ltd.), but does not give rise to a dispute.

15. We would read the log of claims as involving a claim for increased wages and allowances as determined by the Commission. However, and as already indicated, a claim of that kind does not give rise to an industrial dispute as defined in s.4(1) of the Act. That is sufficient to entitle the prosecutors in the SPSF matters to the relief which they claim. It is, however, appropriate that we indicate our agreement with what has been written by Toohey J in relation to the other arguments advanced in support of their claim for relief. In particular, we agree with what his Honour has written on the question of interstateness and the contention that the log of claims in the SPSF matters sought to impose a special burden or disability on the three States whose departments, instrumentalities, authorities and agencies were served with it.

16. We also agree with his Honour that it is unnecessary to consider whether and to what extent an implied limitation on Commonwealth legislative power precludes s.51(xxxv) from sustaining the exercise of the award-making power of the Commission in relation to those employed in "the administrative services of a State" ((18) Re Lee; Ex parte Harper (1986) 160 CLR 430, per Mason, Brennan and Deane JJ at p 452; Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297, at p 313.). In this respect, we should point out that the statement made in Re Lee; Ex parte Harper ((19) (1986) 160 CLR, per Mason, Brennan and Deane JJ at p 453.), that the implied limitations must be read subject to the express provisions of the Constitution, should not be understood as excluding consideration of implications derived from the Constitution until the scope of s.51(xxxv) is ascertained by reference to its terms alone. Rather, the scope of that provision must be ascertained by reference not only to its text but also to its subject-matter and the entire context of the Constitution, including any implications to be derived from its general structure.

BRENNAN J I respectfully agree with the reasons of Mason CJ, Deane and Gaudron JJ for holding that the rejection of the relevant log of claims served upon the Crown in right of Queensland, Western Australia and Tasmania and the Ministers, officers and instrumentalities of those respective States by the State Public Services Federation (the "SPSF") and the Professional Officers' (State Public Services and Instrumentalities) Association (the "POA") did not give rise to an industrial dispute. Therefore there was no dispute susceptible of settlement by arbitration under the Industrial Relations Act 1988 (Cth) ("the Act"). It follows that the orders nisi in the matters in which the SPSF is a respondent should be made absolute.

2. Once it is decided that the rejection of the SPSF and POA log of claims did not generate an industrial dispute, it is unnecessary to determine the other grounds of attack upon the finding of an industrial dispute. I would reserve consideration of the other grounds until a case arises in which it is necessary to decide them. The resolution of the issue of "interstateness" depends upon whether the employees whose terms and conditions of employment are the subject of a log of claims are "engaged in some branch of industry (making) common cause" ((20) Jumbunna Coal Mine N.L v. Victorian Coal Miners' Association (1908) 6 CLR 309, at p 332.) in their demands against their respective employer States. The answer to that question may involve, at least in relation to senior State officials, a consideration of the particular functions performed by those employees. The same issue arises in determining the scope of the immunity from the jurisdiction of the Australian Industrial Relations Commission which is said to arise by a constitutional implication protective of the State's capacity to function.

3. Although in these two matters I would reserve all grounds of attack apart from the non-generation of an industrial dispute, I would add a brief observation, albeit obiter, on the question whether the scope of s.51(xxxv) is restricted by an implication derived from the structure of the Constitution as a whole or from s.106 of the Constitution. I add this observation because I was party to a joint judgment in Re Lee; Ex parte Harper ((21) (1986) 160 CLR 430.) which contains an observation, itself obiter, on the scope of s.51(xxxv) in its application to disputes to which the employees of a State are parties.

4. It is undoubted that the power granted by s.51(xxxv) of the Constitution may extend to an interstate industrial dispute to which an organisation representative of employees of a State or its instrumentalities is a party ((22) Federated State School Teachers' Association of Australia v. State of Victoria ("the School Teachers Case") (1929) 41 CLR 569, at pp 583-585 (in dissent); Ex parte Professional Engineers' Association (1959) 107 CLR 208, at pp 234, 274-275; Reg. v. Coldham; Ex parte Australian Social Welfare Union ("the CYSS Case") (1983) 153 CLR 297; Re Lee; Ex parte Harper (1986) 160 CLR, at pp 443, 448, 453.). As Mason, Brennan and Deane JJ said in Re Lee; Ex parte Harper ((23) (1986) 160 CLR, at p 452.):

"According to the settled interpretation of the power, it sustains the exercise by the Commission of its authority in relation to State employees, at any rate apart from those engaged in the administrative services of a State."

The qualification at the end of this sentence accorded with a passage in the judgment of the Court in Reg. v. Coldham; Ex parte Australian Social Welfare Union ((24) (1983) 153 CLR, at p 313.):

"It is also unnecessary to consider whether or not disputes between a State or a State authority and employees engaged in the administrative services of the State are capable of falling within the constitutional conception. It has been generally accepted, notwithstanding the Engineers' Case, that the power conferred by s.51(xxxv) is inapplicable to the administrative services of the States (see the Professional Engineers' Case ((25) (1959) 107 CLR, at p233.)). If the reasons hitherto given for reaching that conclusion are no longer fully acceptable, it may be that the conclusion itself finds support in the prefatory words of s.51 where the power is made 'subject to this Constitution' (cf. Holmes ((26) Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, at p 90.) ). The implications which are necessarily drawn from the federal structure of the

Constitution

itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa). The nature of those limitations was discussed in Melbourne Corporation v. The Commonwealth ((27) (1947) 74 C.LR 31, esp at pp 55-60, 66, 70-75, 82-83.), Victoria v. The Commonwealth ('the Pay-roll Tax Case') ((28) (1971) 122 CLR 353, esp at pp 386-393, 402-403, 406-411, 417-424.), and the other cases there cited. If at least some of the views expressed in those cases are accepted, a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could not be sustained as valid, but as Walsh J pointed out in the Pay-roll Tax Case ((29) ibid, at p 410.), the limitations have not been completely and precisely formulated and for present purposes the question need not be further examined."

5. Nor were the limitations worked out in Re Lee; Ex parte Harper. There, the question was whether the power granted by s.51(xxxv) extended to an interstate dispute to which an organization representative of State school teachers was a party. It was held unanimously that the power did so extend. Gibbs CJ observed ((30) (1986) 160 CLR, at pp 443-444.):

"From the earliest times this Court has experienced a difficulty in reconciling the effect which the exercise of the power given by s.51(xxxv), construed without limitation, might have on the States with the position intended to be secured to the States by the Constitution. There have been a number of shifts of opinion, and the matter has never been fully explored."

Mason, Brennan and Deane JJ said ((31) ibid, at p 453.):

"Although the purpose of the implied limitations is to impose some limit on the exercise of Commonwealth power in the interest of preserving the existence of the States as constituent elements in the federation, the implied limitations must be read subject to the express provisions of the Constitution. Where a head of Commonwealth power, on its true construction, authorizes legislation the effect of which is to interfere with the exercise by the States of their powers to regulate a particular subject-matter, there can be no room for the application of the implied limitations."

This passage must be understood, of course, in reference to the circumstances of the case. In Re Lee; Ex parte Harper there was no implied limitation which would have so restricted constitutional power as to exclude arbitration of an industrial dispute involving State school teachers. The passage should not be read as suggesting that the scope of a State immunity implied by the general provisions of the Constitution can be ascertained by considering the overriding effect of a valid Commonwealth law on an inconsistent exercise of State power. The tentative view was expressed in that case that the implied limitations "do not protect the States from the consequences of the exercise by the Commonwealth of the powers granted to it by the Constitution which contemplate their application to the States" ((32) ibid.). So much must be accepted. But the critical question is the scope of the relevant Commonwealth power. The true construction of s.51(xxxv) would have to be ascertained before the effect of that provision on any countervailing implication could be determined.

6. It is clear that implications derived from the general structure of the Constitution may qualify express provisions conferring legislative power ((33) Nationwide News Pty. Ltd. v. Wills (1992) 66 ALJR 658, at p 668; 108 ALR 681, at p 701; Australian Capital Television Pty. Ltd. v. The Commonwealth (No.2) (1992) 66 ALJR 695, at pp 701-702, 715-716, 722-723, 736, 748; 108 ALR 577, at pp 591, 617, 629-630, 654, 675-676.). Thus in Queensland Electricity Commission v. The Commonwealth ((34) (1985) 159 CLR 192.), it was held that a law enacted under the power conferred by s.51(xxxv) was invalid for conflict with an implied limitation. The proposition that "implied limitations must be read subject to the express provisions of the Constitution" does not in terms acknowledge that the construction of a head of legislative power is itself ascertained by reference to the entire context of the Constitution and that its scope may be limited by implication. The proposition might therefore be thought to invert the relative roles of the implied limitations and the express terms of s.51(xxxv) or at least to preclude consideration of implications derived from the general provisions of the Constitution until the scope of s.51(xxxv) is ascertained by reference solely to its express terms. The construction of s.51(xxxv) or, for that matter, the construction of any other legislative power in s.51, calls for a consideration of the text of the power, its subject-matter and the general constitutional context. None of these factors can be considered in isolation, nor is there a sequence to be followed in considering one factor before another.

