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High Court of Australia Transcripts |
Brisbane No B2 of 1996
B e t w e e n -
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Appellant
and
THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN
First Respondent
AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
Second Respondent
ST JOHN AMBULANCE AUSTRALIA (WA AMBULANCE SERVICE INC.)
Third Respondent
AMBULANCE OFFICER TRAINING CENTRE VICTORIA
Fourth Respondent
Office of the Registry
Adelaide No A38 of 1995
In the matter of -
An Application for a Writ of Certiorari and Writ of Prohibition against THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission, THE HONOURABLE ANNE HARRISON, a Deputy President of the Australian Industrial Relations Commission, PATRICIA LEARY, a Commissioner of the Australian Industrial Relations Commission and JOHN LEWIN, a Commissioner of the Australian Industrial Relations Commission
First Respondent
SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
Second Respondent
Ex parte -
LAMSOON (AUSTRALIA) PTY LTD and OTHERS
Prosecutors
Office of the Registry
Adelaide No A44 of 1995
In the matter of -
An application for a Writ of Certiorari and a Writ of Prohibition against THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission, THE HONOURABLE IAN WATSON, a Deputy President of the Australian Industrial Relations Commission, JOHN O'CONNOR, a Commissioner of the Australian Industrial Relations Commission and DIANNE FOGGO, a Commissioner of the Australian Industrial Relations Commission
First Respondent
SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
Second Respondent
Ex parte -
ACTION FOOD BARNS and OTHERS
Prosecutors
BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 6 FEBRUARY 1997, AT 10.19 AM
(Continued from 5/2/97)
Copyright in the High Court of Australia
MR SELWAY: Your Honours, yesterday afternoon your Honour Justice Gaudron referring to section 101(1) of the Act drew attention to the word "considers" and your Honour suggested that the jurisdiction of the Commission may be conditional upon its consideration or opinion that there is an industrial dispute rather than the existence of the objective fact of there being an industrial dispute and your Honour made the point that if that was so that would have consequence upon these proceedings. Your Honours, we say that if that analysis were correct then, amongst other things, SPSF would have proceeded also on a false basis. Section 101 has been in that form since 1988.
GAUDRON J: Yes, but nobody drew attention to it.
MR SELWAY: I understand that, your Honour.
DAWSON J: But how does that alter the constitutional position?
MR SELWAY: I will come to that in a moment, if I can, your Honour. The point that your Honour Justice Gaudron raises only arises if the word "consider" has the meaning or effect that the Commission forms an opinion. Assuming that that is what the word "consider" means in section 101, we would say that there are three answers to the suggestions your Honour made.
The first is that section 101(1) has the effect that the only consequence of that consideration is that the Commission determines the parties to the industrial dispute
and the matters in dispute and the Commission can vary or revoke any of the findings. It was undoubted that to form - - -
GAUDRON J: And then you go to subsection (3), do you not?
MR SELWAY: With respect, your Honour, we say that before you go to subsection (3), one has to have a look at the scheme of the Act. In particular, if we could just take the Court to section 89 which provides that:
The functions of the Commission are:
(a) to prevent and settle industrial disputes:
(i) so far as possible, by conciliation; and -
where necessary, by arbitration and:
(b) such other functions as are conferred -
and we would say that the word "industrial disputes" there bears the objective meaning. We take the Court to section 102(1) which is, if you like, the power in respect of conciliation. That provides:
(1) Where an industrial dispute is referred for conciliation, a member of the Commission shall do everything that appears to the member to be right and proper -
and we say that "industrial dispute", in that section, bears its objective meaning.
GAUDRON J: That is after a finding has been made, of course, is it not?
MR SELWAY: Yes, your Honour.
GAUDRON J: But there was no conciliation and/or arbitration until a finding has been made.
MR SELWAY: Yes, your Honour. We have no doubt that there has to be a finding of an industrial dispute.
GAUDRON J: Yes, and that is under 101, but under 101(3), once there is a determination or finding which is predicated on the Commission's considering that the alleged industrial dispute is an industrial dispute. So you do not get very far by looking to provisions that deal with things that are carried out subsequent to the recording of a finding.
MR SELWAY: Your Honour, the question here, as we understand it, is whether the Commission has jurisdiction to proceed to conciliate or arbitrate in respect of this dispute. There is no doubt that as a matter of fact the Commission has to determine for itself, determine its own opinion, as to whether there is an industrial dispute. The question that this Court is being asked is whether the Commission has jurisdiction to proceed in respect to that matter. What we say is that the jurisdiction given by sections 102 and 104 in respect of arbitration and the specific jurisdiction given by section 111, which is a particular power of the Commission, all refer to an industrial dispute as an objective fact. It is certainly true that under section 101(1) the Commission, before it proceeds, must determine the parties to the industrial dispute and the matters in dispute and in doing that it must form an opinion.
GAUDRON J: Yes, but what you have to address is the effect of the privative clause in 101(3). That is to say if the Commission considers that there is a dispute, it then records it. The ability of this Court or the Industrial Relations Court on remitter to review that finding is subject to whatever effect 101(3) has.
MR SELWAY: Yes, your Honour, we certainly concede that. The argument we thought your Honour was raising was a - - -
BRENNAN CJ: Do you?
MR SELWAY: I am sorry, we concede that section 101(3) is a privative clause the limitations of which have to be met. We say that - - -
BRENNAN CJ: Even in proceedings for a constitutional prohibition?
MR SELWAY: The question then arises, your Honour, as whether this is about cConstitutional prohibition or statutory prohibition. In respect of statutory prohibition, we say the test is set out in PSA v FCU [1991] HCA 33; (1991) 173 CLR 132.
DAWSON J: What do you mean by statutory prohibition?
MR SELWAY: Your Honour, if the argument is that the Commission is not in breach of any constitutional limitation, that is to say, that it has not exceeded the Constitution itself and what the Constitution could properly provide, then there is no power, no provision, no privative provision that could limit this Court's jurisdiction to correct that matter. The privative provision simply would be ineffective in that circumstance.
DAWSON J: Yes, that is all that matters.
MR SELWAY: But where, with respect, the question is not one of constitutional excess of power, but merely that the Commission is acting outside of this statute, then we say section 101(3) can have a valid operation, and the test for its operation is the PSA v FCU Case. In particular, we refer to your Honour - - -
GAUDRON J: The anterior question is whether the Parliament may grant jurisdiction to the Commission, conditional upon its consideration that there is an industrial dispute, as was suggested it could do in O'Toole, or whether it could only grant power conditional upon there, in fact, being an industrial dispute. That is the anterior question.
MR SELWAY: Your Honour, what we say is the proper way to analyse the matter is to look first as to whether the jurisdiction of the Commission is conditional upon the formation of an opinion. As to that, we say, no, it is not; that the relevant sections we have taken the Court to require that there be an objective fact before the exercise of jurisdiction.
The second answer we make is that even if the Commission's jurisdiction was conditional upon the formation of an opinion, that would not mean that judicial review did not apply. It would still be open for the prosecutor to prove that the Commission had misdirected itself in law, or it failed to consider matters it was required to consider, or that it had taken the relevant matters into account. And if we refer generally to the judgment of your Honour the Chief Justice and Justices Toohey, McHugh and Gummow - - -
DAWSON J: I just simply do not understand this argument, Mr Solicitor. I do not understand how, constitutionally, the legislature can confer power on the Commission to proceed on the basis of an industrial dispute, in the constitutional meaning, when it does not exist just because it thinks it does.
MR SELWAY: Your Honour, our third submission is exactly that, that it cannot do so The Court has heard - - -
DAWSON J: And that takes in, of course, whether there is a threatened industrial dispute too. There has to be - and this Court has said time and time again that it has to consider whether the constitutional requirements are met, and if they are not, well, then, any Act is invalid.
MR SELWAY: Your Honour, what we say is that this Court has held in Victoria v The Commonwealth, at the pages I read to the Court yesterday, 138 ALR 129, pages 154 to 155, that in respect of the prevention aspect of the jurisdiction it can be, and must be, based upon an opinion. The Court has held that that opinion can constitutionally be the opinion of the Commission.
DAWSON J: I do not understand that either. I mean, if there is no threatened dispute and the opinion is way out, then the constitutional requirement is not met.
MR SELWAY: Your Honour, that raises a different issue, which is whether you can challenge the opinion, but - - -
DAWSON J: But you always can. I mean, in this Court the constitutional requirement is that there be an industrial dispute or a threatened industrial dispute. That is not a question of an opinion for someone else, it is a question for decision of this Court.
MR SELWAY: Yes, I take your Honour's point. If I could take the Court - - -
DAWSON J: That is the only point, is it not?
MR SELWAY: If I could take the Court to Victoria v The Commonwealth, 138 ALR 129, page 155. Your Honours, the discussion there concerns section 170AH(3), which is set out on page 154, involving the setting of minimum wages by arbitration, where the Commission considers that the order is necessary to prevent an industrial dispute. Then at page 155 the Court says:
The question whether a situation is likely to give rise to an interstate industrial dispute is one that can be answered only by making a judgment or forming an opinion in that regard. Once it is accepted, as it must be, that the power conferred by section 51(xxxv) of the Constitution extend to a situation likely to give rise to a interstate industrial dispute, it follows that it extends to a situation in which a body entrusted with the power of conciliation and arbitration, as the Commission is, forms the opinion that there is a situation of that kind.
DAWSON J: Undoubtedly, but what is not said there is, "and the Court cannot go behind that opinion and determine for itself - as it has a duty to do - whether the constitutional limitations are met", namely, whether there is a threatened industrial dispute. If it does say that, then I disagree with it.
MR SELWAY: Your Honour, our understanding is that what it says is that within the Constitution the Parliament can legislate to have the existence of jurisdiction dependent upon the opinion of the Commission.
DAWSON J: So, that if the Commission forms an opinion that there is a threatened industrial dispute and the Court forms an opposite opinion, the opinion of the Commission prevails?
MR SELWAY: With this qualification, that the Commission still has to form an opinion within the proper limits.
DAWSON J: Well, let us say that it forms a genuine opinion, but the Court disagrees and forms a judgment that there is no threatened dispute?
MR SELWAY: Your Honour, it would still be open to a prosecutor to come to the Court and to argue that the Commission has misdirected itself on a point of law.
DAWSON J: No, no, that there is not a threatened dispute and the Commission says there is. In that situation of disagreement you say that the Commission, having formed the genuine opinion, prevails. I do not accept that.
GAUDRON J: The answer is surely - the question then arises whether it should have formed - the question is not as Justice Dawson is stating it, but, rather, whether the Commission should have formed that opinion or should have considered that that was the situation.
MR SELWAY: Your Honour, that is what we understand that passage to mean.
GAUDRON J: But it is a somewhat different question from the question whether or not, on prohibition, this Court is to be asked for itself to analyse and make the factual material and make a finding.
MR SELWAY: With respect, your Honour, that seems - - -
DAWSON J: I just do not agree with that.
MR SELWAY: I can understand that, your Honour. All I can say is the result in Victoria v The Commonwealth does not represent the submissions we put in Victoria v The Commonwealth, but that seems to be what the judgment of the Court was.
DAWSON J: I do not see how, when the constitutional requirements are questioned before this Court, the Court can do other than say whether the constitutional requirements are met, and that does not depend on the formation of an opinion of someone else.
BRENNAN CJ: That may require some consideration of the judgments to be given in this case.
MR SELWAY: Your Honour, we take the matter no further than to say that that is our understanding of the Court's decision in Victoria v The Commonwealth. On the question of whether the opinion has been properly formed, we just give the Court the reference to Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275 to 276.
What we do say is that that part of Victoria v The Commonwealth which we read to the Court is limited to prevention and that is not this case. This is a case where there has been a finding of industrial dispute. It is limited to prevention because it arises out of the nature of prevention, that is to say that because it is a prevention there is not an industrial dispute.
BRENNAN CJ: Mr Solicitor, there is one thing that has been puzzling me about the notion of prevention and the notion of dispute: if a dispute can consist in a disagreement as to a log of claims, does the jurisdiction extend to the prevention of a disagreement about a log of claims, perhaps a log of claims that has not yet been delivered?
MR SELWAY: On the approach we adopt, which is that the log of claims is merely evidentiary and that, in effect, there is a disagreement behind it which is evidenced by that log, on that approach we would say, yes. If one takes the view, though, that a paper dispute has some formal existence beyond the real disagreement, which is what we complain that it appears the Commission may have done, at least in the Lamsoon matter - - -
BRENNAN CJ: Does that mean that if the Commission can perceive that in the coming year it is likely that a Union will seek, say, a 10 per cent increase in some basic rate and they can foresee that the employers are not likely to agree to that, they can arbitrate and make an award without waiting for the delivery of a log of claims?
MR SELWAY: Under the statute they cannot because under the statute there has to be something that causes the matter to come to their attention, so that the Commission itself is not at liberty to, as it were, go out and search for matters where they can prevent disputes, but in terms of the principle, our understanding of the approach adopted by the court in respect of prevention, or the current approach, is that prevention is broad enough to be able to resolve disputes before they arise and that must mean being able to identify in advance that disputes may arise and the fact that the statute may not fully reflect that yet in the sense that it has to be actioned by a person or party to bring it to the attention of the Commission - - -
BRENNAN CJ: What is the provision that requires it to be brought to the attention of the Commission?
MR SELWAY: Section 99, your Honour. Perhaps I should qualify that by saying that "industrial dispute" is defined in section 4(1) to include - - -
BRENNAN CJ: That is a requirement to give notice of the existence of the dispute. What, if anything, is the provision which precludes the Commission from exercising its conciliatory function?
MR SELWAY: Yes, your Honour, section 33 and also section 100:
the Commission may perform a function or exercise a power:
(a) of its own motion; or
(b) on the application of:
(i) a party to an industrial dispute; or
(ii) an organisation or person bound by an award or a certified agreement.
Section 100 is the procedure that applies after notification.
BRENNAN CJ: Let me ask you the question again. What is it that stops the Commission, with the foresight that I have spoken of, making an award to preclude the arising of a dispute as to whether there should be a 10 per cent basic rate increase?
MR SELWAY: I think the answer to that is nothing, your Honour, and if one has regard to, as I say, the definition of "industrial dispute" which includes a situation that is likely to give rise to an industrial dispute of the kind referred to, it seems to mean that they could of their motion identify such a situation.
BRENNAN CJ: Yes.
MR SELWAY: Finally, your Honour, in respect of this aspect, if I could just make the point that, in our submission, O'Toole v Charles David (1991) 71 CLR 232 is a case which is concerned primarily with the meaning and effect of section 150 of the current Act. The relevant provision in respect of industrial disputes is section 101(3) which does not go quite so far as section 150 and, in our submission, the relevant test for the application of section 101(3) is PSA v FCU (1991) 173 CLR.
BRENNAN CJ: You referred to that passage a few times. What is the proposition? I am not familiar with the proposition you are endeavouring to make.
