Re The Amalgamated Metal Workers Union of Australia & Ors; Ex parte The Shell Company of Australia Limited

[1992] HCATrans 38

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry	No S70 of 1991
In the matter of -

An application for writs of
prohibition and certiorari

directed to THE HONOURABLE

JUSTICE JOHN TERENCE LUDEKE

and THE HONOURABLE JUSTICE

RUSSELL JOHN PETERSON (Deputy

Presidents of the Australian

Industrial Relations

Commission) and COMMISSIONER

BEVAN ROSS JOHNSON (a

Commissioner of the

Australian Industrial

Relations Commission

First Respondents

and

THE AMALGAMATED METAL WORKERS

UNION OF AUSTRALIA,
ELECTRICAL TRADES UNION OF
AUSTRALIA, AUSTRALASIAN
SOCIETY OF ENGINEERS, THE
FEDERATED IRONWORKERS'
ASSOCIATION OF AUSTRALIA,
ASSOCIATION OF DRAUGHTING
SUPERVISORY AND TECHNICAL
EMPLOYEES, THE AUSTRALIAN
WORKERS' UNION and TRANSPORT

WORKERS' UNION OF AUSTRALIA

Second Respondents

Shell(2) 1 11/2/92

Ex parte -

THE SHELL COMPANY OF
AUSTRALIA LIMITED, SHELL
REFINING (AUSTRALIA)

PROPRIETARY LIMITED, SHELL

CHEMICAL (AUSTRALIA)

PROPRIETARY LIMITED,

SPRAYPAVE PTY LTD, W.A.G ..

PIPELINE PROPRIETARY LIMITED,

SOUTH COAST GAS COMPANY PTY

LTD

Applicants/Prosecutors

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 FEBRUARY 1992, AT 10.19 AM

Copyright in the High Court of Australia

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

my learned friends, MR R.J. BUCHANAN, QC, and

MR P.M. KITE, for the applicants. (instructed by

Blake Dawson Waldron)

MR_E_.M. DONOHOE, QC: May it please the Court, I appear w{th

my learned friend, MS H.L. DELANEY, for all of the

second respondents, except the last-named, the

Transport Workers' Union. (instructed by Clayton

Utz)

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

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

Attorney-General of the Commonwealth intervening in

support of the second respondents. (instructed by

the Australian Government Solicitor)

MASON CJ: The Registrar has been informed by the Austral~an

Government Solicitor, who acts on behalf of the

first respondents, that the first respondents do

not intend to appear and will abide by the decision

of the Court. The Registrar has also been informed

by the Transport Workers' Union, one of the second

respondents, that it does not intend to appear and

will abide by the orders of the Court, save that if the application is successful, it wishes to reserve

argument on the question of costs. Mr Jackson?

MR JACKSON:  Your Honours have, I think, a copy of our

outline of submissions.

MASON CJ: Yes, we have.

Shell(2) 2 11/2/92

MR JACKSON:  Your Honours, as is apparent from the outline

of submissions, the issue in the proceedings to exist by reason of the rejection of a log of
concerns the jurisdiction of the Industrial

claims concerning two superannuation trust deeds.

Your Honours, the course that I propose to

follow in these submissions, if I may, is first to

take Your Honours as briefly as possible to the

terms of the superannuation trust deeds, which are

germane to the argument; secondly, to the nature of

the claims and then thirdly, to the submissions

which we wish to make in relation to those. And,

Your Honours, may I proceed to deal with the first

of those matters?

Your Honours, the two deeds are the Shell

Australia Contributory Pension Fund and secondly,

the Shell Australia Superannuation Fund. So, the

first is a contributory pension fund and the

second, a superannuation fund. Your Honours, the

former fund is the earlier in time, having been

established with effect from 1 October 1947; the

latter fund was established much later, namely with

effect from 1 July 1990. The latter fund is the

fund of significant importance for present
purposes, because almost all the former members of

the earlier fund have joined the later fund. That

appears from two references in volume 1: the first

is at page 22 lines 17 to 18 where, in the reasons

for decision of the majority of the members of the

Commission, Your Honours will see that it said

about 98 per cent of members of the earlier fund

have consented to transfer to the later fund and,

as appears also from page 11, Mr Bunting's

affidavit in support of the order nisi at

paragraph 20, the figure had increased to 99 per

cent or in excess of 99 per cent.

Now, Your Honours, because of the terms of the

demand, however, it is necessary to go to both

deeds in order to indicate the manner in which the

issue arises and, Your Honours, may I go first to

the earlier deed.	The deed is to be found at
page 204 in volume II.	It and the other deed are

part of an exhibit which is RABB.

Now, the deed commences, in operative parts, at page 209 and, Your Honours, at about line 7 on

page 209 Your Honours will see a reference to "the

Founding Company". The founding company is the

Shell Company of Australia Limited and,

Your Honours, the fund is given its own name on the

same page, about line 15, where it appears that: ·.

Shell(2) 11/2/92

the Founding Company has determined to

establish -

it, and the associated companies of Shell are

referred to at line 17 on the same page.

Now, Your Honours, the property constituting

the fund appears at page 212 in clause 2 and it

consists of:

Contributions made by

employees ..... contributions made by the Member

Companies pursuant to Clause 4 -

and other assets as Your Honours will there see.

Your Honours, the reference in clause 2(b) to:

Contributions made by the Member Companies

pursuant to Clause 4 -

is a reference to clause 4(a) on the same page, and

Your Honours will see that:

The Member Companies shall from time to time

pay into the Fund such amounts as with the

other assets thereof are required to make and

keep the Fund actuarially solvent.

And, Your Honours, as you will see from clause 4(b)

on the same page, the actuary is required to

certify the amounts necessary, and also, as appears

from clause 4(c), the member companies pay prima

facie, in proportion to the earnings of their

staff.

The power to appoint and remove new trustees

is vested in the founding company, that is the

Shell Company of Australia Ltd - that is at

page 216 clause 15(1), and, Your Honours,

clause 16(1) provides that: 

The fund shall be managed by the Trustees an?

any power or discretion exercisable by the ~-

Trustees hereunder may be exercised by a majority of the Trustees -

The trust deed, Your Honours, contained a power of

amendment of it, which is to be seen in
clause 17(1), at page 217, and Your Honours will

see from the opening words of clause 17(1) that the

power to amend, first of all, may be exercised at

any time; that appears, for example, from 17(l)(b).

It is subject to some provisos; one of the provisos

is that it may not be used to reduce benefits -

that appears from paragraphs (iii) and (iv), in

clause 17(1), and the third thing is that it may

not be used in such a manner as to result in a

Shell(2) 4 11/2/92

payment to the member companies - that appears
from 17(l)(ii).

Now Your Honours will also note in relation to the power to amend that it is vested not in the

founding company, or in the employer or in the

member companies, but in the trustees. The

founding company must approve any proposed

amendment, but any amendment is made by the trustees. Your Honours, the trust deed, by

clause 19 at page 218 contemplates the

establishment of new schemes and the transfer of

members to new schemes, together with parts of the

existing fund - that appears from 19(a) and 19(b). an amendment to the scheme dated 21 May 1990,

specific provision was made which led to the

transfers in the particular case. The specific

amendment may be seen at page 296 and, Your

Honours, amongst other things, that amendment

introduced a new clause 25A, which appears at

page 297.

Your Honours will see, if I can go first to

clause 25A(2) at that page, what might be

transferred to a new fund was a member's equitable

share. Equitable share was a term defined in

clause 25A(l) and defined in such a way that the

proportionate share attributable to a member in

effect went over to the new fund. Your Honours

will see that in the part of the definition between

lines 5 and 12 on page 297.

The proportionate share that went over, to put

it loosely, to a new fund included a proportion of

any surplus, meaning, by surplus, for the moment,

any amount of the fund which was more than

sufficient to satisfy the estimate of the existing

and potential - - -

DAWSON J:  It included a ..... surplus.

MR JACKSON:  Yes. Your Honour, I say that because, if one

were to look at the part of clause 25A(l) between

lines 12 and 18, one would gain a slightly

misleading impression perhaps, because Your Honours will see an exclusion of clause 180 of the original

document. The purpose of that was to exclude the

possibility that existed under the deed prior to

the amendment that if there were, for example, a

winding up of the fund, persons who were not

members might obtain part of the fund.

If I could perhaps put it in that short way,

but the effect of the provision was that surplus,

in respect of transferring members, went to the new

fund.

Shell(2) 5 11/2/92

Your Honours, if I could then turn very

briefly to the benefits payable under the first

deed, the benefits were defined benefits in the sense that the quantum of them was fixed by the

trust deed. The approach taken by the trust deed

in that regard was to set out the benefits in a

document which was part of the deed but appended to

it called the regulations, and the regulations

commence at page 227. The benefits payable are

calculated in accordance with the provision of the

regulations. It seems unnecessary to go to them in

detail, and it perhaps suffices to say - and I will

give Your Honours the reference in just a moment -
that they are payable on cessation of employment or

to dependants on death.

The rele~ant provisions are regulation 23, at

page 243, that is normal retirement, as it were.

Regulation 23A, commencing on the same page, that

is earlier retirement, but after 55.

Regulation 24, that is early retirement, but after

10 years of service, and regulation 26, retirement

because of ill-health or other special reasons.

So far as dependants are concerned, the

relevant provisions are regulations 30 to 36 and,
Your Honours, it seems unnecessary to go to the

detail of that but Your Honours will see provision

for pensions being paid. Your Honours, those are

the essential provisions of the first deed.

May I turn then to the second deed, the Shell

Australia Superannuation Fund. That document is to

be found commencing at page 302 and under this

document the -

BRENNAN J:  Mr Jackson, before you leave it, how does a

surplus ever arise in the first fund if the

company's contributions are limited to what is

actuarially necessary?

MR JACKSON:  Your Honour, it arises really because the

company pays - perhaps a conservative view has been

taken and the company also might, if it chose, put

in more money than the actuary certified from time

to time. I suppose, too, Your Honour, in relation
to particular funds a number of circumstances can

arise which could result in a fund having larger

money ..... than one might have expected. Could I

give Your Honour some instances? It might be,

although it might be in perhaps past times, so perhaps not at the present, that an investment might result in a capital profit. For example, a

building that was purchased and sold, one would get

more for it than one might expect. Again, it may

be that income from other investments comes in more

enthusiastically than one might expect. Again, it

Shell(2) 6 11/2/91

may be that changes in the number of employees and

differences in terms of employment and length of

time of employment, for example, might affect the

amount that has in fact had to be paid out over

particular times.	So that it is possible,
Your Honour.

BRENNAN J: If a surplus does appear in the first fund, does

that go in relief of the obligation to contribute

under clause 4?

MR JACKSON:	Yes, because, Your Honour will see, what the actuary has to certify is the amount necessary - I
have forgotten the precise words - to ensure the
solvency of the fund.
Your Honours, if I could move then to the Shell Australia Superannuation Fund, the trust deed
commences at page 302.  The company which founded
it, although that word is not precisely used, is
Shell Australia Limited. That appears at page 309,
about line 22.  Your Honours, provision is made for
the trustees under the deed to be equal numbers of trustees in effect representing members on the one
hand, and trustees appointed by Shell Australia
Limited on the other, together with an independent
trustee. That appears at page 321, clause 1.5.3.

The powers of the trustees appear from

clause 1.7. May I take Your Honours to page 328.

As appears from clause 1.7.1, line 11, the trustees

have an absolute and uncontrolled discretion and,

Your Honours, clause 1.7.2, they have the complete

management and control of, in effect, the fund.

Your Honours, the benefits payable are again defined benefits. They are benefits under Parts 2,

3 and 4 of the fund. Under Part 2, the benefits

payable appear relevantly from - could I give

Your Honours the numbers first - clauses 2.4, 2.5,

2.6 and 2.7, commencing at about page 373.

Your Honours will see clause 2.4 refers to members
retiring from the employ. Clause 2.5 deals with,

as the heading indicates, death or total and

permanent disablement benefits. Clause 2.6, again,

resignation benefits, and clause 2.7, some

additional benefits payable in particular

circumstances there set out.

Your Honours, perhaps I should just say,

Part 2 really applies to persons who are new

members of the fund and, Your Honour - perhaps I

can be corrected if I am wrong about this because it is somewhat complicated - new members who were

not members of the previous fund.

Shell(2) 11/2/92

Part 3 provides for rather similar benefits,

the clauses being 3.4 to 3.7, that relating

principally to persons who were members of the
previous fund, the relevant sections commencing at

page 384.