7. I would not wish now to decide the scope of an implied limitation on arbitral power which may be thought to protect a State's capacity to function, much less to suggest that such an implied limitation revives the notion of reserved State powers. I wish merely to identify the problem of construction of s.51(xxxv) which awaits resolution. When the problem has to be resolved, the observation of Dixon J in Australian Railways Union v. Victorian Railways Commissioners ((35) (1930) 44 CLR 319 at pp 391-392; see also per Starke J at p 389.) will warrant consideration:

"It may be that sec. 106 provides the restraint upon the legislative power over States which differentiates it from the power over the subject and that no law of the Commonwealth can impair or affect the Constitution of a State."

8. However, it is not necessary in this case to resolve the problem whether s.51(xxxv) would authorize a law carrying into effect an award made in settlement of an interstate industrial dispute between the SPSF and the parties served with the purported log of claims.

9. As to the matters in which the Electrical Trades Union of Australia is a respondent, I agree with Toohey J that the applications should be refused. In these cases, I would respectfully agree with what his Honour has written as to the existence and interstate character of the disputes to which the prosecutors were parties. However, the prosecutors made two submissions relating to different categories of alleged discrimination. First, they submitted that ss.6 and 121 of the Industrial Relations Act 1988 (Cth) discriminate against the States by authorizing the Commission to make an award overriding State laws in relation to public sector employment in that State while reserving to the Commonwealth a power, exercisable by regulation, to prevent the overriding of Commonwealth laws.

10. The subjection of both the Commonwealth and the States to the statutory regime is effected by s.6 which provides that the Act binds the Crown in right of the Commonwealth and the several States and Territories. But s.6 does not resolve the question whether an award may be inconsistent with another Commonwealth law. Absent a provision such as s.121, the Commission as a repository of Commonwealth power would be bound by the laws of the Commonwealth and could not create an award inconsistent with any such law. By contrast, an award made within power would prevail over an inconsistent State law by reason of the operation of s.109 of the Constitution on a statutory provision, express or implied, that the award should cover the field ((36) T.A. Robinson and Sons Pty. Ltd. v. Haylor (1957) 97 CLR 177, at pp 182-183.). The "discrimination", apart from s.121, is carried into effect by s.109 of the Constitution. But s.121 does not create discrimination: it merely removes the limit on the Commission's award-making powers that would otherwise be imposed by the existence of a Commonwealth law. Paragraph (b) of the definition of "relevant law" empowers the executive government to restore pro tanto the general operation of Commonwealth law limiting the exercise of arbitral power. It works no discrimination against the States.

11. Secondly, the prosecutors submitted that the facts reveal impermissible discrimination against the States for reasons which are stated thus:

"Three States have been singled out by these logs of claims, not employers generally. Even though numbers of employers have been served in each State, they have been served in their capacities as employers, or people in charge of, public servants of the States. There is no doubt that these States have been singled out for attention in a discriminatory fashion."

The discrimination is said to consist in the imposition of a burden on the States alone, not on the States in common with other employers, although the nature of the employment is common to both the public and the private sector. The argument proceeds on a false foundation. The relevant jurisdiction of the Commission is a jurisdiction to make an award in settlement of an interstate industrial dispute. If there be such a dispute and the States or their instrumentalities are the only employer parties to it, there is no discrimination in subjecting them to an exercise of the arbitral power in the same way as other employer parties are subjected to an exercise of the arbitral power in settlement of disputes to which they are parties. What "singles out" the States in the cases now under consideration is their character as employer parties to an interstate industrial dispute. The criterion of discrimination is not that the employers in dispute are the States and their instrumentalities; it is that the States and their instrumentalities are the employers in dispute. The latter is not an impermissible criterion for subjecting the States and their instrumentalities to the same burden as that to which other employers in dispute would be subjected by service of a log of claims.

12. I would therefore dismiss the application for an order nisi for writs of prohibition and certiorari in each of the matters in which the Electrical Trades Union of Australia is respondent.

DAWSON J The circumstances in which these four applications are made are set out in the judgment of Toohey J and I shall not repeat them.

2. I agree with Mason CJ, Deane and Gaudron JJ that the demands made by the log of claims in those matters in which the State Public Services Federation is a respondent amount in effect to no more than a bare claim for improved wages and conditions to be fixed by the Australian Industrial Relations Commission. The mere failure of the employers upon whom the log was served to accede to a claim of that kind cannot give rise to an industrial dispute. At most it would amount to a dispute concerning the power of the Commission to entertain such a claim. Since the Commission lacks jurisdiction to regulate terms and conditions of employment otherwise than in settlement of an industrial dispute, the orders nisi must be made absolute in those matters.

3. I agree with Toohey J that in the other two matters in which the Electrical Trades Union of Australia is a respondent the applications should be dismissed. It has long been settled that the reach of s.51(xxxv) extends to interstate industrial disputes involving States or their instrumentalities as employers. Before the decision in Reg. v. Coldham; Ex parte Australian Social Welfare Union ((37) (1983) 153 CLR 297.), the employment of many of the employees of the States or their instrumentalities would have been thought to lie outside productive industry or organized business so that any dispute about those employees' terms and conditions of employment would not constitute an industrial dispute. But that decision recognized that the phrase "industrial disputes" in s.51(xxxv) extends to disputes between all employers and their employees concerning the terms and conditions of employment, with the consequence that, in the absence of limitations derived from elsewhere in the Constitution, all employees of the States or their instrumentalities potentially fall within the ambit of s.51(xxxv).

4. Section 51 is expressed to be subject to the Constitution and s.106 provides that: "The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth ... until altered in accordance with the Constitution of the State." Not only does s.106 so provide, but as a matter of implication from the federal structure, the legislative powers of the Commonwealth Parliament do not extend to interference with the manner in which the States may exercise their constitutional functions, be they legislative, executive or judicial.

5. Reg. v. Coldham; Ex parte Australian Social Welfare Union recognized those limitations upon Commonwealth legislative power and noted that the inapplicability of s.51(xxxv) to the administrative services of a State was generally accepted. The Court went on to observe ((38) ibid, at p 313.):

"The implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa). The nature of those limitations was discussed in Melbourne Corporation v. The Commonwealth ((39) (1947) 74 CLR 31, esp at pp 55-60, 66, 70-75, 82-83.), Victoria v. The Commonwealth ('the Pay-roll Tax Case') ((40) (1971) 122 CLR 353, esp at pp 386-393, 402-403, 406-411, 417-424.), and the other cases there cited. If at least some of the views expressed in those cases are accepted, a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could not be sustained as valid".

The reference to "the pay, hours of work and conditions of employment of all State public servants" in that passage would seem to be a reference to the inclusion of public servants who provide administrative services to a State. Nevertheless, there is an argument, to say the least, that an award or awards of the Commission made with the purpose of covering all the public servants of a State would so hamper the State in the exercise of its constitutional functions that it would be beyond the power of the Commonwealth Parliament to authorize or to give legislative force to such an award or awards. No government can function effectively otherwise than through its public servants and if another agency can impose upon a State government the terms and conditions of employment of its public servants (who may or may not find their counterparts in employment outside the public service), including restrictions upon engagement and dismissal, that government's capacity to exercise for itself its constitutional functions may be impaired ((41) cf. Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319, per Starke J at pp 389-390.).

6. However, these considerations do not arise in these applications in which the Electrical Trades Union is a respondent. The employees on whose behalf the demands are made do not constitute "all public servants" in any State nor does it appear that they are engaged in the administrative services of any State. Other employers employ employees in the same categories as the employees of the instrumentalities in question and there is no relevant discrimination in the selection of the instrumentalities as the employers upon whom the demands are made. I agree with Toohey J, for the reasons given by him, that a case cannot be made out upon the basis of interference with State constitutional functions whether by way of discrimination or otherwise.

7. A further argument was put that discrimination against the States arises from the provisions of ss.6 and 121 of the Industrial Relations Act 1988 (Cth). Section 6 provides that the Act binds the Crown in right of the Commonwealth and each of the States. So far as the States are concerned, under s.109 of the Constitution the Industrial Relations Act (and, pursuant to s.152, an award) prevails over any inconsistent State enactment, but the Commission is, apart from s.121, bound by other Commonwealth enactments. Section 121(1) gives power to the Commission in industrial disputes involving the public sector to override by an award a relevant law of the Commonwealth which would otherwise be inconsistent with the award. "Relevant law" is defined in s.121(2) to mean a law pertaining to the relationship between employers and employees in public sector employment other than certain specified Acts and Acts or enactments which are prescribed.