MR SELWAY: I am sorry, your Honour. The proposition is that an error of law going to jurisdiction is, with the effect that they have exercised a jurisdiction based upon such an error of law, is an act in excess of jurisdiction. If I could just refer to the Court to - - -
DAWSON J: Let me follow what you are saying, Mr Selway. In other words, if they did not form the opinion which subsection (1) requires, then that is a basis for attack.
MR SELWAY: Yes, your Honour. If the opinion they formed purported to be an opinion that there was an industrial dispute but, in fact, was some other opinion because they had misunderstood the words "industrial dispute", section 101(3) would not prevent prohibition and certiorari.
GUMMOW J: However, the probative clause in section 101(3) is closer to the probative clause in the old section 60, is it not, than is the probative clause in the new 150?
MR SELWAY: Your Honour, our reading of it is that the clause - - -
GUMMOW J: Just in terms of language anyway.
MR SELWAY: I think your Honour may be right, but section 101(3) seemed to us to be very similar to the provision considered in Public Service Association v FCU, which was a South Australian provision, but it seemed to us to be to the same effect.
GUMMOW J: Yes, all right. The other thing that is on my mind is, given the form of section 101, how does that square with submissions as to onus of proof when it simply says that the Commission forms an opinion, et cetera. What does that suggest, if anything, as to anybody having an onus of proof?
MR SELWAY: Perhaps if we put it this way, your Honour. At the end of the day before the Commission can proceed, at the very least it must be satisfied it has jurisdiction. If one party is alleging jurisdiction and another party is opposing it, the practical effect of that is that the party claiming jurisdiction bears the onus, but what is not open is what occurred, it appears, in the Lamsoon matter which is where the decision was not that the Commission was satisfied that an industrial dispute existed, but rather that the Commission formed the view that the prosecutor had not discharged an onus, and we say that is the wrong test.
GUMMOW J: Yes, thank you.
GAUDRON J: Where does one find that precisely in the books?
MR SELWAY: Your Honour, we think it is clearest - there is a discussion in argument at page 213 point 8 to page 215 in the Lamsoon books but we think the application of it is at page 220 point 40 and to the end of that paragraph. This is the initial Commissioner.
GAUDRON J: Could you draw my attention to it more specifically?
MR SELWAY: Yes. The Commission is there dealing with the question of whether the application was "a device to create a general regulatory jurisdiction". The Commissioner says:
Those supporting this contention relied largely upon the evidence of Mr Donald Farrell, the South Australian Branch Secretary of the Association. I do not think that this evidence allows a finding in favour of this contention, on the balance of probabilities. Notwithstanding this conclusion and even if it were to be allowed that a motive of the Association for the service of the log of claims may have been to avoid the particular effects of a known or anticipated legislative regime that of itself - - -
GAUDRON J: I do not read that as assigning an onus of proof on the prosecutors. If you wish to be more specific, please do, but I certainly do note read it that way and I doubt very much that you can take what was said in argument to - I just simply do not read it that way.
MR SELWAY: And I cannot take the matter any further than what is there, your Honour. There was a discussion in argument and then that conclusion. In our primary submissions yesterday I think I had got to the point of saying that there was an advantage, if you like, in resolving the uncertainty about paper disputes and of this Court taking the opportunity to do so.
GAUDRON J: What is that uncertainty?
MR SELWAY: What we say is the uncertainty - - -
GAUDRON J: It is a vogue word these days.
MR SELWAY: Your Honour, we would say that it was the uncertainty between the approach of Justices Toohey and McHugh in SPSF in respect of onus of proof, formality and - - -
GAUDRON J: I thought we were talking about the uncertainty with respect to paper disputes.
MR SELWAY: Yes, your Honour, but that was what their Honours, as we understand it, seemed to us to come to a different conclusion about.
GAUDRON J: What, with respect to the onus of proof?
MR SELWAY: With respect to the onus of proof.
GAUDRON J: There might be some uncertainty as to the onus of proof but not as to paper disputes.
MR SELWAY: Your Honour, we certainly do not claim that a paper claim is not evidence of a dispute - it clearly is. What we say is what evidence it is and how it is to be used. That is what we say the problem was.
GAUDRON J: I remain to be convinced that there is any need for any notions of onus of proof in proceedings before the Commission.
MR SELWAY: Yes, your Honour. Well, I can only point to the problems that have occurred, and to say that the issue is one whether the Commission is satisfied at the end of the day that there is an industrial dispute. And the approach to take to that is to look at the evidentiary weight of the material before them, and that the mere fact that it is a piece of paper does not diminish, but not does not increase, its evidentiary strength.
TOOHEY J: I suppose on the kindest view you could take of section 101(1), there would have to at least be evidence upon which the Commission could form an opinion.
MR SELWAY: Yes, your Honour, we would certainly say that.
TOOHEY J: In that sense, whether you call that onus, or whatever you call it, there has to be something which warrants the formation of an opinion.
MR SELWAY: Yes. And we would say no matter what approach one takes, if you look at the SPSF Case, if the evidence that is before the Commission is such that the Commission could not properly form that conclusion on that evidence, then this Court can interfere, even if it is on the basis that the Commission forms an opinion.
TOOHEY J: That is a different question.
MR SELWAY: Yes. But the point we would make in respect of, if you like, the artificiality of the paper dispute doctrine, the extended use of paper disputes, is that it does not really have a part to play in respect of consensual agreements. In fact, it may well be counter-productive to consensual agreements. Whatever purpose it may have served in identifying jurisdiction for the Commission to proceed to conciliate and arbitrate, now that this Court has accepted that the consensual arrangements in the Industrial Relations Act 1904 are valid, then we would say that becomes another matter to look at in terms of convenience of a formal approach to the paper dispute doctrine.
Your Honours, in respect of our submissions, there are a couple of matters that need correction, and if I might quickly do so. In paragraph (4) on page 2, at the third line we have "ie", which purports to be a description of what an industrial dispute is. That is not an appropriate description, and if we could ask for the letters "ie" to be crossed out and the words "eg" put in instead, and apologise for that.
There is also a problem in a number of paragraphs, which if I could just sort of give them generically and then explain what the problem is and what we concede about it. The problem is found in paragraphs (4), (11), (13) and (22), where we refer to industrial disputes being collective disputes, or disputes between groups. That may be misleading in the sense that, whilst there probably needs to be at least more than one employee to have an interstate industrial dispute, there can certainly be an interstate industrial dispute with one employer. So, if we could just make that concession, without going through and trying to redraft all of those paragraphs.
The other thing I should make clear is that in paragraph (9) we give our summary of what a pay dispute is and how it should be approached. That is in quotation marks, if I could assure the Court the only people we quote are ourselves, and it has no greater substance or significance than that. Your Honours, I will not deal specifically with the question of the role of industrial organisations in industrial disputes because, as we understand it, that matter does not now arise, at least directly, in these proceedings, and to the extent that it may be relevant we simply rely upon the relevant written submissions. If I could refer quickly, though, to the question of ambit. That is dealt with in paragraphs (14) to (21) of our written submissions. Our understanding of the ambit doctrine is as described by Justice Mason in Reg v Holmes [1980] HCA 37; 145 CLR 68, at 76 and your Honours have been referred to the relevant reference a couple of times
TOOHEY J: His Honour is referring there to a comparison between the award that is made and the log of claims which leads to the making of the award, is he not, and asking whether the award is reasonably incidental to the log of claims and in that sense within the ambit of the log?
MR SELWAY: Yes.
TOOHEY J: Is that the sense in which you are using the expression?
MR SELWAY: Yes, your Honour, that is the sense.
TOOHEY J: What if no award has yet been made when the proceedings are brought into question? What is the role of ambit in that sense?
MR SELWAY: The role that it has adopted, and in this regard seems to be well settled, is described by your Honour Justice McHugh in SPSF [1993] HCA 30; 178 CLR 249 at 304 to 306. I will just paraphrase that, that the Court has accepted that, in effect, it is a necessary consequence of the limited jurisdiction of the Commission to vary and update awards, that a party making a claim needs to make an extravagant claim, if you like, in order to ensure that there is sufficient jurisdiction to deal with future matters, and that the court has accepted that merely making such an extravagant claim does not mean that the claim is not genuine. I have paraphrased, your Honour, but that is our understanding of what your Honour says that the accepted doctrine is and our understanding is that is the accepted doctrine.
BRENNAN CJ: It is also accepted doctrine that non-genuine claims do not evidence an industrial dispute. The problem we have to face is as between those two accepted doctrines, where do you draw the bright line or is there a bright line to be drawn?
MR SELWAY: What we say, your Honour, is that the assumption about jurisdiction, that is to say that the jurisdiction is so limited, can now be reconsidered in light of the new approach of the Court to prevention and the approach of the Court to purposive powers, and that when the Court does reconsider the matter on that basis we say that the problem with ambit, if there was a problem, has disappeared. What we say, for example, is that the power to conciliate and to make awards is a purposive power. It is a power for the prevention and settlement of industrial disputes, and it being a purposive power, the relevant test is not the test that has been accepted hitherto, namely, the award must be relevant, reasonably incidental, or appropriate, but, rather, the relevant test now is whether the relevant exercise of power in making the award is reasonably capable of being considered as reasonably proportionate to the relevant power. What we say is that that test is, if you like, a lower level test than the test currently applied, or at least the test as currently understood.
TOOHEY J: I do not follow that. Are you are transposing some constitutional doctrine into the exercise of power?
MR SELWAY: Your Honour, we say that the doctrine of reasonable proportionality is not, as such, a constitutional doctrine. It is a doctrine that is applied, for example, to delegated legislation. It is a doctrine that is applicable, in our submission, for the determination of whether an exercise of power is within a purpose.
TOOHEY J: The term "purposive power" has crept into some of the constitutional decisions. Are you using it in that sense or in a different sense?
MR SELWAY: Yes, we are using it in that sense, your Honour. We say that section 51(xxxv) is a purposive power. It is a power for the prevention and settlement of disputes. The powers of conciliation and arbitration can only be exercised for that power. We say that that seems to have been acknowledged in Victoria v The Commonwealth 138 ALR 129 and if I could take the Court quickly to page 180, which is also useful for preventions. I will come to that as well, but perhaps I could take your Honours to the previous page, 179, where at about line 16 the Court discusses the settled position, namely, that the terms of the award must be "relevant", "reasonably incidental" or "appropriate", and then discusses the ambit doctrine. Then on the next page, and the Court is referring to section 150A which gives a power to vary awards every three years, at about line 3:
The latter provision, or, more accurately, its predecessor in the Conciliation and Arbitration Act (Cth) has always been construed, or more accurately, read down by reference to the limits of the power conferred by s 51(xxxv) of the Constitution so as to authorise only those variations which have a relevant connection with the dispute giving rise to the award in question or which are made for the purpose of preventing an interstate industrial dispute. In the context of the conferral of power to conciliate and arbitrate for the prevention and settlement of interstate industrial disputes, it is difficult to see that it could have been approached in any other way.
What we say is that is merely an acknowledgement of the clear position that powers given to the Commission under the Act can only be exercised for the purpose of preventing and settling industrial disputes because that is the only power the Commonwealth has relevantly to give it. It might be useful if I could take the Court also to the bottom of that page, because it comes up as the next point we wish to make, where the Court notes:
It was not argued that it was beyond the power conferred by s 51(xxxv) of the Constitution for the parliament to legislate to require regular revision and variation of awards to reflect current industrial standards, so long as the award as varied retains the required connection with an interstate industrial dispute. Nor, in our view, is such an argument open. A law requiring regular review and variation, within the limits indicated, is clearly a law with respect to conciliation and arbitration. And it makes no difference whether the direction to vary is expressed in terms of industrial standards generally or, as here, is directed to some specific matter which may pertain to the relations of employers and employees.
In respect to that first matter, the reasonable proportionality test, we say that that test, at least as now understood, is a less rigorous test than the test of "relevant", "reasonably incidental" or "appropriate", at least as we understand it has been applied.
TOOHEY J: But I am just having a lot of trouble with this argument, Mr Solicitor. Some of the passages to which you have taken us are passages which are concerned with various placita of the Constitution, in particular the placitum with which we are concerned here. But you seemed to have moved that into an area of the exercise of power and applied that doctrine not to the validity or otherwise of the law but to the exercise of power under the law. Is that a fair comment?
MR SELWAY: It may be a fair comment as to what I have put, your Honour, it is not what I intended to put. What we say is that the validity of an award - I am sorry, the power to make an award is a purposive power. It being a purposive power, the test to be applied in determining the validity of an award is the reasonable proportionality test.
GAUDRON J: And the ambit test, as it has currently been understood, is too narrow.
MR SELWAY: Is too narrow.
DAWSON J: That cannot be right altogether. When you say "proportionality" is the test, the law has to be reasonably - there has to be a law for conciliation and arbitration; but not just conciliation and arbitration, for the prevention and settlements of disputes extending beyond the limits of one State.
MR SELWAY: Yes, your Honour.
DAWSON J: How do you apply it to the interstate element?
MR SELWAY: One goes through - - -
DAWSON J: That is reasonably proportionate to settling into the State disputes even though they are not interstate.
MR SELWAY: No, no, your Honour - - -
DAWSON J: You cannot eliminate the objective test altogether. Maybe it is a purposive power for some purposes but there are objective requirements which must be applied.
MR SELWAY: Certainly, your Honour.
GAUDRON J: You are talking only about subject matter.
MR SELWAY: Yes.
GAUDRON J: And that is where ambit applies.
MR SELWAY: But there has to be an objective dispute, an interstate dispute, leaving aside the matters we have - - -
DAWSON J: Not only an objective interstate dispute, an objective industrial dispute.
MR SELWAY: Yes, your Honour. One has to have the relevant factual circumstance, and then one compares that factual circumstance with the award and asks the question, whether the award is reasonably proportionate - - -
DAWSON J: No, one does not. One asks whether the legislation, if you are going to apply proportionality, is reasonably proportionate. Is it for the purpose which is laid down in section 51(xxxv)? One then construes the legislation according to its tenor.
MR SELWAY: I will take your Honour's point normally. We would say that the conciliation and arbitration power is somewhat singular in that regard, in the sense that the Parliament clearly has to legislate to set up the machinery but that the powers of the Commission itself are also subject to 51(xxxv) and are read in that way. Consequently, the powers of the Commission are purposive - - -
DAWSON J: I do not understand that. What do you mean by that?
MR SELWAY: Only that the powers of the Commission can only be exercised for the settlement and prevention of interstate industrial disputes.
DAWSON J: The powers of the Commission can be exercised in accordance with the terms of the Act and only in accordance with the terms of the Act. It is the Act that has to be seen to be proportionate if you want to invoke proportionality.
MR SELWAY: Your Honour, what we would say is that the proportionality test has been applied in the context of delegated legislation.
DAWSON J: Yes, it has, to see whether the delegated legislation is for the purpose of implementing the Act under which it is made.
MR SELWAY: Yes. We get to the same result either way, your Honour. If we say that the powers of the Commonwealth Parliament are limited by the purpose so that it can only confer powers for the purpose, the effect still is that the Commission only has powers for the relevant purpose.
BRENNAN CJ: You can put your argument if you wish on section 89, can you not?
