State of Vic & Anor, Ex parte MacBean & Ors
[1995] HCATrans 159
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M11 of 1993
In the matter of -
An application for a Writ of Prohibition and a Writ of Certiorari against THE HONOURABLE JOHN WILLIAM MacBEAN, a Deputy President of the Australian Industrial Relations Commission
First Respondent
KENNETH TURBET, a former Commissioner of the Australian Industrial Relations Commission
Second Respondent
HEALTH SERVICES UNION OF AUSTRALIA
Third Respondent
Ex parte -
THE STATE OF VICTORIA and THE HONOURABLE MINISTER FOR HEALTH FOR THE STATE OF VICTORIA
Prosecutors
Office of the Registry
Melbourne No M156 of 1993
In the matter of -
An application for a Writ of Prohibition and a Writ of Certiorari against THE HONOURABLE JOHN WILLIAM MacBEAN, a Deputy President of the Australian Industrial Relations Commission
First Respondent
HEALTH SERVICES UNION OF AUSTRALIA
Second Respondent
Ex parte -
THE STATE OF VICTORIA and THE MINISTER FOR HEALTH FOR THE STATE OF VICTORIA
Prosecutors
Notices of motion
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 8 JUNE 1995, AT 2.33 PM
(Continued from 19/4/95)
Copyright in the High Court of Australia
MR A.M. NORTH, QC: May it please the Court, I appear with MR R.W. HINKLEY, for the HSUA, the Health Services Union of Australia, to move in terms of the motion dated 10 May 1995 issued by that Union, and for the same Union as respondent to the motion dated 31 May 1995 issued by the State of Victoria. (instructed by Maurice Blackburn & Co) (Mr Hinkley did not appear in Court)
MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friends, MR R.R.S. TRACEY, QC and MR L. KAUFMAN for the prosecutors in the original proceedings, M11 and M156 of 1993, but we being respondents to the notice of motion just referred to by my learned friend and moving by notice of motion dated 31 May of this year. (instructed by the Victorian Government Solicitor)
May I say now, your Honours, how grateful we are for the indulgence that was extended to us by the Court.
BRENNAN CJ: It has shortened your own time, I am afraid.
MR GRAHAM: That is understood.
MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the Attorney-General intervening. (instructed by the Australian Government Solicitor)
Your Honour, the Attorney was not served with copies of the notices but none the less, your Honours, does not desire to ask for an opportunity for an adjournment or anything of that sort, having had late and anecdotal notice at about 4 pm on Wednesday. But that is the explanation, your Honours, for the 15 minute indulgence which we sought and we are grateful to your Honour granting on our appearance today.
BRENNAN CJ: In what interest are you intervening, Mr Solicitor?
MR GRIFFITH: Our interest is to, whilst not being involved in any truly slip rule issue, your Honour, is to make submissions to the Court if it does arise that there is a working through or elucidation of the Court’s reasons. We would desire to submit to the Court that that was inappropriate and it would be necessary for the issues to come on before a newly convened Court. So we are anxious to see that there is not elucidation but merely an expression of what the Court truly decided. So having said that, we hope we do not have to say anything more.
BRENNAN CJ: Yes. A letter has been received by the Senior Registrar from solicitors for the Australian Nursing Federation who advise that the Australian Nursing Federation does not wish to appear at the hearing of this matter and does not wish to put any submissions to the Court. That firm has been instructed to withdraw the notice of motion and amended notice of motion and that application is made accordingly.
Mr Solicitor for Victoria and Mr North, what is the proposal in relation to the time that is available to you? I should indicate the Court will have to adjourn at 4.15.
MR GRAHAM: If the Court pleases, perhaps if I may be so bold as to assume that the Court had the opportunity of reading our outline of argument which is a fairly complete statement of our position in relation to the two proceedings before the Court today. I would not expect to be any time of significance beyond a couple of quick references to that outline. So it is a matter of perhaps 15 to 20 minutes.
