State of Victoria & Anor; Ex parte; Re Australian Education Union M71/1995 [1995] HCATrans 422 (29 November 1995)

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OF PROCEEDINGS

AUSCRIPT

Victoria

Level 7

451 Little Bourke St

Melbourne VIC 3000

GPO Box 1114J

Melbourne VIC 3001

Phone [phone]

Fax [phone]

O/N 6371

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M71 of 1995

RE: AUSTRALIAN

EDUCATION UNION

ex parte:

THE STATE OF VICTORIA

and MINISTER FOR

EDUCATION FOR THE STATE

OF VICTORIA

DAWSON J (In Chambers)

AT MELBOURNE, WEDNESDAY the 29th DAY OF NOVEMBER 1995

DR C. JESSUP, QC: I appear in this matter with my learned friend, MR N. GREEN, for the prosecutor.

MR K. BELL: I appear on behalf of the Australian Education Union with my learned friend, MR A. LAWRENCE.

HIS HONOUR: Do you want to say something.

DR JESSUP: I was waiting for your Honour to call the other matters, because of the common circumstances which arise in relation to each one. Was your Honour intending to proceed that way?

HIS HONOUR: I was not, but if you think it is a convenient course.

DR JESSUP: Yes, your Honour, in this sense that the - all of the four cases which are before you raise, although in different ways and with different shades, the application of the Court's judgment in Re AEU, and questions such as remitter, might perhaps be clearer to your Honour, when you can see all of the issues which potentially could go either to the High Court or to the Industrial Relations Court. That would be our preference, your Honour, and I speak with the hat of the prosecutor or applicant in each of the four matters when I say that, but of course it is a matter for your Honour.

HIS HONOUR: What do you say, Mr Bell?

MR BELL: I am aware, your Honour, that the union parties in the two sets of proceedings are not taking the same position with respect to remitter. We are not supporting remitter, that is we are in agreement with the State of Victoria that the matter should be resolved in the High Court. Although the other unions can speak for themselves, I am aware that that is not the position that they will put to your Honour. They prefer the matter to be remitted to the Industrial Relations Court. To that extent, there is a difference, other than that, your Honour, I have nothing to say.

HIS HONOUR: Thank you. I think, Dr Jessup, it might be preferable to proceed with this matter first, but that does not mean you have to repeat your arguments in each of the succeeding cases.

DR JESSUP: Yes, if your Honour please. Your Honour, the application for an Order Nisi is made upon the affidavit of Geoffrey James Spring, sworn on 10 November 1995.

HIS HONOUR: Yes, I am familiar with the contents of that affidavit.

DR JESSUP: Thank you, your Honour. Your Honour will have observed that the decision of the Full Bench, made on 13 September 1995, dealt with three existing awards, which had been made by the Commission. If I could take your Honour to the Redundancy Award first. That is contained in exhibit GJS2, to the affidavit. Your Honour will see from page 3 of that award, clause 6, that the award deals with the introduction of change and then in clause 7, with redeployment, retraining and redundancy.

It sets up a series of preconditions and steps to the making of - to the termination of employment of any employee upon the ground of redundancy. I do not want to take your Honour through all of them because the way the Commission dealt with it in its decision, makes it clear that it is accepted that there are such preconditions and steps. For example, your Honour, on page 5, in (iv) of sub clause (a) there is a minimum time limit before which an employee may not be advised that he or she is declared to be excess to work place requirements, and as a proviso to that provision, that the employee will not be invited or advised until the discussions have been completed to volunteer for redundancy. Then there is a provision covering redeployment and retraining in sub clause (b). In sub clause - in (iii) of (b) at the top of page 7:

The employee has 14 days to decide whether to accept or reject an offer of redeployment.

In (vi) the employer, that is the director, has to give priority consideration to providing retraining to employees who have been declared excess to work place requirements. In (viii) the employer has to take all reasonable steps to facilitate redeployment. Then turning over the page to (c)(ii) - and these are just a few of -2 the what we would submit, your Honour, are the tips of the icebergs - in (c)(ii):

The director shall not invite a potentially excess employee to elect for voluntary separation until at least one month after the date that the employee was declared excess to work place requirements.

And then the further - - -

HIS HONOUR: And what you say about these is that these deal with redundancy and interfere with the capacity of the Government to function.