MR SELWAY: Yes, your Honour.
BRENNAN CJ: In other words, the function of the Commission is to prevent and settle industrial disputes, and if any act that is done by them which is an act that they are authorised to do can be described appropriately as being to prevent or settle industrial disputes, then it is within power.
MR SELWAY: Yes, I thank your Honour. That puts it much better than I was.
DAWSON J: Yes, but that then leaves you with the necessity objectively to determine the existence of an industrial dispute, and an interstate industrial dispute at that.
MR SELWAY: Yes.
DAWSON J: The Commission cannot embark on something for a purpose which it considers to be its purpose but which in fact is not its purpose in the sense that the objective criteria are not satisfied. All I am saying to you is it not entirely purposive.
MR SELWAY: Yes, I accept what your Honour says. It is not a broad purpose. There has to be the objective fact to ground the purpose, if you like. I do not take that - - -
DAWSON J: That is all right.
BRENNAN CJ: But your argument, if I understand it correctly, is based on the notion chiefly of prevention, is it not?
MR SELWAY: Yes, your Honour. I come to prevention next, but we say that this reasonable proportionality test is now just the accepted test by this Court for purposive powers and - - -
BRENNAN CJ: Well, if we are not mesmerised by those words and we are endeavouring to give content to them, am I right in thinking that your argument is that if there is an apprehended disagreement about some subject, then conciliation and arbitration can be engaged in in order to preclude that disagreement arising?
MR SELWAY: Yes, your Honour. That is the second leg of our argument; I have not yet got to it.
BRENNAN CJ: And that is a wider test than would be the test of ambit.
MR SELWAY: Your Honour, we accept that, that is our proposition. It is the proposition I was coming to. This proposition is a different proposition but leads to the same effect.
BRENNAN CJ: What is the difference in your present proposition? I am sorry to be boring, but I cannot quite see what it is in that case.
MR SELWAY: We say that the reasonable proportionality test would apply even if prevention was not there.
BRENNAN CJ: Reasonable proportionality between what and what?
MR SELWAY: Between the award and the objective industrial dispute. So even if the Court had not made any advances at all in its approach to prevention, we would say that the reasonable proportionality test would still be a broader test then the test currently applied.
BRENNAN CJ: Then you would have to identify what it is that you mean by "industrial dispute" for the purposes of that test, would you not?
MR SELWAY: Yes, you would.
BRENNAN CJ: So identifying the industrial dispute as being that which is constituted by disagreement as to a log of claims.
MR SELWAY: Yes.
BRENNAN CJ: How would you distinguish the ambit test from the one that you are now proposing?
MR SELWAY: The ambit test currently applied, as we understand it, limits the claim entirely to the framework of the log, so that, for example, if there was a wages claim for $10 and the employer said, "I won't pay 10; I'll only pay 5", the ambit doctrine as currently understood would enable the Commission to award an amount of money between $5 and $10. What we say is that that test is too narrow because it does not permit trade-offs. We give as an example a circumstance where the employer cannot meet any wage increase but in fact has no orders on his books at the present time, with the effect that a two-week paid leave can be provided relatively quickly. Our understanding of the current test for ambit would preclude the Commission making an award giving two weeks paid leave instead of the $10 wage claim. The problem with that is that it does not fit in with the whole context of enterprise agreements.
DAWSON J: Whether it fits in with the context of enterprise agreements or not, you are making it unduly complicated. I think you are really saying, are you not, what was put to someone in the course of argument yesterday: the ambit doctrine is nonsense. It elevates the paper dispute into having a separate existence which it does not have, that you have a dispute and it may or may not be what is represented by what is on paper. In finding a dispute the Commission has to find a genuine dispute and if later on a variation is sought, ambit has nothing to do with it; it really is, to have jurisdiction, another dispute. The only justification for this ambit doctrine is to avoid the requirement of serving some papers. If that is what you are saying, it seems to have a lot going for it in my opinion.
MR SELWAY: Your Honour, we do not go that far. We do not say the ambit doctrine has no substance because there clearly has to be a relationship between the award and the dispute.
DAWSON J: Yes, but the dispute is what the dispute is, not what the paper says necessarily.
MR SELWAY: We have put our submissions in respect of that.
DAWSON J: So, if you go outside what the paper says - and that is going outside what they say is ambit - you can still have a dispute and the jurisdiction of the Commission is there. Ambit is an artificiality introduced into the culture of the Industrial Relations Commission long ago by this Court perhaps.
MR SELWAY: Your Honour, what we say is that the test for the relationship between the validity of award and the dispute is the reasonable proportionality test.
TOOHEY J: Could I just say this to you, Mr Solicitor, in relation to the expression "reasonable proportionality". As I said a moment ago, it has become part of the doctrine of constitutionality and varying views have been expressed by Justices of the Court, most recently in Leask, but we are not in that area for the purpose of this argument. As I understand it, you are talking about proportionality in a different sense, whether the power that is exercised is proportionate to the law itself. The closest analogy I suppose is regulations made under some enactment, as was discussed I think in Tanner's Case. You cannot get a great deal out of Tanner, I do not think, because the case proceeded before the Court on common ground between the parties. But it does not seem to me to be very useful to talk about proportionality here unless you are using it in some quite specific sense but not dragging in doctrines from constitutional cases.
MR SELWAY: Your Honour, our submission - and we take your Honour's point about Tanner, but we rely upon it, and we also refer to the New South Wales Court of Appeal - - -
TOOHEY J: I am not saying it does not have a place, I do not have a particular view on that. All I am saying is that I do not think it is very helpful to rely upon constitutional cases, if all that you are saying is that there must be some proportionate relationship between the law and the exercise of power under the law. Well, maybe that is right, I do not know.
GAUDRON J: Are you saying more than that at the end of the day an award, or any variation of the award - it must be able to be said of them that they were made for the purpose of settling an industrial dispute. We will put aside preventive. And one way in which you may - one way, not the only way - one way in which that question may be answered, if it is not clear, is by having regard to the question whether the award and/or variation is reasonably proportionate to what was claimed in the dispute.
MR SELWAY: We would adopt what your Honour says, with respect, except we would, rather than just describe it as "reasonably proportionate", that it be reasonably satisfied that it is reasonably proportionate. It is a reasonable satisfaction that - - -
DAWSON J: That seems an introduction of words for the sake of nothing. Whether it is for the prevention or settlement of a dispute is enough, is it not?
MR SELWAY: Your Honour, that is enough,and what we say is the test is the reasonable proportionality test.
DAWSON J: And that is what section 89 says?
MR SELWAY: The other matter, of course, is prevention, and I have already read to the Court that part of Victoria v Commonwealth.
DAWSON J: The reasonable proportionality test has its origin in another jurisdiction, and it is a device which enables a court to interfere and substitute its judgment for that of the administrative body. In other words, it looks to see if the legislation is desirable for a number of reasons. That is why it is a dangerous test to introduce into our jurisprudence. It is unnecessary.
KIRBY J: There are different views about this, including in the Court.
MR SELWAY: Your Honour, I have no concerns about it being - no doubts about it being a dangerous test.
DAWSON J: There are no different views about the origin of the test and the way in which it operates overseas, that is demonstrable. There is no need to introduce it here. You have to ask, "Is this for the prevention or settlement of an industrial dispute?", that is simple enough. But to introduce notions of reasonably capable of being seen to be appropriate and adapt it is to introduce just a flurry of words which mean nothing.
BRENNAN CJ: You put your argument in relation to it, Mr Selway.
MR SELWAY: At the end of the day, what we are interested in is the trade-offs. If the trade-offs are valid, then whatever form of words are used, that is what we say comes within the purpose. And our concern is that the existing words are understood, as we understand it, as not permitting the trade-off.
In respect of prevention, I have already read to the Court the part from Victoria v Commonwealth. We say that that is an acknowledgment by the Court that the Commission can revise and vary awards to reflect current industrial standards, whether or not the log of claims initially asked for it.
In consequence, we say, that there can now be no doubt as to the jurisdiction of the Commission to update awards and agreements to reflect current industrial standards. If there is no doubt about that, there is then no reason for making exaggerated claims.
KIRBY J: Do you say that that can be outside the scope of the original dispute as formulated in the paper claim, or do you assert that the paper claim still, as it were, sketches the perimeter out of which the dispute cannot move - beyond which it cannot move?
MR SELWAY: Your Honour, once one says it is prevention, one has moved outside of the original dispute. So the Commission, as we understand it, can sort of every three years look at the industrial situation and if it is of the view that the award has become out of date, in the sense that it can then cause industrial disputes or be a basis for industrial disputes, the Commission can vary them. The power at the moment is constrained in various ways but the acknowledgment that the power exists seems to us to be sufficient to deny the consequence that one needs to make exaggerated claims.
McHUGH J: In Ludeke the Court said that the requirements of the ambit doctrine not only promoted but necessitated the making of inflated demands. If that is wrong as a matter of fact, then one may have to look at it again. It occurs to me that there is no necessity for the making of inflated demands, because one can achieve protection against the contingencies of the future by linking the claim to various benchmarks: for example, claiming $500 a week and having a claim that it be indexed either to the CPI or to productivity gains in the particular organisation, perhaps to the general economy. Many of the problems that are supposed to be brought about by the ambit doctrine are probably avoidable with a bit of thought on the part on the part of those who draft log of claims.
MR SELWAY: Yes. That is, as we understand it, what her Honour Justice Gaudron put in Vista. We would go one step further, if you like, and say that there is not even a reason to understand the claim in that sense because the prevention power, as acknowledged in Victoria v The Commonwealth, is enough to give the Commission power to intervene and vary awards - - -
McHUGH J: Not necessarily. I mean, it might be one thing if there is a claim for $600, and two years down the track, because of changed conditions, the variation doctrine applies in that situation and there would be no reason, at least to my mind, to stop the Commission saying, "Well, we will reduce wages 10 per cent but in exchange for these other benefits, shorter working hours", et cetera, et cetera, even though there was no claim for hours in the award. But what happens if somebody comes along and makes a claim, just a general claim for hours which are not mentioned in the award, and say, "Well, we originally claimed $2,500 in this document. We have got $500, we are not going to pursue an additional claim for wages but we now ask the Commission to give us reduced hours." That would be outside the ambit of the dispute, would it not?
MR SELWAY: It would, your Honour, but if we take the situation where there had been a general industrial move across the work force, hours being reduced from 40 hours to 371/2, say, and this Union had not applied for it, then the prevention power may enable the Commission to open up the award on its own behalf to in 371/2 hours.
McHUGH J: I have got real problems about that, because I think that what it would be doing would be settling something different, it would be making an award for preventing a dispute.
MR SELWAY: That is the way we put it, your Honour. It is preventing a dispute. It is a new exercise of jurisdiction.
McHUGH J: Yes.
BRENNAN CJ: In relation to a newly apprehended dispute?
MR SELWAY: Yes, your Honour.
DAWSON J: But why does it have to be an apprehended dispute? Why can it not be a new dispute?
MR SELWAY: It might be a new dispute, your Honour, but the Commission, as we understand the prevention power, is not required to sit and wait. If it apprehends that there will be a dispute down the track, it can intervene before.
McHUGH J: But the emphasis on the prevention power means that the Commission would have to be able to identify with some precision what the dispute was and that is a further ground, it seems to me, for knocking out these extravagant claims. If, for example, somebody said, "Is there any prospect of industrial dislocation because the Union is not going to get $2,500 or $5,000 a week in the SPSF Case?", you would just laugh at that idea and say, "They are not seriously pursuing $5,000. There is not going to be a strike tomorrow if they do not get $5,000." But if the claim is for $500 when they are being paid $400 then one can see that there may well be industrial dislocation and it seems to me to be a good rule of thumb for testing these cases.
MR SELWAY: Yes.
KIRBY J: But the theory of that is that you will, therefore, have to renew fresh applications for fresh disputes and the benefit of the paper system and ambit doctrine has been that you have not had to do that. It has all been done within the ambit of the original dispute power. That may have its artificialities. It may be undesirable, but that was the practical advantage of the present system.
MR SELWAY: Your Honour, that practical advantage we say cannot apply once you move out of, if you like, the formal conciliation and arbitration system to an enterprise bargaining system. Once you move into enterprise bargaining as the Act currently contemplates, then whatever advantages there were are entirely lost because the process is artificial. People do get claims that they cannot handle.
McHUGH J: But the real question is whether or not the Constitution has been breached and it talks about disputes. It may be out of date and it may be people should use the external affairs power or the corporations power, but there is a lot of artificiality about what happens when there is a problem in one State and the Union serves employers in two or three other States and with no intention of pursuing any awards against the employers in the other States for some years, if ever, and yet everybody says, "Oh, there is an interstate dispute here, the Commission has got jurisdiction."
MR SELWAY: Your Honour, if we could just cite Chief Justice Mason in the Wooldumpers Case 166 CLR 321 where his Honour said:
Recognition of the importance of preventing industrial disputes, so long as it is by conciliation and arbitration, would enable the Commission to look to the realities, instead of the artificialities, of industrial relations.
Our submission in essence is that the Act now looks at prevention and that your Honours in Victoria v The Commonwealth acknowledged the validity of doing so. So our submission is that the artificial aspects of the ambit doctrine are no longer necessary, that those aspects are not consistent with the current scheme for certified agreements and that the Court should take this opportunity to confirm the extent of the jurisdiction of the Commission to vary and update awards and at the same time reject, if you like, the factual consequence which has been accepted from the ambit doctrine, which is that artificial and exaggerated claims can be made.
McHUGH J: I must say, it is a bit worrying that the Commonwealth is not present in what seems to me to be developing into a fairly widespread attack on the conventional approach to these matters.
MR SELWAY: I can only tell your Honour that the Commonwealth has seen a copy of our submissions.
McHUGH J: Yes.
MR SELWAY: May it please the Court, those are our submissions.
BRENNAN CJ: Yes, thank you, Mr Solicitor. Yes, Mr Solicitor for Western Australia?
MR MEADOWS: May it please the Court, Western Australia supports the submissions which have been put on behalf of the Attorney-General for Queensland, and, as we apprehend it, the submissions which were put by Mr Bleby were essentially the same and so we would support his submissions as well. In particular, we would support those submissions put on behalf of the Attorney-General for Queensland in paragraphs (37) and (38) of their written submissions relating to the Ludeke Case. I had hoped to be able to say that I could support the submissions which have been put by my learned friend the Solicitor-General for South Australia, but I am afraid that I am unable to do so and I would like to say that we do not wish to associate ourselves with his submissions regarding proportionality.
Having said that, we would only wish to add this. We would submit that it must always be borne in mind that in relation to its dispute resolution jurisdiction there is a constitutional premise to be found in section 51(xxxv) of the Constitution which underlies the jurisdiction of the Commission. That, of course, is the existence of an industrial dispute. It is trite to say it, no doubt, but in this context the Commission's jurisdiction before the jurisdiction to be triggered, there must be an industrial dispute. We would say that that is so in this context, section 101(1) of the Industrial Relations Act 1925 notwithstanding. In any event, we would say that subsection (1) of that section still requires there to be an industrial dispute. The word "considers", we would submit, in the context of that section simply means that the Commission has made a determination to that effect as to the existence of a dispute.