8. In Queensland Electricity Commission v. The Commonwealth ((42) (1985) 159 CLR 192, at p 261.), I expressed the view that an interference with State constitutional functions may be indicated if a law discriminates against the States by singling them out and subjecting them to special treatment which forms no part of any system of law of general application ((43) See also Melbourne Corporation v. The Commonwealth (1947) 74 CLR, per Dixon J at p 84.). It is against discrimination of that kind that an implication is drawn limiting Commonwealth legislative power. Within the limits prescribed by the Constitution the States exercise sovereign powers and their sovereignty, albeit limited, must necessarily be inhibited if they are unable to make the same choices for themselves as are available to those over whom they exercise those powers.

9. The limitations placed upon the scope of s.121(1) may indicate the awareness of the Commonwealth that awards of the Commission may interfere with its own governmental functions and so support an argument that s.51(xxxv) must have a limited application in relation to the public service of a State. However, I can discern no relevant discrimination against the States in the application of that section in conjunction with s.6. The demands upon the relevant instrumentalities in these applications are made in relation to the terms and conditions of employment which they provide in common with other employers who are subject to the same system under the Industrial Relations Act. The applications should be dismissed.

TOOHEY J The Court has before it four applications for prerogative relief arising out of proceedings in the Australian Industrial Relations Commission ("the Commission"). The applications were heard together as each raises issues common to all. The first step is to identify the parties involved. The parties
1. The Attorney-General for the State of Western Australia seeks writs of prohibition and certiorari against Munro J, MacBean D.P. and Johnson C., constituting a Full Bench of the Commission, and a writ of prohibition against the State Public Services Federation, an organisation registered under the provisions of the Industrial Relations Act 1988 (Cth) ("the Act") in respect of a finding of industrial dispute affecting the State of Western Australia. The matter is No.P43 of 1991.
2. The Attorney-General for the State of Queensland also seeks writs of prohibition and certiorari against the same Full Bench of the Commission and a writ of prohibition against the State Public Services Federation in respect of a finding of industrial dispute affecting the State of Queensland. The matter is No.B42 of 1991.
3. The State of New South Wales and the Electricity Commission of New South Wales seek a writ of certiorari against Johnson C. of the Commission and a writ of prohibition against Johnson C. and against nine registered organisations in respect of a finding of industrial dispute affecting New South Wales and the Electricity Commission of New South Wales. The matter is No.S19 of 1992.
4. Sydney Electricity, the Local Government Electricity Association of New South Wales and 23 county and shire councils seek a writ of certiorari against Johnson C. and a writ of prohibition against Johnson C. and against eight registered organisations in respect of proceedings in which a finding of industrial dispute was made against those employer bodies. The organisations named in this matter are for the most part the same as those named in No.S19 of 1992. The matter is No.S20 of 1992.

2. Although the various proceedings have a common thread, it is convenient to look first at No.P43 of 1991 and No.B42 of 1991 in order to understand how an interstate industrial dispute was held to exist and why the present applications are before the Court.

Western Australia and Queensland: the log of claims
3. By a letter of demand dated 28 April 1989, addressed to "Her Majesty The Queen in Right of the State of Western Australia", the State Public Services Federation and the Professional Officers' (State Public Services and Instrumentalities) Association served a log of claims in respect of "your employees and future employees who are eligible for membership of (the Federation) or (the Association) whether members or not of (the Federation) or (the Association)". A similar demand was made on "Her Majesty The Queen in Right of the State of Queensland" and "Her Majesty the Queen in Right of the State of Tasmania". Tasmania did not oppose a finding of industrial dispute in the Commission but reserved the right to make an application under s.111(1)(g)(ii) of the Act that any industrial dispute was proper to be dealt with by a Tasmanian industrial authority. That State appeared only as an intervener in the Court but due to "a change of government and instructions" supported the challenge mounted by Western Australia against the finding of industrial dispute.

4. On 9 February 1990 the State Public Services Federation and the Professional Officers' (State Public Services and Instrumentalities) Association amalgamated; they continue under the name of the State Public Services Federation. I shall refer to the amalgamated body as "SPSF".

5. The log of claims is startling in its simplicity. It has only four clauses. It is as well to set them out:
"1. Title

The Award made on this Log of Claims shall be known as the State Public Services (Queensland, Western Australia and Tasmania) Award. 2. Rates of Pay An employee shall be paid a minimum wage of $5000 per week. 3. Allowances
An employee shall be paid a minimum of $2500 per week in addition to a minimum wage as allowances. 4. Adjustment
The rates of pay and allowances provided in clauses 2 and 3 shall be adjusted quarterly in accordance with the factor of positive movement in the All Groups Consumer Price Index, weighted average of eight capital cities issued by the Australian Bureau of Statistics."

6. So far as Western Australia is concerned, the log of claims has 13 pages of named respondents. They comprise, it is said, "the Crown in right of Western Australia, Ministers of the Crown, the Public Service Commission, the employers of public servants in the 46 departments and 9 sub-departments created under the Public Service Act, the employing authority for 119 public hospitals ... and for about 50 statutory bodies engaged in regulation, service and commercial activity". It is apparent, as the Solicitor-General for Western Australia submitted, that the log of claims "may properly be characterised as directed at all of those
(to) whom the Crown in Right of Western Australia is employer, including all public servants, employees 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".

7. So far as Queensland is concerned, the log contains more than six pages of named respondents. The difference between the range of respondents in that State and in Western Australia was explained by Mr Douglas QC, senior counsel for Queensland, as arising from the rules of the Association at the time of service of the log:
"In Queensland the respondents ... are narrow in compass and
perhaps also more focused on issues perhaps more central to governmental functions in the sense that, as the Full Bench said, the persons referred to in the list of callings reflect generally professional and semi-professional callings."

The finding of an interstate industrial dispute
8. On 28 August 1991 a Full Bench of the Commission (Munro J, MacBean D.P. and Johnson C.) found that a genuine interstate dispute existed by reason of what it described as "the effective refusal of the letter of demand". The Commission identified the issues before it in this way:

"It is not in contest that there is evidence of a dispute to the extent that there is a refusal of a demand made on behalf of employees, by their employers, in relation to matters which could normally be found to pertain to the relationship between employers and employees. It is in issue first that a real dispute is established on the evidence of the refusal of the log; and second that any relevant dispute extends beyond Queensland, in the case of that State, and perhaps beyond any one of the three States. The validity of finding a dispute is also in issue."

9. The Commission dealt with these issues in the following way. It said that the demand made by the log had been maintained and continued up to the time of the proceedings before the Full Bench; that the claims in the log had not been acceded to by any of the employing organisations; that SPSF had the capacity to represent the industrial interests of employees of all three State governments upon whom demand was made; that the interstate character of the dispute was not precluded because of the joint form of the original demand; and 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".

10. The finding that an industrial dispute existed could not have been reached with great confidence because the Commission said: "It is with some hesitation, and on a fine balance, that
we have concluded that the dispute generated by the respective employers' refusal of the log is real and genuine in the sense that the SPSF wants and is actively pursuing what it claimed in the log." The Commission then said that, in making the finding that an industrial dispute existed, it had taken into account a number of factors including: the substantial number of employees affected by the log of claims; the fact that the general relativity of salaries in the State public sector and elsewhere had "long been a subject of industrial controversy extending beyond State boundaries"; that SPSF had persisted with the log "against determined resistance"; and that

"the events constituting the dispute and the subject matter of the dispute are of a kind which would be treated as giving rise to an industrial dispute within the meaning of the Act as applied in the ordinary course of industrial practice concerning non-governmental employees".

I shall refer to those matters in more detail later in this judgment.

The attack on the finding of an interstate industrial dispute
11. Western Australia attacked the finding of the Commission on a number of grounds. They are:

"1. The decision and finding of dispute are erroneous in matters of law apparent on the face of the record in that no industrial dispute within the meaning of the Industrial Relations Act 1988 (read within the limits of the constitutional power of the Parliament of the Commonwealth) concerning the Western Australian employers named therein exists because: (a) The letter of demand, the log of claims and their rejection by the (Western Australian employers), did not evidence or create a real and genuine industrial dispute.

(b) No real and genuine industrial dispute existed at any material time.

(c) No real and genuine industrial dispute extending beyond the limits of Western Australia or of any one State existed at any material time.

(d) As the respondents to the dispute are State public sector employers only, the finding singles out the States of Western Australia, Queensland and Tasmania for the imposition of a special burden or disability and thereby discriminates against those States;

(e) The decision and finding and an award in the terms of (SPSF's) claim (i) are or would be binding in respect of all employees engaged in the administrative services of the State and,

(ii) would unduly inhibit or interfere with the ability of the State of Western Australia to exercise its constitutional and governmental functions and its capacity to function as a State.

(f) The Act, and in particular section 121, reserves to the Commonwealth alone, and not to the States, the power to shield prescribed legislation from the effect of an inconsistent order or award and thereby in substance imposes a special burden or disability on the States which discriminates against them.

