State of Victoria v Honourable John MacBean, Senior Deputy President of the Australian Industrial Commission
[1996] IRCA 266
•26 June 1996
DECISION NO: 266/96
CATCHWORDS
INDUSTRIAL LAW - Arbitration - Paid rates award - Whether the Commission made the award as a paid rates award to comply with the statutory direction in s170PP of the Act - Constitutional validity of s170PP(3) of the Industrial Relations Act - Scope of external affairs power in s51(xxix) of the Constitution - nature of Australia's obligation under the International Covenant on Economic, Social and Cultural Rights - Validity of Australian law conferring qualified right to strike - Whether by making a paid rates award the Commission breached the implied constitutional limitation on the arbital power - effect of paid rates award on a respondent which is a State or State agency.
Constitution s51(xxix), s51(xxxv)
Industrial Relations Act 1988, Division 4, Part VIB, ss 170PO(1)(b), 170PP(1), 170PP(3)(c), 170PP(4), Part VIC, ss 170SA, 170UB, 170UC, 170UD and 170UE
Re Australian Education Union (1995) 128 ALR 609
Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495
The Commonwealth v State of Tasmania (The Tasmanian Dam case) (1983) 158 CLR 1
Re F; Ex parte F (1986) 161 CLR 376
Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338
Minister for Foreign Affairs and Trade v Mango (1992) 37 FCR 298
Victrawl Pty Ltd v AOTC Limited (1993) 45 FCR 302
Andersen v Umbakumba Community Council (1994) 126 ALR 121
Brennan v Comcare (1994) 50 FCR 555
Comalco Aluminium (Bell Bay) v O'Connor (1995) 131 ALR 657
No. VI 1139 OF 1996
STATE OF VICTORIA v. THE HONOURABLE JOHN MacBEAN, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL COMMISSION and HEALTH AND COMMUNITY SERVICES UNION OF AUSTRALIA
WILCOX CJ, LEE AND MOORE JJ
SYDNEY (HEARD IN MELBOURNE)
26 JUNE 1996
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. VI 1139 of 1996
)
VICTORIA DISTRICT REGISTRY )
BETWEEN: STATE OF VICTORIA
Applicant
AND: THE HONOURABLE JOHN MacBEAN,
A SENIOR DEPUTY PRESIDENT OF THE
AUSTRALIAN INDUSTRIAL COMMISSION
First Respondent
HEALTH AND COMMUNITY SERVICES UNION
OF AUSTRALIA
Second Respondent
JUDGE: Wilcox CJ, Lee and Moore JJ
PLACE: Sydney (heard in Melbourne)
DATE: 26 June 1996
ORDER OF THE COURT
THE COURT ORDERS THAT:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. VI 1139 of 1996
)
VICTORIA DISTRICT REGISTRY )
BETWEEN: STATE OF VICTORIA
Applicant
AND: THE HONOURABLE JOHN MacBEAN,
A SENIOR DEPUTY PRESIDENT OF THE
AUSTRALIAN INDUSTRIAL COMMISSION
First Respondent
HEALTH AND COMMUNITY SERVICES UNION
OF AUSTRALIA
Second Respondent
JUDGE: Wilcox CJ, Lee and Moore JJ
PLACE: Sydney (heard in Melbourne)
DATE: 26 June 1996
REASONS FOR JUDGMENT
THE COURT: On 2 February 1996 a Judge of the High Court of Australia, Dawson J, ordered that an application for writs of prohibition, mandamus and certiorari directed to Senior Deputy President MacBean of the Australian Industrial Relations Commission ("the Commission") be remitted to the Industrial Relations Court of Australia for hearing.
On 9 February 1996 Senior Deputy President MacBean made an award entitled "the Victorian Health and Community Services (Psychiatric, Disability and Alcohol and Drug Services) Award 1995" ("the Award") binding the applicant, the State of Victoria and the second respondent, the Health Services Union of Australia ("the HSUA"). The Award applied to Crown employees engaged in the provision of psychiatric and mental health services, intellectual disabilities services and alcohol and drug related services in Victoria. Sub-clause 3(2) of the Award declared that it was a "Paid Rates Award".