In any event, the Commission is required to identify the parties to the dispute and the matters in dispute, and we fail to see how the Commission can do that without there in fact being an industrial dispute. We would also say that this much was recognised in O'Toole's Case and, in particular, we would refer to the passages in the judgments of the then Chief Justice at page 250, your Honour the Chief Justice at page 270, the judgments of Justices Deane, Gaudron and McHugh at page 291 and the judgment of your Honour Justice Dawson at page 306.
McHUGH J: In our joint judgment in O'Toole, I think we did leave open the question that even from a constitutional point of view, the opinion of the Commission might be sufficient to get it through in relation to an award as long as there were earlier challenges, if I remember rightly.
MR MEADOWS: Yes, that is so, your Honour, but nevertheless, the Court - - -
McHUGH J: We did not decide that, I do not think, from recollection. We just - - -
MR MEADOWS: Yes, but in spite of that, the Court reaffirmed the notion that there still had to be the constitutional basis for the Commission's exercise of jurisdiction.
McHUGH J: Yes.
MR MEADOWS: And we would say that that, of course, requires the proof of jurisdictional facts. Quite obviously, when someone is seeking to enliven the jurisdiction of the Commission, they will need to put some material before the Commission to demonstrate the existence of a dispute, and the existence of a dispute is of course a threshold issue for the Commission as without proof of facts going to jurisdiction, the Commission is unable to embark upon the exercise of its various functions and powers.
We want to say this on the question of onus, and it has already been alluded to by Justices Gaudron and Gummow, and that is that while it might be necessary for those seeking to invoke the jurisdiction of the Commission to put some material before it which is capable of founding jurisdiction, ultimately it is for the Commission to satisfy itself that it has jurisdiction. There is no onus as such. The Commission is required to inform itself of the relevant facts in order for it to determine whether it has jurisdiction.
If I could refer to what his Honour Mr Justice Gibbs, as he then was, had to say in Reg v Federal Court of Australia; Ex parte W.A. National Football League [1979] HCA 6; 143 CLR 190, page 215, approximately two-thirds of the way down the page. The position, I would submit, is usefully stated. He was dealing with the question of jurisdiction of the Federal Court:
When the question is raised before a court of limited jurisdiction whether a condition of its jurisdiction has been satisfied, that court is not obliged immediately to refrain from proceeding further. It can and should decide whether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive. This was clearly explained by Devlin J. in R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek where his Lordship said:
"When, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to their jurisdiction, the tribunal have to make up their minds whether they will act or not, and for that purpose to arrive at some decision on whether they have jurisdiction or not. If their jurisdiction depends upon the existence of a state of facts, they must inform themselves about them, and if the facts are in dispute reach some conclusion on the merits of the dispute. If they reach a wrong conclusion, the rights of the parties against each other are not affected. For, if the tribunal wrongly assume jurisdiction, the party who apparently obtains an order from it in reality takes nothing. The whole proceeding is, in the phrase used in the old reports, coram non judice.
He then goes on to refer to a decision of this Court in R v Blakeley and cites from the judgment of Mr Justice Kitto and refers to observations made by Chief Justice Latham and Mr Justice Fullagar. If I could just take the Court to what Mr Justice Fullagar said in Blakeley's Case [1950] HCA 40; (1950) 82 CLR 54 in his judgment at page 90 in the paragraph beginning at the bottom of the page:
Generally speaking, when a tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions both of law and of fact. As Griffith CJ said in Federated Engine- Drivers' and Firemen's Association of Australasia v Broken Hill Pty Co Ltd:- ". . . the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense." In the same case Barton J said:- "Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance".
So what we would draw from these passages, if it please the Court, is that essentially there is no onus and that the requirement is that the Commission should satisfy itself and inform itself in regard to the relevant facts and circumstances.
TOOHEY J: I do not follow that, Mr Solicitor. There is an onus surely in the sense that, unless there is material presented to the tribunal upon which it can reach a decision as to its jurisdiction, then it cannot reach a decision, can it?
MR MEADOWS: Quite so, and we would recognise that it is incumbent upon a person seeking to invoke the jurisdiction to put some material before the Commission, but it does not involve a question of onus. The party seeks to invoke the jurisdiction. Once the attempt is made to invoke the jurisdiction, it is for the Commission to satisfy itself as to the existence of jurisdiction. We would submit it is a mistake to speak in terms of onus and that, whenever a court or tribunal of limited jurisdiction is asked to exercise jurisdiction, at the threshold is the requirement that it should satisfy itself as to its jurisdiction.
There was some concern expressed yesterday about the fact that this might require this Court to consider further factual matters or take evidence as to factual matters. There are some useful observations in the case I was referring to of in Reg v The Federal Court of Australia in the judgments of Chief Justice Barwick at page 206 and the judgment of his Honour Mr Justice Gibbs, as he then was, at page 216 as to what this Court might do if confronted with that dilemma. Both of them suggested that the matter could be referred back so that the necessary evidence could be taken or, alternatively, the matter might be referred to a single Justice of this Court for determination of the facts before there was some finding in relation to prohibition.
KIRBY J: That does not sound a very congenial suggestion.
MR MEADOWS: I was not recommending the latter course, your Honour, but - - -
KIRBY J: There is, of course, reference to the Federal Court, and I understand that now that would only come to this Court by special leave.
MR MEADOWS: Yes, that is so, your Honour. But be that as it may, it does - when one is talking about the prerogative jurisdiction - provide a method, at least, of relieving this Court of the responsibility of having to make factual determinations. I just mention that in passing. Just coming back to the question of onus, our basic proposition is that while it is obvious that the person seeking to invoke the jurisdiction must put some material before the Court, we say that there is no onus on either party in the proceedings, rather, it is for the Court to inform itself and determine whether it has jurisdiction. They are the submissions we would wish to make, your Honour.
BRENNAN CJ: Yes, thank you, Mr Solicitor. Mr Kenzie.
MR KENZIE: Thank you, your Honour. If it please the Court, matter B2, being a matter which comes to the Court on appeal - the appropriate focus is on the decision of the Industrial Relations Court and our case is, fundamentally, that the Industrial Relations Court, in the proceedings before it, applied the principles which were explained in Ludeke and, again, in the SPSF Case.
Although we have filed comprehensive written submissions in accordance with the directions of the Court, your Honours, we have, with a view to streamlining the submissions, prepared a brief outline of our submissions which will give sharper focus to our case, and I would seek to hand to the Court a brief document which involves a summary of our submissions to which I would propose to speak.
McHUGH J: They did seem, to me, to be a little repetitive.
MR KENZIE: Well, your Honour, it is really with a view to cutting down the time that we take this step. It might appear to be repetitive, but I can assure the Court that it will have the effect of shortening and not - - -
McHUGH J: No, I mean the original submissions seem to me to be.
MR KENZIE: I am sorry, your Honour. May I say, I accept that, and it is with a view to dealing with some of the problems which we accept appear in those submissions that we prepared this document, and with a view to avoiding some of the repetition and the vices which we accept are presently found in those submissions. I make available a copy of the outline and, separately, your Honour, although I seek not to go to it immediately, there is a separate page which is an analysis of the December logs of claims and their relationship to logs of claims considered in the SPSF. It is simply derived from the evidence in the proceedings. I make those separate documents available, if it please the Court. Your Honours,the - - -
BRENNAN CJ: Perhaps you ought to give us a moment so we can just scan these documents, Mr Kenzie.
MR KENZIE: Yes, your Honour.
BRENNAN CJ: Yes, Mr Kenzie.
MR KENZIE: Yes, your Honour. Your Honour, may we do what really has not been done in this case so far and invite the Court's attention to a small amount of detail in Ludeke so that the Court can consider the matters that actually lay behind the pronouncements of the Court in the important passages are on pages 182 and 183 of that decision. Could I invite the Court to go to Ludeke [1985] HCA 55; 159 CLR 178 and, your Honours, that case involved assertions on the part of the prosecutor that there was not in existence a bona fide dispute, that is, that the demands that were made in the paper demands were not genuine demands for what was wanted. There was also an element in the case of interstateness, that is, the prosecutors asserted that the dispute was not a genuine interstate industrial dispute, that in truth it was an attempt to dress up an intrastate dispute so as to give the federal Commission jurisdiction over that dispute.
The relevant background appears on pages 180 and 181, and at 181 point 3 that Court says that:
the applicants submit that delivery of the log of claims was not a bona fide demand for the conditions set out in the log and that consequently non-acceptance did not generate a real or genuine dispute.
Your Honours, although it is a little bit out of sequence but in order to understand what the Court was then talking about, could I invite the Court to go to the demands that were being considered in Ludeke at page 187 point 6 of the decision. It relates to that aspect of the proceeding in which the complaint was not related to interstateness as such but that aspect of the claim that involved an assertion that the demands were not genuine because of their inflated nature.
At page 187 the Court can see that the demands that were being considered first of all were comprehensive. In other words, the demands that were being considered were not the single demand in the SPSF Case but that there was a comprehensive industry log of claims. That is a log of claims that was designed to provide the basis for the coverage by award in the electricity industry in various States of Australia. So that the claim involved claims - and this is in 1985, of course - for $1,000 a week for the base tradesman, a rate of $2,000 per week for all technicians' grades, professional and sub- professional and so on, claims for extra payments for $200 per week in addition to all other payments, and disability and special rates each for $200 per week and each expressed to be in addition to all other payments. And then the other claims are set out. So it was a comprehensive industry log and an ambit log.
The other aspect to which we would just ask the Court to go to briefly is at page 188, towards the bottom of the page. The log of claims that was served, in addition to being a comprehensive industry log designed to provide the basis for a comprehensive federal award being made in the electricity industry in various States, was accompanied by a letter of demand calling upon the recipients to comply within a very limited period of time. So that in circumstances where the highly inflated demands were put forward, the Court referred to the limited time given for acceptance of the log and the inflated value of the claims made, indicating that the object of the ETU was not to seek the claims made in the log but merely to provide a dispute which would enable the Commission to intervene in the Queensland dispute. There were other matters referred to: for example, and incompatibility between the log of claims, the demands and the wage fixing principles then extant and so on and so forth.
KIRBY J: Where is the Court's reference to the "limited time" because I take you in your written summary to be denying that there is any such principle? Did the Court mention that here?
MR KENZIE: No, your Honour. In our summary we deny the proposition that there is an additional barrier to the finding of an industrial dispute because you have an ambit claim accompanied by a demand that it be responded to within a limited time. What I am pointing to is that in Ludeke you had a comprehensive series of industry demands in a draft log of claims with a letter of demand that said, "Please reply within seven days or we will go the Commission," as it were. But that was the fact before the Commission in Ludeke' Case. The relationship between the inflated demands and the limited time given for reply in Ludeke's Case was relied on by the prosecutors as providing a basis for showing that the demands were not genuinely put forward. We mention this because we say that those arguments were among the arguments decisively rejected in Ludeke's Case. When we come to it we will suggest to the - - -
KIRBY J: Do you say that the Court referred specifically to the question of the limited time apart from recounting the argument of the prosecutor?
MR KENZIE: No, your Honour, the Court referred to the arguments of the prosecutor. The Court at page 188 said that here were the demands, here is the limited time. All of these things are indicators, so it was said by the prosecutor, that we are not talking about a true indication of what was wanted but simply a vehicle for carrying this thing through to the Federal Commission to allow it to become the regulator. It is not really a genuine industrial claim at all. Now, that was the case that was run. It is the same as the case that was run here. Here it is said that it is a seven day period for response, the demands are inflated, and you look at those things and they are indicators that the Union does not really want what it demands. Now, that was the background in Ludeke's Case. They were the arguments that were being considered and they were decisively rejected for the reasons that were given on page 182 and 183 elsewhere.
McHUGH J: One of the problems about Ludeke, if I might respectfully say so, it was decided when formalism was still in the ascendancy in this Court and this Court having upheld paper claims 20, 30 years ago, I mean, it is just giving effect to the logical implications of its doctrines and it would not have surprised me if the Court would have upheld a demand for $10,000 a week in this particular case, but, we are 12 years down the track now.
DAWSON J: We are enlightened. We know that substance over form should prevail.
MR KENZIE: Your Honour, I am coming, of course, as I have to come, to the SPSF Case, which was not 12 years ago, and we found, of course, not only on Ludeke, but on the fact that this Court has consistently applied Ludeke, and recognised that which your Honour Justice Dawson's argument yesterday said, from your Honour's point of view, could not be recognised, namely, a distinction between a genuine ambit claim and a claim which was not really a claim at all. That has been consistently recognised. That debate has been had and it is not simply a 1985 debate, your Honour. Ludeke has been consistently applied. It is not a case where the Court in the years since Ludeke has expressed difficulty with the principles in Ludeke. Ludeke has provided the basis for industrial regulation in the years following 1985 and for reasons that we go on to develop, there would be profound industrial consequences if the reasoning in Ludeke was disturbed and I will have to come and deal with some of the matters your Honour Justice McHugh has raised in due course.
However, there are a number of propositions that one gets from Ludeke and, of course, they emerged from the significant passages on pages 182 and 183. I know they have been referred to but as they are important not only to our case but to what the Industrial Relations Court did, I need to go to them, your Honour. At the bottom of page 182, the Court said:
Although it has been said that in order to create a genuine dispute it must be shown that the organization "really wants what it demands", this does not mean that the organization or its members must be intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log.
McHUGH J: But as a matter of fact, why is not that wrong? I mean, how can there be a dispute if you really do not want what you have written down on a piece of paper?
MR KENZIE: Your Honour, it depends upon what you mean by what you want and what you do not want. In the debate that has taken place in this Court, an ambit claim, it has been suggested, is, by definition, a claim for what you do not want. Ludeke rejects that argument properly and says that an organisation making a demand can actually want X but accept that it is unlikely to get X immediately. There is nothing illogical about that proposition.
KIRBY J: You have still got a dispute about half X; you have got a dispute about something within X of what you have claimed, and this is the dispute.
MR KENZIE: Your Honour, the dispute certainly extends to everything within it, but Ludeke and countless authorities support the proposition that the dispute extends to the parameters of the claim as the Court goes on in Ludeke to state. There is nothing artificial with the acceptance of the proposition that you can want something that is not going to be immediately achievable. You can make a demand. You can say, your Honours, that, "We want $250 a week extra for the underprivileged members. We do want that. We want that in the same way as a person who files a statement of claim wants relief, but we know what the realities are", and there is nothing illogical about that, and that is the starting point in Ludeke.
McHUGH J: But it must be an industrial dispute.
MR KENZIE: Yes, your Honour.
McHUGH J: And one has to concentrate on that. I mean, in this case, supposing the employers had said, "We'll give you $800 a week although you've claimed $1,000 a week." Does anybody seriously think the Union would have said, "No, we're going on strike. We want $1,000 a week in this case". Of course they did not. So it is totally unreal.