Under Part 4, commencing at page 400, an

additional benefit is payable to two classes of

persons, persons who are restricted members and
persons who are former members of the earlier fund,

restricted members being persons who were not

members of the earlier fund for various reasons but

were employees of the companies. But,

Your Honours, perhaps to put it shortly, the benefits are payable under Part 4 when a member

retires, dies or leaves employment and,
Your Honours, in various circumstances, again,

benefits may become payable to a dependant under

the new scheme.

Your Honours, there is, again, a power to

amend the scheme. The power to amend the scheme is

to be found in clause 1.37 which appears at

page 361, and on this occasion the power is vested

in the company which established the scheme, namely

Shell Australia Limited. That appears,

Your Honours, from clauses 1.37.1 and 1.37.2.

Your Honours, the trustees and the employers

play no part in relation to amendment.

Your Honours will recall under the earlier document it was the trustees who had the power to amend,

assuming they obtained the concurrence of the

founding company; that is not the position under

the new deed.

Your Honours, further, provision is made

whereby Shell Australia Limited may require the

trustees to pay to it any surplus certified by t4e

provision in just a moment - any sum more than actuary, meaning by that term - I will come to the	125 per cent of the value of any benefits which Are
or may become payable. Your Honours, that appears
at page 338, clause 1.17.2.

Now Your Honours will see that clause

L 17. 2 (a) ( i) contains a term "Total Fund Value".

Your Honours, that means the total value of all the assets of the fund at that time. Paragraph (ii)

refers to "Total Accrued Benefit Value" which, in

short, is 125 per cent of the aggregate of all

accrued benefits and secondly, 125 per cent of the

value of all:

benefits presently or prospectively

payable •.... in respect of all Beneficiaries as

at the date of determination.

Shell(2) 11/2/92

Clause l.17.2(c) says that if the second of those concepts is less than the first, as at the date of

the report, and a:

request for payment from the Company is

received by the Trustees -

then the Trustees must:

cause such part of that excess as may be

requested by the Company to be paid out of the

Fund and dealt with as directed by the

Company.

There is however, as Your Honours will see from

paragraph (d), a provision that if there has been a

change of circumstance then the Trustees may

require a further examination by the actuary to
ensure, in effect, that the fund does not get below

the 125 per cent.

Your Honours, those are the provisions of the

two deeds. May I move then to the claim in

question. Your Honours, the claim was originally

upon Shell Australia Limited, that is the company

establishing the second deed, and upon the other

companies which are referred to in the claim

itself, and may I take Your Honours to that now in

the first volume, and Your Honours will see it set

out conveniently, commencing at page 35 and going

through to page 39. It is there set out,

Your Honours, as part of the finding of dispute

made by the Full Bench of the Commission that

commences at page 34.

Now, Your Honours will see, if one goes to

page 34, that the bodies in respect of whom the

dispute has been held to exist are set out in

clause 2(a) on page 35.	Now, Your Honours will see
there that the various companies in respect of

which the "dispute" has been held to exist.

Your Honours will also see that Shell Australia

Limited, the company founding the second deed,

although it was the subject of the claim, has been

found not to be a party to the dispute for the

reason that it is not an employer. Your Honours,

that appears at page 24, first, and paragraph 6

where, in line 21, a submission to that effect on

behalf of, in effect, our side is noted and then at
page 30, Your Honours, at about line 7, a finding

that:

It has not been demonstrated that any of the

companies other than Shell Australia Limited

are not employers.

Shell(2) 9 11/2/92

Now, Your Honours, the effect of the double negative of course is that Shell Australia Limited

was not an employer.

Now, Your Honours, one notes in passing, of

course, before coming to the features of the claim,
that the companies, other than Shell Australia

Limited, have no right to amend "the trust deed" to

mean either trust deed, nor to give directions to

the trustees in relation to the disposition of any

surplus.

DAWSON J:  What is the relationship of Shell Australia to

the other companies?

MR JACKSON: Your Honour, I am sorry, I just - - -

DAWSON J: Are they subsidiaries?	,,
MR JACKSON:	Yes, Your Honour, all subsidiaries of Shell

Australia Limited. Your Honours, could I turn

then, Your Honours, to the terms of the claim. It

divides relevantly into three parts: first, clauses

2 to 6 on pages 37 and 38; secondly clause 7 and

thirdly clause 8. May I go first, Your Honours, to

clause 2? Your Honours will see that clause 2

contains three paragraphs. In the first paragraph

it says that the employers are to:

appoint an actuary to participate in preparing
the report hereinafter mentioned and the

Organisation -

is also going to -

appoint an actuary. The Actuaries shall act

as experts not as arbitrators. Any difference between them shall be determined by an actuary

appointed by the president ..... of the

Institute of Actuaries.	The report of the
Actuaries shall be final and binding.

Your Honours, it goes on to say that:

the Actuaries shall investigate the Funds -

and "the Funds" is a term defined on the preceding

page in subparagraph (5) to mean both the funds to

which I have referred. It goes on to provide in

page 37, the second paragraph of clause 2, that the

actuaries are to:

report to the trustees of the Funds and the

employers of the Organisation as· to the Total

Fund Value and the Total Accrued Benefit Value

in respect of each of the Funds as at the

Effective Date.

Shell(2) 10 11/2/92

Now, Your Honours, those terms, "Total Fund Value"

and a "Total Accrued Benefit Value" are defined on

the preceding page again:

"Total Fund Value" means net market value -

as those actuaries determine -

of all the assets of the Fund as at the

Effective Date.

"Total Accrued Benefit Value" means 125% of

in respect of the second fund -

the aggregate of all Accrued Retirement

Benefits ..... and ..... the value .... of the

benefits ..... prospectively payable -

and then paragraph (2) in respect of the earlier

fund the:

benefits presently or prospectively

payable ..... in respect of all members and

beneficiaries.

Now, Your Honours, that figure - perhaps I could

observe in passing, it does not appear, of course,

pursuant to what power or right such an
investigation is to be carried out.

Your Honours, the report of the actuaries so appointed is, as Your Honours will see, to be final

and binding. That is the last sentence of the

first paragraph. Your Honours, in calculating the

total fund value, as appears from the third

paragraph, a particular basis is to be adopted -

slightly different from that which might otherwise

apply.

Your Honours, the consequence of a report by

the actuaries is set out then in clause 3. If the report reveals that the total fund value of either

fund exceeds the total accrued benefit value, the

employers are then to use their best endeavours to

procure amendments to the trust deed, et cetera, tto

procure the trustees to credit the amounts

calculated under clause 4, to which I will come, to

what are described as fully vested accounts. "Fully Vested Accounts", Your Honours, is a

term defined in clause 1(6) as meaning:

an allocated account for each member of the

Funds who is a member of the Organisation, the

account balance of which is payable to or in

respect of the member on termination of

Shell(2) 11 11/2/92

employment ..... and to which shall be credited

earnings of the Fund in accordance with

paragraph 5 hereof and to which shall be

debited expenses of the Fund ..... that relate

to the amount in the account.

Your Honours, clause 4 at page 37 then provides for

the calculation of the amount to be credited to

each such fully vested account. In effect,

Your Honours, it is in respect of each employee who

so qualifies, 50 per cent of that amount - of the

excess, in effect - that is attributable to his

proportion of the total fund.

Your Honours, clause 5 at page 38 then says

that the amount credited to that account is to be

credited with earnings at the fund's net earning

rate, and by clause 6, the amount of the fully

vested account is to be payable as a lump sum on

termination. They are clauses 1 to 6.

The second clause is clause 7, which is

expressed as an alternative to clause 1. It
purports to deal with the situation concerned only

with the earlier fund, and that is that if a sum of

money or other asset of the earlier fund has been

paid to an employer at any time on or after

21 May 1990, then the Commission is asked to order

that the employer to whom it was paid repay it, in

effect, and that an account be taken of all .

dealings by the employer with such money and other

assets.

Your Honours, could I just pause to say that

Your Honours saw clause 17 which prohibited such a

transaction occurring, that is, a payment out to an

employer. I mention that in passing and I will

come back to it in the course of the argument.

Now, Your Honours, clauses 8 and 9 are expressed to be alternatives to clauses 1 to 6 and

7. Clauses 8 and 9, however, again deal only with

the earlier fund. That that is so, Your Honours,

appears from clause 9 at the top of page 39, where

there is a reference to the earlier fund.

Clauses 8 and 9 seek an order that each employer·

refrain from assisting in:

making or concurring in any arrangement

whereby any assets or part of the Pension Fund

might be transferred to any of the Member

Companies or any company trust or partnership in which any of the Member Companies has any

interest; and from

Shell(2) 12 11/2/92

approving any revocation or modification of

all or any of the provisions of the Pension

Scheme -

except with the consent there referred to and,

Your Honours, an alternative is put within it that:

such employer to use its best endeavours to

procure the other Member Companies and the

Trustees -

so to refrain.

Your Honours, having referred to those provisions might I then turn to the arguments which

we wish to submit in relation to them.

BRENNAN J:  Mr Jackson, could I just ask you one further

question about clause 2 on page 37. The third

paragraph, relating to the $14.70, is that amount

to be included as a mere mathematical calculation

or is there anything which required the payment ~f

the $14.70?

MR JACKSON:  If Your Honours look at page 19, Your Honours

will see that two demands were made. One was

described in the majority decision as "The $14.70

dispute" and it was, in effect, a requirement that

there be paid into the fund $14.70 in respect of

relevant members. Your Honours will see

particularly about line 29 on that page.

Your Honours, the finding of a dispute in

relation to that is not the subject of any

challenge, because that would seem to be covered by

the Manufacturing Grocers' case to which I have

referred but, Your Honours, it seems to be that

that $14.70 is then carried over by the third

paragraph of clause 2 for the purpose of making the

calculation.	Your Honour, I do not think there is
anything more magic about it than that, really.

Your Honours, could I proceed then to deal

with our arguments in support of our submissions
and may I deal first with the demands that are set

out in clauses 2 to 6 in the log of claims. Our

submission is that the demands cannot give rise to

an industrial dispute, for a number of reasons

which are set out in our outline of submissions,

but may I proceed to deal with the first of them,

the first being that the demands, we would submit,

are not demands capable of being acceded to in a

relevant sense - and I will explain what I mean by

that qualification in a moment - by the employers

and the failure to accede to them does not give

rise to an industrial dispute.

Shell(2) 13 11/2/92

Your Honours, may I go to the cases on that

question after referring to the various clauses of

the log of claims. If one goes back to clause 2 on

page 37, what one sees is a demand that the

employers appoint actuaries and invest them with

power to investigate the funds. Your Honours, it

is plainly contemplated that such an investigation

would be an effective investigation of the fund

resulting in the report referred to in the

remainder of the clause.

Your Honours, none of the employers, in the case of either fund, has the authority to direct or

permit such an investigation; meaning by that,

that the funds are under, of course, the control of

the trustees. The trustees' rights, duties and

functions are des =ibed by the deeds and I have

referred in the case of the second deed to what

appears at page 328, that is clauses 1.7.1 and

1.7.2, the ambit of the trustees' powers and

functions. That is the first thing.

The second thing, if one looks at clause 2 in

the first paragraph of it, is that it says that

"The report of the actuaries shall be final and

binding". Your Honours, such an expression

immediately gives rise to the question: final

questions, final and binding upon whom and for what

purposes. If one looks at the former of those

things, upon whom is the report of the actuaries to

be binding, one may assume that it is intended that
it would be binding upon the several employers and

employees amongst themselves. But that, in our

submission, would not go far enough, because the

determination, if it is to be efficacious, needs to

be bindings upon the persons having control of the

fund, namely, the persons who are trustees.

Your Honours, the trustees are not parties to the dispute. If the determination of the actuaries

referred to in clause 2 is intended to be binding

for the purposes of the trust deeds, its effective

operation will be as an amendment to those deeds.

But the persons who have power to amend the deeds

are again not parties to the dispute. Your Honours,

I say that with one qualification, the

qualification being this: in the case of the

former deed the Shell Company of Australia Limited,

the founding company, which is a party to the

dispute, is the party which has to agree to an

alteration to the deed; the person, or persons,

who effect the alteration to the deed are the

trustees.

In the circumstances to which I have referred,

if the employers were to accede to the demand which

is contained in clause 2, their accession would

Shell(2) 14 11/2/92

not, in our submission, have the slightest effect

upon the rights of any person in or in relation to

the fund. Your Honours, one should also note that

under each deed the trustees appoint their own

actuaries to investigate the funds and certify the

amounts which have to be paid. That appears from -

and perhaps I could just give Your Honours the

references without taking Your Honours to the

particular provisions - in the case of the earlier

fund, the SACPF, clauses 10(1) and 10(2) at

page 215, and clause 4(b) at page 212, to which I

have taken Your Honours. In the case of the later

fund, clause 1.10.1 at page 331, and clause 1.22.1

at page 345.