2. The Industrial Relations Act 1988 and in particular s101 thereof does not, or alternatively does not validly, empower or confer jurisdiction on the Australian Industrial (Relations) Commission to further deal with the dispute purportedly found because of the matters set out in paragraphs (a) to (f) of ground 1."

12. Queensland attacked the finding on broadly similar grounds but it is as well to set them out: "1. The said decision and finding of dispute disclose an
error of law on the face of the record because there was and is no 'industrial dispute' within the meaning of the Industrial Relations Act 1988 concerning the State of Queensland enabling that decision or finding to be made: (a) At the time of the making of the demand contained

in the Log of Claims and at all times thereafter there was no industrial dispute extending beyond the limits of any one State in existence;

(b) The claim by (SPSF) was not made genuinely; (c) The letter of demand and the Log of Claims contained in it were not appropriate to and did not create such an industrial dispute. 2. The (named members of the Commission) do not have the
power under the Constitution of the Commonwealth and it is beyond their jurisdiction to make that decision or finding: (a) The finding of the dispute imposes on the State of Queensland a special burden or disability by, inter alia: (i) Singling it out, as a State, for control; (ii) Unduly interfering with its functions of government;

(iii) Unduly interfering with its execution of its constitutional powers;

(iv) Restricting its executive authority and prerogative rights.

(b) The finding of the dispute discriminates against the State of Queensland as regard other States and the Commonwealth by inter alia: (i) Favouring the Commonwealth against the State of Queensland and other States by reserving to the Commonwealth alone the power to shield prescribed legislation from the effect of an inconsistent award;

(ii) Imposing the said special burden or disability on the State of Queensland.

(c) The finding of the dispute directly affects persons employed and engaged in the administrative services of the State of Queensland.

(d) By finding the dispute the (named members of the Commission) misapplied and misinterpreted, inter alia, the decisions in Melbourne Corporation v. The Commonwealth ((44) (1947) 74 CLR 31.); Victoria v. The Commonwealth ((45) (1971) 122 CLR 353.); R. v. Coldham; Ex parte Australian Social Welfare Union ((46) (1983) 153 CLR 297.) and Queensland Electricity Commission v. The Commonwealth ((47) (1985) 159 CLR 192.) ".

13. The attack made by Western Australia and Queensland may be summed up in this way: 1. There was no genuine industrial dispute;
2. There was no genuine interstate industrial dispute; 3. The finding of an interstate industrial dispute against Western Australia and Queensland singled out those States and imposed a special burden or disability on them and thereby discriminated against them.

Is there an industrial dispute?
14. The Commission took as its starting point the judgment of Gibbs CJ in The Queen v. Cohen; Ex parte Attorney-General (Q.) from which it quoted as follows ((48) (1981) 157 CLR 331, at pp 337-338.):

"Although a dispute may be contrived, it must be real and not a mere fiction. The demands made must be genuine, in the sense that the organization making them really wants what it demands ... 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 ... The question whether a dispute is real and genuine is a question of fact ... A formal demand will prima facie be regarded as real and genuine, unless the contrary is established".

The Commission, for the reasons given earlier, then went on to conclude that:

"albeit the dispute is evidenced mainly by the generation and rejection of a 'paper demand', the events constituting the dispute and the subject matter of the dispute are of a kind which would be treated as giving rise to an industrial dispute within the meaning of the Act as applied in the ordinary course of industrial practice concerning non-governmental employees".

15. That the evidence of an industrial dispute was seen to be "on a fine balance" is rather borne out by the Commission's statement that it would be open to employers to apply for the Commission to refrain from further hearing part or whole of the dispute, adding: "Should the SPSF fail in due course to particularise with
greater exactitude the conditions of employment sought to be implemented in the context of any existing arrangements, it is likely that any application for an award to be made would quickly be found to fall far short of meeting the compelling case expected of the SPSF".

16. The Solicitor-General for Western Australia contended that, in relying upon the judgment of Gibbs CJ in Cohen, the Commission misapplied the judgment. In particular, he argued that the Commission had confused the notion of prima facie evidence before the primary tribunal with the role of a supervisory court in an application for prohibition. He contended that Gibbs CJ's reference to a formal demand being regarded prima facie as real and genuine, when taken in context, does no more than point up the fact that in prohibition proceedings the burden lies on the prosecutor to establish clearly the facts which show absence of jurisdiction. The contention is well founded. Before the last sentence of the passage quoted above from Cohen, Gibbs CJ said ((49) ibid, at p 338; see also per Murphy J at p 342: "In this Court the onus is on the prosecutor to prove that the Commission is without jurisdiction."):
"(A)nd 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 ... The burden of showing that the Commission lacks jurisdiction rests on the prosecutor".

17. There can be no doubt that service of a log of claims on an employer and a failure by the employer to agree to the demands may be evidence of a dispute. But that situation does not necessarily determine whether a dispute exists. As Barwick CJ observed in The Queen v. Heagney; Ex parte ACT. Employers Federation ((50) (1976) 137 CLR 86, at p 93; see also per Mason J at pp 99-100 (with whom Stephen and Jacobs JJ agreed).):

"(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 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 (Commission). Considerations such as these have long been entertained and at times acted upon by the Court".

Barwick CJ then referred to earlier authority supporting his approach. It is in this sense that the term "prima facie" used in judgments of the Court in decisions such as The Builders' Labourers' Case ((51) (1914) 18 CLR 224, per Isaacs J at p 246.) and The King v. Blakeley; Ex parte Association of Architects etc. of Australia ((52) (1950) 82 CLR 54, per Latham CJ at p 69 (with whom Kitto J concurred); per Fullagar J at pp 93-94.) is to be understood.

18. It follows that when the Commission is faced with a challenge to the existence of an industrial dispute, the onus does not shift to the respondent to demonstrate the absence of any dispute. It is for the applicant who has invoked the jurisdiction of the Commission to make good the proposition that jurisdiction exists. But, in doing so, the applicant will be assisted by the evidentiary weight to be attached to the service of a log of claims and a failure to accede to the demands contained in the log.

19. One should not lose sight of what Windeyer J said in Ex parte Professional Engineers' Association ((53) (1959) 107 CLR 208, at p 268.):

"The dispute here is a 'paper dispute'. To permit the creation of a malady so that a particular brand of physic may be administered must still seem to some people a strange way to cure the ills and ensure the health of the body politic. But the expansive expositions by this Court of the meaning and effect of par.(xxxv.), especially in the Burwood Cinema Case ((54) (1925) 35 CLR 528.) and in Amalgamated Engineering Union v. Metal Trades Employers' Association ( (55) (1935) 53 CLR 658.) have brought a great part of the Australian economy directly or indirectly within the reach of Commonwealth industrial law and of the jurisdiction of the Commonwealth industrial tribunal. The artificial creation of a dispute has become the first procedural step in invoking its award-making power. Nevertheless, the tribunal cannot follow the course which courts not fettered by statute have followed in the past, and enlarge its jurisdiction by the simple process of allowing all persons who would invoke it to do so by making fictitious but unchallengeable assertions. It is not possible by fictions to transgress the boundaries of the Constitution. A dispute may be a paper dispute. It must still be a real dispute, really extending beyond the boundaries of any one State."

20. There are two passages in judgments of the Court which might be thought to run counter to what has been suggested so far in these reasons. In The King v. Portus; Ex parte Federated Clerks Union of Australia ((56) (1949) 79 CLR 428, at p 439.) Dixon J observed:

"The time has gone by when the unreality of paper disputes formed a subject of inquiry or consideration and at this date it would be 'unreal' to attempt to insist on a quantitative standard of disputants across the border as a condition of the extension of a dispute beyond a State."

21. It is apparent that Dixon J was concerned with an argument based on the insignificance of the number of employees outside New South Wales. What his Honour said must be read in that context; beyond the context the remarks are obiter. However, it is not possible to dismiss as obiter what was said by Higgins J in The Felt Hatters' Case ((57) (1914) 18 CLR 88.) and referred to with apparent approval by Williams J in The King v. Blakeley ((58) (1950) 82 CLR, at p 83.). Higgins J said ((59) (1914) 18 CLR, at p 109.):

"Prima facie, the request made with the log ... is to be treated as real, genuine, and intended to be pressed by any appropriate means. But it was open to the respondents to prove the contrary".

The proposition is, with respect, expressed too broadly and is at odds with the judgments to which I have referred. It is also at odds with his Honour's later comment ((60) ibid, at p 112.) that

"the object of the power (in s.51(xxxv) of the Constitution) is to prevent or settle real industrial disputes, not to facilitate the creation of fictitious disputes".

22. When prohibition is sought the onus is on the prosecutor to demonstrate a lack of jurisdiction in the Commission. But when a matter is before the Commission the onus is on the party who alleges that an industrial dispute exists. In many, perhaps most, circumstances the service of a log of claims and a failure to accede to the demand contained in the log will be enough to satisfy the Commission that an industrial dispute does exist. But the ultimate onus does not shift to the respondent.