BRENNAN CJ: I see, yes. Perhaps we ought to refresh our minds about it, I think, Mr Solicitor, before you do that. Mr North, how long do you expect your argument to take?
MR NORTH: Your Honour, I would expect at the very outside, half an hour, and probably under that. Would it be of assistance if I handed to your Honours a very brief outline of our argument as well?
BRENNAN CJ: Yes, it would. Yes, Mr North.
MR NORTH: Your Honour, the submissions that I first seek to make are directed to the form of the orders in M11 and M156 which appear in the typed reasons for judgment of the Court. I say that because there is a divergence between that form and the form as reported both in the ALRs and the ALJRs in a significant way.
Can I inquire whether the Court has a copy of the orders in the form of the typed reasons?
BRENNAN CJ: Yes.
MR NORTH: In that case, your Honours, can I direct attention to the two areas in which difficulties have arisen. If we take as the example the orders in M11, firstly, at the very end of the order the Court will see that the order nisi is made absolute in relation to an “interim order made by the first respondent on 23 December 1993”. Those are the last 10 words or so.
The second aspect about which we are concerned is the reference to “cl.3(1)” in the second line. I would like to direct submissions in relation to each of those aspects of the order.
BRENNAN CJ: I am sorry, what is the second of those?
MR NORTH: The second is the reference to “cl.3(1)” in the second line.
BRENNAN CJ: Yes.
DEANE J: Second line of what?
MR NORTH: Of the order in M11.
DEANE J: Mine has “(ii)”.
BRENNAN CJ: So does mine.
DAWSON J: So does mine, on page 38 of the print.
BRENNAN CJ: And on page 5.
MR NORTH: Well, that is my argument. And that is indeed as it is reflected ‑ ‑ ‑
TOOHEY J: At least there is consistency between the orders on page 38 and those on page 5, is there not?
MR NORTH: Page 5, your Honour?
BRENNAN CJ: Page 5 contains the orders in italics.
TOOHEY J: When you speak of the printed version, Mr North, are you speaking of the pamphleted version?
MR NORTH: I am speaking, your Honour, of this version which I think all at the bar table have.
DEANE J: Would you like to have a look at what we have?
MR NORTH: I take your Honours’ word for the fact that there there appears “(ii)”. My argument is directed to the fact that it ought to be “(ii)” and maybe that obviates the need for any further argument on that aspect.
BRENNAN CJ: I think perhaps it would be desirable, rather than relying on this, to see if we can acquire the actual order that was handed down. Has the associate got that? Is it common ground at the bar table that it is 3(ii) or should be?
MR GRAHAM: It is common ground, your Honour, that it should have been. I think the print of the reasons for judgment which was published to the parties in April did contain an error which referred to 3(1). In the meantime, it has been corrected to 3(ii).
TOOHEY J: But the pamphleted version would have been available to counsel on the day, would it not?
MR GRAHAM: That is how ours appears, your Honours.
BRENNAN CJ: There must have been some error in the production system. At all events, what is your attitude towards ensuring that the order has 3(ii) in it?
MR GRAHAM: We are content that it should read 3(ii) but part of our application is it should be extended to include 3(i), a separate point.
BRENNAN CJ: Yes, I understand that. But so far as the form of the order is concerned, 3(ii) is there?
MR GRAHAM: Is there, your Honour, yes. I believe the error may have arisen as a result of minutes of order handed to the Court at the end of the hearing last year which was the subject of a letter from our instructing solicitors drawing attention to an error in the minutes handed up, and I think that letter has eventually resulted in the correct form of order being in the printed reasons of the Court’s judgment.
BRENNAN CJ: I must say that it has highlighted a problem that I do not think any of us ever thought could exist.
MR GRAHAM: Fortunately it has been resolved, your Honour.
BRENNAN CJ: That problem, from your point of view, seems to have disappeared, Mr North.