Now, Your Honours, the fact that the trustees

are obliged to appoint their own actuary and that

the actuary certifications result in what is

contributed to the fund is not, of course,
decisive, but what one does see is that if one were
to have actuaries acting under clause 2 of the

demand, then it may well be that they would arrive

at results different, and of course honestly

different, from those arrived at by the fund's

actuaries.

Your Honours, corning back to clause 2,

Your Honours would not also, we would submit, that

clause 2 contemplates that the employers, that is

the number of employers, are to agree on an actuary

who is to be their representative. Now,

Your Honours, there is no especial reason why they

should agree; why are they, one might ask, to agree

to appoint one actuary. Your Honours, if one moves

from clause 2 to clauses 3, 4, 5 and 6 they all

appear to be dependent on the existence of the

report referred to in clause 2. That appears from

the opening words of clause 3 and also,

Your Honours, from the definition of "Fully Vested

Account", a concept taken up by clause 3 and

defined as being one which achieves some of its

content by reference to clauses 5 and 6.

Now, Your Honours, the point I seek to make

about the last thing I have said is simply to say

that the provisions of clauses 2 to 6 all seem to

go together; one is not severable from the other.

Now, Your Honours, could I come from that to

the decisions which, in our submission, make it

apparent that what is required is that there be

something to which the employer is capable of

acceding. Your Honours, the first is Reg

v Findlay; Ex parte Victorian Chamber of

Manufactures (1950) 81 CLR 537. Your Honours, at page 542 at the first passage - about point 7 going to the bottom of the page, and Your Honours

Shell(2) 15 11/2/92

will see the proposition is here and the judgment

of Chief Justice Latham put it this way:

If a log makes a demand which the court cannot

validly grant the person upon whom the demand

is made is entitled to ignore it as an element

in an industrial dispute.	The demand amounts
to nothing.

Your Honours, I shall not read it out, but could I

refer Your Honours to the examples, in effect,

given or the example given on the remainder of that

page. Your Honours, His Honour dealt with a

similar topic at page 543 at the bottom of the page

in the last paragraph and in the passage which goes

over to the end of that paragraph on page 544.

Now, in the reasons for judgment also of

Justice Dixon at page 549, His Honour, at the

bottom of the last three lines on page 549, in the
passage which goes to about point 7 on the next

page, deals with the issue.

Your Honours, that case was one where, under

the provisions of the Conciliation and Arbitration

Act, there was, it had been held, power to award preference but not power to award compulsory

unionism and what was said was that a requirement,

or demand for compulsory unionism, could not, by a failure to agree to it, give rise to an industrial dispute.

Your Honours, in the same case,

Justice McTiernan, at page 551 in the paragraph

commencing about point 6 on the page, going to the

bottom of that page, Your Honours will see at the

last five lines on the page His Honour puts it

shortly, and also at page 552 in the second-last

paragraph on the page.

Your Honours, observations to similar effect

may be seen in Reg v Graziers Association of New	South Wales; Ex parte Australian Workers' Union,
(1957) 96 CLR 317. The relevant passage is in the
joint judgment of Chief Justice Dixon and
Justices McTiernan and Kitto. It is in the
paragraph commencing at the top of page 323 and going through to half-way down the page. That was
a case, Your Honours, where the employers had served a log of claims in which they sought to get
the union to accede to a demand that a particular
rate of pay be payable to persons who were not
members of the union. Your Honours, also, again,
in the joint judgment at page 324, the paragraph
commencing half-way down the page and going over to
the next page.

Shell(2) 16 11/2/92

Your Honours, may I also give two further

short references.	The first is Reg v Portus;
Ex parte City of Perth, (1973) 129 CLR 312.	At
page 325, in the reasons for judgment of

Justice Gibbs, where, commencing half-way down the

page, His Honour says:

An industrial dispute will only arise from the

failure of employers to accede to the demand

of their employees if the demand is for soma
change in the conditions of employment, or for

something otherwise pertaining to the

relations of employers and employees, which it

is within the capacity of the employers to

bring about -

and he goes on through the remainder of that

paragraph.

DEANE J:	What page was that again?
MR JACKSON:	I am sorry, Your Honour, it was page 325,

commencing half-way down the page, Your Honour, the

sentence:

An industrial dispute will only arise -

and then going to the end of that paragraph. And, Your Honours, the last reference I want to give on

this point is Reg v Coldham; Ex parte Fitzsimons,

(1976) 137 CLR 153, in a passage at page 161,

Justice Stephen, in the paragraph commencing at the

bottom of the page, makes an observation which is

perhaps of some practical materiality in the sense

that he says:

The presence of practical difficulties in giving effect to a demand will often be

suggestive of the fact that the subject matter

of the demand is not an industrial matter and

their absence will suggest the contrary.

And he goes on to say the obverse may be the case

of course too, and that continues throughout that
paragraph.

Now, Your Honours, I have referred, in dealing with clause 2 to the various difficulties that may

arise in relation to its operation, but the fact of

the matter is that it requires the employers to

accede to things over which, in the end, they have

no power.

Your Honours, could I go then to clause 3.

Now, what Your Honours will see, the condition on

which clause 3 operates, is that it requires that

the report reveal:

Shell(2) 17 11/2/92

that the Total Fund Value of either of the

Funds exceeds the Total Accrued Benefit Value

as at the Effective Date -

that is the first three lines. If that happens

clause 3 then requires the employers to:

use their best endeavours to procure such

amendments to the trust deed -

trust deed in question and to -

execute and do all lawful assurances -

et cetera -

for procuring that the trustees of such fund·

credit the amounts calculated in accordance

with paragraph 4 to Fully Vested Accounts -

the fully vested accounts being for -

employees who on 30 June 1990 were members of

the fund and who were employed on that date by

any of the companies -

and who -

were on that date members of the Organisation.

Now, Your Honours, of course, persons who are not members of the organization would be left with, I

suppose, an unamended deed.	Your Honours, the use
of the formula to:

use their best endeavours -

whilst one recognizes that in appropriate context,

normally contractual, would evidence a definable

and identifiable criterion which could be applied,

and whilst one recognizes also that in some

industrial context it might well be an acceptable

criterion, for example, a requirement that an

employer make his best endeavours to ensure that
employees wore boots or protection of a particular

kind. In the case such as the present, however,

when one looks at the context in which it appears,

what it does is to emphasize, in our submission,

rather than overcome, the employers lack of

authority over the contents of the trust deeds and

over the conduct of the trustees.

Your Honours, not to agree to the demand set out in clause 3 does not, in our submission, lead

anywhere because the employers do not have power to

procure amendments to the deed. The employer's

role, contemplated by clause 3, is rather akin to

Shell(2) 18 11/2/92

that of a lobbyist where the employer is to act as

an advocate for the employees, or rather for some

of them, namely, those who are members of the

organization as at a particular date, and they are

seeking that the employer act on their behalf, at
least in the case of the second deed, against a

company which is not a party to the dispute,

namely, Shell Australia Limited.

What I mean by that, Your Honours, is that if

one goes to clause 1.17.2 of the second deed, which

Your Honours will see at page 338 - I took

Your Honours to this briefly before, but the effect

of paragraph (c) is that if there is a surplus in

excess of 125 per cent then, at the top of the

next page, line 4:

the Trustees shall ..... cause such part of the

excess as may be requested by the company to

be paid out of the Fund and dealt with as

directed by the Company -

"the Company", of course, Your Honours, being Shell

Australia Limited. True it is, that Shell

Australia Limited may say, "Pay it to this company"

or "Pay it to that company", and that company may

be an employer.

McHUGH J:  Who has the beneficial interest in the surplus

prior to a decision being made by the trustees?

MR JACKSON:  Your Honour, I do not think that is dealt

with - may I check that? - in respect of this

deed - perhaps I could check that with someone.

Perhaps I can come back to that. It is in a sense

an unallocated fund, but I am not certain that is a

sufficient answer to Your Honour and I will come

back to it if I may.

GAUDRON J:

Mr Jackson, this argument that you are now

making, with respect to clause 3, goes only to the

superannuation fund, and not the contributory

pension fund, does it?

MR JACKSON:  The particular point I was making, Your Honour,

yes, it does. What I was saying in relation to - I

was directing attention to clause - - -

GAUDRON J:  And the essential difference between the two,

for the purposes of this argument, is that one is

an employer and the other is not an employer?

MR JACKSON:  Yes, in the case of the second fund, Shell

Australia Limited is not an employer and under that

it is the person entitled to a surplus.

Your Honour, so far as the - and what I was seeking

to make, say, in relation to the particular thing,

Shell(2) 19 11/2/92

was that the demand under clause 3 is seeking that the employer act on their behalf against a company not a party to the dispute, and that was a

particular submission. What I was submitting more

generally in relation to both of them, of course,

was that what is sought by clause 3 is that the company, in effect, act on their behalf against

persons themselves not party to the dispute,

namely, for example, the trustees.

Your Honours, so far as the interests are

concerned under clause 3, no interest of an

employer is involved; simply the interest of

employees. Your Honours, under the definition of

"industrial dispute", in section 4(1) of the

Industrial Relations Act, the - - -

DEANE J:  Mr Jackson, is there any case dealing with the

relevance of the corporate veil for the purposes of determining the existence of an industrial dispute? Is there anything that is said that in terms of

whether or not there is an industrial dispute one

looks at the legalities and does not, as it were,
look at practicalities involving whether or not one

says, "This is company A which owns company B which

is the employer, but company A has nothing to do

with this"?

MR JACKSON:  Your Honour, I think the answer to that - and

perhaps I can be corrected if I am wrong - is

first, in this context, no. I say that with this

qualification: one recognizes of course that it is

normally the case, or frequently the case, that one

sees the superannuation dealings, if I can use a

neutral term, of companies that are related being

dealt with by the same scheme or by the

superannuation funds selected by a group of

companies being the same fund or similar funds.

Your Honour, that no doubt has the effect that

larger sums of money are there to try to get better

earnings, but, Your Honour, the second thing is

that in some contexts it may be that one is

entitled to look at the way things are in fact.

Could I give Your Honours an example. It may well

be that the one factory produces equipment for one
purpose and equipment for another purpose. It may

be that the employees producing A are employed by

company 1, B by company 2, and the service company

that provides the employees who do clerical work,

by company 3.

It may be, Your Honour, that if some safety issue arose within the premises, then it would be

possible for a commissioner to - I am sorry, I will

put it differently. It would be possible to make a

demand which might have the effect of requiring one

Shell(2) 20 11/2/92

party to seek to achieve some end from a related

company, but, Your Honour, accepting the

possibility that that is so, I think the answer directly to Your Honour is no. But what one is

talking about in the particular case is not just a

situation of dealing with particular phys~cal

things, for example; it is dealing with what are

legal rights, and one has to look at them from that

point of view.

Your Honour, no one doubts the proposition in

the Manufacturing Grocers case that the Commission

has jurisdiction to require that an employer make

particular provision by way of superannuation, for

example, as a means of providing some funds to an

employer or dependants after death, but one does

have to look at what is particularly sought in the

particular case, Your Honour.

DEANE J: Say, for example, that in this case all the

contributions had been made by employees and the

trust deed which their employer had put up as the

appropriate superannuation scheme provided that any
surplus was to go to the employer. It is a bit
strange if, in that context, when the
representative of the employees objected to the
employees' contributions being channelled to the

employer, if the employer could say, "But it's not

really us who controls the trust deed, it's our

holding company, and all we can do with that is

make representations and say 'We won't pay any

dividends unless you treat our employees

properly'"; if the Commission was then obliged to
say, "We're utterly hopeless in this; let chaos

reign".

MR JACKSON: Well, Your Honour, it depends, I suppose, on

the circumstance that one is talking about.

DEANE J: That is really what I am trying to put to you, and

that is that you cannot, in this context, really

talk about it is a demand that the employer

represents the employees to someone else. You

really have to look at the whole context and

isolate a general question.

MR JACKSON:  Your Honour, may I seek to take issue with

that, with respect - and I need to do so, I think,

in a number of ways. If one starts at the start

and there is, for example, no superannuation scheme

in being, or indeed, if there is a particular

superannuation scheme in being, there would seem to

be no doubt but that a demand might be made,

non-agreement with which would give the Commission

jurisdiction, requiring that the employer, first of

all, establish a scheme and perhaps establish a

Shell(2) 21 11/2/92

scheme which had particular features attached to

it. That is perhaps one thing.