23. It has been said that the expression "genuine dispute" is tautologous. And so it is in the sense that "either there is a dispute as defined in s.4(1) of the Act or there is not" ((61) Re Printing and Kindred Industries Union; Ex Parte Vista Paper Products Pty. Limited, unreported, High Court of Australia, 3 June 1993, per Gaudron J at p 8.). The use of the qualifier "genuine" has crept into the language of industrial law, no doubt so as to put a brake on the service of demands which are not in truth sought by the members of the union in question and which seek merely to attract the jurisdiction of the Commission. In Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) ((62) (1938) 58 CLR 436, at p 442.) Evatt J formulated the question of the existence of an industrial dispute extending beyond the limits of one State by asking:

"Was the demand upon the respondents in two or more States genuine, or was it a sham or pretended demand?"

24. The term "sham" has been considered by Australian and English courts on a number of occasions since Evatt J wrote. The consideration has generally arisen in the context of a commercial transaction, very often for the purposes of the Income Tax Assessment Act 1936 (Cth) ((63) The cases are noted by Lockhart J in Sharrment Pty. Ltd. v. Official Trustee in Bankruptcy (1988) 82 ALR 530, at pp 536-540.). As a result of those decisions the term has come to be applied where persons have entered into an ostensible transaction as a disguise to conceal their real transaction. In Sharrment Pty. Ltd. v. Official Trustee in Bankruptcy ((64) ibid, at p 537.) Lockhart J concluded, after a review of the authorities: "A 'sham' is therefore, for the purposes of Australian
law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive." Given the sense in which "sham" is generally understood, it is better that the term not be used in relation to an industrial demand. The demand does not represent some concluded arrangement; it is no more than a claim made by a union. It is therefore difficult to brand it as a sham, no matter how unreal its contents may be or what has motivated them. It is what it purports to be. While the expression "genuine dispute" may be tautologous, the term "genuine demand" is not necessarily so. It does serve the purpose of focusing attention on the reality of the demand made and the motive with which it is made. If the demand is not genuine, in the sense described, failure to accede to it does not give rise to an industrial dispute. As the Court said in The Queen v. Ludeke; Ex parte Queensland Electricity Commission ((65) (1985) 159 CLR 178, at p 181.):

"(T)he demands must be bona fide in the sense that they are being genuinely advanced".

25. It is no answer to the contention that an industrial dispute exists merely to show that the demands made in a log of claims have little prospect of success and that they do no more than set the ambit within which conditions of employment may be negotiated and, if negotiations are unsuccessful, determined by the Commission. But a log may be so far-fetched, so lacking in industrial reality that it cannot possibly be treated seriously ((66) Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.2) (1930) 42 CLR 558, per Isaacs J at p 570.). It may be asked: where then do you draw the line? The answer is that while it is not always possible to draw a line, it may be possible nevertheless to say whether something, in this case a particular log, falls on one or other side of it ((67) Thouless, Straight and Crooked Thinking, (1974), p 105 comments: "Where no sharp dividing line exists in fact, the use of sharply different words to distinguish classes of facts which show continuous variation may distort the realities we are talking about.").

26. The minimum weekly wage of $5,000 and the minimum weekly allowance of $2,500 contained in the log lack all industrial reality. They have no relationship with any prevailing wage rates or allowances paid under existing awards and cannot be within the contemplation of those whom the log seeks to embrace. There is no attempt to distinguish between categories of employees, even allowing for the fact that a "minimum" is sought. That factor alone highlights the unreality of the claim. In argument, counsel for the respondents attempted to defend the minimum wage by pointing to rates of inflation and to the inability of predicting the value of money in years to come. But again, that only points up the unreality of the demand. Clause 4 of the proposed award contains a provision to cater for cost of living adjustments; therefore, the figures of $5,000 and $2,500 can only be seen as current rates for which demand is made. But the figures were apparently not seen by the Commission as obstacles to the finding of an industrial dispute. Rather, the Commission saw them as difficulties in the way of making an award if SPSF fails "in due course to particularise with greater exactitude the conditions of employment sought to be implemented in the context of any existing arrangements".

27. It is true that the purpose of the doctrine of ambit serves "not to determine the validity of a claim or log of claims, but to ensure that there exists an appropriate relationship between the dispute, especially a paper dispute, and the award which settles that dispute" ((68) The Queen v. Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68, per Mason J at p 76.). In other words ((69) The Queen v. Bain; Ex parte Cadbury Schweppes Australia Ltd. (1984) 159 CLR 163, per Brennan and Deane JJ at p 176.):

"Once the stage of arbitration is reached, the ambit of the particular interstate industrial dispute is the yardstick for measuring the constitutional validity of an award made in exercise of the Commission's arbitral functions."

But the doctrine of ambit does not of itself provide an answer to a challenge that the demand made in a log of claims is not genuine.

28. In Ludeke ((70) (1985) 159 CLR, at p 181.) the Court said:
"Because disagreement rather than disturbance or dislocation
of industrial relations is the essential characteristic of an industrial dispute, a 'paper dispute' evidenced by delivery and non-acceptance of a log of claims is sufficient to create such a dispute." But the Court, immediately thereafter, spoke of the need for the dispute to be "real and genuine". There is nothing in the judgment which stands in the way of rejecting as not genuine a demand which is not genuinely advanced. Evatt J correctly identified the issue when he asked whether the demand is genuine or a pretended demand ((71) Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) (1938) 58 CLR, at p 442.). Where the demand is not genuine there can be no disagreement for there is in truth nothing to disagree about.

29. In reaching its conclusion, "with some hesitation, and on a fine balance", that there was a genuine industrial dispute, the Commission said that it had taken into account a number of considerations. Those considerations are not numbered in the Commission's reasons but there are eight of them. They are set out at some length and it would inflate this judgment unduly to repeat them verbatim. However, I shall try to deal with each of the considerations briefly but in a way that does no injustice to the Commission's reasons.
1. The fact that "a substantial number of employees are affected by the log" says nothing as to the genuineness of the claim. Indeed the scope of the demands and the absence of any differentiation between those sought to be covered by an award points in the opposite direction.
2. While it is no doubt true, as the Commission said, that "the general relativity of salaries between State public sector employment, local government employment, private sector employment, and Federal Government employment has long been a subject of industrial controversy extending beyond State boundaries", the log makes no attempt to establish relativity; everything in the document points to figures having been plucked out of the air.
3. It is right to say that "SPSF has persisted with the log against determined resistance by 2 of the 3 groups of employers in these proceedings". But, since the basis of resistance is that the log is not genuine, this consideration does not advance the existence of an industrial dispute.
4. A consideration weighing in the mind of the Commission was "the structure of the SPSF and the industrial environment in which it normally operates". If anything, the fact that many employees within SPSF's constitutional coverage are members of State unions which are parties to State awards may cast doubt upon the genuineness of the log. Also, the Commission's adoption of an earlier statement that SPSF's "close association with state industrial regulation may also have been a handicap to the SPSF securing federal award coverage" might warrant an inference that the motive of SPSF in serving the log is nothing more than a wish to obtain federal coverage for its members.
5. The fact that Tasmanian employers did not dispute the genuineness of the log before the Commission is neither here nor there. The genuineness of the log was challenged by Western Australia and Queensland.
6. A further consideration in the mind of the Commission was that "albeit the dispute is evidenced mainly by the generation and rejection of a 'paper demand', the events constituting the dispute and the subject matter of the dispute are of a kind which would be treated as giving rise to an industrial dispute within the meaning of the Act as applied in the ordinary course of industrial practice concerning non-governmental employees". With respect, this simply begs the question. It is because the existence of a dispute is evidenced by a paper demand and nothing more that the existence of an industrial dispute is put in issue.
7. No doubt, as the Commission said, "it will be open to employer parties to apply for the Commission to refrain from further hearing of part or whole of the dispute (s)hould the SPSF fail in due course to particularise with greater exactitude the conditions of employment sought to be implemented". But, again, this statement points up the circularity of the Commission's approach to the question whether there is an industrial dispute. If there is an industrial dispute (interstateness aside), the Commission should so find. If there is not, the Commission should find to that effect, not assume the existence of an industrial dispute that may turn out to be unsupportable later on.
8. The last consideration begins: "the lack of preparedness of employers to accede to an alteration of existing conditions of employment, and the statutory inhibitions on their doing so in the manner sought in the log are not barriers to the dispute being genuine, and may be the reasons why it is genuine." It may well be that the factors mentioned are not a barrier to the existence of a genuine industrial dispute. But why in the circumstances they afford reasons for the existence of such a dispute is by no means self-evident.

30. In my view the considerations relied upon by the Commission do not lead to a conclusion that service of the log of claims on the Western Australian and Queensland employers gave rise to an industrial dispute; the log does not evidence a demand genuinely made.