The Commission proceedings
The Award was made in part settlement of a dispute arising from the service of a log of claims by the HSUA on 5 August 1992. A finding of dispute was made on 14 December 1992 in what had become matter C.31467 of 1992 in the Commission. That dispute remained unresolved and on 1 June 1994, the HSUA served on the Department of Health and Community Services of Victoria a notice of initiation of a bargaining period under s170PD of the Industrial Relations Act 1988 (Cth) ("the Act"). That section is found in Division 4 of Part VIB of the Act. In the months of September to November 1994, members of the HSUA engaged in industrial action which led to a decision by another member of the Commission then dealing generally with the dispute, Senior Deputy President Riordan, to terminate the bargaining period initiated by the HSUA. This involved the exercise of a power conferred by s170PO(1)(b). In January 1995 Senior Deputy President Riordan commenced to arbitrate the dispute. On 24 February 1995 he published a decision in which he indicated he would make an award in part settlement of the dispute. However before the award was made Senior Deputy President Riordan retired and the matter was, in substance, then dealt with by Senior Deputy President MacBean. Senior Deputy President MacBean published a decision on 24 January 1996 indicating he would make the Award which he did on 9 February 1996.
The reasons for making the paid rates award
The applicant contended that Senior Deputy President MacBean made the Award as a paid rates award because of the statutory direction in s170PP(3)(c). It submitted that s170PP(3) is not a valid law of the Commonwealth as it is not authorised by either s51(xxxv) or s51(xxix) of the Constitution. As a consequence, Senior Deputy President MacBean fell into jurisdictional error in acting in accordance with the direction found in s170PP(3)(c). It further submitted that by making an award which was a paid rates award, the Commission transgressed the limits of its award making powers identified by the High Court in Re Australian Education Union (1995) 128 ALR 609. The HSUA took issue with each of these contentions.
There was a preliminary issue about whether, as a matter of fact, Senior Deputy President MacBean made the Award as a paid rates award in order to comply with the statutory direction in s170PP. In order to address that issue, it is necessary to consider earlier decisions of Senior Deputy President Riordan. The decision to make the Award was made, in substance, by him and not Senior Deputy President MacBean. The basis upon which Senior Deputy President Riordan was acting emerges from decisions he made on 15 December 1994 and 21 December 1994 terminating the bargaining period, and his decision of 24 February 1995 deciding that an award should be made and its terms.
Before considering these decisions it is convenient to set out the relevant parts of ss170PO and 170PP:
"170PO.(1) Subject to subsection (2), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that:
(a)...
(b)industrial action that is being taken to support or advance claims that are the subject of the industrial dispute is threatening:
(i)to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(ii)to cause significant damage to the Australian economy or an important part of it; or
(c)...
...
...
...
170PP.(1)This section applies if a bargaining period initiated by an organisation of employees is terminated on the ground set out in paragraph 170PO(1)(b).
The Commission must immediately begin to exercise its powers under this Act to prevent or settle the industrial dispute.
Subject to subsection (5), if the Commission proposes:
(a)to make a new award covering; or
(b)to vary an existing award so as to cover;
employees whose terms and conditions of employment were the subject of the industrial dispute, the Commission must:
(c)if paragraph (a) applies to make the new award as a paid rates award; or
(d)if paragraph (b) applies vary the award so that it will be a paid rates award;
in relation to any of those employees who are employed in the single business or part of the single business, or at the single place of work, to which the bargaining period relates.
In deciding the terms to be included in an award that it proposes to make or vary as mentioned in subsection (3), the Commission must base its decision on the merits of the matters under consideration and need not follow principles that apply in determining wages and conditions of employment by making awards under Part VI.
Subsection (3) does not apply to a new award or a variation of an existing award if the parties to the industrial dispute agree that the subsection is not so to apply.
An award made or varied as mentioned in subsection (3):
(a)may, if the Commission thinks it appropriate, include a bans clause; and
(b)must be expressed to operate for a fixed period.
During the fixed period:
(a)subsections 148(1) and (3) do not apply to the award but subsection 148(2) does so apply; and
(b)the award may only be varied for the purpose of:
(i)removing ambiguity or uncertainty; or
(ii)including, omitting or varying a bans clause; or
(iii)including, omitting or varying a term (however expressed) that authorises an employer to stand down an employee; and
(c)the parties to the award may not initiate a bargaining period under section 170PD for negotiating an agreement in relation to matters dealt with in the award."