The second thing would be, if the employer had

a particular scheme, it might well be within the
power of the Commission to require that a different

scheme be entered into because a demand might be

made to that effect, but what one has here,

Your Honour, is really a situation that is not either of those and is a situation which requires

the employer to - I do not want to use the

expression unduly - seek to obtain a particular

result, and that is all.

Now, Your Honour, it is all right to say, in a

sense, that it may be unreal in one view to say

that the employer cannot say to some other persons,

"Achieve a particular result", but could I say two

things about that. Your Honour, a demand, as it

were, by one company to another company, albeit it

in the same group and under the same ultimate

control, may well not be acceded to at all. There

is no guarantee that one company in the chain can

control another. The second thing is, Your Honour,

that one is not just talking about other companies

in the group; one is talking about persons who are

independent trustees. Now, Your Honour, that

really results in a situation - I say, Your Honour,

independent trustees - in the case of the second

fund, one is required to be independent, and then

there are representatives of both sides, but they

have their own discretions.

So what one is speaking about is their ability

to amend the fund. Now, it is one thing to say, we

are not happy with the existing fund, let us have

another; it is a different thing altogether to say

to an employer, you go along and.use your best

endeavors to get the persons who have got power tG:>

change the fund, including our representatives, to	change it. And, Your Honours, that is the point of
factual distinction I would seek to make.

GAUDRON J: 

Mr Jackson, could it be possible, on your

argument, for the Union to create a dispute with
the employers saying, set up a superannuation fund

to which our members ~re members, having all the

features that would exist if the existing funds

were dealt with in a particular way.

MR JACKSON: 

Your Honour, the answer is probably yes.

GAUDRON J: And, what is the difference?

MR JACKSON:  The difference is, Your Honour

GAUDRON J: It is purely legal, is it not?

Shell(2) 22 11/2/92

MR JACKSON: Well, it may be, Your Honour, but that is

not a - - -

GAUDRON J: Formal, purely formalistic.

MR JACKSON:  No. Well, Your Honour, might I, with respect,

take the first crumb rather than the second.

Your Honour, it might have an air of formality

about it but, of course, there is always an air of

formality, in that sense, if what one is talking

about is whether things can be achieved in one way

or another. But one is not, Your Honour talking

just about formality as a concept for the sake of

formality; what one is talking about is formality

brought about by two things: one is the

Constitution, and the second is the Act made pursuant to it.

GAUDRON J:  Not necessarily, Mr Jackson. Why does not one

treat these somewhat detailed aspects of the log of
claim as being simply an indication of the way in
which another dispute can be settled; a dispute
about the terms and conditions or the provisions of

the superannuation fund to which these people are

or entitled to become members, which can be settled

in a particular way?

MR JACKSON: Well, Your Honour, if there were such a demand,

then what Your Honour puts to me may be the result, but the demand, Your Honour, is the demand one sees set out here, and this is not a proposed way for

settling it; this is the demand itself.

GAUDRON J: But the demand is only evidence of the dispute,

is it not? It is not - - -

MR JACKSON:  Your Honour, that is - if one looks to see, for

example, what the Commission has found, the

Commission has found that is the dispute.	Now,
Your Honour, it might be that in an appropriate

case one could have, for example, a demand for a

new superannuation scheme and a demand which said,

the superannuation scheme should achieve the

following results, and it may be that it would n~t

matter particularly, for the purpose of

jurisdiction on the Commission, whether that demand
in some way went outside what it was the power of

the Commission to award .. Having said that,

Your Honour, that just is not this case.
Your Honour, I do not know that I could take that

further and Your Honour, perhaps I should also say,

the current dispute is one dealing with existing

assets, as it were; not what should happen in the

future.

GAUDRON J: That would not matter, would it, if you said

bring into the fund, or endow the fund, with assets

Shell(2) 23 11/2/92

of the same amount as the existing funds? Whether
you get them from the existing funds or not is a

matter for you.

MR JACKSON: well, Your Honour, if that was what the demand

said, as it were, then if one spoke purely about a

question of jurisdiction, it might well be within

jurisdiction to say, for example, "Put $100 million

into a new fund".	But one is not talking just
about a claim of that kind.	What is being spoken

of is a claim, the implementation of which requires

the intervention of persons who are not parties to

the dispute and persons who have their own

discretions under it.

GAUDRON J: That may be another assumption that has not been

explored, that simply because the founding company

does not have an employee who is a member of one or

other of the claimant unions, it is not capable of being in dispute with the unions. That may be an·

assumption which itself requires exploration.

MR JACKSON: Well, Your Honour, it has in effect been

explored in the decision of the Commission and the

Commission has found no dispute with that body.

DEANE J:  What if the demand had been, "Pay each of your

employees $5000 unless you achieve a corresponding

increase in their interest in the superannuation

fund by procuring the following steps to be taken

in relation to that fund"?

MR JACKSON:	Framed as Your Honour put it to me, and I an conscious that Your Honour is not putting it in a
detailed way, there may well be a question whether it pertains to the relationship of employer or
employee, and indeed the same question, in effect~
may arise as in the present case.  It might not
perhaps be a question of jurisdiction, Your Honour,
it might be a question of the order that should be
made.
DEANE J:	Which means in the case I put to you where all

the contributions had come from the employees'

salary, you would have trouble resisting that if

the amount was the amount that the employees had

lost through their employer getting them into the

mess of the superannuation fund in which their

employer - and they had no control.

MR JACKSON:  Your Honour, I am sorry. I am not sure what I

would have difficulty resisting. I understood the

second part of it, but I did not quite follow what

Your Honour was putting to me in relation to the

claim.

Shell(2) 24 11/2/92

DEANE J: Well, if, for example, from the employees'

contributions, the surplus, the holding company of
the employer was taking an amount equivalent to

$5000 per employee and the employees said to their

employer, "Pay us that $5000 if you don't take the

following steps to clean up this mess" or "if you

don't succeed in cleaning up this mess".

MR JACKSON:	Your Honour, I take it, is speaking about something that would be a breach of trust or -
DEANE J:	No, a trust deed under which the holding company

of the employer could get the surplus as here, but

where all the contributions have been paid by the

employee.

MR JACKSON:  Your Honour, for it to be something that would

give rise to an industrial dispute, what it would have to be framed as, we would submit, would be a

claim for a payment related in the end to the

employment. Your Honour, I am conscious that that

is a difficult phrase but just to say, "We want

more" or "We want a particular payment" might well

not satisfy that test, we would submit.

DEANE J: Thank you.

MR JACKSON:  Your Honours, I was going to refer, I think, to

the definition of "industrial dispute" in the

Industrial Relations Act. Your Honours, that is in section 4(1) and what it says, relevantly, is that

an industrial dispute must be:

about matters pertaining to the relationship

between employers and employees.

Your Honours, there is, in a sense, nothing new

about that, and may I give Your Honours some

references in that regard.	The first is Reg v
Portus; ex parte Australia and New Zealand Banking

Group Ltd, (1973) 127 CLR 353. Your Honours, at

page 357, in the judgment of Chief Justice Barwick,
about point 4 on the page:

the demand that the employer should pay out of earned wages some amounts to persons nominated

by the employee -

in effect union fees - and so on. Your Honours, at

page 360, in the judgment of Justice Menzies,

two-thirds of the way down the page, the passage

commencing:

In my opinion, the relationship that would be

affected by such an obligation -

Shell(2) 25 11/2/92

The passage goes on to the end of His Honour's

reasons for judgment. Justice Walsh, at page 364,

about point 3 on the page, the sentence commencing:

But, in my opinion, a provision for the

payment by employers of subscriptions -

et cetera, going to the end of that paragraph.

GAUDRON J:  How does all that stand with Manufacturing

Grocers?

MR JACKSON:  Your Honour, what Manufacturing Grocers

establishes is that a demand for the making of a

payment related to the employee's past service, or

related to the past service of an employee, is

something which is an industrial matter.

Your Honour, we do not contest that proposition,

but - - -

GAUDRON J:  What relevance does this then have in this

context?

MR JACKSON:  Your Honour, what it shows is - really, perhaps

I should have said that it is by way of

illustration of the fact that there are payments

which an employee or an employee's organization may

seek that an employer take, or may demand that it

take, and we would submit also other conduct that

it may seek an employer to take, but the

non-acceptance of which does not give rise to an

industrial matter.

McHUGH J: But it is no more than a guide as to what

pertained in the relationship of employers and

employees in 1972. In the last 20 years the

transformation of the relationship has been quite

extraordinary. Do you really get anything useful

out of these illustrations of 20 years ago?

MR JACKSON: 

Your Honour, this is the - I was in effect not

intending to go to every one, but this is a
convenient starting point and, Your Honour, it is

stating a principle in a sense, or involving a

principle.  No doubt the application of the

principle will change from time to time, and it may

be that one takes a wider view.  It may be that

perhaps the wider view has gone as far as it will

go and views will change.  It may be that the view

would be taken that superannuation is a private

thing rather than a public thing, in effect.

DAWSON J: 

Mr Jackson, taken from your answer to

Justice Gaudron, you would concede that a demand by employees for a proper superannuation fund or a

superannuation fund of a particular sort may well

be an industrial matter.

Shell(2) 26 11/2/92

MR JACKSON:  No, Your Honour, perhaps I - demand for a

superannuation fund, yes, Your Honour.

DAWSON J:  Maybe they could put some details in the demand,

but when you have a superannuation fund which has

been set up and the relationships which are created

within that fund are what you are arguing about,
they are not the relationships of employer and
employee, but the relationship of a person with

rights and obligations under the fund.

It may be that it does depend on the way in

which the demand is made, but if you are in fact

demanding that the fund be administered, an

existing fund, in a particular way by the

modification perhaps of rights and liabilities

under that fund, that ceases to be an industrial

matter. Is that the way in which you approach it,

or something like that?

MR JACKSON:	The proposition Your Honour has put to me would be one that in many cases would follow from the
proposition we have been putting. It would not
always follow. It may be, for example, that one
had circumstances where an employer was itself the
trustee of a superannuation fund and that it,
itself, had a power to amend and one was able to
say that a demand by the employees that the
superannuation fund be altered was, in truth, a
demand of the relevant kind.

DAWSON J: Because, really, you characterize that dispute as

a dispute about the sort of superannuation fund

that the employee wants, and he can demand that of

the employer, but where the superannuation fund

which has taken the matter - and this underlies
what you say - out of the hands of the employer and

created rights and liabilities amongst different

persons, although the employees will be as members

of the fund, that is a different matter.

MR JACKSON:  Yes, Your Honour, because, Your Honours, one

really has to deal with it, in a sense, case by

case, but what Your Honour puts to me, we would

submit, is correct. One has to deal with it, in a

sense, case by case because funds will differ, but

when one has funds of this kind where the operation

of them is not an operation over which the

employers have control, but third persons who are

not persons who are the employers, or the employers

representatives, in tote anyway, have control, one

has to look at the true situation and see

whether - - -

BRENNAN J: Mr Jackson, I appreciate entirely, I hope, the

force of the arguments that you are putting, but at

the end of the day I presume the practical effect

Shell(2) 27 11/2/92

is this: that if the unions chose to serve a log

of claims seeking the creation by the employers of
a superannuation fund containing all the same
provisions as those which were in these deeds, save
those relating to the powers of amendment and
perhaps some of the powers of the trustees,

conferring upon the employees precisely the same

benefits as those contained in the regulations and

requiring the payment by the employer of the
amounts which are to be paid under the existing

deeds, the claim could go on to say, "And to pay to

that fund the amount which now represents the

actuarial value of the employees' interests in

those funds and such other amount, if any, as may

ever be paid out of those funds to Shell

Australia", and in that way secure nothing more

than the creation of a new fund with perhaps the
payment of stamp duty. Is that the practical

result of what we are involved in?

MR JACKSON:	Your Honours, I think that is right to say, yes, that a new fund could be demanded, it may be -
and if one is speaking purely about jurisdiction,
the answer is, yes.  It may be that orders would
not be made to that effect, but there we are. Now,
Your Honour, once one assumes that it is possible
to demand that there be provision for
superannuation, it does become a little difficult to say it should not take a particular form, as a matter of jurisdiction.

McHUGH J: Well that means that acceptance of your

submission would be a triumph of form over

substance.

MR JACKSON: With respect, Your Honour, that is not right.

No demand has been made in the form that has been

suggested by His Honour Justice Brennan.	None may
ever be.	An entirely different situation may

emerge and what one would see is that in	circumstances where there has been a finding as to	jurisdiction, a finding by the Commission which is
against us, that finding would be quashed, the
result would be that if there was to be a new
dispute created it would be a dispute created on a
proper and not an incorrect legal basis.