Interstateness
31. If, as I have held, the Commission erred in concluding that there was an industrial dispute, the question whether there was a dispute "extending beyond the limits of any one State" does not arise. Nevertheless, it is as well to say something about the notion of "interstateness" in the present context since it was dealt with as a discrete aspect by the Commission and as such in argument before the Court.

32. The Commission dealt with this aspect in the following way:
"It is necessary to consider also the further contention
that the division of coverage within the SPSF rule(s) 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. 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. In relation to such a demand there is ample authority for looking beyond the purely intrastate character of the individual employers. 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. Although there are also several differences of importance between the functions and character of employers in the respective States we consider 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."

33. An earlier argument that any dispute between the parties could not be interstate lost its force some time ago. At the time the log of claims was served on each of the named employers in Western Australia, Queensland and Tasmania the eligibility provisions of the Federation and the Association differed. It was therefore argued that the members of the two organisations lacked the necessary community of interest to found a dispute extending to more than one State. But, as already observed, the Federation and the Association amalgamated on 9 February 1990. The Commission correctly pointed out that it may "take into account events subsequent to service and refusal of the log". The Commission referred to the statement of Murphy J in The Queen v. Bain; Ex parte Cadbury Schweppes Australia Ltd. ((72) (1984) 159 CLR, at p 168.) that "an industrial dispute may be diminished or ended or enlarged or altered during the course of the proceedings in the Commission". The present situation is different but it might with equal justification be said that whether there is an industrial dispute extending beyond any one State is to be assessed by reference to the terms of the constitution of the relevant employee organisation, in this case SPSF, at the time the Commission reaches its decision. Despite what was said by counsel for the Queensland employers, the question is not one of SPSF being a successor in title; rather the question is one of the constitutional coverage of SPSF at any relevant time. At the time of the proceedings before the Commission there was one organisation which had constitutional coverage in the three States concerned.

34. Once it is accepted, as it must now be, that many, if not all, of the employees sought to be covered by the proposed award are engaged in an industry ((73) The Queen v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297; Re Lee; Ex parte Harper (1986) 160 CLR 430.), it is hard to resist the conclusion that there is "common cause" ((74) See Jumbunna Coal Mine N.L v. Victorian Coal Miners' Association (1908) 6 CLR 309, per Griffith CJ at p 332; per Barton J at p 342.) made between SPSF and the three States in question. It is true that the log of claims cannot be treated as a demand for a national public service award as SPSF would have it, primarily because only three States are involved. But the relationship between the employers in those States and the various categories of employees employed by the States and their instrumentalities and the constitutional coverage of SPSF establish a sufficient degree of interstateness to satisfy that element of an industrial dispute within the meaning of the Act.

A special burden or disability on States?
35. A further challenge to the finding of an industrial dispute lay in the contention that the log singled out public sector employers in three States and that in so doing the log invalidly sought to impose a special burden or disability on those States and thereby discriminated against them. This contention falls to be dealt with on the assumption that there is otherwise an interstate industrial dispute.

36. There were said to be two aspects of this challenge to the jurisdiction of the Commission. The first is to be found in the proposition that a general law will be invalid if it would destroy or curtail the continued existence of a State or its capacity to function as a government. The second is that a Commonwealth law will be invalid if it discriminates against one or more States, in the sense of imposing some special burden or disability not imposed on the general community.

37. The principles invoked by the challenge are well established ((75) Melbourne Corporation v. The Commonwealth; Queensland Electricity Commission v. The Commonwealth.). For present purposes it is unnecessary to resolve the debate underlying Queensland Electricity Commission v. The Commonwealth as to whether discrimination against a State is but an illustration of a law impairing the capacity of a State to govern or whether it has a standing of its own.

38. It is hardly necessary to add that the limitations on Commonwealth legislative power preclude the Parliament from authorising any instrumentality to act in a manner inconsistent with these principles ((76) The Queen v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR, at p 313.). But the question is whether an award based on the log of claims served on the State employers in Western Australia and Queensland would in truth impair the capacity of those States to govern or would impose a special burden or disability on them.

39. The argument advanced by the Solicitor-General for Western Australia was based on the constitutional requirement that the States exist and function effectively. The underlying assumption has been expressed in various ways ((77) See Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR, per Gibbs CJ at p 206; per Mason J at p 217; per Wilson J at p 222; per Brennan J at p 231; per Deane J at p 247; per Dawson J at p 261. See also State Chamber of Commerce and Industry v. The Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329, per Brennan J at p 358.). The emphasis in the relevant judgments is on the capacity of a State to perform its constitutional functions unimpaired. And, the argument continued, the present log is directed at the whole of government employment in Western Australia, including the most senior positions, so that an award derived from it would effectively preclude that State from determining by whom and on what terms its administration should be performed. If, it is said, the Commission could make an award, without limit, relating to all State officers, "there would be a direct interference by an inferior, unelected agency of the Commonwealth with the heart of the State's constitutional mechanism".

40. This attack on the making of an award by the Commission was endorsed by the Attorney-General for Queensland. Mr Douglas QC submitted that the aim of any award made as a result of service of the log of claims could only be to "restrict or control Queensland, in that aspect of its executive power by which it determines what it pays its public servants". In the Public Service Management and Employment Act 1988 (Q.) and its predecessors Queensland has legislated to control those salaries. Relying upon the same authorities as were relied upon by the Solicitor-General for Western Australia, Mr Douglas contended that an award in terms of the log would substantially interfere with Queensland's capacity to govern and would single out that State for discriminatory treatment.

41. One of the difficulties facing the prosecutors in this regard is that their argument invites the question: at what point can a federal award be said to constitute a burden on a State or impair its capacity to govern? Clearly enough, some employees of a State may be made subject to a federal award without either of these consequences. To some extent we are again in the area of where a line is to be drawn. And again the answer, in part, is that it is not essential that the line be precisely spelled out. But the question remains: would an award based on the log of claims impair in any significant sense the capacity of Western Australia or Queensland to govern?

42. The Act binds the Crown in right of each of the States ((78) s.6.). It is within the power of the Commission (assuming that jurisdiction otherwise exists) to make an award binding a single State government employer or group of employers ((79) The Queen v. Isaacs; Ex parte State Electricity Commission (Vict.) (1978) 140 CLR 615, at p 619; Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR, at p 205.). SPSF pointed to a number of such awards.

43. It must be kept in mind that the present discussion only arises on the hypothesis that there is an industrial dispute extending beyond the limits of any one State. The discussion is hypothetical because of the view I have taken that there is no industrial dispute. But if the log of claims had reflected industrial reality in such a way as to give rise to an interstate industrial dispute (by, for instance, nominating realistic rates of pay and allowances and by differentiating between categories of employees), the award making power of the Commission might not be excluded on the ground that an award would be discriminatory. Such an award would not be directed against the States in question except in as far as they are employers nor would it treat the States differently from other employers. The identification of the employers against whom an award is sought springs from the membership rules of SPSF. An award would be made in order to determine an industrial dispute that had arisen affecting those States. No doubt, it would be an award that determined conditions upon which Western Australia, Queensland and Tasmania employed members of their public services. But that would be a consequence of the identity of SPSF and its membership rules.

44. It was submitted on behalf of Western Australia that the Act could not operate to authorise the making of awards in cases where the States alone were the relevant employers as this would "single out the States for special burdens". In my view, this submission must fail. The Act is of general application. It applies equally to all employers party to an industrial dispute extending beyond the borders of any one State. The fact that the Commission may make an award which affects a State as employer, either alone or as part of a group of employers does not detract from the general operation of the Act itself. Likewise, s.121 of the Act cannot be said to discriminate against the States. The section empowers the Commission to make an award "involving public sector employment" that may not be consistent with a relevant law of the Commonwealth. But the section does not purport to confer upon the Commission the capacity to make an award discriminating against the States.

45. Nor could an award in the terms sought be said necessarily to constitute "a substantial interference with the State's capacity to govern, an interference which will threaten or endanger the continued functioning of the State as an essential constituent element in the federal system" ((80) The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1, per Mason J at p 139; see also per Brennan J at pp 212-215; per Deane J at pp 280-281.). At this stage of the proceedings the question is one of the Commission's jurisdiction to entertain the log of claims, not the scope of its award-making functions. For that reason and because the discussion is hypothetical it is undesirable to consider any implications the notion of "the administrative services of the States" may have for the making of an award. This notion was discussed by Gibbs CJ in Re Lee; Ex parte Harper ((81) (1986) 160 CLR 430, at pp 442-444; see also per Mason, Brennan and Deane JJ, at pp 452-453.).