It can be seen that if a bargaining period is terminated on the ground identified in s170PO(1)(b) then s170PP applies: see s170PP(1). These sections form part of Division 4 of Part VIB of the Act. Division 4 creates a scheme which renders an organisation of employees and others: see s170PG, immune from civil action, of the type identified in s170PM, during a bargaining period. It also allows an employer to lock out employees: see s170PG(3). Somewhat simplified, the scheme of the Division is that while a bargaining period subsists members of an organisation may strike without exposing themselves to civil action but when the period concludes they are exposed to such action.
It is plain from the decisions of 15 December and 21 December 1994 that Senior Deputy President Riordan terminated the bargaining period on the ground identified in s170PO(1)(b). In his decision of 15 December 1994 Senior Deputy President Riordan contemplated the consequences of terminating the bargaining period. He referred to a submission made on behalf of the HSUA:
"It was his argument that the bargaining period should now be terminated in accordance with section 170PO and that the matters in dispute should be arbitrated pursuant to the terms and provisions of section 170PP. If this course were to be followed the Commission would be free to arbitrate all of the issues in dispute without the constraints of the principles of wage fixation which currently apply, according to Mr Langmead.
To commence an arbitration in accordance with section 170PP is a serious matter which must be approached with caution. The provision is clearly intended to be used in circumstances which are urgent in nature having regard to the disruption of essential community services or the prospect of 'significant damage to the Australian economy or an important part of it'.
It is important, in my view, to consider in a very careful way the terms of section 170PO in the setting of the Act as a whole."
The Senior Deputy President then considered the Act more generally and returned to a consideration of s170PP in the following passage:
"Section 170PP is couched in terms which are innovative. Its terms apply only to situations where a bargaining period has been terminated in accordance with section 170PO(1)(b) (subsection 170PP(1)).
Having acted to terminate a bargaining the Commission 'must immediately begin to exercise its powers' for the purpose of preventing or settling the relevant industrial dispute (subsection 170PP(2)). This provision is expressed in clearly different terms to the statutory direction contained in section 104 which requires the Commission, in circumstances where conciliation is completed but the relevant industrial dispute remains unresolved, to 'proceed to deal with the industrial dispute'. The significant difference appears to be a direction to 'immediately begin the exercise' certain powers as against being required to 'proceed to deal with the industrial dispute'.
There is no indication of a direction in the Act to perform one duty to the exclusion of the other and I have acted on the basis of being required to perform both duties. That is to say the directions mean that the Commission must immediately begin to exercise its powers which includes proceeding to resolve the dispute.
If it is decided by the Commission to make or vary an award for the purpose of discharging its statutory duty the result must be a "paid rates award" (subsection 170PP (3))."
The Senior Deputy President then went on to consider the relationship between Part VIB and other provisions in the Act and expressed the view:
"In my view, the direction in subsection 170PP(2) for the Commission to begin immediately to exercise its powers under the Act is to be understood as meaning all of the relevant powers wherever found in the Act. This is to be interpreted and applied in the manner explained by Justice McHugh in re Saraswati referred to above. It is on that basis that I intend to proceed towards a resolution of this matter."
He indicated the course he proposed to take in the concluding part of the decision:
"In all of the circumstances I propose to hear further argument prior to making any orders in this matter. The argument is to be directed to the following procedure which I am at present considering and which has not yet been debated:
The bargaining period will be terminated in accordance with the terms of section 170PO(1)(b) on the basis that the dispute is threatening the personal safety, health and/or welfare of a very vulnerable and dependent section of the population;
In order to break the impasse there will be an arbitration with respect to the wage rates to be included in an award, such wage rebates to be based on identifiable criteria;
The parties will then meet in an effort to determine cost offsets and other relevant terms to be included in the paid rates award to be made;
Failing a resolution of those matters by the processes of conciliation the matters will be arbitrated; and
No new wage rates will be payable because no paid rates award will be made until the various matters are finalised and the related procedures are concluded.
Such an approach involves the use of the conciliation and arbitration processes and powers. It gives effect, in my view, to the objects of the Act.