McHUGH J: Perhaps it throws light on whether or not this

really does relate to the relationship of employer

and employee and if you can achieve the result

directly it seems odd that you cannot use or

require the employer to use its best endeavours ~o

achieve that result. I appreciate the point you

make about being predicated on what the actuaries

do.

Shell(2) 28 11/2/92

MR JACKSON:  Your Honour, if I could perhaps seek to answer

that. One is not really achieving - I am not

certain which one Your Honour was describing as
directly or indirectly, perhaps it does not matter

very much, but what one has in the present

circumstances is that there is something that the

Commission, in our submission, cannot do - it

cannot do because, if one puts it in the worst

against us in that light, a particular approach hes

been taken. Now, if a different approach were

taken, it may be the Commission would have

jurisdiction. The jurisdiction would be different

really, it would be doing a different thing;

looking to, in effect, the future, based upon what

the scheme - the scheme that might be sought, but,

Your Honour, the present situation is one where

what one seeks to do is to try to unravel a past

system and really no more.

Now, Your Honour, one can call it form or

substance, but questions of jurisdiction of this

kind are, we would submit, to be determined by

reference to, in effect, the claim that ismade

rather than ones which, in the end, might or

perhaps might not be made.

DAWSON J:  Mr Jackson, do you draw any distinction between

the trustees, on the one hand, and Shell Australia

on the other. It may well be that you could say of

the trustees, well, they are just representatives
of the employers, and the employees, you could
forget about the independent one. If they had all

voted the same way, then you would achieve what you

wanted to achieve, but you cannot say that because

they have a duty to perform. But that is not the

case with Shell Australia, the founding company, it

can do what it wants. ,

MR JACKSON:  Yes, Your Honour, it can.

DAWSON J:  Now that the amendment is within its power, it is

not the same situation, particularly as it is part

of the one organization, as was pointed out to you.

MR JACKSON:  Your Honour, certainly, it is part of the one

organi~ation, it is in fact a different company, it

has powers under the deed but, Your Honour, those

powers are circumscribed in particular ways and,

Your Honour, it is a company that has particular

entitlement. It is not, in any way, we would

submit, a body which is a party to the dispute and

it is not a party to the dispute in the Commission

and the Commission does not have every power; it

has got a limited range of powers, we would submit.

DEANE J: But if instead of Shell Australia being the

founding company, the employer companies, the

Shell(2) 29 11/2/92

founding company was definded as meaning the
employer companies acting unanimously, would your
argument have any remaining substance? In other
words, what I am asking you, does the whole

argument turn on the fact that the founding company

is the holding company which is not an employer?

MR JACKSON: It does not, Your Honour. If one is looking at

clause 3 of the demand, what Your Honour puts to

me - - -

DEANE J:  What is the page again, Mr Jackson?

MR JACKSON:  I am sorry, page 37. Your Honour, if one is

looking at page 37 clause 3, Your Honour, it would

be more possible to say, of course, that the

employers had the power to effect an amendment, s·o

that when one was dealing with that situation,

Your Honour, it might well be that what Your Honour

puts to me, if one looked at clause 3 in isolation,

might be correct. However, one is not just talking

about clause 3. Clause 3 does not come into

operation until clause 2 has been complied with

and, Your Honour, there are additional difficulties

in relation to clause 2, to which I have adverted

earlier, because of the trustees control, that

aspect of it.

That is why, Your Honour, I said earlier in

our submissions, that, to an extent, one must look

at the situation in the light of the particular

demand that is being made and, Your Honour, it is

possible to construct all kinds of variations of

it, but one does come in the end to what the

particular dispute found to exist is, and different

answers come from different variations to it.

GAUDRON J: But would not clause 2 be dependent or

subsidiary to clause 3, if you were dealing with

employers? It would simply be preliminary if you

were dealing with employers.

MR JACKSON: Well it is a pretty large preliminary,

Your Honour. You have to have - clause 3 does not

come into operation until the report is obtained

and the report has to say a particular thing;

unless it says that, clause 3 remains in the

cupboard with the door unopened so that,

Your Honour, it might be possible to rearrange

clause 2 and put it differently, if one created a

new situation and said, the employers have other

powers in the trust deed.

Your Honours, I wondered if I might simply

give Your Honours the references to other cases

dealing with the topic to which I had referred

which was the purpose of my referring to R v

Shell(2) 30 11/2/92

Portus. Your Honours, they are set out, I think,

in our outline of submissions, in paragraph 9 at

the top of page 4 and Your Honours, in particular I

would refer to Re Cram, where the court adopted

some observations of Your Honour the Chief Justice.

Your Honours, could I come however to the

earlier case dealing with superannuation schemes,

which is Re The Manufacturing Grocers' Employees

Federation of Australia; ex parte The Australian

Chamber of Manufactures, (1986) 160 CLR 341, and in

that case, two things occurred: one was that the

court accepted that a requirement for employer
contributions to superannuation could give rise to

an industrial matter, but at the same time it

recognized the existence of possible difficulties

in that regard. Your Honours, at page 351, in the

paragraph commencing about point 6, Your Honours

will see the paragraph commencing:

The claims which are before the

Commission ..... are quite different.

And it is said:

To the extent to which they relate to superannuation benefits, they are no more than

claims for payments to be made by employers by

way of contributions to superannuation funds

answering a particular description.

And then, Your Honours, that is expanded upon

throughout that paragraph and then, at page 353, at
the end of the paragraph, about the middle of the

page:

The powers of the Commission are confined to

the prevention or settlement of industrial

disputes by conciliation or arbitration.

And then, Your Honours, throughout that paragraph

there is reference to the cases to which I was

referring before and then, in the last few lines on

that page:

it is sufficient to say that a matter must be

connected with the relationship between an

employer in his capacity as an employer and an

employee in his capacity as an employee in a

way which is direct and not merely

consequential for it to be an industrial

matter -

et cetera. Then, in the passage which is on that

page and throughout the next page, page 354, one

sees the basis set out by the Court for holding

that contribution to superannuation gave rise to an

Shell(2) 31 11/2/92

industrial matter and then, Your Honours, in the

last paragraph on page 354, there was a caveat, in

effect, that:

if any order is eventually made by the

Commission, then depending upon the form which

it takes, there may be available some arguable

basis for attack upon the same or similar

grounds as those now relied upon by the

prosecutors.

That last passage, whilst it recognizes the

possibility of difficulties, is, in our submission,

correct 'in the sense that it indicates difficulties

of the nature presently in question, and that is

that a demand of the kind which is in issue in

these proceedings is a demand which cannot, in our

submission, be implemented in a sense that is

capable of giving rise to an industrial dispute.

Your Honours, we would submit that, if one

puts it shortly, neither Shell Australia Limited
nor the trustees of either fund are capable of

being parties to an industrial dispute because they

do not stand in any employment relationship. They

might be persuaded but they cannot be controlled by

the employer and, in a sense, in the legal sense,

they are no different from, say, the employers'

banker and the demand that the employers take

particular action really does not stand in any
better position than a demand than that the

employers should seek a lower rate of income tax or

that there be free transport to and fro work, or

something of that nature. So, Your Honours, those

are our submissions in relation to clauses 2 to 6.

McHUGH J:  What do you say about the reasoning of the

majority in the Commission on this point at

page 29, line 24?

MR JACKSON:  Your Honour, they say there, of course, a

number of things. One is that the demands, if

complied with, would impose no burden beyond the

limited capacity of the employer. It is true to say

that, but having said it it does not really provide

any satisfactory resolution of the matter, we would

submit, because whilst they are talking, I have no

doubt, about clause 3, to do that would not impose

a burden in any sense of that kind, but also,

Your Honour, it would not have any effect, no legal

effect, by the employer.

If one goes then to what appears to be the

second passage, that commencing about line 34,

where it said they are not consequential or remote,

but directly related to the employer and employee

relationship, I do not know that I can advance much

Shell(2) 32 11/2/92

more than I have said as the obverse of that

submission.

Your Honours, could I just say one thing. One

sees in the discussion of the surplus dispute,

commencing at page 26, and in particular at page 27

line 30, an assertion that the surplus in the SACPF

is not able to be viewed solely as the property of

Shell Australia Limited, and that elaborated upon,

Your Honours will see in the small application book

a document which is exhibited at page 20, and it is

described as a statement of position by Shell in

relation to the decision of the Full Bench. I do

not want to create the impression for a moment that

was something said in any public way other than the

fact that when the matter came on for hearing -

this is an exhibit to Mr Bunting's affidavit - the

circumstances there referred to, but when the

matter came on for hearing before a commissioner

after the decision, in effect, a protest was made

saying that these were matters in respect of which

submissions would have been made showing how, in

fact, the fund got to the size that it was and did

not support the proposition that was adverted to by

the majority of the Commission.	I simply mention
that in passing.

Could I come then to clauses 7 and 8 at

page 38. Your Honours will see that both those

clauses deal with the situation of the earlier

fund. They are addressed to a factual situation which, from the material, seems to be incorrect,

namely that there has been, or may be, some payment

from the earlier fund, not to the new fund but to

employers. As Your Honours will see in the third

line of clause 7 it deals with payments or

transfers to any employer.

Your Honours, such a payment, of course, could not occur consistently with clause 17 at page 217,

to which I referred earlier and, in particular, to

proviso 2.

Your Honours, the object of clause 7 seems to

be to confer a jurisdiction on the Commission to

remedy what must be said to be a breach of trust,

and Your Honours will see the form of remedies

there referred to.

Your Honours, if one looks at clause 8, it

refers too to the earlier fund. Clause 8(1) seems

to be, in effect, a kind of quia timet provision

seeking to restrain a future breach of trust, and
clause 8(2) is a provision which relates to any

amendment of the scheme. Your Honours, so far as amendment is concerned, the employers, of course,

Shell(2) 33 11/2/92

play no part in an amendment of that scheme except

that Shell Company of Australia must approve any

amendment. The trust operates not just for the

benefit of present employees, but also for past

employees and their dependants and, Your Honours,
what we would submit is that it is not an

industrial dispute - it does not give rise to an industrial dispute - where there is a demand for

the Shell Company - if one just looks at its

position - to be restrained from exercising a power

of the kind conferred in relation to amendments of the earlier fund where it has functions to perform not just in relation to present members but also in

relation to persons who have members in the past,

and their dependants.

Your Honours, so far as the other employers

are concerned, they have, of course, no power to

amend. Your Honours, those are our submissions.

BRENNAN J:  Mr Jackson, if I could just ask you a

supplementary question to my earlier one. Would

there be any objection available to jurisdiction if

a claim were made for repayment by employers
through a superannuation fund containing specified
clauses in an amount equal to this amount, if any,

paid by the trustees of the existing funds to Sheil

Australia Limited?

MR JACKSON:  Your Honour, it would depend a little. If what

one is doing is to make a demand saying a payment

is to be made to a superannuation fund in a certain

amount and the superannuation fund is to have

certain characteristics, be they precisely or

broadly defined, then, Your Honour, that would seem

to be a reflection of the Manufacturing Grocers

case.

Your Honour, it may be that in a particular

case - and perhaps the case Your Honour puts to me

is on the borderline - the manner of identification

of the sum that is to be put in on the manner of
quantification of it may be such as to indicate

that the nature of the demand is not in truth a

demand of the kind which it might, prima facie,

seem to have.

I am sorry to keep saying it may be, but the

particular circumstances may be such that the

nature of the demand itself illustrates that an

industrial dispute is not what arises from it. In

some cases, the nature of the demand that it does

not have that character may not appear on the face of it, but might only appear after a hearing; the question of exercise rather than existence of

jurisdiction.

Shell(2) 34 11/2/92

BRENNAN J:  Thank you.

MASON CJ: Thank you, Mr Jackson. Yes, Mr Donohoe?

MR DONOHOE:  May it please the Court. May I hand up an

outline of the second respondents' submissions,
together with statutory extracts which may assist
the Court in a short reference to the history of
these amendments that are relevant for today's

purposes.

MASON CJ: Thank you.

MR DONOHOE: If it pleases the Court, the course I propose

to follow is to refer to short passages in the

deeds and one or two aspects of the evidence to

take the Court briefly to the development of the

legislation over the years and, in doing so, seek

to highlight what we respectfully submit are the

profound differences between the new Act and the
old Act and then I shall endeavour to, in the

course of that, deal particularly with the matters

my learned friend, Mr Jackson, has raised. If that

course be acceptable to the Court, may I take

members of the Court first of all to some

provisions of the pension deed, those particularly

commencing at 209, between line 25 and 30, and

there it was made clear that an object of the

pension fund was:

for the purpose of securing pensions and other

benefits for some or all classes or employees

of the Founding Company and its Associated

Companies who might be admitted to the Pension

Scheme ..... and for the families and dependants

of such employees.