DR JESSUP: Well, what we say, your Honour, is that they - yes, your Honour, what we say is they impose a fetter upon the capacity of the Government to determine the identity and number of those whom it wishes to terminate on grounds of redundancy. Does your Honour have a copy on the bench of Re AEU?

HIS HONOUR: I do not, but I will in a moment.

DR JESSUP: I suspect in our enthusiasm to make sure your Honour had all the other relevant authorities, we might have overlooked giving your Honour the reference to the most important one. Does your Honour have the Australian Law Reports extract?

HIS HONOUR: Yes, I do.

DR JESSUP: It commences [1995] HCA 71; 128 ALR 609 and relevantly on page 630 in the majority judgment at line 23, their Honours said:

At this point it is convenient to consider South Australia's argument based on impairment of a State's integrity ...(reads)... which are critical to its capacity to function as a Government.

And the next sentence is important, your Honour:

It seems to us that critical to that capacity of a State is the Government's right to determine the number ...(reads)... the answer would turn on matters of degree, including the character and responsibilities of the employee.

Your Honour, that is the central paragraph, if we may put it that way, although it needs to be read in the context of - - -

HIS HONOUR: I have read the judgment recently.

DR JESSUP: - - - the judgment as a whole.

HIS HONOUR: Yes.

DR JESSUP: Now, what is submitted, your Honour, is that this award by setting up steps, preconditions and protections between the point where an employee is recognised to be surplus to requirements, or potentially redundant, and the ultimate point where that employee's services are dispensed with, what the effect which the award has is to impose fetters and thereby to impair the ability of the State to determine the number and identity of employees whom it wishes to terminate on redundancy grounds. Now, the award does deal with redundancy, that is its central theme, and it clearly imposes those fetters.

HIS HONOUR: Just for my own interests, what is the interstate dispute here?

DR JESSUP: Your Honour, that is a question which we posed to the Commission and they found one. That is all we can say at this stage and - - -

HIS HONOUR: Yes. All I can say is that in my view there is an air of utter artificiality about these proceedings - this type of proceeding - when it is suggested that there exists an interstate dispute, but that is a view which I have expressed in dissent and I will say no more.

DR JESSUP: Yes, your Honour. Well, we accept that. All I can say is - yes, I am reminded that the issue of whether there was an underlying dispute to sustain this award is a live issue, but not in these proceedings.

HIS HONOUR: I see, yes.

DR JESSUP: In relation to this matter, we seek only deal with the matter on the same footing as the majority judgment identified in Re AEU. Now, the - in its decision, which is exhibit GJS7, the Commission dealt with the Redundancy Award at pages 30 and following, but before we get to that page, your Honour, could I ask your Honour to turn to page 28 - - -

HIS HONOUR: I do not seem to have the GJS7.

DR JESSUP: I will make sure your Honour gets a copy of that promptly.

HIS HONOUR: Now I have it; it is all right, it was out of order.

DR JESSUP: Yes, thank you. If I could draw your Honour's attention to page 28. On that page the Commission referred to the general importance of the questions here. If I could go about six lines into that paragraph:

It is clear that any award controlling, in the sense of precluding, the right of a State to terminate the services ...(reads)... based on the parties competing views of the implications of re AEU.

Your Honour, they then proceeded, on that page and the following page, to formulate a series of guidelines as to the way in which Re AEU should be applied in a practical sense in proceedings before the Commission.

HIS HONOUR: Well, I can see that there is a question, a real question, but why should not this matter be decided by the Industrial Relations Court?

DR JESSUP: Your Honour, if this were a question of legislation, or even of the meaning of a provision in the constitution, which one can see printed in black and white, then the Industrial Relations Court would, in our respectful submission, be not, at least not inappropriate place to deal with it. However, this is - this case raises the question of the extent and operation of a judgment of this Court.

HIS HONOUR: Yes.

DR JESSUP: Not a judgment which illuminated any particular provision of the constitution.

HIS HONOUR: But this Court, in the majority judgment, layed down certain principles, which have to be applied in particular cases subsequently, and why is not the Industrial Relations Court the appropriate Court to do that?

DR JESSUP: Well, your Honour, I have not referred to the other two awards which are challenged here. Those two awards concern what may be called promotions or transfers. They are awards which prescribe the constitution of selection panels and require those selection panels to be involved either in a determining way or an advisory way in deciding what persons shall get what jobs.