MR KENZIE: No, your Honour. All that that means is that that subsequent development might have had an impact on the industrial dispute. That would have been a development of the nature that was described by this Court in cases like Bain, where this Court accepted that the industrial dispute is not static but is affected, capable of being affected by considerations as time progresses. It would not have anything to say about the legitimacy of Ludeke or the finding of dispute and its width. There is nothing illogical about, to take the example that the Chief Justice gave in argument yesterday, an organisation saying, "We want an extra $100 a week, but we accept the reality that it is not going to be immediately forthcoming".
McHUGH J: It seems to me that is not a dispute. We are talking about industrial disputes and it is the disagreement that constitutes the dispute, and if somebody claims $5,000 a week knowing that no one is going to achieve it and they are not going to do anything if they do not get it, how can there be a dispute?
MR KENZIE: Your Honour, the corollary of that is that you can only have a demand about something that you can have a reasonable belief is going to be achieved.
BRENNAN CJ: Or that you are prepared to go to the wall for.
McHUGH J: Yes.
MR KENZIE: Your Honour, this case and other cases support the proposition that if there is a log of claims that is thereafter seriously pursued, that is a demand that the organisation is relevantly going to the wall for.
BRENNAN CJ: But if I could take you back to Ludeke for a moment, the real crux of Ludeke, as I read it, is not so much in those general principles but in their application. What the Court found is that the essential claims that were made were arrived at independently in December 1984, not invented or contrived for the purposes of getting jurisdiction, and they represented what were genuine demands by the Union of what they then sought as industrial conditions, even though the Union did not then expect that the claims would be fully met but they wanted them.
MR KENZIE: Yes.
BRENNAN CJ: That is the doctrine of Ludeke. That is the doctrine which Justice McHugh now raises for your submission.
MR KENZIE: Your Honour, we say that in Ludeke the Court accepted that demands which were for all purposes accepted as extravagant, bearing little close relationship to those conditions which existed in the industry which were described in the proceedings as outrageous, were nonetheless demands capable of giving rise to an industrial dispute.
BRENNAN CJ: But "outrageous" was then used for the purposes of attracting publicity to the claim. The essential point so far as the legal principle is concerned is that, whether extravagant or not, they were genuinely demanded by the Union as the desired industrial conditions. It might have been a very generous finding but it was nonetheless the finding that was made.
MR KENZIE: Your Honour, that may be so, but one cannot run away from the reasoning of the Court which is found at pages 182 and 183 which reflects the fact that a demand in writing may be capable of - and in this case was capable of - giving rise to an industrial dispute notwithstanding the fact that it was on any analysis incapable on any rational basis of being achieved for many years. It is important to go to what the Court said before it came to analysing the particular position in Ludeke because these principles that appear on pages 182 and 183 did not appear for the first time in 1985; they were a reflection of authorities of this Court over many years in relation to the dealings of the Industrial Relations Tribunal.
Your Honour, the first thing that the Court said was that it is possible to cross the line in terms of a valid demand between that which you want immediately and that which you are willing to postpone. That is the point dealt with on page 182 in the decision of the Court. The second aspect, at page 183, is a recognition that when one is determining genuineness, the genuineness of a demand, it is appropriate, and quite proper, to look at the context in which that demand is made.
The person who drafts a federal log of claims, particularly an industry log - which was the case in Ludeke and is the case here, where a general prescription is sought for ambulance officers - when that person picks up the pen, that person is looking at a situation in which there is a knowledge of the role of ambit, there is a knowledge that the proceedings which are to unfold are likely to take many years, as have these proceedings, as have countless other proceedings, as did the electricity proceedings, and that if adequate provision is not made in that log of claims so that the person who drafts that log drafts it in such a way as to reflect what is wanted over the life of the proceedings and for the relevant industrial period, then the whole exercise will be a futility, because by the time these - - -
McHUGH J: It might be a futility in terms of the objectives of the Union, but the problem is, what about the Constitution?
MR KENZIE: Well, your Honour, the Court was considering the Constitution in Ludeke. And may I remind the Court that the role of prevention in the Act is not new. The Act has had machinery whereby the Commission could act of its own motion, the Act has had provisions in relation to the prevention of industrial disputes since the first decade of the 20th century. There is nothing new about the notion of prevention. But the notion of prevention, which has been much discussed in this proceeding, is not some antidote for the problems that lie behind Ludeke. You do not get away from the need to have a Ludeke - - -
McHUGH J: What about indexing, the CPI, productivity, to other benchmarks in statutory jurisdiction - connected to the Pilots' Tribunal, if it is still operating - but other benchmarks?
KIRBY J: That might be an answer in wage claims, but I will not be an answer in all the whole range of conditions that are dealt with in a typical log of claim.
MR KENZIE: I am coming to that, your Honour. Indeed, a partial answer is what one sees in Justice Gaudron's judgment in Vista, to which I will come. That judgment, of course, accepts Ludeke, but says some of the vices that have been attended to in some of these proceedings - or the excesses that might be avoided by other mechanism. So that, you could regard a claim for X dollars as a claim for X dollars as indexed, and that would be one means.
You could regard a claim for a particular industry condition as really a claim for the retention of a national standard in relation to industry conditions and that might solve a handful of cases. It might solve a particular wage case, but it would not come close to dealing with the sort of situations that are being addressed in cases like Ludeke where there may be no award at all, no national standard and where a whole possible range of industrial conditions can be the subject of a log.
McHUGH J: That does not mean that you cannot frame your logs - I mean, all you counsel down there at the Bar table are highly paid. You should exercise your ingenuity. You may have to.
MR KENZIE: We, your Honour, in argument put the proposition that the necessity seen in Ludeke may not be a necessity and we will have to address that.
McHUGH J: Yes, I know, but why can you not link conditions? It does not matter what it is - holiday pay, sick leave - why can it not be linked to other indexation, other statutes, for example, or to other benchmarks? That will protect you about change of conditions together with the variation power.
KIRBY J: Perhaps the history of industrial relations benefits has been one not of gradual indexation but of leaps: equal pay, maternity leave, paternity leave. All of these are bold leaps which seem unthinkable to some at the time, but they occur.
McHUGH J: But you still have that problem under any doctrine. Even under Ludeke in its most extreme, if there is no claim for maternity leave, well, you are out. You have got to make another claim.
MR KENZIE: Yes, that is so.
McHUGH J: So it is not a question of the unforeseeable industrial condition. It is a question of its quantum. That is what ambit is basically about.
MR KENZIE: Your Honour, that depends upon whether one is talking about wages or whether one is talking about conditions, and quantum may not be an appropriate word to describe the range of - - -
McHUGH J: Even if one is talking about sick leave, holiday pay, et cetera, there are not too many conditions, I suspect, that cannot be linked to - - -
MR KENZIE: Your Honour is envisaging - and I am coming to these matters.
McHUGH J: Yes. I am sorry, Mr Kenzie.
MR KENZIE: I do not seek to avoid the debate, your Honour.
McHUGH J: No. You never do.
MR KENZIE: Thank you, your Honour. I am coming to these matters, but the situation your Honour is putting, the suggestion that there is really no necessity for any of this any more, it is a new world, is misconceived, in our respectful submission, because the situation that the prosecutors are advocating in this case involve and will involve at every stage along the way, in the world that they suggest, a fresh inquiry and that is an inquiry that will not be avoided if you start to talk about prevention or if you talk about settlement of industrial disputes.
What is being invited here is a compression of the capacity to make an effective demand in a federal industrial sense, to wind that back to the stage where you can say, "Look, it's only about present conditions. It's only about what you can really look at now," and forget about anything down the road, opening the way whenever there is a variation on any award, or agreement that is made, to a fresh series of inquiries, whether directed to jurisdiction in relation to prevention or whether the sort of inquiries we see here which will then arise again, and it will not help to talk about prevention, your Honour. There will then be a debate about whether what has really been put before the Commission can be said to really involve the prevention of something that is otherwise likely to happen in the future, some other more difficult to define debate which will then lead to protracted proceedings in the Commission.
So, one does not avoid these sort of debates. There are other parts of the Commission's armoury, prevention, the capacity of the Commission to act of its own motion, there are other strings to the bow. None of them obviate the sort of considerations that were discussed, not only in Ludeke, none of them go behind the history over many decades which lead to this sort of result.
McHUGH J: I know, but if you follow your argument to its logical conclusion, you say, "Well, anything goes." Claim $10,000, claim 5 years sick leave, et cetera, et cetera.
MR KENZIE: That is when one has to address the question asked by the Chief Justice this morning as to whether it is appropriate to draw a bright line, and if so, where one draws it, and that will take us to an analysis of the SPSF Case, and our submission is that if you are going to draw a bright line, there are real suggestions in the cases that the Court has been reluctant to draw any form of bright line. Your Honour has suggested foreseeability, which we address, and it is our contention that this is one of those sort of areas where it will not be productive of certainty and not be useful to draw a bright line, but if one is going to draw a bright line, your Honours, one is looking at drawing a bright line in the SPSF direction and not elsewhere, and I will come to that. SPSF was a particular case and a special case.
BRENNAN CJ: Before you get onto that next part, can I ask you to identify with a little more precision what you have just said in relation to the difficulties that arise if there was a winding back of this approach and an expansion of the prevention approach so far as the nature of the inquiry is concerned on the part of the Commission?
MR KENZIE: Yes, your Honour. Presumably, what is being suggested is that the position be changed so that one is looking at an award which deals with something close to present realities and if there is then a desire to change those realities, either the Commission itself, or a party, perhaps, goes to the Commission and says, "Well, look, unless there is something done, an award, a sum of money, or a condition, or something, then there is going to be an industrial dispute."
BRENNAN CJ: Or even saying, "We'd like some more", and, at the moment, the only agreement is in terms of the award.
MR KENZIE: Yes, and then there will be the potential for all of the arguments that one has that have been entertained in relation to this proceeding as to whether that demand is a demand that is made on behalf of employees within the Constitution of the organisation. There will be occasion for demand as to whether the Commission, under section 111, should go forward and actually deal with that, whether it is in the public interest for all of that to happen and, indeed, and most significantly, whether there is in fact an occasion which can be demonstrated by proof to give rise to an industrial dispute if something is not done. Those forms of inquiry one can see forming part of the suggested future.
BRENNAN CJ: None of those matters that you have just referred to seem to me to be something to which the notion of generously framed claims creating an ambit is directed.
MR KENZIE: Your Honour, when an organisation serves a log of claims, an ambit log of claims, then the persons upon whom it is served may, and frequently do, suggest that there should not be an industrial dispute either because - well, for one of a hundred reasons. There is no industrial dispute because it is uncertain; the thing has not been crafted in a way that gives rise to certainty - Heagney's Case. It involves a claim that is too extravagant. It involves a claim that perhaps goes outside the conditions of eligibility of an organisation or raises questions about it. It is non-genuine for one or other of the reasons raised in Ludeke's Case and other cases.
There may be a dispute about that. If that dispute is resolved in favour of the existence of an industrial dispute, then there can be further proceedings as to whether, for example in that industry at that particular point of time, there is any utility in going forward. There are proceedings that would be necessary in relation to the identification of the dispute, what the jurisdiction of the Commission was.
BRENNAN CJ: All of this happens each time anyhow, does it not?
MR KENZIE: No, your Honour.
BRENNAN CJ: If you have got an award made pursuant to a claim and it is within the ambit and then there is an application for a variation within the ambit, why cannot any of those matters be raised again in terms of the desirability of going forward in the public interest, questions of whether the additional claim is within the authority?
MR KENZIE: Your Honour, the virtue of the present system is that if those matters are to be raised they are raised in relation to an industry log. If, as in this case, the - - -
BRENNAN CJ: Do you mean they are raised and disposed of once and for all?
MR KENZIE: Yes.
McHUGH J: In terms of dispute.
MR KENZIE: There is a dispute and it has a certain range and you can deal with it.
McHUGH J: I know. But that is part of the problem, it is just so artificial. I mean, it is almost as an afterthought. If a Commissioner says, "By the way, I'd better record the fact that there is a dispute."
MR KENZIE: But you do not go back and revisit these things each time. There has got to be scope. You can vary an award and you do not have to go along and have a protracted proceeding before the Commission at every stage; there is a dispute, it has accepted ambit, you go back and you vary the
award. Each time that there is a change in any one of a myriad industrial conditions, you do not reinvent or redo these things, you move on and you vary the award.
McHUGH J: I think a better description of it might be to say that what happens is that the Commission then knows to what extent it will be regulating the industry. That is the true construction of what happens.
MR KENZIE: That is a by-product, and an industrial by-product of what happened. It would not be a justification, and, indeed, could not be put forward as a justification, but it is an industrial by- product. Your Honour, the sort of considerations that we have seen in this and other cases where the time lag between service of the log of claims - in this case it was December 1993 - we have had protracted section 111 proceedings, there have been proceedings about the validity of the industrial dispute, including but transcending the question of genuineness and scope, and here we are, in 1997, before anyone has turned to the question, in Queensland, of what the award should be.
McHUGH J: But that may be that the Commission has got to be more active and move in, confine argument, do not allow a Queen's Counsel to be calling witnesses for 30 days, use its own expertise.
MR KENZIE: McIntyre, the case to which reference has been made, was a gross example. But, your Honour, one can be talking about a range of industrial claims. It is not infrequent to find that an industry log of claims - and it would not matter, your Honours, whether it was a claim for a $15 increase over and above the present rate. It is not infrequent to find that a claim for a federal award in an industry, for example, will take years to resolve. Your Honour, the best will in the world and the best approach to efficiency and industrial proceedings will not change that or wind it back to an extent relevant to these proceedings.
I am going to take your Honour by way of example to some of the cases which gave rise to the AEU Case in due course referred to in our brief outline where the Nurses' Union log in the ANF Case was served in 1983. It was for federal prescription. Not surprisingly, there was protracted debate over the years on a State- by-State basis as to whether, having regard to the industrial history, it was appropriate to introduce federal prescription into that industry. That was something the Commission had to attend to by virtue of section 111 before it could consider an award other than an interim award, and it did. By the time the awards came to be made in the industry, it was 1993. No amount of forensic short cuts are going to change the reality that lies behind Ludeke.
KIRBY J: I understand the practical advantage which has attended the paper system and the ambit, but what would be the practical problem of creating a new dispute each time there was a "real" dispute? I know you have to serve the parties but in these days of word processors which can generate letters and automatic posting and so on, what is the big problem?
MR KENZIE: The next thing that could happen would be that we would have the Queensland Government, upon the receipt of the letter of demand in making an application under section 111, as to whether that matter went any further, whether that dispute was a dispute that was appropriate for the Commission to deal with perhaps because of circumstances that had changed in the last three years since an award was made, legislative changes, other matters. One could then look forward to debate about that. One could look forward to debate about whether the log was authorised by the officers of the Union.
One could look forward to questions as to whether there had been service of a log of claims which was outside the conditions of eligibility or whether industrial conditions had changed so that the log involved industrial matters outside the Union's log of claims. Your Honour, it is not an accident that these proceedings on general industry logs have taken such a long time. The ground is very fertile. If ever there was an area where considerations favoured simplicity and the non-introduction of further lines of inquiry, this is it.