This matter will, therefore, be listed for further debate and consideration on Monday next, 19 December 1994 at 2.15 p.m. in Melbourne. Parties should be prepared to debate the question of relevant wage rates to be determined and time will be available on Tuesday 20 December 1994 for this purpose, if the course proposed herein is followed." (emphasis added)
Several days later, on 20 December 1994, the Senior Deputy President gave a decision ex tempore which was published in writing on 21 December 1994. The Senior Deputy President terminated the bargaining period on the ground identified in s170PO(1)(b). As to what would happen thereafter he said:
"In all the circumstances, I do not propose to persist with the procedure as suggested in my decision of 15 December, 1994 and I propose to arbitrate the whole matter. I propose to make a paid rates award in due course and the term of that award is a matter which should be debated during the proceedings." (emphasis added)
To this point it is reasonably clear that Senior Deputy President Riordan intended terminating the bargaining period and thereafter considering the terms of an award that would be made to settle the dispute. It is plain that he intended the form of the award to be a paid rates award and it can be inferred that he did so because of the terms of s170PP(3).
That this was his intention is reinforced by the terms of his decision of 24 February 1995 in which he decided to make an award and determined what its provisions would be in several contentious areas. He addressed a number of issues, including the effect of the then prevailing wage fixing principles of the Commission. He did so in the context of the provisions of s170PP(4). He also addressed how he should proceed having regard to the position of another organisation, The Australian Nursing Federation ("ANF"), with members employed in the same industry. The bargaining period with the ANF had not been terminated lawfully. While that issue had been the subject of proceedings both before Senior Deputy President Riordan and on appeal before a Full Bench it is unnecessary to detail them. In the course of discussing the position of the ANF, Senior Deputy President Riordan said:
"When the Commission intervenes in an industrial dispute and terminates the bargaining period involved pursuant to the terms of s. 170PO(1)(b) the Commission "must immediately begin to exercise its powers ... to prevent or settle the industrial dispute" (s. 170PP(2)). There appears to be no limit on the powers to be used so that all of the powers given to the Commission by the terms of the Act are available and are required to be used.
Whether the use of those powers requires an award to be varied or for a new award to be made the resultant award must be in the form of a paid rates award (s. 170PP(3))." (emphasis added)
And later, in the same context, he said:
"There is a further aspect to be considered. If a paid rates award is to be made, as it must be, the Interim Award will need to be set aside. The employer would be placed in an impossible position if there were two awards with different wage and salary rates and different conditions of employment. This would leave the ANF in a difficult position but there would remain an outstanding industrial dispute between the ANF and the employer to be settled." (emphasis added)
Later in the decision, when dealing with the question of the wage fixing principles, Senior Deputy President Riordan repeated a passage from his decision of 15 December 1994, which we earlier set out, in which there is a reference to the statutory duty to make a paid rates award and a reference to s170PP(3). It is plain from a reading of the Senior Deputy President's decision as a whole that he was intending to give effect to what he had earlier intimated he would do, namely, make a paid rates award because he was required to do so by s170PP(3).
Counsel for the HSUA pointed to a number of passages in the decision of Senior Deputy President Riordan of 24 February 1995 in which reference was made to provisions found in Part VIC of the Act and, in particular, s170SA. The significance of these references was said to be that they indicated Senior Deputy President Riordan was, or may have been, exercising a power to make a paid rates award by reference to Part VIC rather than s170PP found in Part VIB. However this submission proceeded on a construction of the Act which we do not accept. Section 170PP(3) requires the Commission to make an award as a paid rates award. That section, and indeed Part VIB as a whole, says nothing about the consequences of doing so. Part VIC deals more generally with the making of paid rates awards and it identifies the consequences of an award of that character being made. Sections 170UB and 170UC, in Part VIC, identify circumstances in which a paid rates award may be made that differ from those identified in s170PP. To that extent s170PP operates independently of Part VIC. However, Part VIC deals also with the consequences of a party to a paid rates award acting inconsistently with the award: see s170UD. It imposes on the Commission an obligation to include in a paid rates award a statement that it is an award of that character: see s170UE. As a matter of construction there is no reason to treat these provisions as inapplicable to a paid rates award made in conformity with s170PP(3).
