Re The Financial Sector Union of Australia; Ex parte Financial Clinic (Vic) Pty Ltd & Ors; Sun Alliance Australia Limited v Finance Sector Union of Australia

The proceedings before the High Court of Australia involved two distinct matters. The first, an application for writs of prohibition and certiorari, was brought by Financial Clinic (Vic) Pty Ltd and others against Deputy Presidents Riordan and Peterson and Commissioners Smith and Nolan of the Australian Industrial Relations Commission, with the Finance Sector Union of Australia as the respondent. The second matter, a case stated pursuant to section 18 of the Judiciary Act 1903 (Cth), concerned Sun Alliance Australia Limited and the Finance Sector Union of Australia. The Commonwealth Attorney-General intervened in the proceedings.

The central legal issues for determination in the first matter revolved around whether an award made by the Australian Industrial Relations Commission, as varied, constituted an "industrial matter" within the meaning of the relevant legislation. Specifically, the applicants contended that the award was not an industrial matter due to three interrelated concerns. These concerns related to the incorporation of the terms and conditions of a superannuation trust deed, which defined the rights and obligations of the trustee and employee beneficiaries, and the specification of a particular trustee jointly controlled by nominees of the Union and of employers.

The applicants argued that these aspects of the award, particularly when considered cumulatively, meant that the award as varied was not an industrial matter. They relied on the principle that the scope of "industrial matters" is confined by the legislation and that the award's provisions went beyond this scope by directly incorporating the terms of a trust deed and specifying a particular trustee with a particular governance structure. The court was asked to consider whether these elements fell within the ambit of what the Commission could lawfully include in an award.

In the second matter, by consent, the High Court ordered that proceedings previously removed from the Federal Court of Australia be remitted in their entirety to the Federal Court of Australia, with no order as to costs. In the first matter, the applicants sought to have the award made by the Commission quashed.