The necessity that was talked about in Ludeke remains, and would remain if you say, "Look, let us get away from the idea of saying that there is an ambit position which will then facilitate the subsequent settlement of new industrial disputes, a system that has worked well - not without problems from time to time, but it has worked well - and let us change it."
McHUGH J: The question is, is it constitutional?
MR KENZIE: Your Honour, it is constitutional for the reasons that were given in Ludeke, and all of those cases that led up to it. There is no constitutional problem in saying that this organisation makes a demand for something which it knows that it is not going to get immediately. That is not a constitutional problem. If one wants to achieve perfect logic in this area, your Honour - if one does - if one wants to attend to the question of the relationship between a general industry demand and a requirement that you respond in seven days and say, "Well, look, there is a logical problem that one has there" - if one wants to wind back the system and require logic at each stage, then one confronts - one might as well wind the whole system back.
Justice Windeyer, in the Professional Engineers Case, in the celebrated passage, said that there is something illogical or strange about the notion that you create a dispute in order to resolve it. That has been commented upon in more recent times; I think most recently, or recently by Chief Justice Mason in Wooldumper's Case. If one looks at the Dunlop Rubber Case 97 CLR, which was referred to and relied on in Ludeke's Case, there is nothing innately more logical, your Honour, about the conclusion that an industrial dispute can be created by an organisation in reliance on conditions of eligibility, as opposed to the industry in which it was registered. Nothing innately more logical about that. That was the subject of a protracted discussion in the Dunlop Rubber Case 97 CLR, and the Court, in the other well-known passage at the end of that decision, said, "Well, that is a part of industrial law."
DAWSON J: There is something very artificial about creating interstateness in this way. Maybe one can draw a distinction.
MR KENZIE: Your Honour, perhaps one can.
DAWSON J: Paper interstateness is something which, to me, is just an artifice.
MR KENZIE: Your Honour, a paper claim which is designed simply to give the federal Commission interstate jurisdiction because a federal award is a good idea and you want the federal Commission to resolve the industry, will not survive, but the service of a paper log against a background in which an organisation has sought to achieve, for example, national rates, is not an artifice. The log is a reflection of the industrial reality that lies behind the claim that, for example, there ought to be a national rate and it - - -
DAWSON J: That is not the way it operates. You know as well as I do that very often a claim is served in another State - a bit of paper is served -merely to give the interstateness. It is not proceeded with and the claim is dealt with very often on a State-by- State basis, exactly what happened in the recent case.
MR KENZIE: Your Honour, if the Court under the present doctrine were satisfied that that were the case, then there is nothing in any of the authorities which would suggest that that would be sustained as an interstate industrial dispute.
DAWSON J: It was in Reg v Isaac, the SEC Case. They say, "Look, it is perfectly all right. You can settle the dispute on a State-by-State basis and there will be different awards for different States," and the only thing that gives the Commission jurisdiction is that bit of paper served over a State border.
MR KENZIE: No, but, your Honour, there are separate questions, with respect, and I know we are travelling widely and I probably invited it, your Honour.
DAWSON J: Well, interstateness is in issue in this case.
MR KENZIE: But, your Honour, they are separate questions. There is the question of whether there is an interstate industrial dispute created in circumstances where the paper demand is relied upon as the evidence of the dispute. Whether or not there is a dispute will be determined in the manner suggested in Ludeke and other cases. That is an exercise. There is a separate exercise or question as to whether that dispute, which has to stand on its own feet, can be resolved on a piecemeal basis and Isaac's Case is authority for the proposition that there is nothing wrong with doing that, but you would not get to Isaac if you did not have an industrial dispute.
DAWSON J: An interstate industrial dispute.
MR KENZIE: An interstate industrial dispute, yes.
DAWSON J: And that is what is said here on one view of the evidence, that the proceedings in Queensland have just been stuck on a shelf.
MR KENZIE: Yes, your Honour, that was the prosecutor's contention and had there been no further material before the Court in Ludeke's Case, there would have been a powerful, and it may have been an overwhelming case for saying that it is a case like Caledonian Collieries, that is, it is simply a device to give the Commission jurisdiction, like the SPSF Case. That would have been an overwhelming case.
It did not succeed because there was evidence before the Court of the factual situation underlying the dispute, and I have not yet got to it, your Honour, but I will shortly. The Court did not look just at the log in Ludeke; it looked at the log against a background of what had happened. In the SPSF Case, that appeared to be a paper case. The discussion in the High Court is a focus on the paper. You do not find in the decision, so far as I am aware, a discussion of the factual industrial background that lay behind the log of claims.
Your Honours, it is against that background, and a presently relevant background, in our respectful submission, that the Court made the statements that it did in Ludeke upon which we rely. We rely in a sense that the Industrial Relations Court fell into no error in applying them. Ours, of course, is an appeal and not a prerogative writ case as your Honour reminded us.
So, your Honour, against that background, the Court, firstly at page 183 point 1, recognised the reality of the role of ambit at the stage of the formation of the log. That was a recognition and a proper recognition. There is nothing startling in recognising that the draftsman is going to be aware of the industrial background when he picks up the pen. The Court went on to say:
it is essential that the log is so expressed as to create a dispute which has sufficient breadth and scope: (1) to ground a general industry award free from objections on the ground of ambit; and (2) to justify variations of the award which may be made from time to time under s. 59 in order to preserve the settlement of the initial dispute or to prevent a fresh dispute arising.
Your Honour, the cases that are relied on there rest on propositions that go back a long way in Australian industrial jurisdiction. The Court went on:
For this reason, and because disagreement generating a dispute may relate to what is to be done in the future rather than the present, it is unnecessary for an organization to insist that its demands be implemented immediately in order that they be bona fide. These demands, known as "ambit claims", are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seemed to be extravagant when made, appear, in the light of inflation, to be reasonable some years later.
Your Honour, could we suggest that a number of considerations can be seen as flowing from Ludeke's Case. Firstly, it, like the present case, of course involved aspects of genuineness in terms of the demands as well as interstateness. There are suggestions of an interstateness argument in the present case because of the claimed situation of peace in Queensland and the like, but it has that in common with the present case.
Secondly, it was a case in which the Court considered an industrial log, that is a list of demands intended to give rise to a general industry prescription, a claim for the industry, an interstate claim for the industry. Thirdly, it involved a clear rejection of the notion that you can only make a real industrial demand as to matters on which you are resolved to insist on immediately. That is, an acceptance of the validity of demands for what is wanted as opposed to what is not wanted, that is SPSF, though not immediately. It involved a rejection of the notion that demands are to be treated as irrelevant or non-genuine on the basis that they could be categorised, perhaps, as future objectives and I go back again to the debate that took place yesterday. Your Honour Justice Dawson offered the suggestion that an ambit claim might be regarded as an objective. So could have the claims in Ludeke been categorised, but Ludeke involves a rejection of a notion that future objectives can simply be regarded as irrelevant for the purposes of the exercise. There is no doubt about that.
Next, your Honours, the position is no different because one, of course, was talking about a group of claims and not a single claim. In other words, you do not find the Court in Ludeke saying that it is not just a claim for a sum of money. The claims were for a sum on money, various sums of money, various conditions, and had the same characteristics or similar characteristics to those in the present case. It also involves a rejection, your Honours, of a notion that a dispute, an industrial dispute cannot relate to the future; that is, that the rejection of the notion that you cannot claim -you can make a future industrial claim.
It accepts the argument - the valid argument, in our submission - that a claim for X dollars today and Y dollars next week is a valid claim if it is what is wanted and so is a simple claim for Y dollars next week. There is no constitutional difference between an escalation claim on the one hand and a claim simply for the future in 51(xxxv) terms. There is no reason to accept the proposition that a claim by a union that employees on the construction site of the Sydney Olympics in the year 1999 should receive a given allowance and rejecting that as a demand that cannot give rise to a valid interstate industrial dispute.
You would need a very good reason to form that view, in our respectful submission. You do not have to wait until the people are employed, you do not have to wait until things are up and running and say, "Well, now we can have a demand for things that are there". None of those things form part of the industrial jurisprudence. Those things would be counter and contrary to a raft of decisions of this Court. They would be counter, for example, to the line of reasoning flowing from the Burwood Cinema Case and the role of an organisation as having a general industrial role. It would be counter to the - - -
KIRBY J: What year was that? How far back in the jurisprudence - - -
MR KENZIE: or thereabouts.
KIRBY J: We have been talking about Ludeke and so on, but these things stretch back to the beginning of Federation.
MR KENZIE: Yes, your Honour.
KIRBY J: Is 1920 the first year that the Court visited this issue of paper disputes and ambit claims?
MR KENZIE: No, your Honour, there are earlier cases which include the examinations in the Builders' Labourers' Case and Hollyman's Case, I think which might be earlier, which Mr Bleby was - sooner or later in these debates, your Honour, the ghosts of those cases emerges at some stage and have emerged again here. There was earlier discussion but the notion that is now being advanced that you cannot have a claim, for example, for a future dispute, just does not sit, in our respectful submission, either with the general notions of the industrial dispute that you find from Burwood Cinema in the 1920s, the Metal Trades' Case in 1935 and, most recently, the Aberdeen Beef Case in 1990.
The link which allows you to say that there is an industrial dispute is not necessarily forged by virtue of the fact that the recipients of the log are all doing the same thing, or all have nominate employees all engaged in the same sort of activity. The nexus is the industry and so on and so forth. Those notions are fundamentally inconsistent with a rejection of the idea which you find in Ludeke, that it is appropriate to make a demand for the future. There would have to be an excellent reason for rejecting that notion, your Honour; there is none in logic or authority.
DAWSON J: There is a lot in logic but you may be right about authority.
MR KENZIE: Your Honour, we would be bold enough to - - -
McHUGH J: But you can accept all that. You can accept that you can claim $1,000 next week or $1,250 the next year, et cetera, et cetera, have a progression, but the question here is whether or not you can have a dispute when really you are not going to press it now or perhaps in the foreseeable future.
MR KENZIE: Your Honour, the authorities support - and Ludeke is not alone - the notion that a dispute can come into existence in those circumstances and there is no good reason for the Court revisiting, particularly in this case. There is no good reason.
McHUGH J: Every generation sees the Constitution through different eyes, and all the benefit of experience and the benefit of the time - - -
DAWSON J: But also has respect for authority at the same time.
KIRBY J: Not ignoring the old doctrine.
MR KENZIE: Your Honour, that is right. Your Honour, we just do remind the Court, and I am being a little repetitious, that Ludeke does not stand on its own; it is a crystallisation of decisions of the Court which go back many years. Not only that, it has been subsequently followed and applied.
KIRBY J: In the case of your client, it seemed to have propelled them into a certain paring away of some of what had been described as their more extravagant claims.
MR KENZIE: The SPSF Case had industrial ramifications which transcended the present case, your Honour. The SPSF Case resulted, not surprisingly, in organisations examining that decision and discerning whether there were objections that could be made to claims that otherwise would have been perhaps put forward in earlier years, and that happened in this case, too. But, of course, it is no objection to the validity of a demand that the person making the demand has regard to the authorities and attempts to craft a demand in a way that meets the authorities. That assists the genuineness, and not otherwise. But your Honour is quite correct in terms of the SPSF Case.
Your Honours, those are the matters which we say can be taken from Ludeke. One of the things, of course, is that the Court, in Ludeke, itself recognised that distinction which his Honour Justice Dawson in debate suggested did not exist yesterday; that is, the distinction between a valid ambit demand with ambit and a case which did not satisfy the requirements, in Cohen and other cases. That distinction was clearly accepted.
McHUGH J: These extravagant claims to some extent are also a product, I think as you have already indicated, of the Burwood Cinema Case, the Metal Trades Case and the Dunlop Rubber Case in that the demands are formulated by the Unions, by the executives of the Union, whereas if you were down on the ground the person in the shop out at Fremantle would be more interested in what the person can get next week or next month or maybe next year, not worrying about some claim that is going to be 15 or 20 years.
MR KENZIE: Yes, your Honour, and one can envisage a system which can be completely decentralised and an industrial situation which sweeps away the capacity to deal with things on an efficient and global basis and wind it back to the stage of the employee in Fremantle making an industrial demand. One can do that. One would need a very good reason to do that, your Honour, in terms of the Australian industrial history.
McHUGH J: Ironically, in the long term it might assist the trade union movement, which appears to have been losing members right, left and centre.
MR KENZIE: Your Honour, I do not carry that brief in these proceedings.
BRENNAN CJ: We need not delay you on that, Mr Kenzie.
MR KENZIE: No, your Honour. In any event, we invite the Court to recognise that those things and each of them can be taken from Ludeke. We say that there can be no doubt that each of those propositions was clearly recognised in that case - not only recognised in that case but recognised and applied in the SPSF Case to which I now seek to turn, your Honours.
In the SPSF Case[1993] HCA 30; , 178 CLR 249, of course the demand, the paper demand, was a very simple and stark affair. The headnote was sufficient. This was, of course, a demand made by the Public Service Union in respect of a vast range of Australian public servants with different classifications, experiences, and positions and the like. The demand was - and, your Honours, perhaps prompted by the view that Australian industrial law would allow one to do anything on a bit of paper.
McHUGH J: Yes.
MR KENZIE: The demand was set out in the headnote:
a minimum wage of $5,000 per week for all employees, an additional minimum allowance of $2,500 per week for all employees, and that pay and allowances be adjusted quarterly -
Now, the characteristics of that demand were explained in the judgment, but it is sufficient for present purposes to remind the Court that the paper demand itself prevented it being described as a simple ambit claim because of the presence of the escalator clause and the Court rightly pointed out that when you construed the demand, it was a case that lived or died on the paper. If you looked at that demand it was not a claim for $5,000 a week and $2,500 a week reflecting what the Union wanted, though not immediately, it was a claim for $5,000 and $2,500 a week to be escalated in the future. That was the nature of the case that was developed. It was a very particular case.
DAWSON J: It was a bare claim for improved wages and conditions, that is all.
MR KENZIE: That is right.
DAWSON J: No, a bare claim for improved wages, I am corrected.
MR KENZIE: Just wages, your Honour, that is right, and it was characterised by the Court for what it was, and that was a simple attempt to get the Commission to exercise jurisdiction because, on the face of the paper, it was possible to see that the requirements that had been accepted in Ludeke and other cases simply could not be met. You could not form the view that this was what the Union wanted. The paper itself made that position impossible to hold. You could not believe or accept that the Union wanted all of its public servants to have a common minimal rate, for them all to be rolled in together and that the rate ought to be escalated. If there was any case that was going to test the limits of the doctrine that had been explained in Ludeke, this was it and, of course, it received the result that it did.
However, in the course of the case, there was discussion of Ludeke and the role of logs of claims that were ambit logs but did not fall foul of the sort of problems that you find in SPSF, the question of raising the bright line that your Honour the Chief Justice discussed this morning. If I could very briefly go to the joint judgment of Chief Justice Mason and Justices Deane and Gaudron, and the important passages on pages 267 to 268, to show that Ludeke was applied live and well and accepted as sitting in with the phenomenon that was being discussed in the SPSF Case itself. Their Honours said at 267 about point 3:
It is sometimes said that a "paper dispute" must be a "genuine dispute". That means no more than that written demands must be genuine demands. If not - if, for example, they are part of a hoax or if they are intended to dress up a purely intrastate dispute - their rejection will not involve any disagreement and, thus, will not result in a dispute at all.