Section 170SA provides:
"170SA. The objects of this Part are to ensure that:
(a)in appropriate cases, employees are protected by paid rates awards that set fair and enforceable wages and conditions of employment that are maintained at a relevant level; and
(b)paid rates awards are suited to the efficient performance of work according to the needs of particular industries and enterprises, while employees' interests are also properly taken into account."
Section 170SA identifies the objects of Part VIC. In terms, it has no application to provisions in other Parts of the Act. But it does not follow that the objects stated in s170SA are extraneous to those provisions. As a matter of general construction it may be apparent that those objects apply to other provisions. For example, a provision may require a paid rates award to be made but is silent as to the basis upon which it should be made and the consequences of it being made. However, even if that is not correct and the objects stated in s170SA apply only to Part VIC, the reference to that section by Senior Deputy President Riordan simply evidences a misunderstanding of the basis upon which the direction in s170PP(3) should be given effect to when a paid rates award is made.
In our opinion, Senior Deputy President Riordan intended to make a paid rates award because he felt constrained by s170PP(3) to do so. There is nothing in the decision of Senior Deputy President MacBean of 24 January 1996 to suggest that he intended to adopt some other course. Indeed he entertained submissions about the validity of s170PP(3) but ultimately decided that it was inappropriate for a member of the Commission to express a concluded view about its validity. He did so for the reasons given by Brennan J sitting as the President of the Administrative Appeals Tribunal in Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 243. Senior Deputy President MacBean said:
"I therefore reject the challenge to the validity of s170PP of the Act as a ground for not making the award."
It is plain that Senior Deputy President MacBean intended to act in accordance with the direction of s170PP(3) when making the Award and did so. This leads to a consideration of s170PP.
The validity of s170PP
The first issue of substance is whether s170PP is a valid law of the Commonwealth. Counsel informed us that the validity of Division 4 is more generally in issue in proceedings in the High Court in which the Court has reserved judgment. We have considered whether, in this situation, we ought to defer judgment until the High Court's decision is known. We have decided not to take this course for two reasons. First, both parties urged us not to defer judgment but to deal with this particular argument in the normal way. Second we are concerned with the validity of only one provision in Division 4 and on a particular ground apparently not argued in the High Court.
Parliament identified the basis upon which Division 4 was enacted in s170PA which provides:
"170PA.(1) The object of this Division is to give effect, in particular situations, to Australia's international obligation to provide for a right to strike. This obligation arises under:
(a)Article 8 of the International Covenant on Economic, Social and Cultural Rights (a copy of the English text of the Preamble, and Parts II and III, of the Covenant is set out in Schedule 8); and
(b)the Freedom of Association and Protection of the Right to Organise Convention, 1948 (a copy of the English text of the Preamble, and Parts I and II, of the convention is set out in Schedule 15); and
(c)the Right to Organise and Collective Bargaining Convention, 1949 (a copy of the English text of the Preamble, and Articles 1 to 6, of the Convention is set out in Schedule 16); and
(d)the constitution of the International Labour Organisation; and
(e)customary international law relating to freedom of association and the right to strike.
...
In addition to the effect that this Division has under subsections (1) and (2), it has such effect as it would have, apart from those subsections, under the powers conferred on the Parliament by paragraph 51(xxxv) of the Constitution."
It can be seen that the primary purpose of the Division is to give effect to Australia's international obligations arising under several international instruments and customary international law. The source of legislative power to give effect to such obligations is the power to make laws with respect to external affairs found in s51 (xxix) of the Constitution. Subsection 170PA(3) evidences a legislative intention also to support the validity of Division 4, to the extent necessary, by reference to the legislative power derived from s51(xxxv) of the Constitution being the power concerning the prevention and settlement of inter-state industrial disputes by conciliation and arbitration. If s51(xxix) confers power to enact s170PP then whether s51(xxxv) also does so is not critical. Recent authority favours the approach that an individual grant of power should be accorded a full operation according to its terms: see Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 at 539 and 547-8, The Commonwealth v State of Tasmania (The Tasmanian Dam case) (1983) 158 CLR 1 at 268 and Re F; Ex parte F (1986) 161 CLR 376 at 387.
