State of Victoria, Ex parte- Re Community and Public Sector Union

[1995] HCATrans 194

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M35 of 1995

BETWEEN:COMMUNITY AND PUBLIC SECTOR UNION

Plaintiff

-and-

THE STATE OF VICTORIA

Defendant

Re Community and Public Sector Union;  ex parte

The State of Victoria

DAWSON J (In Chambers)

AT MELBOURNE, MONDAY THE 26TH DAY OF JUNE 1995

MR D. GRAHAM QC:   May it please your Honour, I appear with my learned friend MR KAUFMAN for the applicant, the State of Victoria.  (instructed by the Victorian Government Solicitor)

HIS HONOUR:   Yes, Mr Solicitor.

MR S. HOWELLS:   May it please the court, I appear on behalf of the Community and Public Sector Union, the second respondent. (instructed by Gill, Kane and Brophy)

HIS HONOUR:   Yes, Mr Howells.  Mr Solicitor.

MR GRAHAM:   If your Honour has had the opportunity of reading the affidavit in support of the application of Mr McArdle, it really says just about everything that we want to say.  There is just one aspect that I would seek to develop in relation to paragraph (xxviii) of the affidavit.  That is within the section that is headed: Outline of Applicant's Contentions.  Paragraph (xxviii) is the paragraph in which it is said that an industrial dispute may be brought into existence for the purposes of the act in a number of ways, one of which is by the service of log of claims and non-acceptance of those claims.  However, an industrial dispute is a state of affairs in which the parties are in dispute.  Such a state of affairs is not brought about merely by the service of a log of claims without more.

What I am about to say is directed to the provisions of the act, the Industrial Relations Act, dealing with notices and instruments following an amalgamation. And the point that we would seek to emphasise is that when one finds in a provision such as section 253U of the Industrial Relations Act which refers to the continued operation of instruments, the point we would emphasise is that a provision like that cannot operate to continue in existence what I would call a state of affairs which is an existing industrial dispute.

HIS HONOUR:   That is a distinction which has been drawn, has not it ‑ ‑ ‑ 

MR GRAHAM:   Yes, it has.

HIS HONOUR:   ‑ ‑ ‑ in some cases that you can deem some things to be but you cannot, as it were, alter a natural state of affairs which contradicts the deeming.

MR GRAHAM:   Yes.  That is the point we would emphasise, your Honour, and you cannot turn something that is not a state of affairs into a state of affairs which would attract jurisdiction and we would further submit in due course ‑ ‑ ‑ 

HIS HONOUR:   And anyway you cannot attract jurisdiction constitutionally by deeming something.

MR GRAHAM:   Exactly.  So that is the only point we would seek to expand upon in relation to that.

HIS HONOUR:   I appreciate that, but why should not this be something that goes to the Industrial Relations Court, Mr Graham?

MR GRAHAM:   Your Honour, I think the highest we can put it is that we perceive a constitutional issue in the case in regard to the ‑ ‑ ‑ 

HIS HONOUR:   It is one that may not arise.

MR GRAHAM:   In - it would depend on the course that argument takes but ‑ ‑ ‑ 

HIS HONOUR:   Well, whether the sections, either of the sections applies.

MR GRAHAM:   Yes.  So perhaps there is a preliminary question to be determined and then there will be a constitutional question as to whether those sections can have the operation for which the respondents might contend.

HIS HONOUR:   But it has been said that unless the constitutional point is a fairly deep or significant one, there is no reason why the Industrial Relations Court cannot deal with it, particularly when there are certain factual matters which may have to be dealt with.

MR GRAHAM:   Your Honour, we cannot take the matter beyond what we have said in the affidavit and I think I would be taking up your Honour's time unduly if I sought to say more.  There is a question about a stay of proceedings but if the matter is remitted that would have to be taken up, as I understand the practice, with the Industrial Relations Court.  But we do ask the matter be retained in this court for the reasons indicated and I do not believe I can take the matter further.

HIS HONOUR:   Yes.  Mr Howells.  I might say that one can be influenced by the fact that you did seek to have the matter sent to the Industrial Relations Court previously, in another form of course.

MR GRAHAM:   Yes, well that - from the commission.

HIS HONOUR:   Yes. 

MR GRAHAM:   Yes.  Well, that seemed to be appropriate, no doubt, at the time.  But that was the only way in which I suppose one could have had that question removed into a court, properly so called, was through that mechanism and - but I take the force of your Honour's point.

HIS HONOUR:   Yes, yes, Mr Howells.

MR HOWELLS:   Can I just emphasise, as your Honour has already pointed out, that the constitutional question which it is said arises is only in any event one which would concern the outer limits, as it were, of the head of power, 51(xxxv) and any implied ‑ ‑ ‑ 

HIS HONOUR:   It may or may not arise.

MR HOWELLS:   Indeed.

HIS HONOUR:   And if it does ‑ ‑ ‑ 

MR HOWELLS:   If it is that is all that is involved.

HIS HONOUR:   ‑ ‑ ‑ it really is just a question of whether there is a dispute or not, it is ‑ ‑ ‑ 

MR HOWELLS:   Not.  And for that purpose I have taken the liberty of referring to a decision of Gaudron J in the Media Arts Entertainment Alliance matter, it is reported at ‑ ‑ ‑ 

HIS HONOUR:   Yes, I have read that this morning.

MR HOWELLS:   That - they are the only matters, your Honour.

HIS HONOUR:   Thank you, Mr Howells.

MR GRAHAM:   Nothing in reply, your Honour.

HIS HONOUR: This application is said to raise the question whether written demands served upon various employers by a registered organisation survive the amalgamation of that organisation with another registered organisation so that the employer's failure to accede to the demands continues to give rise to an industrial dispute. The registered organisation which has amalgamated is the State Public Services Federation. It has amalgamated with the Community and Public Sector Union. It has been de-registered under section 253Q(3)(c) of the Industrial Relations Act (1988) Commonwealth.

In proceedings before the Industrial Relations Commission, in which the commission is being asked to make a finding of the existence of a dispute, one of the employers, the State of Victoria, asked the commission to refer that question or a similar question to the Industrial Relations Court pursuant to section 46 of the Act. The commission declined to do so. The question is said to raise a constitutional issue but it turns principally on the construction of sections 253U and 253V of the Act. Those sections continue in force respectively an instrument given by a de-registered organisation and proceedings before the commission to which the de-registered organisation is a party. The applicant says that if either of those sections are held to apply it will seek to contest their constitutional validity.

That constitutional issue may not arise and in any event it is not, I think, an inappropriate issue to be determined by the Industrial Relations Court in the first instance. The fact that a constitutional issue may arise, particularly where it may arise in a factual context, such as is involved in determining whether there is an industrial dispute, is not of itself a sufficient reason for not following the usual course which is to remit a matter such as this to the Industrial Relations Court, see re Media Entertainment and Arts Alliance ex parte Attorney General for Queensland (1994) 68 ALJR 478. Accordingly, I order that further proceedings in this matter be remitted to the Industrial Relations Court and make the usual consequential orders.

MR GRAHAM:   May it please, your Honour.

AT 2.28 PM THE MATTER WAS ADJOURNED
INDEFINITELY