To ascertain whether demands are "genuine demands", it is sometimes asked whether the demands are seriously advanced or, in the case of demands by or on behalf of employees, whether they are advanced with a view to "obtaining improved terms and conditions . . . within the framework of the claims made" -
a reference to Ludeke.
This last formulation is one that takes account of the doctrine of ambit and allows that a demand may be genuine notwithstanding that neither the union making it nor its members are "intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log".
Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or "paper disputes", it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand.
Then, if I may go on, their Honours go on to say that the appropriate approach, because of the nature of the beast with which one is dealing, is not to form some sort of principle of - I will take foreseeability, but some like principle - the appropriate approach, because of the nature of the beast, is that you treat the demand as genuine prima facie -
unless it is plainly fanciful or unless it appears that the demand was made merely to dress up some other claim which, on its own, would not constitute a dispute as defined -
and the one thing that emerges is that the fact that the claim has ambit in it is not a basis in itself for saying that the dispute is fanciful.
Of course ambit may reach a stage where you are asking for the moon and the stars and it may be possible to divine a case in which the ambit may be such as to bring it into that category; but ambit itself does not. Now, that it is a clear recognition of the principles in Ludeke in 1993 and a recognition of the distinction which we say exists, and which this Court has recognised exists, between a demand that does not satisfy the tests in Cohen, Ludeke or The SPSF, a demand like this and a demand like Ludeke where it is a general industry demand, may take years to satisfy, but where there are good constitutional bases and good sound industrial reasons for accepting that the Union is being very real in saying, "Look, this is what we want but it is going to take time." So that has received recognition in 1993, and if we may also refer to the judgment of Justice Toohey - - -
McHUGH J: The problem is that when you say, "it is going to time" you are really saying it is going to take time before the Commission or through the Commission's processes. Once you say that you have immediately got away from any notion of a dispute between anybody.
MR KENZIE: Your Honour, unless you say that, then you are at the mercy of those people who will say, "Look, there are lots of things that need to be done before your dispute can be regulated," and you can rob - if you insistent on that degree of currency, perfection, then you could rob the system of efficacy, in our respectful submission.
McHUGH J: I am not sure that is right. I mean, if you introduce an objective test, and if the Commission keeps a hold on matters, and the demands are within industrial reality - - -
KIRBY J: Your point is that that adds one more step in the process of litigious delay, to examine - it may be inescapable, but the moon and stars will become the question in every case. "Is this a moon and stars claim, or is this a genuine claim?"
MR KENZIE: That is right. Now, unless SPSF is recognised for what it is, that is the potential. And, of course, that is one of the reasons that we have provided some indication in our submissions as to the number of cases in which this thing has become a live issue in the Commission since 1993.
McHUGH J: But there are passages in SPSF, at 269, for example, where it is obvious that the sort of inquiry that you are so concerned about will apply even in this case. The court spoke of it being out of sync with wage-fixing principles, or any equal pay theory, and that was one of the factors that was relied on.
MR KENZIE: Your Honour would send the Union away to say, "Look, forget about Blackburn. Start another dispute, start again, and we can talk about authorisation, we can talk about the Union officers, we can talk about all these things and we can start again. We can start again in December 1993 in this case".
McHUGH J: At the back, there was always that industrial might, call the troops ought, and then you have got your real dispute. I mean, that is the last thing anybody wants.
MR KENZIE: If ever there was a reason for the rejection of any idea that the facilities which the doctrines accepted in Ludeke ought to be disposed of, that would be it, your Honour. No one contends that one gets back either to the individual work place or the need for industrial action. Everyone accepts, as I understand it in this case, that the doctrine has a use. It is a question of its extent.
Your Honour, I was going to give your Honours a brief reference, and I can say to your Honours that the debate that has taken place is obviously going to allow me to be briefer in relation to some of the later matters that I otherwise would have, if that is any comfort.
BRENNAN CJ: The Court will adjourn until 2 o'clock.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.06 PM:
BRENNAN CJ: Yes, Mr Kenzie.
MR KENZIE: Thank you, your Honour. As briefly as possible, may I take the Court to the other authorities referred to in our brief outline which have involved an application of Ludeke. In the first paragraph we had referred to the judgment of Chief Justice Mason, Justices Deane and Gaudron in SPSF. I would also like to refer the Court to the judgment of your Honour Justice Toohey at pages 290 to 291 of that report, again because it is a clear demonstration of the acceptance of the category of demands about which I was addressing before the luncheon adjournment. At the bottom of page 290 your Honour says in the context of a decision in which your Honour of course accepted that the log of claims in that case did not give rise to a valid industrial dispute:
It is no answer to the contention that an industrial dispute exists merely to show that the demands made in a log of claims have little prospect of success and that they do no more than set the ambit within which conditions of employment may be negotiated and, if negotiations are unsuccessful, determined by the Commission. But a log may be so far-fetched, so lacking in industrial reality that it cannot possibly be treated seriously. It may be asked: where then do you draw the line? The answer is that while it is not always possible to draw a line, it may be possible nevertheless to say whether something, in this case a particular log, falls on one or other side of it.
Your Honours, that, in our respectful submission, is an important passage for a number of reasons. Firstly, it recognises the dichotomy, that is the distinction, between a valid demand for something that you do not want to have fully satisfied immediately and the sort of thing that was being dealt with, the demand being dealt with, in the SPSF. The other reason for its significance, your Honours, is that it comes to the question of whether in this sort of area it is appropriate to try to draw the sort of bright line that has been discussed in the proceedings. In our respectful submission, for a number of reasons it is not appropriate to do that.
KIRBY J: But it may not be possible, but if you do not then you are going to have lots of hearings of the kind we have heard about in this case.
MR KENZIE: Your Honour, the proper approach is the approach that has been taken in the cases generally and that is to say that if you have a written demand it will be - unless a very clear case is demonstrated for showing that it just simply is not what was wanted, that it will be regarded as a valid demand and, your Honour, there have been really two approaches taken to what I have described as the dichotomy. On the one hand there are various decisions of the Court in which the Court has said, "Look, if you have got a written demand, of course, it has got to be real, but if it is made, that will be taken and regarded as a proper demand unless there is something about the case that allows you to say very clearly that that is not what was wanted."
Then there is the other approach which does involve some attempt to actually draw the line and we come later in our submissions to the approach that Justice McHugh took in the SPSF Case where his Honour talked in terms of whether something was foreseeable at the date of the service of the log and we have suggested in our submissions that whilst one can understand the desire to draw some sort of line, that there are cases in which it really is undesirable because it actually tends to aggravate the problem in much the same way as earlier attempts to define industry led to the response in this Court that it was really an inappropriate exercise but one can recognise one when one saw one. It was like the definition of a dog in Mr Justice Higgins' language.
So if one attempts to draw the line in terms of forseeability - and we have referred to your Honour Justice McHugh's approach in the SPSF Case - then what one has is the need for some reference points to determine whether something is reasonably foreseeable, and you inject the notions that are familiar in the laws of negligence or notions or reasonable foreseeability into the arena of industrial relations requiring points of reference and examination as to whether someone could say that a particular demand, which might relate to a wide variety of things, could be said to be reasonably foreseeable or reasonably achievable, or a fair enough thing, or something that could be looked at as likely to be achieved. Those things would be, in our respectful submission, a recipe for only one thing, and that would be endless inquiries as to whether one had a demand that fell within a particular category by reference to the decided parameters, whether they be foreseeability or anything else, your Honour.
That is why we suggest, with all respect, that one finds the language of the Court as it is. The approach is that if you have a paper demand that has been taken, not for some silly reason but because it is put forward by someone as representing what is wanted, but there is the facility to say there is a limit to that. SPSF the limit. There will not be much of a problem if SPSF is recognised for what it is, and that is a special case. So if one is drawing the line one does so by saying that SPSF marks that special case which takes one outside the jurisdiction. That is the approach which has commended itself in cases since Ludeke, although usually in the context of prohibition proceedings.
Your Honour, we have referred in our submission to some of those cases in which Ludeke has been subsequently applied with approval. One of those cases is the Re Finance Sector Union and Illaton [1993] HCA 7; 113 ALR 448. Could I very briefly take your Honours to Illaton. There are two passages that are of relevance, your Honours. At page 457, about line 33, four members of the Court said:
Even if matters of general industrial background are not specifically adverted to in the Commission's dispute findings, they are matters which, ordinarily, inform those findings. And they are considerations which oblige this court to respect them. Thus, it is only in clear cases that this court will hold, contrary to a finding of the Commission, that the demands in a log of claims are not genuine demands.
That has to be read together with the passage on page 459, about line 27, where your Honours said:
It is well settled that a union demand may be genuine notwithstanding that neither it nor its members are "intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log". That is a consequence of the ambit doctrine. That doctrine also compels the conclusion that a dispute does not cease to be a dispute merely because, at some given time, no claim is being actively pursued. Particularly is that so in circumstances where, as here, improvements have come about since the demand was first made.
Now, your Honour, that decision which, of course, is a comparatively recent decision, is relevant to the debate about whether it is appropriate now to regard Ludeke as some sort of relic of a bygone age and able to be looked at anew because the problems that were perceived there have somehow gone away and the industrial realities compel some sort of different constitutional approach. It is one of the cases, including recent cases, in which Ludeke has been applied. Another mentioned in the debate is the Vista Case[1993] HCA 81; , 67 ALJR 604.
Again, there are two relevant passages that we wish to go to. Firstly, there is no doubt that this case, once again, a comparatively recent decision, picks up and applies Ludeke's Case. So at page 610 in the judgment of your Honour Justice Gaudron, which was picked up by other members of the Court, there appears an analysis of the decisions on ambit, and at page 610 column 1, your Honour picks up and cites with approval the passages which support the notion that you can have a valid claim although you are not resolved to insist on obtaining all of those matters forthwith.
Of course, your Honour went on to deal at pages 612 and 613 with another possible approach to the industrial situation, and at the bottom of page 612 in the second column and the first column on page 613, your Honour stated, as had Chief Justice Mason in Wooldumpers, that there may be another way forward, and your Honour pointed to the fact that the concept of ambit had its part to play in the development of the role of the paper demand. Your Honour at page 613 then suggested that there may be other ways to deal with, for example, a money claim, and they have been discussed in debate this morning; I do not need to go to those.
Our submission is that that may another way, it may be another quiver available, but it does not supplant Ludeke. Those passages do not suggest that because there may be another way to look at a log which does not appear to have any ambit built into it, that that spells the demise of the ambit doctrine. Vista involves an acceptance of the decisions on ambit and a suggestion that if you look at a log, a paper claim that may not have ambit built into it, then it may be possible to regard it in certain cases as having some scope, and that may be an answer in certain cases but it will not deal with the 101 sorts of cases that will come before the Commission.
Now, your Honours, again, of course, Vista is a recent decision of the Court picking up and approving Ludeke. So is the decision of the Court in the Aberdeen Case, also referred to in our written submissions later on. That is a decision in 1993. Now, those decisions are valuable in terms of the capacity to discern the principles that we have gone to, and they are also relevant to our latest submissions as to whether it is now appropriate, in that set of circumstances, for the Court to confine Ludeke to, as it were, history.
Now, your Honours, again briefly, we do submit that a reading of the decision - reasons for decision of the IRC in volume 5 will disclose that they were understandably doing no more than applying the law as carefully enunciated in recent decisions of this Court. The reasons for judgment commence at 926 and, if I could briefly refer the Court to some of the aspects of the judgment which have not, I think, been gone to, to demonstrate the proposition that the Court was doing no more than applying the law as it is derived from the authorities to which we have gone.
The analysis of the argument commences on page 983, in volume 5. At 984 there is a recognition of the incongruities that have been discussed in relation to paper disputes. There is a reference to the judgment of Chief Justice Mason and Justices Deane and Gaudron in the SPSF; the passage at page 986 picks up the passage on pages 268 and 269 that I have read; references also to the judgments of your Honour the Chief Justice and Justice McHugh and Justice Toohey, including an aspect to which I have not yet come; that part of your Honour Justice Toohey's judgment in the SPSF at page 988, where your Honour went on to look at the other log of claims in the SPSF Case filed by the ETU and said that different considerations applied to it. I will come back to that, but their Honours picked up that part of your Honour's judgment. And their Honours said, at page 989, in a manner almost identical to that found in your Honour Justice Toohey's judgment in the SPSF:
This conclusion has application to the present case. Here the log of claims "is clearly ambitious" but the demands "do not have the unreality of the log of claims" served by the Federation. The log contains claims of "the sorts of provisions generally to be found in awards". This is the type of case where the following passage from the judgment of Toohey J at 289 should apply.
Then there follows what, in my respectful submission, is a completely unexceptional application of Ludeke and the SPSF. At 990, line 14, their Honours say:
The correct approach to the present case is that adopted by the High Court in State Public Services Federation in relation to the claim by the ETU. The principles in Ludeke have not been challenged.
The issues in relation to onus do not arise in our proceedings as they do in the other proceedings because no one has made a complaint about the application of onus. The fact of the matter is that the Commission had approached the matter on the basis that it would not matter whether an onus was regarded as being placed on anyone or not. The issue simply is not a part of our proceedings.
Your Honours, no error emerges there. Leave to appeal in our matter was given in circumstances where the Court was informed that no challenge to Ludeke was to be made. Once leave had been granted an application was made to amend for the purposes of challenging Ludeke. We have opposed that application for two reasons really. One is that the whole proceeding was constituted on the basis that Ludeke was not to be challenged, and leave was given in those circumstances. Secondly and for reasons that I have not yet gone to, there are substantial reasons as to why this Court would refrain in the current state of affairs from re-examining Ludeke in any event. I have not mentioned those submissions yet.
In any event, your Honours, enough has been read, in our submission, to demonstrate that the Court was doing no more than applying Ludeke, recognising the SPSF log for what it was and picking up those passages in the SPSF which showed that the case before the Court resembled not the SPSF Case but the sort of case which was in Ludeke and the sort of case that was in the SPSF proceedings which was the subject of separate analysis by his Honour Justice Toohey, and I will come to that.
BRENNAN CJ: Mr Kenzie, if the Court should be minded to grant leave to amend the notice of appeal by the insertion of paragraph 5(f), have you said or will you be saying everything you need to say with regard to that issue?
MR KENZIE: Yes, your Honour. Our opposition is based upon the matters that I have raised. We could not say that there has not been sufficient opportunity for us to put everything. Indeed, there is a most fulsome debate about it, but leave was given on a certain basis and in circumstances where the applicants for leave to appeal appeared to accept the reality of Ludeke. As things have developed, they now seek to turn this proceeding into a vehicle for a re-examination of Ludeke in circumstances where, for example, the Commonwealth is not here, and there is reasons why the proceedings have not developed as they have that approach would be inappropriate. They do not include our lack of - - -
BRENNAN CJ: Section 78B notices were given on the footing of 5(f), were they not?