At 217, where the power to alter is to be found,

there is provision at lines 18 to 30 which contain

the provisos that limit the power of amendment of
the pension deed.	The first was that it should
not:

Alter the main pension purposes of the

scheme -

the second was that is should not:

Result in any payment to any of the Member

Companies -

and we would concede that the evidence reveals that

Shell Australia Limited was not a member company, and the other two subparagraphs are not material for present purposes, but we emphasize that there

were two respects in which the power of amendment

was limited; that was that it was not to:

Shell(2) 35 11/2/92

Alter the main pension purposes -

and secondly to:

Result in any payment to any of the Member

Companies -

If one turns to page 218 at line 39, the

amendment in May 1990 to clause 19 simply empowered

the trustees:

to make or concur in arrangements for the

constitution of separate pension -

or superannuation - the words "or superannuation"

were introduced at that stage -

schemes.

The next step in the process by which the

funds were removed from the pension fund was the

amendment to be found at page 296 on 21 May 1990

and the key was thought, presumably, by the
draftsman, to be found in clause 25A, and we

understand from what my learned friend Mr Jackson

has said, is that in reliance upon the proper

understanding of this provision, the vast bulk vf

the pension fund now reposes in the superannuation

fund. The scheme was to encourage members to

transfer this new equitable share and to, upon that

transfer, release the trustees from their

obligations under the pension fund and one would

expect to find in this definition a notional share

in the whole of the fund present and prospective,

the theory being, you start with the theoretical

proposition that the members own all of the fund,

transfer all of the fund to a new fund from which

Shell Australia Limited can take what it called the

surplus.	To affect that, this definition was
introduced:
"Equitable share" means at any particular date
in respect of a Member ..... the amount oft~ total net realizable value of the assets of.
the Fund determined by the Actuary acting as
an expert as the portion thereof attributable
to the Member or person -  ·

It seems that some words were left out at that

stage. But, nevertheless, whatever the actuary was

to do, he was to access that portion:

on the basis that all Members or persons interested in the Fund are entitled to a portion of the assets of the Fund in

proportion to their respective interests and -

Shell(2) 36 11/2/92

and we emphasize the following words:

on the basis that this Pension Scheme does not

contain the trusts in Clause 18(d) ..... in

respect of any future ultimate surplus or

otherwise confer any interest in respect of

any future ultimate surplus on any person.

Doing the best we can it seems that, if this were

followed, the equitable share of the member could not, even if 100 per cent participated, authorize the transfer of the bulk of the fund from the

pension fund to the superannuation fund. It is not

necessary for this Court to resolve that question;

it is a question of some difficulty, we certainly

acknowledge.

But if that be right, then what has occurred

is that a vast sum of money has been transferred

without any authority and to approach this case

upon the basis that the demands made by unions of

their employers, in substance to use their best

endeavours to set that matter right, should be

assessed by looking only at the express powers

under the two deeds, we would respectfully submit,

would not be accepted for several reasons.

First of all, it is a formal approach, but

more importantly, if there had been these breaches

of trust, as we would respectfully submit - all,

one would argue, with notice - then the remedies

that may be available, the processes by which this

money may be brought back, clawed back into the

pension fund, are matters that do not depend upon
the express powers given by these deeds to amend

the deeds or to deal with the funds, but on general

principles of equity quite apart from the powers

that may arise under the Industrial Relations Act.

So that we pause at this point to emphasize

that the whole of my learned friend's submission consists of looking at the express powers in the

two deeds and saying that the companies in respect

of which there has in fact been a finding to date

have no express powers under those deeds, therefore

there is some lack of utility, some notion such as

that. I mean no disrespect; we simply submit that

that is not a relevant notion.	I will come to that
in due course.

The next matter we wish to dwell upon for a moment is at page 338. There one finds the key

provision which enabled this notion of a surplus to

be transferred to Shell Australia Limited - and may been, "Take the whole of the corpus of the pension

fund on the basis that it belongs entirely to the

Shell(2) 37 11/2/92

members and invite them to transfer it to the new

fund from which part may be siphoned off pursuant

to clause 1.17.2".

The machinery, in 1.17.2, substantially

provides the frame for the claim made by the

unions. In substance the unions claim, "We will

adopt a formula substantially the same as the

formula which is to be found in the deed for

bringing money or transferring money to Shell

Australia Limited".

To illustrate that I invite members of the

Court to look at the form of the claim as it is set

forth in the judgment, or perhaps in the finding-'at

page 35 of the application books volume I, and

there one sees, if one looks at 338, the notions:

Total Fund Value ..... Total Accrued Benefit

Value -

both of those are to be found in the claim, and the

machinery to be found in the superannuation deed at

338 was that:

Whenever required by the Company, the Actuary

shall investigate the Fund -

which is the language to be found at 37, line 10,

and report as to the:

Total Fund Value and the Total Accrued Benefit

Value -

and then, in the superannuation deed at line 43:

If -

(i) such a report by the Actuary reveals that

the Total Fund Value exceeds the Total Accrued

Benefit Value -

which is the language of the claim between lines 25

and 30, then in the trust deed the excess was to go

to Shell Australia Limited and here it is proposed

that it be divided 50:50. So, that is,

essentially, the provenance of these provisions and

we respectfully submit that the fact that they

involve appointment of an actuary, or more than one

actuary, and that there may be some inconsistency

between the outcomes of the reports of those

actuaries, are matters of detail that do not affect

jurisdiction. They are matters of detail and, in

any event - - -

McHUGH J: What power has the employer to appoint actuaries

to investigate this fund?

Shell(2) 38 11/2/92

MR DONOHOE:  They do not have a power to - they have a power

to appoint an actuary and they, no doubt, can give

him a retainer, but without a measure of

co-operation from the trustees, and presumably Shell Australia Limited, they could not go any further than that, I accept that. But may I make

this point, that this is the form that the logs

took when the original claim was made and the logs,

no doubt, suffer from imperfections. Amongst other

things, the logs were addressed to Shell Australi~

Limited and there has been a finding that Shell

Australia Limited is not a party to the dispute.

We respectfully submitted that it ought to

have been made a party to the dispute and there is

power to make that submission again before the

Commission and the Commission may revoke that

finding. That is within its jurisdiction. It also
has comprehensive power to enable amendment of the

minutia, the detail of the claim and we would

respectfully submit that does not effect whether or

not the nature of the claim comes within

jurisdiction.

BRENNAN J:. Could this claim be settled? What are the terms

of an agreement which would settle this claim?

MR DONOHOE:  It could be settled, we would respectfully

submit, upon the employers agreeing to use their

best endeavours to undertake the appointment of

actuaries and if the outcome of the report was, as

contemplated, that there was a surplus, to use

their best endeavours to procure the distribution

as contemplated.

BRENNAN J:	And would that have any effect on Shell Australia Limited?
MR DONOHOE:	It may not. We would respectfully submit, it

probably would, but may I respectfully submit,	first of all, the very fact, if that became an
award of the court, that it was an award of a
public institution of the authority of the
Commission, may be enough. It is not, we
respectfully submit, appropriate to ask questions
such as whether or not as a matter of contract it might be enforceable at common law. If it may be
binding on the conscience, if it may be the subj~ct of publicity, that may achieve the objects of the
act, so with the utmost respect - - -

BRENNAN J: Surely, the questions of jurisdiction must hinge

on questions of power not on questions of the

agitation of public opinion.

MR DONOHOE:  I went too quickly, I apprehend, Your Honour.

We would suggest the form would be an award whereby

Shell(2) 39 11/2/92

employers were bound to use their best endeavours.

I was running on in my own mind as to what that

might achieve.

BRENNAN J:	I see.
DAWSON J:	What would you say the award should be if, as y6u

say should be the case, Shell Australia was a

party?

MR DONOHOE:  If Shell Australia Limited were a party, then

we would - I will try to avoid the risk of drafting

on my feet, but we would respectfully submit that

the form of the log would be appropriate.

DAWSON J: What, that the deed should be amended?

MR DONOHOE:  Yes.

DAWSON J: That Shell Australia should amend the deed?

MR DONOHOE:  Yes.

McHUGH J: But from what you say, this case seems to be

really a dispute between beneficiaries about the

distribution of the trust fund rather than about

anything pertaining to the relationship of employer

and employee.

MR DONOHOE: With respect, not. First of all, we would

respectfully submit that there is no such

dichotomy, or no necessary dichotomy. Where the.

fund of which you speak is undisputedly the product

of the joint contributions of employer and employee

and their investment, then it pertains to the

relationship between employer and employee. It may

very well be that some other trust fund would not

pertain, but we would respectfully submit that

these do, and particularly these.

That, we would respectfully submit, is the

foundation for jurisdiction in the Manufacturing

Grocers Employees case, that it pertained because

the fund or the activity concerned the
relationships of employer and employee. In that

case, an accident of remuneration was that either

the employer would increase pay or, alternatively,

elect to contribute to a superannuation fund.	We
say that funds of this character pertain to the
relationship in the relevant sense.

DAWSON J:  Mr Donohoe, is there any evidence that in the

change-over, attention of the employees was drawn

to the fact that instead of the trustees being

responsible for amendments to the deed, as was the

case with the pension fund, it was the company, .

Shell(2) 40 11/2/92

Shell Australia, that was going to be responsible for amendment to the new deed?

MR DONOHOE: There was evidence about -

DAWSON J: There is evidence, I notice, in the papers of the

attention of the employees being drawn to a number

of things, the advantages, but was it ever drawn to

this fact?

MR DONOHOE:  I stand to be corrected, but I am confident

that no attention was drawn to that aspect of it.

May I simply refer to page 456, where the

original form of the logs appears, and you will see

there that they were addressed at the outset to

Shell Australia Limited and at the risk of

repeating myself, we submitted that it was a proper

party, but the fact is that it is not a party to

the dispute as found. May I take the Court then to

the outline of the second respondent's submission.

The evidence of the fund being a product of the

joint contributions is to be found at page 72 of

the application book, volume 1. I do not need to

take the Court to that in detail.

May I take the Court now to submission 2, and

the contents of the folder with the extract of

relevant amendments contained in it.

BRENNAN J:  Is this to show that the scope of the Act is

widened so that persons who are not employers may

become parties to an industrial dispute?

MR DONOHOE: That is one purpose, yes.

BRENNAN J: Is there any other?

MR DONOHOE:

Yes.

BRENNAN J: At the moment there is no challenge to the

question of the finding as to the parties to the

dispute.

MR DONOHOE:	No.
BRENNAN J:	So why are we concerned with this?
MR DONOHOE:	We seek to establish a second aspect which is

dealt with in submission 2, namely that the test

now is not whether it pertains to the relations of

employer and employee in an industry, but to the

relationship betweeen employers and employees.

Though that distinction may appear not substantial, we respectfully submit that a short reference to this history - and if I may respectfully remind the

Shell(2) 41 11/2/92

Court of the major cases - I to not propose to go

to them -

McHUGH J:  Can you give me an illustration of what

difference has been brought about by this change so

far as employers and employees are concerned?

MR DONOHOE:  If I may do so by reference to the illustration

Your Honour put to me before. It may have been

more difficult under the 1904 Act to establish that

the proposed amendments to a trust deed impacted on

the relations between employer and employee. We

would respectfully submit, however, that it may

pertain to the relationship between e~ployer and

employee in a more abstract sense, and for that

submission we seek to go to those provisions.

May I then go to the material behind the guide

card dealing with the Act in its original form.

The chief object of the Act in the second paragraph

was the settlement of industrial disputes and, in

2.3 and 2.4 there are references there to parties

and in 2.7 there is the reference to agreements

between employers and employees and we simply - - -

MASON CJ:  To what are you referring now, Mr Donohoe?

MR DONOHOE:  I am sorry, Your Honour. Does Your Honour see

that the pages are all numbered in the top right

corner, and it may assist the Court if I refer to

those pages. I was referring to page 2.

MASON CJ: Yes.

MR DONOHOE: In section 4:

"Employer" means any employer in any industry;

"Employee" means any employee in any

industry -

and those notions survive until the 1988

amendments. They were held to conjure up notions

that the dispute had to be between employers in an

industry and employees in an industry, and we

respectfully submit that it is clear that those

notions have been swept aside by the recent

amendments.