MR NORTH: Yes, your Honours, that is so. That then leaves, so far as we are concerned, the question of the reference in the order to “the interim order made by the first respondent on 23 December 1993”. Our application is that those words be deleted on the basis that it was not intended by the Court that they should be there. Could I take the Court to the thin application book, which is the application book relative to our notice of motion first in time. On page 40 is set out the interim order which is the subject of this order. Clause 2, which is at line 25, provides that:
Except by leave of the Commission, the State of Victoria shall accord to each and every employee referred to in paragraph 1. hereof all terms and conditions of employment applicable to that employee as at 2 December 1993.
Then clause 3 provides for a different type of employee, namely employees who are thereafter to be taken on, and their contract for the performance of work is to contain no -
conditions otherwise than in accordance with the provisions of the regulations and determinations made under the Public Service Act (Vic) as in force on 17 November 1992.
They are the essential clauses of the award. Now, when the matter was heard, that was the form of award that was before the Court. There was no material going to what the content of the referred to regulations and determinations were.
TOOHEY J: You use the term “award”, Mr North. Does anything turn on the fact that it is described as an “interim order”?
MR NORTH: I used it loosely, your Honour. In the Act they are interchangeable but precisely I should have referred to this as the interim order.
TOOHEY J: I have not a copy of the Act in front of me, but there is a provision in the Act, as I recall, that continues an interim award even after the date on which it is expressed to expire. Does that provision apply equally to interim orders.
MR NORTH: It does. Award includes order.
TOOHEY J: I see, thank you.
MR NORTH: If the Court pleases, it is our submission that the Court intended to make absolute orders nisi in relation only to interim awards which purported to restrict the right of the State of Victoria or its agencies to terminate the services of its employees on the grounds of redundancy. If I could refer the Court to the reasons in the Australian Law Reports report. In 128 ALR at page 632 lines 24 to 27, in applying the tests to the facts in this case, having dealt with the first grouping of cases, namely the ones where dispute findings were challenged, the Court then went on to deal with interim awards and at line 24, in effecting the striking down of specific awards, it said:
Those interim awards purported to restrict the prosecutor’s or its agencies’ right to terminate the services of the employees on redundancy grounds. Accordingly -
that is because of that vice -
the interim awards made in Matters M11 and M156 cannot remain on foot.
Now, your Honour Justice Toohey drew attention to the fact that this is an interim order. It may be that something of the Court’s intention can be derived from the fact that that sentence refers to awards, not orders. We do not, however, fundamentally rely on that.
But if the ground for making absolute the orders nisi was the infringement of the right to terminate services, then there was nothing before the Court which gave any indication that this interim order did that. So it cannot have been in the mind of the Court, in our submission, to make orders absolute in relation to this order.
That, in our submission, is rather highlighted when one goes to some of the other matters that were before the Court which stood in precisely the same position as this matter. For instance, if one takes M15, and if I could take the Court to page 618 of the report where M15 is briefly described, it is another HSUA matter, at the very bottom of page 618, the last five or so words:
On 23 December 1993, Senior Deputy President Riordan made the Health Services Union of Australia (Victoria - Public Sector) Interim Award 1993 which requires that Victorian employers afford their employees the terms and conditions of employment prescribed by earlier awards of the Victorian Industrial Relations Commission.
This was an award made at about the same time as M11 and it adopted the same technique, that is retaining the status quo by reference to, in this case, earlier awards. As I recall it, your Honours, there was no material which described to the Court what the contents of that earlier M15 award is.
Now, the M15 award is exhibited to an affidavit in this matter, an affidavit of Mr Langmead in the second application book, commencing at page 284. Could I just hand to the Court five copies of that award which is exhibit C to Mr Langmead’s affidavit. On page 2 is the operative clause which preserves the status quo by reference to the earlier State awards.
Now, in relation to M15, the order nisi was discharged and we say, with respect, by parity of reasoning, it must have been intended to treat the cognate interim award in similar in principle terms in the same way.
Primarily, our basis for thinking that the Court intended to make no reference to the interim order in the Court’s orders is that there was just nothing to permit the Court to come to the conclusion that it had in it any of the offending types of provisions.