The State of New South Wales and the Electricity Commission
46. On or about 6 April 1990 the Electricity Commission of New South Wales ("the Electricity Commission") received a letter from the Electrical Trades Union of Australia ("the ETU") enclosing a log of claims. The letter was in the form of a demand that the Electricity Commission pay the rates of wages and observe the conditions of employment contained in the log. The demand was made "in respect of all employees, eligible to be members of (the ETU), whether members of (the ETU) or not". The log is much more detailed than the log served on the Western Australian, Queensland and Tasmanian employers in the two matters so far discussed. It claims a weekly wage of $2,000 for the base tradesman classification, with additional rates expressed in the form of a percentage of the base rate, to be paid to employees in various classifications. Certain other allowances are claimed along with a range of clauses relating to leave, holidays, termination of employment - the sorts of provisions generally to be found in awards.

47. The Electricity Commission did not accede to any of the demands in the log and in a decision handed down on 4 July 1990 and varied on 7 September 1990, Johnson C. found that there was an industrial dispute between the ETU on the one hand and the Electricity Commission and certain other employers on the other and that the subject-matter of the dispute was "those matters going to the relationship of employer and employee set out in the letter of demand and log of claims". The Commissioner found that the dispute existed in New South Wales, Victoria, South Australia, Tasmania and the Australian Capital Territory. Similar findings of dispute were made as the result of demands containing the log of claims served on the Electricity Commission by each of the other registered employee organisations.

48. After the findings of industrial dispute, the Electricity Commission invoked s.111(1)(g) of the Act, asking the Commission to refrain from further hearing or determining any of the disputes found to exist. Johnson C. directed that the evidence to be adduced on each application in relation to a finding of dispute involving the Electricity Commission be heard jointly. Before any further hearing the State of New South Wales and the Electricity Commission applied for a revocation of the findings of industrial dispute. They did so by reason of the matters raised in proceedings No.P43 of 1991 and No.B42 of 1991 in this Court. Johnson C. refused the application and in due course New South Wales and the Electricity Commission were directed to make application to the Court for an order nisi for prohibition and certiorari.

49. The reasons which lead me to conclude that in the case of the Western Australian and Queensland matters (No.P43 of 1991 and No.B42 of 1991) there was no industrial dispute do not operate with the same force here. While the base rate sought is clearly ambitious, the demands do not have the unreality of the log of claims in the Western Australian and Queensland matters. The log now under consideration does purport to deal with the relationship between employer and various classifications of employees and, more generally, with various aspects of the relationship between the Electricity Commission and its employees.

50. It would be premature for the Court to intervene at this stage of the proceedings in the Commission unless it were quite clear that the Commission lacked jurisdiction to make an award based on the log of claims. That is by no means clear. Such an award may be "relevant" or "reasonably incidental" or "appropriate" to the settlement of the differences between the parties ((82) See Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. (1989) 166 CLR 311, per Mason CJ at p 317.). What has already been said about the interstate nature of any dispute and the notion of the integrity of the States and discrimination against them applies with equal force here. This application should be refused.

Sydney Electricity and others
51. On or about 4 April 1990, Sydney Electricity, the Local Government Electricity Association of New South Wales and 23 county and shire councils were served with a log of claims by the ETU. Johnson C. subsequently made a finding of industrial dispute by reason of the prosecutors' failure to accede to the demands in that log. Shortly thereafter demands containing the log of claims were served on the prosecutors by each of the other seven registered employee organisations and findings of dispute were made in each case. The prosecutors sought an adjournment of the matters until such time as the Western Australian and Queensland matters (No.P43 of 1991 and No.B42 of 1991) had been resolved; that application was refused. Likewise Johnson C. rejected applications for revocation of each finding of industrial dispute. Against that background, Gaudron J referred the applications for an order nisi for prohibition and certiorari to this Court.

52. What has been said in relation to the proceedings brought by New South Wales and the Electricity Commission applies with equal force here. This application should be refused.

Conclusion
53. From what has been said in this judgment it follows that these orders should be made: 1. In No.P43 of 1991 there should be writs of prohibition and

certiorari in accordance with the notice of motion.

2. In No.B42 of 1991 there should be writs of prohibition and

certiorari in accordance with the notice of motion.

3. In No.S19 of 1992 the application for certiorari and prohibition

should be refused.

4. In No.S20 of 1992 the application for certiorari and prohibition

should be refused.

McHUGH J The facts of this case and the issues involved are set out in the judgment of Toohey J

2. For the reasons which his Honour gives, the applications by the State of New South Wales and the Electricity Commission of New South Wales and by Sydney Electricity and others should be dismissed. I also agree with his Honour's conclusion that prohibition and certiorari should issue with respect to the finding of dispute arising out of the service of a log of claims by the State Public Services Federation and the Professional Officers' (State Public Services and Instrumentalities) Association ("SPSF"). But I do so for different reasons.

3. In my opinion, SPSF was genuinely seeking to increase the salary and allowances of its members. However, the log of claims could not reasonably be understood as meaning that either now or in the foreseeable future employers should pay every person covered by the log the present day equivalent of a salary and allowances of $7,500 per week. That being so, and accepting that SPSF was genuinely seeking to increase the salary and allowances of persons covered by the log, the correct inference is that the only purpose of the organisation in serving the log was to attract the jurisdiction of the Commission so as to enable it to make an award for the "disputants".

The genuineness of the dispute
4. The essence of an industrial dispute is disagreement, not the industrial disturbance or dislocation attendant upon such disagreement ((83) Caledonian Collieries Limited v. Australasian Coal and Shale Employees Federation (No.1) (1930) 42 CLR 527, at p 552; Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, at p 181.). It is because of this approach to the notion of dispute that "paper disputes", established by the delivery of and non-compliance with a log of claims, may constitute industrial disputes within the meaning of s.51(xxxv) of the Constitution and the Industrial Relations Act 1988 (Cth). But such disputes must be genuine; the demands made in the log of claims must be bona fide in the sense that they are being genuinely advanced ((84) Ludeke (1985) 159 CLR, at p 181; Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 CLR 387, at p 415; Melbourne and Metropolitan Tramways Board v. Horan (1967) 117 CLR 78, at p 84.). The service and refusal of a log of claims constitutes prima facie evidence of a genuine dispute unless the persons served with the log prove the contrary ((85) Ludeke (1985) 159 CLR, at p 181 and the cases there cited.).

5. However, the prosecutors assert that while the rejection of a log may raise a prima facie case of dispute, no onus lies on the respondents to the log to prove the contrary. In R. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte G.P Jones (The Builders' Labourers' Case) ((86) (1914) 18 CLR 224, at p 246.), Isaacs J said:

"For it must never be supposed that this is a decision which asserts that a mere demand and refusal in all cases constitutes an industrial dispute, which is very different from saying that a regular and formal demand for altered conditions and a distinct refusal is prima facie evidence of such a dispute; or that a mere claim by plaint to regulate an industry is sufficient to give jurisdiction to the Commonwealth Court. In all cases the Court is bound to be satisfied of the existence and reality of the dispute, and if the circumstances show that the prima facie appearance of the industrial relations of the parties is incorrect, it will say so, and refuse to proceed. Further, if, on prohibition, that appears to this Court, the Arbitration Court may be restrained."

This statement supports the contention of the prosecutors. But statements in other cases give greater weight to the service and refusal of a log of claims. Thus, in Federated Felt Hatting Employees Union of Australasia v. Denton Hat Mills Limited (The Felt Hatters Case) ((87) (1914) 18 CLR 88, at p 109.), Higgins J said:

"Prima facie, the request made with the log sent on 2nd August is to be treated as real, genuine, and intended to be pressed by any appropriate means. But it was open to the respondents to prove the contrary".

In R. v. Blakeley; Ex parte Association of Architects etc. of Australia ((88) (1950) 82 CLR 54, at p 83.) Williams J stated the law in identical terms. In Reg. v. Cohen; Ex parte Attorney-General (Q.) ((89) (1981) 157 CLR 331, at p 338.), Gibbs CJ, with whose judgment Aickin and Brennan JJ agreed, said:

"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 ... The burden of showing that the Commission lacks jurisdiction rests on the prosecutor ... A formal demand will prima facie be regarded as real and genuine, unless the contrary is established".

In Reg. v. Ludeke; Ex parte Queensland Electricity Commission ((90) (1985) 159 CLR 178, at p 181.), the Court said:

"Because disagreement rather than disturbance or dislocation of industrial relations is the essential characteristic of an industrial dispute, a 'paper dispute' evidenced by delivery and non-acceptance of a log of claims is sufficient to create such a dispute. But from the beginning it has been recognised that the dispute must be real and genuine, the formal demand being viewed prima facie as real and genuine, the prosecutor bearing the onus of clearly establishing the contrary".

6. When prohibition is sought, the onus of proving that the Commission had no jurisdiction lies upon the prosecutor. In the four cases to which I have referred, the prosecutors were seeking prohibition in this Court. Nevertheless, the statements to which I have referred appear to be addressed to proof of a dispute generally, and not merely to an application for a writ of prohibition.