May we pause and say, the manner in which

definition was approached from 1904 to 1988 was to

have an industrial dispute as to industrial matter

and define both terms. The evident purpose at the

outset was to exclude some things and, with the

passage of time, the notion of industrial dispute

been abandoned altogether.

has become wider and wider and finally, in the 1988

Shell(2) 42 11/2/92

But may we emphasize that "industrial dispute"

in the 1904 Act contemplated a dispute between employers of the one part and employees of the

other part, that is, a notion of a dispute in the

conventional sense of a common law dispute between

master and servant. And, at that time, it had to

be either that sort of a dispute or one certified

by the registrar as proper to be dealt with by the
court in the public interest but, by 1910, the

notion of employers and employees being necessary

parties had gone and has never been part of the

legislation since that date.

At page 3, and I undertake to the Court to

pick up the rate at which I deal with this in a

moment, the:

"industrial matters" includes ..... matters

pertaining to the relations of employers and

employees.

That is the phrase which survived until 1988 and

underlies much of the authority in this field, and

"industry" at that stage was an exhaustive

definition which gave rise to a problem of

circulatory and a limitation on the scope of the

power under the 1904 Act, which also survived until

the 1988 amendments.

If the Court would look at page 5, in 1910 the notion of a dispute between an employer of the one

part and an employee of the other part was removed

from the exhaustive definition and put in the

definition "includes". So that from 1910 onwards,

"industrial dispute" means an industrial dispute

and includes:

any dispute ..... between an employer ..... on the

one part and an organization ..... on the other

part -

and, in passing, we note that as early as 1910

"industrial matters" included:

all questions of what is fair and right in

relation to any industrial matter having

regard to the interests of the persons

immediately concerned and of society as a

whole.

At page 7, the definition of "industry" became

an inclusory definition. In 1920, at page 8,

demarcation disputes became part of the

jurisdiction. In 1930 there was a wholesale

amendment of the objects of the Act, but I need not

take the Court to that in any detail. In 1947

there was another amendment at page 11 of the

Shell(2) 43 11/2/92

papers, and in 1956 at page 17 the objects were

again overhauled; the chief object then being the

promotion of:

goodwill in industry.

Then the Act of 1988 relevantly was introduced

and it is at page 27 of the papers.	And the first
object was:

to promote industrial harmony and co-operation
among the parties involved in industrial

relations in Australia -

and taking an illustration which Justice Dawson

raised with my learned friend, we would

respectfully submit that those words of broad

intention would contemplate a pension scheme

administered by an independent trustee, not an

employer; that trustee being a person involved in

industrial relations in this broader sense, it was

then introduced. And at page 28B, the definitio~

of "employee" was changed significantly and

"employer"; no longer an exhaustive definition, but

now an inclusory definition and all reference to

any industry having been removed.

If I may then summarize the position by

reference to the material that commences at page 33 and is a convenient reprint of the situation before the amendment. At page 33 the objects of the Act.

there included no reference to parties involved in

industrial relations in Australia and at page 40

that became the chief object of the new Act. At

page 34 there was the old definition of "employee"

meaning:

any employee in any industry -

were swept aside and that appears at page 40A and 41. And finally, at page 35, the old definition: relations of employers and employees -

became, at page 41 at the foot of the page:

the relationship between employers and

employees.

That disposes of the material I sought to take the

Court to, dealing with the statutory amendments.

In the third of the paragraphs in the outline

of the second respondents' submissions, we have

given the passage from the Federated Clerks' Union

case and we would respectfully submit that those

words would be employed by the Court in considering

Shell(2) 44 11/2/92

whether or not this was an industrial dispute in
its broadest conception, and for the reasons that

we have advanced the characteristic of these

particular funds and the circumstances in which

that is the genesis of this dispute would answer

the notion of industrial dispute in the broadest

conception.

GAUDRON J:  Do you make anything of paragraph (b),

Mr Donohoe, in circumstances where it seems that an

industrial dispute, even on the concession made

by - well, "industrial dispute" of the concession

made by Mr Jackson could easily be developed?

MR DONOHOE:  Yes, indeed. I am indebted to Your Honour, we

do, and I apprehend I cannot develop that to any

greater effect.

The proposition in submission 4 is, we submit,

well established, so that before turning to the constitutional matters, the submission - at the

risk of repeating it, I will only state it

briefly - is that under the new Act this answers

the common notion, the notion of the man in the
street, of an industrial dispute and it pertains to

the relationship for the reasons that we have

advanced.

On the subject of the constitutional issue, we

are content to rely upon the written submission and

the reference to the Union Badge case, and

returning to the language the 1968 - - -

BRENNAN J:	How does the Union Badge case advance this?
MR DONOHOE:	It simply says that if one looks at the words

of the Constitution, "industrial dispute" may

comprehend disputes in which neither employers or

employees are involved, in other words it can be

wider, it can have wider ramifications.

BRENNAN J:  I do not understand the significance of that for

the case at hand.

MR DONOHOE:  The case, as we apprehend it, is that this

claim is without jurisdiction because it seeks,

indirectly, to enmesh trustees who are not

employers and a holding company that is not an

employer. If we are right that the jurisdiction

goes that far, then we respectfully submit that it

is plain that section Sl(xxxv) was wide enough to

embrace such a dispute.

BRENNAN J:  I can understand that argument if you were

seeking to challenge the finding as to the parties

to the dispute, but when we have parties to the

dispute found in a particular way, as I appreciate

Shell(2) 45 11/2/92

the argument put against you, it is that as between

those parties, there is no dispute raised by the

claim which those parties are capable themselves of

settling.

MR DONOHOE: Yes, I accept that. But, with respect, the

substance of the submission, we apprehend, is that

they are incapable because at most they will be, to

use my learned friend's words, lobbyists in the

hall of the holding company or of some trustee and

that there is something alien to the notion of an

industrial dispute, that such third parties might

be necessary to bring about an effect that my

learned friend argues is really implicit in our

demands. We answer that in two ways: we say if,

accepting that against us, when we do not accept

that that is the effect, there is nothing alien or

foreign to the notion of industrial dispute in the

Constitution that it might involve submissions to

strangers to the contract of employment, so that

the Act, if it goes so far, is well within

constitutional power.

But, secondly, we say that this argument that

in substance we are trying to produce some effect

masks the true nature of the claims, that is, that

the only people being asked to do anything are

employers - we accept the finding - and the limited

nature of our demands, to use the language of the

Full Bench, is that they use their best endeavours.

I accept that we are asking in relation to the

appointment of actuaries to investigate a

particular fund, that that is something they can

do, but it may not have very much practical impact
if there is no co-operation forthcoming, but we

say, with the utmost respect, one, that my learned

friend has advanced that argument. Notwithstanding

that he says that he is not advancing the argument

that non-employers are parties, he does say that

there is something, as we understand the argument,

that gives this dispute a feature that is indirect

or not pertaining, because it would involve in

substance, using best endeavours, independent

trustees and a holding company.

Finally, we point to the additional

requirement in the 1988 Act. The structure of the

1988 Act is "industrial dispute", which is the

language of the Constitution plus, to use the

language of earlier cases, "additional element",

that is, pertains to the relationship of

employer/employee.	May it please the Court, those
are our submissions.

Shell(2) 46 11/2/92

MASON CJ:  Thank you, Mr Donohoe. Mr Rose? I do not know

whether your submission on the constitutional

question is going to be as brief as Mr Jackson's.

MR ROSE:  I am not sure at this stage, Your Honour, but I

will hand up an outline.

MASON CJ:  Mr Rose, we will adjourn now and resume at 2.15.

AT 12.54 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Mr Rose.

MR ROSE:  If the Court pleases, may I begin by taking

Your Honours to the definition of ttindustrial

dispute" in the Industrial Relations Act. That

definition of ttindustrial disputett that now appears

in the statute is, in my submission, clearly within

the limits of section Sl(xxxv) of the Constitution.

Unlike previous definitions, it is not in terms of

a dispute relating to industrial matters,

et cetera; it simply uses the constitutional

expression:

an industrial dispute (including a threatened,

impending or probable industrial dispute) -

because the constitutional power extends not only

to settlement but also to prevention.

The first subparagraph of the definition limits it to industrial disputes extending beyond

the limits of one State so, at that point, the

constitutional expression is satisfied. The

statutory definition, though, goes on to limit the

class of disputes that are industrial disputes for

the purposes of the Act, and that further

limitation is that the dispute must be about

matters pertaining to the relationship between

employers and employees.

If one stops there, if one can think of

perhaps demarcation disputes between employees as

being outside that definition down to that point, brought in by the inclusory words in the last three lines of the definition. If, therefore, a dispute is within the statutory definition it must, in my

Shell(2) 47 11/2/92

submission, be within the limits of the

constitutional expressions.

This case is concerned with two main

objections to the proposition that the dispute is
within the definition of an industrial dispute, and
of the two main objections the first one is that
the claims made in the log of claims require things

to be done that are beyond the employers' power to

do.

My learned friend Mr Jackson has referred the

Court to various authorities which establish that

proposition and I would not be making any

submissions to the contrary in relation to the

principle to be applied, but here everything that

is claimed in the log of claims is within the power

of the claimants. The claim that the employers

appoint actuaries to investigate and report - now,

it may be because of the practical limitations on what the actuaries turn out to be able to do that

that may not get them very far. On the other hand,

there may be much published material available;

there may be equitable remedies that could be

exercised or invoked on behalf of the employees to

get access to information about the fund.

When we move to clause 3 of the log, it is a

claim simply that the employers use their best

endeavours. Again, whether it gets the claimants

as far as they would wish is another matter, but

the fact remains, in my submission, that it is

something that is within the powers of the

employers, as also are the claims under clause 7

that they pay amounts of money and under clause 8
that they "refrain from" doing things, or again
exercise their "best endeavours". It is another

question, of course, whether stronger claims could

in fact have been made by the employees.	I am just
documents before the Court.
focussing my submissions on what is there in the

BRENNAN J:  What do you identify as the matter which

pertains to the relationship?

MR ROSE:  I was going to move on to the second category of

objection which is that the dispute does not

pertain to the relationship between employer and

employee. If I can just preface what I am going to

say there by saying that despite some wide remarks

sometimes made about superannuation disputes, they

would not, in my submission, necessarily come

within that category of disputes pertaining to the

employer/employee relationship.

One could, for example, imagine - and I think

in some context they are not all that uncommon -

Shell(2) 48 11/2/92

that employees might go to some private fund,

Westpac or one of those funds, and arrange

superannuation for themselves, wholly based on

their own contributions and the investment of them.

If they were to later ask their employers to use

their best endeavours to persuade Westpac or

whoever to improve the superannuation entitlements,

it could obviously be argued that that was not

within the statutory description or, indeed, within

the constitutional power. On that argument one

would expect decisions like Portus; ex parte ANZ

Bank in 1972 to be invoked, although I am not

submitting here that that decision would

necessarily be the same, but the argument would be;

that such a dispute was really involving the

employers in something that was foreign to the
employer/employee relationship where the employees

had just gone off to arrange superannuation in a

scheme like that.

But here, as we have listed in the outline that has been provided to the Court, there are a

number of features which, in my submission, clearly

distinguish the present situation from that. Both

the employees and the employers contribute to the

fund; it is not comprised just of employee

contributions, the employers contribute as well,

and although I do not submit that it is essential,

the fact is, in this case, that membership of the

superannuation funds was compulsory, at least from 1973, in the case of the first fund; from 1973, in

the case of males and 1979 in the case of females.

We would just refer the Court to the pages 10 and

11 of the appeal book. Paragraph 13 on page 10

refers to the first fund and says:

Membership of the SACPF was originally not compulsory, but it became a condition of

employment for new employees in 1973 for males

and in 1979 for females.

And on page 11, paragraph 17 says that the second

fund is one in which membership:

is compulsory for new employees of the member

companies.

But, in my submission, the dispute as to the

entitlements under a superannuation fund, the

proposition that that is within the definition,

does not depend upon membership being compulsory.

In my submission, the situation under the statute

and the Constitution would be the same, if it were

a fund that employers made available to employees

for the latter to join at their option, and if

employers are then making contributions available

in respect of those employees who choose to join,

Shell(2) 11/22/92

the statutory and constitutional position would be
no different from what it is in relation to this

particular fund, but here we are, in fact, dealing

with one where membership is compulsory.

So the claims here concern a surplus in each

of those funds, a surplus that is derived from

contributions by both employers and employees, as

such, as well, of course, as investment earnings.

And that appears, I think it has been mentioned, in

appeal books at page 72.