DAWSON J: You mean there was nothing before the Court, but does it have anything in it of offence?
MR NORTH: We would say no, your Honour, but what we then do is say ‑ because the State of Victoria now wants to agitate the contents of the award and it puts before the Court now the second application book which is by and large comprised of the material referred to in the award. And we say, with respect, that this is the sort of exercise which the Court had in mind when it said, at page 631 of the report at line 33:
What impact the implied limitation would have on the power of the Commission to make an award prescribing particular minimum terms and conditions of employment for particular classes of employees, eg, term of appointment, procedures and criteria for promotion and transfer, and termination on grounds other than redundancy, was a question which was not explored -
it certainly was not -
in detail in the arguments presented to this court. Obviously these are matters to be considered in the Commission if the proceedings are taken further in that tribunal.
DAWSON J: But do these particular provisions relate to minimum rates or paid rates?
MR NORTH: Certainly - I am sorry, your Honour.
DAWSON J: Which? Do these provisions in these particular orders relate to minimum rates or paid rates?
MR NORTH: They are paid rates, but that on its own, the way we read the reasons, is not a factor which takes the award out of constitutional validity. We do not understand the reason ‑ ‑ ‑
DAWSON J: It is just that the passage you refer to refers to minimum rates and these are paid rates.
MR NORTH: They are minimum terms; the question is whether in using the expression “minimum” there was a distinction being drawn between the concept of minimum rates and paid rates or whether minimum was just being used in the sense of establishing the rates of pay for the particular workers and conditions. We would have thought, with respect, that there is no art used in the description “minimum rates” or “minimum terms and conditions”. The question of paid rates is not a distinction raised by that particular provision.
DAWSON J: But it is necessarily a distinction if they are in fact paid rates which are provided by these various other provisions which are kept in force.
MR NORTH: Your Honour, we first have to know whether the - I mean, paid rates award establishes minimum terms. It also establishes maximum terms. Was the Court saying that only an award which establishes base levels is permissible and if paid rates were established by an award they were outside constitutional capacity? That, with respect, is not a distinction expressly drawn in the passage. Furthermore, your Honour, it is not on its face something that springs to life as a reason for, on the one hand, holding constitutional validity and, on the other, not.
But even if there were to be a debate about the nature of the terms, the rates and whether they were paid or minimum rates, what the material in the application book demonstrates is that there were a vast number of terms and conditions. Some fall into the clear category of being related to transfers or promotions and consequently are matters which the Court has said are dependent for constitutional validity on degree. We are not in a position today to put to the Court submissions about whether the degree to which promotions and transfers are regulated in this award, as a matter of evidence or as a matter of argument, prejudice the State functioning as such. That is typically a thing which we would gather from the decisions was to be left for the Commission.
There are other provisions which are contained in the award which may or may not fall within the description of the excluded areas. That is, for instance, where the Court has, for instance, excluded provisions in relation to qualification for employment or number and identity of employees. The provisions in this award do not neatly fall, without contention, into any of those categories. I mean, one of the provisions, for instance, that our learned friends say is outside constitutional validity is a clause setting working hours. Nowhere has the Court adverted to the setting of working hours being something that brings the provision outside constitutional validity. These matters are, when looked at in globo without selecting bits of the award, in globo, your Honours, they are matters which are peculiarly within the detailed examination of the Industrial Relations Commission.
In testimony to that is that the proceedings which followed the making of this award are presently before the Commission and there is a draft award before the Commission which, in due course, will supplant this and in which the terms and conditions, according to the affidavit of Mr McArdle on behalf of the prosecutor, traverses all the translated determinations and statutory rules. That is on page 8 of the second, the fatter application book, in paragraph 13(e):
The proposed award will set out in express terms most of the relevant regulations and determinations which are incorporated by reference in the interim order -
Then there is reference to the fact that there has been a foreshadowed argument in those proceedings along the lines, I think, that Justice Dawson adverted to, the distinction between paid rates and minimum rates. So it is very much a live issue in the Industrial Relations Commission and, in those circumstances, in our submission, the Court rightly forecast, at page 631, that that was the appropriate way to deal with them.