We are satisfied that s170PP is a valid law giving effect to Australia's international obligation under the International Covenant on Economic, Social and Cultural Rights ("the Covenant"), parts of which are schedule 8 to the Act: see s170PA(1)(a). Australia ratified the Covenant on 10 December 1975. It is unnecessary to consider exhaustively any of the other international instruments mentioned or customary international law.
However before considering the Covenant, it is convenient to refer to material relied on by the second respondent relating, in the main, to the International Labour Organisation's ("ILO") Freedom of Association and Protection of the Right to Organise Convention 1948 ("the Convention"): see s170PA(1)(b). The Convention was adopted in 1948 and was ratified by Australia on 28 February 1973. Parts of it are schedule 15 of the Act. It does not, in terms, recognise a right to strike though there is a body of opinion that considers it does so impliedly. The accepted approach to the construction of an international treaty which has been enacted into Australian domestic law is a liberal one involving an adaptation of the rules of interpretation found in the Vienna Convention on the law of Treaties ("the Vienna Convention") and, if necessary, recourse to the travaux preparatoires: see The Tasmanian Dam case (supra) at 222 et seq per Brennan J, Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349 per Dawson J and 356 per McHugh J, Minister for Foreign Affairs and Trade v Mango (1992) 37 FCR 298 at 304-305 per Gummow J, Victrawl Pty Ltd v AOTC Ltd (1993) 45 FCR 302 at 304-305 per Gummow J, Andersen v Umbakumba Community Council (1994) 126 ALR 121 at 124-125 per von Doussa J. The Vienna Convention codifies the rules of interpretation recognised by customary international law: see Mango (supra) at 305.
The Committee of Freedom of Association, formed in 1951, is a committee of the governing body of the ILO and is a tripartite body comprising nine members representing governments, employer bodies and trade unions. That Committee has examined complaints involving allegations of violations of both the Convention and other conventions of the ILO, and has published reports dealing with them. The principles emerging from those reports have periodically been digested, most recently in 1985. The reports of the Committee have proceeded on the basis that the right to strike is comprehended by the right of workers to associate conferred by the Convention. Article 3 provides:
"1 Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programs.
The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof."
However the digested decisions of the Committee make plain that the right to strike is not an unqualified one. In relation to strikes by employees in the civil service or essential services, the digest states:
"(c) Essential services, the civil service and certain other undertakings
393.The Committee has acknowledged that the right to strike can be restricted or even prohibited in the civil service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees.
394. ...
395. ...
396. ...
397.As regards the nature of appropriate guarantees in cases where the right to strike in essential services and the civil service is restricted, the Committee considered that allegations relating to the denial of the right t strike did not call for further examination after it noted that this denial was accompanied by certain guarantees to safeguard the interests of the workers - a corresponding denial of the right of lockout, provision of joint conciliation procedure and where, and only where, conciliation fails, the provisions of joint arbitration machinery. As regards the nature of the system in question, the Committee pointed out that restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented."
A more recent consideration of the Convention was undertaken by an ILO committee, the Committee of Experts on the Application of Conventions and Recommendations, which published a report in 1994 entitled Freedom of Association and Collective Bargaining. That Committee expressed the view:
"149. Under Article 3(1) of Convention No. 87, the right to organize activities and to formulate programs is recognized for workers' and employers' organizations. In the view of the Committee, strike action is part of these activities under the provisions of Article 3; it is a collective right exercised, in the case of workers, by a group of persons who decide not to work in order to have their demands met. The right to strike is therefore considered as an activity of workers' organizations within the meaning of Article 3."
Later the Committee dealt with specific restrictions that may be imposed on the right to strike and compensatory guarantees that should exist in the event that the strikes are restricted or prohibited. It said:
"164. If the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedure, which should furthermore provide sufficient guarantees of impartiality and rapidity; arbitration awards should be binding on both parties and once issued should be implemented rapidly and completely."
Thus, the Convention has been viewed as recognising a right to strike but on the basis that circumstances may justify limitations or prohibitions being placed on the exercise of that right if compensatory measures are provided.
This body of opinion evolved after the Convention was adopted. Its relevance to the question of construction is debatable. Given the express recognition of a right to strike in the Covenant it is unnecessary to embark upon a consideration of the terms of Article 3 of the Convention and whether, as a matter of construction, it impliedly requires the recognition of a right to strike. Nonetheless the body of opinion we have just outlined provides a relevant exposition on what the right to strike might comprehend and how it might be limited or modified.