[9.50am]

Now, the Commission held that when those provisions were looked at in context, they did not deal with the matter of who should be employed off the street, as it were, but rather with the matter of who amongst existing employees should get jobs by way of promotion or transfer or to other schools or whatever it might be. Now, it was submitted by our client before the Commission that this was covered by the implied limitation, at least analogously if not in terms. The submission which was put against us, and apparently accepted by the Commission, was that it came under the reservation which the Court had placed upon the operation of the implied limitation. Namely, the matter of promotions and transfers, and so the question is whether those sorts of matters are within or without. Now, in our respectful submission, the Industrial Relations Court is not going to be in any better position than was the Commission, to discern the limits of the limitation as identified in the majority judgment in re AEU. We submit, your Honour, that inevitably, that type of issue is going to have to be dealt with by this Court.

HIS HONOUR: May be. But this Court is always aided by a judgment of a Court of Appeal. It has said so on a number of occasions. And the amendment to the legislation which allows matters such as this to be referred to the - to be in the Industrial Relations Court - is legislation which should be utilised.

DR JESSUP: Your Honour, I accept that with respect and as your Honour will know, it is very regularly utilised. But it is a matter for discretion.

HIS HONOUR: And it may be that this matter would never come to this Court. It may be that the Industrial Relations reaches a satisfactory conclusion to the parties.

DR JESSUP: Well, your Honour, it may be that that happens. It may be that the matter is settled between the parties and the Court never has to decide it.

HIS HONOUR: Yes.

DR JESSUP: Anything might happen.

HIS HONOUR: That is right.

DR JESSUP: But it is of concern to our client, not simply that this point be resolved with authority by this Court, but we would also draw your Honour's attention to what the Commission said, that there are many other awards which are - well, which present the same or similar questions. Now, in our respectful submission - - -

HIS HONOUR: Well, then it is appropriate that the Industrial Relations Court gives some of these matters its attention.

DR JESSUP: Well, that is one view, your Honour. But we would urge upon your Honour this view: That if ever there was a matter of general constitutional importance upon which the High Court is the only Court really well equipped to deal - - -

HIS HONOUR: Well, that may be putting it too high, Dr Jessup. The matter of general constitutional importance was dealt with in the AEU case. Now, it is merely a matter of applying what was laid down there in particular circumstances.

DR JESSUP: Your Honour, notwithstanding that, it is a matter for your Honour to - - -

HIS HONOUR: Difficult as that task may be.

DR JESSUP: I beg your pardon?

HIS HONOUR: Difficult as that task may be.

DR JESSUP: Yes. But it is a matter in your Honour's discretion with respect and there will be cases, we submit, there must be cases, which this Court would keep. And this is one. It is not as though this Court will need the assistance of the Industrial Relations Court for the purpose of finding facts. The Industrial Relations Commission's decision is very lengthy and very comprehensive and if we may say so, with respect, it is a careful treatment of the issues which arise. They have attempted to formulate guidelines and they will need to know whether their formulation is appropriate and, in our respectful submission, your Honour, the sooner they are told whether or not the better. So it is not simply - - -

HIS HONOUR: Well, it will be sooner in the Industrial Relations Court than it will be in this Court.

DR JESSUP: That, if I may submit, your Honour, that rather assumes that that would then be the end of the matter.

HIS HONOUR: Well it may or may not. One does not know.

DR JESSUP: And if it is not, then it will be a good deal longer than it would be if the Court maintained it itself. We, for our part, would do everything within our power to facilitate an early hearing by this Court of the matters. But we understand that our powers are limited in that regard.

HIS HONOUR: But then the Court is not in a position to do that itself, no. I mean the lists are filled up way ahead already. And one could not assume that this is a matter that would get priority.

DR JESSUP: Well, there is nothing that we can do about that, your Honour, except to submit that in a case of this importance and of its general application, there is a considerable prospect that sooner or later this case will find its way into those lists and perhaps the sooner it gets into them the better.

HIS HONOUR: That may be so but it would - even if it were - the matter were to find its way to this Court, if it had been beforehand to the Industrial Relations Court, the issues are likely to be better defined and this Court's task would be, to that degree, easier. Now, this has been said on a number of occasions.

DR JESSUP: I understand that, your Honour. We can but submit that the issues are well defined in what the Commission has said. The Commission, after all, constituted a special five member full bench, three of whom were legally qualified, presided over by the President of the Commission who is, herself, a member of the Federal Court of Australia. These considerations, in our view, your Honour, add weight to the submission that this may be a case in which it is not necessary to have it sent back and dealt with by three members of the Industrial Relations Court and it is probably unlikely that any greater light will be thrown upon the issues through that process than is presently there. Your Honour, that is all we want to say on the question of remitter. There are other things which we would have wanted to point out to the Court with respect to the question of an order nisi. I do not know whether your Honour wishes to hear further from us on that aspect?