Given funds with those characteristics, in my

submission, they dispute by way of a claim that the

employers use their best endeavours to procure

amendments to the deeds so as to increase the

benefits available out of that surplus is a dispute

that pertains to the relationship between employers

and employees. A dispute can be of that character even though what is claimed does not relate to the

legal relations of the employers vis-a-vis the

employees. You can have industrial disputes which

concern the relations between the employers and

non-unionist employees, for example. There is no

limitation of industrial disputes in the

constitutional or statutory sense to those that

concern the formal legal relationships between the

employees who are claiming and the employers.

In my submission, too, it would be irrelevant

if that approach is applied, irrelevant that the

company involved in the second fund is the holding

company of the employers. The principles would

apply in the same way even if the company, instead
of being Shell Australia Limited, were some
completely separate body, though I suppose in a

practical sense it would be unusual to find a

completely separate company involved in the

superannuation structure. The fact here is that we

have a dispute, that the employers use their best

endeavours to obtain additional entitlements under

a fund out of a surplus which is derived from the

contributions of both employers and employees. In

that situation, in my submission, we have an

industrial dispute within the constitutional and

statutory senses if - to the extent that there are

arguments that one should take a formalistic

approach. There have, of course, been statements

in this Court to the effect that no narrow view

should be taken of the constitutional and statutory

expressions.

In the Federated Clerks' Union (Aust) v

Victorian Employers' Federation, (1984) 154 CLR at

page 491, a statement to that effect appears in the

judgment of Your Honour the Chief Justice. There

are similar remarks in cases such as R v Coldham;

Shell(2) 50 11/2/92

Ex parte Australian Social Welfare Union, 153 CLR

at page 297. That particular case was concerned

more with the concept of industry rather than the
aspect of the matter that we are concerned with in
these proceedings but, in my submission, the

general principle is the same, that no narrow view

should be taken, no narrow view that rests upon

formalistic tracing of legal relationships. In

substance the dispute, I would submit, is clearly

one that satisfies the statutory definition and it

follows from that it is within the constitutional

power. If the Court pleases.

MASON CJ: Thank you, Mr Rose. Yes, Mr Jackson.

MR JACKSON:  Your Honours, if I may something first in

response to what has just been said by my learned

friend. One can, of course, apply the standard

principle of construction of the powers in
section 51 to the power presently in question, but

in the end one has to come back to the words of the

placitum, that is:

Conciliation and arbitration for the
prevention and settlement of industrial

disputes -

of the relevant kind.

Your Honours, there are four other matters with which I wish to deal by way of reply. The

first is in relation to the approach which one

takes in dealing with the dispute. What we would

submit is that the approach to be taken is to look

at the actual dispute found, not at another one

which might be created in the future or might have

existed in other circumstances. An instance of the

Court taking an approach like that is to be seen

in - if I can give it a short name - the

Wooldumpers case, (1988) 166 CLR 310,

at 316 point 7 - Your Honours, I was just going to

give the Court the references to the

passages - 319 point 9, 326 point 5, 327 point 4,

332 point 9 and 334 point 7.

Your Honours, if I could turn then to a second

matter. That was the assertion by my learned

friend Mr Donohoe that the transfer of the surplus

from one fund to the other was, or perhaps it was,

was arguably a breach of trust. Your Honours, I,

perhaps, dealt with this matter unduly shortly

because I did not really think the matter was in

issue but, Your Honours, in view of the assertion

made by my learned friend, and in the very public

circumstances, may I just say something about it.

Your Honours, what I would like to say are two

things. First, that the proposition advanced that

Shell(2) 51 11/2/92

there is a possible breach of trust in so doing is,

in our submission, clearly wrong. The second is

that the assertion itself demonstrates the true

nature of the dispute presently in question.

Your Honours, if I could deal with the first

of those matters, the relevant clause is in

volume II. It is clause 25A. It appears at

page 297.	The argument in question focuses on the
terms of clause 25A(l).	Your Honours, if a member

transfers from one fund to the other, then, because

of 25A(2)(a), what goes across is a sum of money or

asset being the equitable share.

That term is defined by paragraph (1) and it

is a provision, Your Honours, which is relevantly

divided into two parts. The first part finishes

after the words in line 13, "in proportion to the.Lr respective interests". Your Honours, if one paused

at the end of the first part, it would be clear, we

would submit, that the relevant proportion of the

surplus went over to the new fund.

Your Honours, that is so because what that part of clause 25A(l) says in line 6 is that:

the amount of the total net realisable value

of the assets of the Fund determined by the

Actuary -

I am sorry, I should start again.:

"Equitable Share" means ..... in respect of a

Member or person electing to transfer ..... the

amount of the total net realisable value of

the assets of the Fund determined by the

Actuary ..... as the portion thereof

attributable to the Member or person assessed

on the basis that all members or persons

portion of the assets of the Fund in	interested in the Fund are entitled to a
proportion to their respective interests -
Now, Your Honours, if one paused at that

point, we would submit it is clear that one looks

at the assets of the fund, the number of interests and the proportion of the member calculated in the way they are set out, leaving no proportion of the

surplus, in that regard, remaining in the earlier

fund.

The second part, Your Honours, does not alter that situation. Your Honours will see that the

second part says, in line 13:

and on the basis that this Pension Scheme does

not contain the trusts in Clause 18(d) of the

Shell(2) 52 11/2/92

Trust Deed in respect of any future ultimate surplus or otherwise confer any interest in respect of any future ultimate surplus on any

person.

Now, Your Honours will see the reference back to

clause 18(d), and clause 18(d) is at page 217, I

have should said page 218, but it is part of

clause 18 which commences at page 217.	Now, the
opening words of clause 18 provide that:

The Trustees if so requested by the Founding

Company declare in writing that this scheme

shall come to an end -

from a particulate date. Now, on that date the

events set out in paragraphs (a) and (b) occur and,

Your Honours, paragraph (c):

The Trustees shall make provision out of the

Fund for the full payment of

the ..... pensions -

which are there specified, and there they are

paragraph (i), about line 6:

Pensions or benefits which on or before the

closure date have become presently payable to

Members or presently or prospectively payable

to the spouses -

as set out in paragraph (i) and then paragraph

(ii)

-

Pensions or benefits prospectively payable to

Members who are still in the Company Service

at the closure date but have -

not qualified.	Now, Your Honours, one goes then to
paragraph (d) and paragraph (d) says that:

As regards all other Members of the Fund the

Trustees shall provide benefits -

and so on, and I would refer Your Honours to the

first sentence, which goes down to line 21. There

is then a machinery provision in the next sentence,

which goes down to line 26. Then one comes to the

provision commencing in line 26. It says:

if after providing for such other Members'

benefits to the full amount which is in the

opinion of the Trustees fair and equitable

there shall remain an ultimate surplus such

ultimate surplus shall be applied at the

discretion of the Trustees for the payment or

provision ..... of benefits for any person who

Shell(2) 53 11/2/92

shall be or has been employed by a Member

Company or the spouse or descendants of any

such person.

Now, Your Honours, that goes beyond persons who are or who take through a person who has been a member

of the fund and the purpose of - if I could go back

then to page 297 - the purpose of the second part

of clause 25A(l) is that when one is transferring

across a portion of the surplus, one leaves out of

account the possibility that persons who are not

members of the fund or might otherwise have derived

an interest through non-members might participate.

So the result of all that, Your Honours, we

would submit, is that all rights to surplus go and

the first part of clause 25A(l) operates to take

across the relevant part in full.

BRENNAN J: What is the significance of the words, at lines

11 and 12:

entitled to a portion of the assets of the

Fund in proportion to their respective

interests.

MR ROSE:  Your Honour, I am not sure I quite understand what

Your Honour is putting to me but may I - - -

BRENNAN J:  Does it have anything to say about the vested

rights of the members in the assets of that fund?

MR JACKSON: Well, Your Honour, so far as vested rights are

concerned, I am not entirely certain what

Your Honour is speaking about, because the vested

rights could only be, one would think, one of a

number of categories: one would be rights to

payments which have already accrued, meaning by

that that the entitlement to the payment has

The only other rights, Your Honour, would seem to	already accrued and it is payable over the future.
be the prospect, perhaps, that is in the clause to which I referred, clause 18(d), in terms of rights
in or to the assets. Your Honour, I am not certain
that answers what Your Honour was putting to me.

BRENNAN J:  It may do, Mr Jackson, I do not know. I just do

not know what is meant by those words.

MR JACKSON:  No. Your Honour, what we would submit they

mean is this, that the fund has assets, of course,

no doubt millions and millions of dollars.	Each
member of the fund is a person who has been a

member for a particular time, which may be long, or

it may be short. The member has made contribution;

the member has got entitlements. Now, the actuary

has to determine the position of that member

Shell(2) 54 11/2/92

compared to the position of other members, on the

assumption that if one added up all those

entitlements determined by him one gets 100 per

cent, in effect, and it is simply whatever the

proportion that bears to 100 per cent, that goes

over.

DAWSON J: But that does not contemplate the founding

company or any member company having an interest in

the surplus.

MR JACKSON:  No, Your Honour.

DAWSON J: If the "surplus" is transferred across to the

other fund - surplus in inverted commas - then one finds that a proportion of it no longer belongs to

the persons to whom this assumes it belongs to.

MR JACKSON: Well, Your Honour, under the terms of the first

deed, the position was - it is a defined benefits

fund in the sense that a member's entitlement is to particular identified sums to be paid to the member

or to the member's dependants, let us say, to put

it shortly. Now they are - - -

DAWSON J: Bit it is nothing to do with a surplus from time

to time under the first deed, except it is

expressly provided that any surplus shall not be

paid to the employer companies.

MR JACKSON: Well, Your Honour, it is expressly provided

that the sum shall not be paid to employers.

DAWSON J: Otherwise there is only provision for dividing up

the surplus on a closing-down of the funds.

MR JACKSON:	Yes.
DAWSON J: Which is in stark contrast to the new deed.
MR JACKSON:	Yes, Your Honour, different prov1s1on

altogether, and Your Honour mentioned before, in

asking my learned friend - and this is the matter I

will come to in just a moment - were members

notified? I will come to a couple of passages to

indicate something in relation to that in just a

moment - - -

DAWSON J:  I was referring to the brochure which is one of the exhibits.

MR JACKSON:  Yes. Your Honour, I was going to refer to

pages 420 and 430 in that regard, but may I come

back to that in just a moment. Your Honours, the

second feature I was going to submit in relation to

the argument of my learned friend was just this,

that the submission made in relation to

Shell(2) 55 11/2/92

clause 25A(l) really demonstrates, in our

submission, that the true nature of the claim is

one where a claim of breach of trust, at least in

this aspect, is being made.

Your Honours, could I just say one further

thing? Your Honour Justice McHugh asked what was

the position in relation to, in effect, residual

assets. So far as the first fund is concerned, the

provision to which I referred a moment ago, at

page 218, was the relevant provision. So far as

the new fund is concerned, it is at page 338, and

that is the provision in clauses 1.17.1 and 1.17.2.

1.17.1 deals with circumstances where there are:

no Members or Beneficiaries -

and the Trustees are of the view that:

all benefits which could become

payable ..... have been paid -

and the trustees may then dissolve the fund and the

net proceeds are:

distributed to the Employers in such shares as

the Company shall determine.

And under 1.17.2, there is provision made for

disposition of the surplus from time to time - that

is the 125 per cent provision.

Your Honours, in answer to Your Honour

Justice Dawson, as to the notification of the power

to amend, or perhaps the power for the surplus to

be passed to Shell Australia Limited, page 420 in

one of the documents, the document providing for general information which commences at page 408,

referred in the bottom of the left column to it,

and in the top of the right column invited members

to get a copy of the trust deed if they wished one,

and then, Your Honours, at page 430 in the right

column, there is a discussion of the position in relation to excess assets, and Your Honours will particularly see the second - the third and fourth

paragraphs on that page.

Your Honours, the last matter with which I

wish to deal is this:  it was said by our learned

friends in their argument that the demand, in

effect, more or less just followed the old

provision, or the provision of the second fund, in

relation to the calculation of the surplus.
Your Honours, that the demand is acceded to seeks

to create vested interest in particular people who

happen to be members on a certain day and who

happen to be members of the organization. It seeks

Shell(2) 56 11/2/92

to do so adversely to the interests of other

members, former members, and their dependants, and,

Your Honours, it is those persons, of course, or

some of those persons, whose presence in and

contribution to the fund, if my learned friend's

argument about the fund is correct, has contributed

to the surplus, if one makes that assumption.

Your Honours, those are our submissions.

MASON CJ:  Thank you, Mr Jackson. The Court will consider

its decision in this matter and will adjourn until

10.15 am tomorrow.

AT 2.47 PM THE MATTER WAS ADJOURNED SINE DIE

Shell(2) 57 11/2/92