What we have effectively here got is: after the hearing the tendering of evidence to the Court in respect of one of a number of awards - because if this happens in relation to this award, there is no reason why it ought not happen in relation to M15; it happens after the hearing and in an attempt to have the Court, in effect, translate its reasons into a factual situation which was not before the Court at the time.
Your Honours, it is for those reasons that, in our submission, the proper approach to the motion of the State of Victoria is that it be dismissed; that the Court does not get into an interpretation of its own reasons in relation to facts which were not before it; but that the arguments which the State of Victoria now wants to put here be taken in the Industrial Relations Commission, and we openly indicate that we see absolutely no problem with that course being adopted, in the sense that nothing can be held against the State of Victoria for not agitating in these proceedings the final working out of the reasons for decision in relation to a specific award. Because, as I said, your Honours, if the opposite result obtains, then the State of Victoria would be bound, we would have thought, in M15 and such of the others that present a similar picture - indeed, there is one nurses’ award which is also exhibited to Mr Langmead’s affidavit, and I am holding it up, it is a comprehensive wages and conditions award - and no doubt the State of Victoria would want to go through 220-odd pages before this Court with schedules and tables and trying to impugn particular sections of it or not.
Now, given that it has the ability to agitate these issues elsewhere, and given that this Court was concerned to establish the broad parameters of the constitutional limitation, in our submission the appropriate course is for these matters to be agitated, as the Court said, in the Commission if proceedings are taken in relation to those awards on the very basis that the State of Victoria wants here to now agitate. If your Honours please, that is the submission for the Union.
BRENNAN CJ: Thank you, Mr North. Mr Solicitor.
MR GRAHAM: May it please the Court. Just to complete the record in relation to the matters which were before this Court in the proceedings in which judgment was given in April, the interim award of 23 December to which the applicants’ notice of motion is directed was placed before the Court not in the actual application books which were provided to the Court but by a supplementary affidavit which was filed and copies were provided to the Court. If I may just identify that affidavit. It was sworn by one Mr Szlawski on 24 March 1994 and he exhibited a copy of the interim order to which the Court’s attention has now been taken.
It is apparent from the Court’s reasons for judgment - or the majority’s reasons for judgment - at page 618 that the Court was perfectly aware that that interim order was part of the subject-matter of the challenge in Matters M11 and M156. That appears at page 618 of the Australian Law Report of the case. I direct the Court’s attention to line 20 on page 618. Express reference is made to the order of 23 December 1993 by Deputy President MacBean.
I have consulted the minutes of order that we sought at the conclusion of the hearing last June. Our minutes of order as submitted to the Court included, as the appropriate subject-matter for the grant of prohibition and also certiorari in M11 and M156, the interim order of 23 December 1993. So the matter was clearly the subject-matter of challenge before these proceedings and that is reflected in the Court’s reasons.
My learned friend’s argument really is: you did not place the whole of the material that Deputy President MacBean’s interim award incorporates by reference so that the Court should be taken not to be aware of what those materials were. We simply submit that that is not an approach that the Court should adopt.
If I could take the Court to two or three passages in our outline of argument. If I could invite the Court’s attention firstly to paragraph 5 of the outline. This is what I may call the narrow reason why we say that the Court should not amend the orders which it made in M11 and M156. We say that the interim order of 23 December has a very significant operation. Any order of this Court which recalls the order absolute for prohibition in respect of the interim order, after the attention of the Court has been drawn to the scope of its operation, may be treated as an indication by this Court that the interim order is valid and supportable in its existing terms. We would call that our imprimatur point. If the Court recalls that part of its order we would say that that would be taken, or could well be taken, as an indication by this Court that the interim order was validly made.