7. In principle, it is difficult to see why the raising of a prima facie case should transfer the burden of proof to the party asserting that there was no dispute. In other branches of the law, the raising of a prima facie case means that, in the absence of further evidence, there is evidence upon which the tribunal of fact can, but not must, find for the party raising the prima facie case ((91) May v. O'Sullivan (1955) 92 CLR 654; Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99.). In these branches of the law, the legal onus of proof does not shift to the defendant. In federal industrial relations cases, however, the contrary rule seems firmly established and has been stated and applied in a recent and unanimous judgment of this Court ((92) Ludeke (1985) 159 CLR, at p 181. See also Re Australasian Meat Industry Employees' Union; Ex parte Aberdeen Beef Co. Pty. Limited (1993) 67 ALJR 363, at pp 366, 374; 112 ALR 35, at pp 40, 51.). Consequently, it should now be taken as settled that a "paper dispute" constitutes prima facie evidence of a dispute and that the onus of proving lack of genuineness falls upon the party who denies the genuineness of the dispute.

8. The prosecutors contend that the Commission erred because it prefaced its conclusions as to genuineness by citing the statement of Gibbs CJ in Cohen to which I have referred. In view of the authorities in this Court, however, the Commission did not err in using that statement as the basis upon which it dealt with the issue of the genuineness of the dispute. After citing Cohen, the Commission then considered the various pieces of evidence relating to the issue before concluding that on balance the dispute was real and genuine. There was no error in the manner in which the Commission approached its task as to genuineness.

9. Nevertheless, the question remains whether the dispute is real and genuine. This is a question of fact. But, as it is a question going to the jurisdiction of the Commission, it is a question for this Court to decide.

10. A dispute is genuine if the demands made in the log of claims are genuinely advanced in the sense that the organisation "really wants what it demands" ((93) Cohen (1981) 157 CLR, at p 337.). A dispute is not genuine if the sole, principal or immediate purpose in serving the log is to attract the jurisdiction of the Commission and not to pursue the demands contained in the log ((94) Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.2) (1930) 42 CLR 558; Ludeke (1985) 159 CLR 178.).

11. In this case, the prosecutors contend that the nature of the demands in the log of claims discloses that there was and is no genuine dispute. The demands are for a $5,000 minimum wage to be paid to all employees, together with a minimum allowance of $2,500 per week for all employees. Not only are the amounts demanded exorbitant, but the prosecutors point out that they apply to all employees regardless of their function or current remuneration.

12. The insertion of inflated demands into logs of claims has become commonplace, largely as a result of the ambit doctrine, a doctrine which can be traced to R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow and Co. ("Whybrow's Case") ((95) (1910) 11 CLR 1, at p 61.) where Isaacs J said:
"(I)n my opinion the Court had no greater jurisdiction to
award a higher wage than was asked, than it had to reduce wages below what were actually in dispute. It is the dispute that has to be regarded and adjudicated upon ... There is nothing in the world to prevent employers or employees from making their respective demands as wide as they please; but when they choose to select one particular limited demand as the subject or point of dispute, and refer that to the Court, then that is what the Court has to decide. It may give anything between the maximum and the minimum limits of the dispute, but it can pass neither further forward than the maximum, nor further back than the minimum." To some extent, the rigour of the ambit doctrine has been softened by the principle that matters not strictly within the ambit of the original dispute may be the subject of an award as long as those matters are "relevant", "reasonably incidental" or "appropriate" to the settlement of the dispute or have a "natural or rational tendency to settle the particular question in dispute" ((96) Reg. v. Galvin; Ex parte Amalgamated Engineering Union Australian Section (1952) 86 CLR 34, at p 40; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch (1938) 60 CLR 507, at p 538; Reg. v. Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68, at p 76; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. (1989) 166 CLR 311, at pp 317-318, 334.). However, matters not within the ambit of the dispute and not reasonably incidental to the settlement of the dispute cannot be provided for in settlement of the dispute. Given that the ambit doctrine applies not just to the initial making of an award, but also to the variation of an award ((97) Reg. v. Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461, at p 474.), the tendency toward extravagant claims in logs of claims is probably inevitable.

13. Because the ambit doctrine is the explanation of the extravagant demands so often seen in logs of claims, this Court has had no difficulty in accepting the proposition that extravagant demands do not of themselves mean that a log containing such demands is not genuine ((98) See Ludeke (1985) 159 CLR, at pp 182-183; Reg. v. Heagney; Ex parte ACT. Employers Federation (1976) 137 CLR 86.). In Ludeke, the Court recognised that the requirements of the ambit doctrine "not only promote, but necessitate, the making of inflated demands" ((99) (1985) 159 CLR, at p 183.). The Court said ((100) ibid. (101) ibid, at pp 182-183; Melbourne and Metropolitan Tramways Board (1967) 117 CLR, at pp 83-84.):

"These demands, known as 'ambit claims', are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seem to be extravagant when made, appear, in the light of inflation, to be reasonable some years later."

Furthermore, the rule that extravagant demands do not necessarily mean that a dispute is not genuine has been reinforced by another rule. That rule provides that a log can give rise to a genuine demand even though the organisation or the employees concerned do not wish to have the conditions demanded in the log of claims implemented immediately #101 . Although claims may be extravagant in the light of the current terms and conditions of employment, they may nevertheless be perceived as genuine because they seek to settle the terms and conditions of employment for the foreseeable future. Consequently, by itself, the extravagant nature of demands in a log of claims has not resulted in such a log being found to lack genuineness.

14. The prosecutors contend that the ambit doctrine and the acceptance of extravagant demands, manifested in cases such as Ludeke, lead to constitutional error. They contend that such acceptance leads to a presumption that a log of claims, when rejected, gives rise to a genuine dispute and that a genuine dispute can be found in circumstances where there is in reality nothing over which the parties to the log of claims are presently in dispute. The prosecutors contend that the ambit doctrine - a tool for ensuring that the Commission remains within its jurisdiction - has created a fiction for evading those jurisdictional limits.

15. No doubt, the prosecutors are correct in pointing to the ambit doctrine as a significant (but not the only) factor in the making of extravagant demands. But the difficulties and artificialities pointed to by the prosecutors are not reasons for the rejection of the extravagant claims doctrine or, for that matter, the ambit doctrine. The ambit doctrine is concerned only with the relationship between an award and the dispute from which the award emanates. It has nothing to say about the dispute itself. Furthermore, if a claim for changed conditions, although extravagant by current standards, can reasonably be seen as intending to cover potential disagreements in the foreseeable future, it will and ought to be regarded as genuine. Extravagance by itself does not destroy the genuineness of a demand.

16. The prosecutors' attack on the ambit doctrine and the acceptance of extravagant claims must fail. The use of the ambit concept does not preclude inquiry into genuineness. And provided that the demands are a reflection of a genuine desire to provide for changes either now or in the foreseeable future, a genuine dispute may be found notwithstanding the extravagant nature of the claims when evaluated in the light of current conditions.

17. Nevertheless, if the demand is so extravagant that it cannot reasonably be understood as intended to provide for changes in the terms and conditions of employment, either now or in the foreseeable future, ordinarily the proper inference to be drawn is that the organisation making the demand does not really want what it demands. If other circumstances indicate that the organisation serving the log is nonetheless seeking to improve the terms and conditions of employment of its members, the proper conclusion may be that the real purpose sought to be achieved by serving the log is to create a "paper dispute" so that the Commission can make, and from time to time vary, an award in respect of those terms and conditions. That seems to me to be the situation in the present case.

18. The terms of the demands in this case can hardly be said to reflect an intention that either now or in the foreseeable future the employers should pay a salary and allowances with a present day value of $7,500 per week to each employee. For most, if not all, State public servants, a wage of $5,000 per week plus $2,500 per week in allowances would constitute an extraordinary, even fantastic, increase in their current wages and allowances. Moreover, the log contains a further claim that the wage and allowances be adjusted quarterly in accordance with the All Groups Consumer Price Index. Even allowing the ambit doctrine full operation so as to facilitate variations of the award in the future, it is impossible to accept that the organisation really intended to demand such dramatic changes in the level of wages and allowances. The amounts involved are too fantastic to accept that the organisation really wanted what it demanded either at the time of service or at any time in the foreseeable future. And it is not merely the amount of the claimed salary and allowances which suggests that the organisation did not really want what it demanded. There is no differentiation in the log of claims between the amounts payable to the respective employees. The same "claim" was made regardless of the seniority, experience, function or responsibility of the employees concerned.

19. In this case, the conclusion is inescapable that the claims were formulated for the purpose of creating a "paper dispute" so as to obtain an award in respect of such wages and allowances as the Commission thinks is reasonable for employees covered by the proposed award. For the reasons given by Mason CJ, Deane and Gaudron JJ, however, I do not think that the rejection of such a demand can create a dispute for the purpose of the Act. It follows that the Commission was in error in finding that a dispute existed.