We return to the Covenant. Article 8 provides:
"1 The States Parties to the present Covenant undertake to ensure:
(a)The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedom of others;
(b)The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;
(c)The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedom of others;
(d)The right to strike, provided that it is exercised in conformity with the laws of the particular country.
This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention."
The power conferred by s51(xxix) on the Australian Parliament may be invoked to enable Australia to give effect to an international obligation arising under a treaty but is not limited to that purpose, see: The Tasmanian Dam case (supra) at 129-130, 171-172, 177, 226, 258-259 and Richardson v The Forestry Commission (1988) 164 CLR 261 at 289, 289, 312 and 343. The obligation under Article 8(1)(d) is to ensure that there is a right to strike. Under the Vienna Convention, recourse may be had to the travaux preparatoires to confirm a meaning of a provision in a treaty where the meaning arises from the text of the treaty and related material. The travaux preparatoires may also be used to determine a meaning where the text gives rise to a meaning which is ambiguous and obscure. The travaux preparatoires of the Covenant discloses that the right to strike may, when recognised by a signatory State, be subject to limitations of the type discussed in relation to Article 3 of the Convention.
The travaux preparatoires are conveniently and relevantly summarised in Craven MCR: The International Covenant on Economic, Social and Cultural Rights - A Perspective on its Development 1995, Clarendon Press at 258:
"At most stages of the debate, there was dispute over the extent to which the right to strike should be subject to limitations, In the Commission it was argued that strikes should be limited where the vital interests of the State were at stake. In response, it was pointed out that this would leave the door open to abuse as the State alone could judge its own security considerations and that any such limitation would encourage governments to attack trade union rights. Indeed Yugoslavia argued that, given the financial constraints on strikes, unjustified strike action was extremely unlikely. However,although not explicitly stated, it would seem that the limitations laid down in article 8(1)(c) (that the right may be limited in the interests of national security or public order or the rights and freedom of others) would similarly apply to the right to strike - it being clear that initiating strikes is one of the functions of trade unions.
The limitation finally adopted in article 8(1)(d) was proposed as a compromise, and gave much away to those who opposed the inclusion of the provision. Although the limitation made the provision generally acceptable, some states were concerned that making the right subject to the laws of the particular country could render it virtually inoperable. This was not enough to dissuade the vast majority of States from voting in favour of the proposal."
The obligation of a State under Article 8(1)(d) is to ensure that a right to strike exists. However, the State may place limitations and qualifications on the exercise of that right.
It is for Parliament to determine the manner in which Australia's international treaty obligations are given effect to in domestic law. For legislation to be valid it is sufficient that it be appropriate and adapted to the terms of the treaty: see Richardson (supra) at 289 and 303. Division 4 of Part VIB of the Act confers at least a limited right to strike. In so far as the exercise of the right to strike might bring about a result identified in s170PO(1)(b)(i) or (ii), the right is qualified by the power of the Commission to terminate a bargaining period thereby exposing the striking employees to civil action. But the exercise of that power leads immediately to the processes established by s170PP. The imposition of that limitation coupled with the special mechanism of conciliation and arbitration reflected in s170PP are plainly appropriate means of giving effect to the terms of the Covenant.
Part of the object of s170PP is to counterbalance the restriction of the right to strike imposed by the Act on employees who may be civil servants, or may be engaged in essential services, by enhancing the prospect of resolution of an existing dispute, and diminishing the risk of a future dispute. This is achieved by ensuring that the outcome of the arbitral process is the prescription of actual wages and conditions unconstrained by wage fixing principles rather than the prescription of minimum wages and conditions with the prospect of further controversy arising out of continuing negotiation for wages and conditions in excess of the minimum. Section 170PP is a valid law of the Commonwealth.