Our submission is, firstly, that the interim order was invalid because it contained provisions dealing with the topic of redundancy. We draw attention to that aspect of the matter in paragraphs 9, 10 and 11 of our outline or argument.
DEANE J: But did we know that? I mean, did you tell us?
MR GRAHAM: I think the answer to your Honour is your Honours did not know it.
DEANE J: In that case it is obvious that that part of the order was made by error.
MR GRAHAM: If the understanding is simply that the matter was not agitated before the Court, then ‑ ‑ ‑
DEANE J: That being so, how is anybody prejudiced if we say that the matters which are alleged to lead to invalidity were not canvassed before the Court on the hearing; that being so, the orders were made by error and the error is corrected. The fact that the Court made an error naturally does not prejudice the State of Victoria or anybody else.
MR GRAHAM: Your Honour, with respect, that much said is probably all that needs to be said. But the Court having been invited to recall part of its order by an express application by our opponents, we were concerned what might be made of that application if it were successful hereafter.
DEANE J: For my part I will say it again.
MR GRAHAM: No, your Honour, if I may say so, I was quite content ‑ ‑ ‑
BRENNAN CJ: You will probably gain a lot of concurrences, I should think, as soon as it is said.
MR GRAHAM: Really, on the narrow ground, that is what divides my learned friend and us, what might be made of the Court’s decision to recall that part of its order. The same argument would flow in relation to the wider ramifications if the interim order, in so far as it deals with matters of paid rates, termination, hours and so forth, if it is not possible for this Court’s reasons for judgment to be interpreted as endorsing the interim order’s validity in respect of those matters, then that is an end of the matter.
The same proposition could perfectly well be made in relation to our concerns in relation to clause 3(i) and clause 3(ii) of the order which was the subject of orders absolute in M11 and M156. That matter is touched upon in paragraph 26 of our outline of argument. We are again concerned that because clause 3 of the redundancy award is expressly referred to in the order absolute, that it might, if we did not draw the Court’s attention to the matter, be treated as endorsing the validity of clause 3(i).
BRENNAN CJ: Where do we find this redundancy award?
TOOHEY J: Page 13 in the slim volume.
MR GRAHAM: That was a clause dealing with what were referred to as voluntary departure packages and the offering of voluntary departure packages which was a matter which might well be argued to inhibit termination of employment on redundancy grounds, especially having regard to the heading of clause 3. So the concern is that by having the
Court’s attention drawn to clause 3(i) and (ii) of clause 3, the view might be taken that the Court was endorsing the validity of clause 3(i) and we would not wish to be precluded from arguing that clause 3(i) should fall with clause 3(ii).
BRENNAN CJ: It does appear that at least in the form of the order as published, so far as inquiries this afternoon have revealed, it was clause 3(1) which appeared in the Court’s order.
MR GRAHAM: Yes, that is what we were given when we collected the Court’s reasons in Melbourne on the day the judgment was handed down. It appears twice; both at page 5 of the print and at page 38 in those terms. I readily confess that the source of the error was the minutes of order that we handed to the Court which referred to clause 3(i).
BRENNAN CJ: We can change 3(i) to 3(ii) without any difficulty at all.
MR GRAHAM: Your Honour, the clarification which has occurred during the course of the argument before the Court today probably leaves it unnecessary for me to seek to develop our submissions any further beyond what appears in our written outline. I do not seek to place any further submissions before the Court. If your Honours please.
BRENNAN CJ: Do you have anything to say at all, Mr Solicitor?
MR GRIFFITH: Your Honour, the Attorney is anxious to say nothing to deflect the course from what seems to be a sensible resolution of these issues. Other than to indicate that although the Attorney does not ask for costs, your Honours, he is uncertain whether my learned friend, Mr Graham’s clients should be ordered to pay the costs or the Court should be ordered to pay the costs. If the Court pleases.
BRENNAN CJ: The point is well, if not felicitously, taken. It seems, if I might just say so, that the reasons for judgment contained 3(ii); the order that was handed down contains 3(i). That only makes the confusion worse.