HIS HONOUR: Perhaps we had better determine the question of remitter first because if it is determined in a particular way, that other problem disappears, at least here.

DR JESSUP: Yes.

HIS HONOUR: Yes. We will hear from you, Mr Bell.

MR BELL: We support the submissions of the State of Victoria with respect to the remitter question. We do so for two reasons. Firstly, the interests of speed and certainty in the ultimate resolution of the constitutional questions are, in our submission, better served by this Court keeping the matter. It is absolutely true that the Industrial Relations Court could competently deal with the matter and could give this Court the benefit of its judgment. It also may be true that it can do so more quickly than this Court might be able to attend to the matter. But the importance of the issues involved are such that this Court is very likely to be invited, as some stage in the future, ultimately to determine the questions and it would be better, in our submission, for that stage to be reached earlier rather than later.

Any judgment of the Industrial Relations Court is bound, unless and until special leave to appeal or rather leave to appeal were to be refused in the likely event of it being asked for, not to be as authoritative as a judgment of this Court. Now, it is true that in the event that there was an appeal, which does, we would submit, with respect, appear to be likely, that would proceed by way of leave to appeal. If leave to appeal were refused then of course the judgment would stand. But, nevertheless, in respect of such an important question, a judgment of this Court is, in our submission, appropriate. The subject matter of the case, after all, deals with the issue of the regulation of redundancy and certain aspects of transfer and promotion with respect to teachers in the State of Victoria.

The case was considered by the Commission on a test case basis and has implications with respect to public servants generally. The second ground upon which we would rely to persuade your Honour to keep the matter is that the question is whether or not the statement of principle made in the State Employees Case is sufficiently well developed and refined to stand as a statement of principle for the purposes of the guidance - of guidance being given to the Industrial Relations Court of Australia. The State Employees case did not consider redundancy in terms. It did not consider transfer and promotion in terms.

HIS HONOUR: But that is, as I say, it could not do so because it was talking in terms of general principle.

MR BELL: Yes, that is correct.

HIS HONOUR: The application to particular situations is something that is peculiarly within the competence of a Court such as the Industrial Relations Court.

MR BELL: This is true, your Honour. I do not gainsay that for a moment. But what I do submit is that there is a real question whether the statement of principle is sufficiently well refined to enable the principle your Honour has just stated to be applied. And, in my submission, the Court - - -

HIS HONOUR: It is not beyond the capacity of the Industrial Relations Court to develop principle is it?

MR BELL: No it is not beyond its capacity, your Honour. It is quite within its capacity. I can only submit to your Honour that that Court would be better assisted in applying, and to the extent it should do so, developing a statement of principle if the High Court were to address the issue of redundancy and transfer and promotion.

HIS HONOUR: I am not sure that one can state the principle, at least in the abstract, in any more definitive way, than it would seem that the principle may be better developed by its application in particular situations - - -

MR BELL: Perhaps, your Honour.

HIS HONOUR: - - - by an accretion of cases dealing with it, yes.

MR BELL: Yes, your Honour. For those two category of reasons, your Honour, we would submit the matter is best retained by this Court. We might say, however, your Honour, that because certainty and speed were our interests, if speed, for example, were not able to be achieved in this Court, as your Honour indicated, then that would affect our judgment.

HIS HONOUR: Thank you, Mr Bell.

This matter involves the application of the principles established in Re AEU to particular situations. It is an appropriate matter therefore to be determined in the first instance by the Industrial Relations Court. I may add that not only is it an appropriate matter to be determined by that Court but that the determination is likely to be quicker in that forum. The course which I propose to follow is to remit the matter to the Industrial Relations Court and I make the order in the usual form.

Now, that disposes of that matter, does it not, for the time being, or as far as I am concerned?

DR JESSUP: I beg your pardon, your Honour?

HIS HONOUR: That disposes of the matter as far as I am concerned, does it not?

DR JESSUP: Regrettably it does, your Honour. Regrettably for us but not for your Honour's sake.

HIS HONOUR: Well, you do not know, it may be to your advantage.

AT 10.04 AM THE MATTER WAS ADJOURNED

INDEFINITELY