The implied Constitutional limitation
The last basis upon which the applicant sought to impugn the Award concerned the implied constitutional limitation on the arbitral power discussed by the High Court in Re Australian Education Union (supra). Reference was made to the following passages in the joint judgment of the Court at 630:
"At this point it is convenient to consider South Australia's argument based on impairment of a State's "integrity" or "autonomy". Although these concepts as applied to a State are by no means precise, they direct attention to aspects of a State's functions which are critical to its capacity to function as a government. It seems to us that critical to that capacity of a State is the Government's right to determine the number and identity of the persons whom it wishes to employ, the terms of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds. An impairment of a State's rights in these respects would, in our view, constitute an infringement of the implied limitation. On this view, the prescription by a federal award of minimum wages and working conditions would not infringe the implied limitation, at least if it takes appropriate account of any special functions or responsibilities which attach to the employees in question. There may be a question, in some areas of employment, whether an award regulating promotion and transfer would amount to an infringement. That is a question which need not be considered. As with other provisions in a comprehensive award, the answer would turn on matters of degree, including the character and responsibilities of the employee." (emphasis added)
and at 631:
"However, the rejection of the arguments put forward by the prosecutor and the intervening States - arguments which would have given the implied limitation a wide-ranging operation - means that the Commission has power to make awards binding the States and their agencies in relation to minimum wages and working conditions which take account of the special functions and responsibilities, if any, of a broad range of public servants and employees, including many members of the SPSF." (emphasis added)
and later at 631:
"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 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." (emphasis added)
It can be seen that the Court refers on several occasions to the power of the Commission to make an award prescribing minimum wages and working conditions. The applicant submitted that consistent with the implied Constitutional limitation a paid rates award could not be made binding a State, or an agency, as such an award did not prescribe minimum wages and working conditions. We do not accept this submission as it involves ascribing to the language of the Court a meaning that, in our opinion, was not intended. As Gummow J said in Brennan v Comcare (1994) 50 FCR 555 at 572:
"The frequently repeated caution is against construing the terms of those judgments as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given."
Minimum rates awards and paid rates awards reflect concepts associated with the wage fixing principles of the Commission, and its predecessor, for several decades: see Comalco Aluminium (Bell Bay) v O'Connor (1995) 131 ALR 657 at 668-671. It cannot be assumed, however, that in Re Australian Education Union (supra) the High Court was seeking to draw a distinction between a minimum rates award and a paid rates award, as that latter expression is defined in s4 of the Act. The Court's remarks were directed to awards which would not interfere with the capacity of a State to function as a government. The making of the Award as a paid rates award has limited practical consequences for the applicant. It is precluded from paying wages below the rates prescribed or providing conditions less than those prescribed. In that sense the award is, as a paid rates award, prescribing minimum wages and working conditions. The Award is not an award preventing the payment of wages in excess of those prescribed or providing conditions more beneficial than those prescribed: see Comalco (supra) at 669 and 678.
The legal consequences of the Award being a paid rates award is to expose the applicant to the operation of Division 3 of Part VIC. In particular, it exposes the applicant to the possibility that the Award might be cancelled or varied if the parties to it have acted inconsistently with the Award being a paid rates award: see s170UD. It also exposes the applicant to the operation of s170UC in that the Commission may act to vary the Award as a paid rates award so as to maintain it. However as it apparent from Comalco (supra) at 677-681 and 687, the Commission has a broad discretionary power when determining whether, and in what way, a paid rates award is to be maintained. In our opinion, by making the Award as a paid rates award the Commission did not limit the capacity of the applicant to function as a government in the sense discussed by the High Court in Re Australian Education Union (supra). Were the Award to prescribe rates that could not, as a matter of law, be exceeded by the applicant: see Comalco (supra) at 669.4 and 678.2, then different considerations would arise. In those circumstances the applicant might be inhibited for example, in recruiting employees by offering rates of pay corresponding to rates of pay offered by employers in the private sector. However the Award is not of that character. Accordingly, in making the Award Senior Deputy President MacBean did not transgress the implied limitation discussed in Re Australian Education Union (supra).
The application should be dismissed.
I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of their Honours Chief Justice Wilcox and Justices Lee and Moore.
Associate: ........ ........ ......
Dated: ..../..../....
APPEARANCES
Counsel for the Applicant: Dr Jessup QC and M McDonald
Solicitor for the Applicant: Victorian Government Solicitor
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: R Kenzie QC and
W Friend
Solicitor for the Second Respondent: Maurice Blackburn & Co
Dates of Hearing: 8 and 9 May 1996
Date of Judgment: 26 June 1996
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