Mr North, do you have anything to say in reply?
MR NORTH: Your Honour, I think I ought to. If I understand correctly, the way matters have rested in relation to the 3(i) and 3(ii) problem, is that it is now acknowledged that the Court intended the reference to be 3(ii). I understood our learned friend then to say, well, so long as it is understood the Court was not thereby ruling on 3(i), we are content with that course. Now, that, with respect, is not a position which we accept, because in relation to 3(i) we understand the Court to have determined its validity and we say that because, if one goes to the later award on page 35 - this is of the slim volume - the award which superseded the initial redundancy award dealt with the matters contained in 3(i) and 3(ii) in new clauses 3 and 4. The Court struck down 4 because that infringed the constitutional implication. It addressed termination. It did not strike down 3 and, on our reading, did not intend to strike down 3 because it did not restrict the right to terminate on the grounds of redundancy, just as 3(i) in the earlier award did not restrict the State of Victoria’s right to terminate on the grounds of redundancy.
So, in our submission, the intended order was as it now reads, as the Court has indicated it did read - that is 3(ii) and 4 in the later award - and that was as a result of a determination by the Court.
DAWSON J: But there was nothing before the Court to show that 3(i) did deal with redundancy, was there?
MR NORTH: No, that is so. All that was before the Court was the terms of the award which, of course, had annexed the details of the voluntary redundancy package, so it was clear what it dealt with. The voluntary redundancy was a question of resignation on terms; it had nothing to do with termination by the employer\ of a contract of employment.
We say, with respect, that the key is that the Court was concerned with awards which restricted the right to terminate on the grounds of redundancy. That is what 3(ii) and 4 did; therefore they go.
DAWSON J: But no specific argument was put to the Court that 3(i) dealt with, as opposed to voluntary departure, redundancy. I do not recall it.
MR NORTH: I cannot recall that, your Honour, I must say.
DEANE J: But what problem can you have with the Court saying that the Court dealt with the matter on the basis of the material before it and the arguments addressed to it. In so dealing with it, the Court or the Registry made two errors. In the formal orders which it made the Court will correct those errors and no inference whatsoever is to be drawn from the facts in relation to any other arguments which were not involved in the proceedings before the Court and which might subsequently arise for consideration.
MR NORTH: No problems whatsoever.
DEANE J: That is all that Mr Solicitor was asking us.
MR NORTH: I thought not, your Honour. With respect, I thought he was asking for an inferential qualification by the Court making the order, in effect saying thereby that it made no specific finding in relation to 3(i) and that, we say, is not so.
DEANE J: We did not make a finding in relation to 3(i) in terms of the other matters which we expressly said might be raised at other times and other places, and to which you took us in your opening comments.
MR NORTH: Yes, that is so, your Honour.
BRENNAN CJ: That leaves us only with the need to amend it by changing (i) to (ii) in the formal order and deleting the final ‑ ‑ ‑
MR NORTH: We would be perfectly content with that, your Honour.
BRENNAN CJ: The Court will adjourn briefly in order to consider what should be done.
AT 3.25 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.40 PM:
BRENNAN CJ: During the course of argument the basis on which the Court proposes to amend the orders published has been made clear. The Court intended by its orders in matters M11 of 1993 and M156 of 1993 that prohibition should go in relation to clause 3(ii) of the Victorian Public Service Health Workers Redundancy Interim Award 1992. By error, the orders formally made referred to clause 3(1) instead of clause 3(ii). The order made in each of these matters also included, as a result of error on the part of the Court, reference to an interim order made by the first respondent on 23 December 1993.
The Court orders that the orders made be corrected by deleting “clause 3(1)” and substituting “clause 3(ii)” and by deleting the words and figures “or the interim order made by the first respondent on 23 December 1993”.
No implication should be drawn from the making of these amendments as to the effect or validity of the provisions now to be deleted.
Are there any other applications? Court will now adjourn.
AT 3.42 PM THE MATTER WAS CONCLUDED
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