MR KENZIE: True, your Honour, but those reasons do not include our plea that we are somehow disadvantaged, your Honour. Now, in paragraph 3 of our submissions we deal with the seven-day aspect. I have really said what I need to say about that. If it be part of the quest for logical perfection, it would involve a re-examination and revisiting of Ludeke, but without revisiting Ludeke and general industrial history, then there is nothing about the fact that the demand called for response within seven days which adds anything new in this case, other than an invitation to upset the history that we have gone to.
In the SPSF Case itself the passage of your Honour Justice McHugh that we refer to is the passage at page 306 of the judgment in 178 CLR and if I can trouble your Honours to just go to that again for two reasons for a moment. At page 306 your Honours will find at the foot of the page your Honour's analysis of where ambit fits in and, of course, there are differences of approach that are discernible there from the approach that one sees in Ludeke. One sees some of the seeds of the argument in the present case, of course, but your Honour said at about six or seven or eight lines from the bottom:
The ambit doctrine is concerned only with the relationship between an award and the dispute from which the award emanates. It has nothing to say about the dispute itself.
Now, your Honour, in a pure sense that is no doubt right, but it is not correct, in our respectful submission, to regard ambit as having no relevance as part of a context in which demands are framed and it is that aspect which has been accepted in Ludeke and reaccepted in the SPSF, although not, I think, by your Honour. Now, your Honour went on:
Furthermore, if a claim for changed conditions, although extravagant by current standards, can reasonably be seen as intending to cover potential disagreements in the foreseeable future, it will and ought to be regarded as genuine. Extravagance by itself does not destroy the genuineness of a demand.
Your Honour, that was one of the passages to which I was going. Again, on page 307 line 3, your Honour said:
Nevertheless, if the demand is so extravagant that it cannot reasonably be understood as intended to provide for changes in the terms and conditions of employment, either now or in the foreseeable future, ordinarily the proper inference to be drawn is that the organization making the demand does not really want what it demands.
Your Honour, if that be the approach, that involves this sort of exercise: an analysis of whether the demands - each of them, presumably - can be said to be likely in the foreseeable future to provide for changes that are appropriate in the foreseeable future, then there is an inference that can be drawn. So you would go to the stage of looking at foreseeability in relation to a demand, or demands, and then you might draw an inference. That sort of exercise - which in itself, your Honour, is based upon the acceptance of the view that you can make a demand in relation to a future period - again has the problem that we have attempted to identify in paragraph 4 of our outline, your Honour. It will then encourage arguments as to whether things are foreseeable; whereas the approach of the Court has been to accept that that is not the appropriate approach, SPSF may be recognised as being where it is, but one would have to have the clearest of cases. One would not regard a claim as not genuine simply because it was not likely to be achieved in what might be described as the foreseeable future. I suppose, your Honour, it depends on what one means by "foreseeable" in that regard, but that only throws up further problems. In any event - - -
KIRBY J: The suggestion here is that by the result which the Commission arrived, though they gave lip service to the application of Ludeke and the SPSF Case, they really did not do so, because when you look at that schedule, which is at page 837, that the appellants really relied on and you compare the various claims, 528 at the moment, and even in your revised claim, moving up to $2,500, that that is such a fanciful claim that it really is not a genuine one. I think you have got to grapple with that suggestion and then you add to that the whole gamut of provisions for sexual harassment and parental leave and other things throughout it, that looked at as a whole it shows that the Commission is giving words to the doctrine in Ludeke but is not really understanding that it has to be a genuine claim.
MR KENZIE: With respect, no, your Honour. When one has a look at the claim in this case, when one has a look, for example, at the claim in Ludeke's Case, it is clear that the Court accepted - and this is consistent with decisions of the Court that do not require the demand to be confined to that which is attainable in the near future but which involve claims which may not be able to be achieved until the elapsing of some real amount of time, a lengthy period of time. There is nothing about those demands which takes them outside of the demands that were considered in Ludeke. In 1985 - - -
BRENNAN CJ: That is not correct, is it? I mean, the finding in Ludeke was based upon the facts of that case.
MR KENZIE: Yes.
BRENNAN CJ: It seems to me to be a logical slide to say, "Here are the terms in the Ludeke Case. Here are the terms here. They are not all that much different."
MR KENZIE: Your Honour, that, in itself, it is true would not suffice because one is dealing at the end of the day with the facts of a particular case. We accept that.
BRENNAN CJ: That is right.
MR KENZIE: What we say, your Honour, is this, that in Ludeke's Case, the Commission, looking at a demand which was plainly intended not to be fulfilled in the short term, but on any view was a demand which could not be expected to be fulfilled in full for many years, having considered the factual background, that is, having considered the matters raised by way of defence by the respondents, namely, that the log simply was not plucked from the air, and looking at the facts, accepting not surprisingly that it being a general industry log, it having been formulated by the Union in the way that it was, bearing on its face indications that it was seeking the sort of industrial conditions that you would expect an organisation to seek, that the grounds alleged for showing that it was not genuine were not made out. In particular, the passages on page 189 and 190 are relevant in this regard because they mirror the examination of the background to the log was the sort of examination that was assuaged in the present case.
We will come to this, but the response given by the respondent in Ludeke to the claims based upon the nature of the log were those referred to at 189. The log was not brought into existence on the instant but was, in its essentials, a reflection of a standard form log of claims called the standard union log which the ETU had adopted in late 1984. Then there is a reference to the history, a decision - I will summarise it, your Honour. It is the factual background, and I know the facts of another case, but I will be brief. One sees the indicators that the court looked at in that case. There was a reference to the fact that the log picked up terms and conditions which showed that it had been looked at and reflected current industrial developments.
KIRBY J: Would you explain the schedule you handed up with your submission because I take that to be a comparison between the claims made by your client and the claim that was made by the ETU in the SPSF Case.
MR KENZIE: Yes, that is right.
KIRBY J: So the first schedule is what the ETU claimed - the first column is what they claimed and the second column is what you have claimed here?
MR KENZIE: Yes, your Honour.
KIRBY J: You have not, of course, dealt with all of the terms and conditions which go to travel, one free trip around Australia during the year.
MR KENZIE: Your Honour, only because they, like all of the conditions referred to in the ETU Case, will not take the debate further. If it is appropriate, your Honour, to do what is said in our opponents' case and aggregate all these claims and say, "This is what you want and you've got to add them all together", then enough has been put in there to show that that is a claim of such extravagance that it would take you a long way away in terms of a point of time, possibly - - -
KIRBY J: That is what is suggested, you see, that Ludeke and SPSF establish, as it were, a fail-safe. You are okay if you are within your log of claims, but you will reach a point where it is moon and stars, and what is said is that they do not understand what moon and stars is, that this is moon and stars.
MR KENZIE: Yes, your Honour, but, in our respectful submission, Ludeke's Case was on all fours with this case. If the proposition was good, it would have been good in Ludeke's Case, it must have been, because the claim in Ludeke's Case, when one looked at it from a 1985 point of view, would have involved exactly the same conclusions. That was the approach that was rejected in Ludeke. You can only make that good here by rejecting the approach in Ludeke and revisiting. That is the purpose of going to Ludeke.
Your Honour, I do not go further into Ludeke now but, of course, in the present case, the Commission and the Court considered the claims that were made against a background of the industrial situation in a way that mirrored that in Ludeke and, your Honour, the factual background, that the present case was not like the SPSF, one that was a paper case on its own, it was a case of a log of claims having been served against a particular factual background, and when that factual background is visited, it has the same result as in Ludeke and, your Honour, the factual background, it is traced to a great extent in the judgment of the Industrial Relations Court.
We have set it out more fully in Appendix B to our written submissions. Your Honours, it is a reasonably lengthy analysis because the history is lengthy, but not surprising having regard to the nature of the exercise. So if I could just take your Honour to some of the aspects of Appendix B. It takes you to the background which explains, or puts in context, the demands. So they were not a set a demands that simply came out of the air for every public servant in Australia like the SPSF. Page 1 of Appendix B, B1.3:
For several years prior to the logs in question there were discussions among the various unions about the possibility of obtaining a national award -
B1.4 the conference in relation to that; B1.5:
the momentum for a national approach to rates and conditions -
beginning to build. B1.7, during 1992, further discussion led by the FMWU about national pay rates. A meeting of the National Committee of Ambulance Unions - I think this was before the amalgamation of the two Unions that originally served the logs - to discuss restructuring proposals. At that stage they were working towards a national claim but there was no consensus. References to the employer's perception of the move for a national log on pages iii and iv. Evidence that a common cause was being mounted by employers to resist the claims. So that we were looking towards a very real and protracted case about a federal prescription. Then decisions taken at the Union level in B1.6 to the support and endorsement for the move by the Unions to have the wages and conditions in the industry regulated by federal award for the reasons advanced on pages v and vi, and those reasons included:
To ensure that the ambulance employees wages and conditions are not eroded -
.....
3: The move towards a federal award/or awards is consistent with the long term objective of ambulance unions to introduce a new and revamped classification structure.
4: The rejection by employers nationally to negotiate a new classification structure.
And 6 in particular, the approach being:
consistent with the greater degree of activity nationally by Ambulance unions to standardise practices with respect to occupational health and safety and training issues.
So you are looking right here at a move to have a general industrial prescription made in the face of what is clearly going to be protracted employer response right across the board, a fiercely run case, and you are looking at the formulation of some industrial demands.
One did not have to be a genius to work out that these industrial demands were not going to hit the Commission for resolution for a long way down the track. It is in those circumstances that the demands which were made came before the Commission. In circumstances where that evidence was before the Commission, Senior Deputy President Riordan, an experienced member of the Commission, said that the log that had been served, although it had obviously extravagant demands in all of the circumstances in which demands were made, did not fall outside the appropriate parameters. It was not a case like the SPSF where you could actually say from the text of the log that this represented what the Union did not want but was merely a vehicle. It was a case which fell within the parameters of Ludeke.
In particular, your Honours, it was a case in which the Union framing its demands was doing so on the basis that it could well appreciate that all of them would not be met in the short term and some of them would not be met for some years, if at all. On any view Ludeke contemplates that situation. On any view the language of Ludeke at 183 contemplates the making of a demand which on subject A or subject B or a catalogue of demands which you cannot seriously think are going to get dealt with on any view.
KIRBY J: In your case it was dealt with globally, was it? There was no severance of particular provisions? For example, the provision for a free trip for a member of the family around Australia once a year was not severed and struck out as being not really part of a genuine dispute?
MR KENZIE: That is right, your Honour, it was dealt with globally. In the SPSF Case itself, Justice Toohey looked at what I have described as the dichotomy. He looked at the other side of the ledger in terms of the ETU log served in that case, again in circumstances where there was not a factual background to support the log, but his Honour was looking at the text of the log. Your Honour Justice Toohey at page 299 of the decision came to deal with the ETU log in that case. Your Honour referred at about point 3 to the fact that the log in the ETU case was:
much more detailed than the log served on the Western Australian, Queensland and Tasmanian employers in the two matters so far discussed. It claims a weekly wage of $2,000 for the base tradesman classification, with additional rates expressed in the form of a percentage of the base rate, to be paid to employees in various classifications. Certain other allowances are claimed along with a range of clauses relating to leave, holidays, termination of employment - the sorts of provisions generally to be found in awards.
There was then reference to the industrial history, the same sort of industrial history, section 111 cases, all sorts of proceedings about the validity of the demands and then at 300 at about point 3:
The reasons which lead me to conclude that in the case of the Western Australian and Queensland matters there was no industrial dispute -
that is the public servants matters, your Honour -
do not operate with the same force here. While the base rate sought is clearly ambitious, the demands do not have the unreality of the log of claims in the Western Australian and Queensland matters. The log now under consideration does purport to deal with the relationship between employer and various classifications of employees and, more generally, with various aspects of the relationship between the Electricity Commission and its employees.
It would be premature for the Court to intervene at this stage of the proceedings in the Commission unless it were quite clear that the Commission lacked jurisdiction to make an award based on the log of claims.
Again, his Honour then faced with that sort of demand moved to the situation that was described in Illaton and said, "You have got a demand here which looks like the sort of thing that the Industrial Commission processes." The proper approach to that demand is not to invent some test of foreseeability or to provide in the case of each part of the clauses that they have got to jump over some sort of hurdle. The approach is that you would need a very clear case, like SPSF, before a court would say, "These are not really what you want."
GUMMOW J: Which paragraph of your outline are you on, Mr Kenzie?
MR KENZIE: I am sorry, your Honour.
GUMMOW J: Or have we left that?
MR KENZIE: I was attempting to deal with a question, your Honour, and I have dealt with the outline down to and including paragraph 4 and I am - - -
KIRBY J: I do not see anything in the summary that deals with the point that you had two claims, that your first claim never seems to have been abandoned but by your second claim you, as it were, acknowledged the first claim was outlandish. That was put to us.
MR KENZIE: Yes. Your Honour, in paragraph 7 we do point out that the fact that the relevant demands in the December log were modified following the decision in SPSF and subsequent decisions we submit supports the contention that the Union was bona fide in asking for the matters in the December log.
KIRBY J: What is the status of the first claim now, the first log of claims? Is that abandoned?
MR KENZIE: Yes, your Honour, and this was made clear to the Commission. It was made clear in the proceedings before the Commission that the Union no longer relied on the April log and it is in those circumstances that the Commission modified the findings as recorded on page 510 of the Court book.
KIRBY J: Did it revoke the finding of the dispute based upon the earlier log?
MR KENZIE: No. Your Honour, what it did was to modify the finding. When the matter came before the Full Commission it said that there were really two things that Senior Deputy President Riordan could have done in the circumstances. He could have done that. He could have said, "Look, I will set aside the earlier finding and I will substitute this new one." Or he could have said that the earlier finding in circumstances where the log is not being pursued, has been modified so that it really is only the second one and that is what he did and the Full Commission said quite properly it could have been done the other way but that does not sound in jurisdictional error. It was perfectly appropriate and open to the Senior Deputy President to do it. The net result of the exercise is that the finding - - -
GAUDRON J: It may have some relevance to retrospectivity, if that ever becomes an issue.
MR KENZIE: Yes, your Honour.
TOOHEY J: I thought too, the expression "extant" was used yesterday - it may have been by Mr Douglas - in relation to that first log. Do you accept that, for whatever that may imply?
MR KENZIE: No, your Honour. The Union's position before the Commission is that the serving of the second log took the first log out of the picture for all purposes.
TOOHEY J: That sort of language is colourful, but in terms of the law, what are we to make of the first log of claims?
MR KENZIE: Your Honour, its replacement means that it is abandoned and no longer pressed.
KIRBY J: The only issue is whether the second log gives rise to a dispute within the terms of the Constitution and the Act.
MR KENZIE: Yes, your Honour.
GUMMOW J: Is that reflected in the Full Court, that replacement of the first by the second?
MR KENZIE: Yes, it is, your Honour.
DAWSON J: What it amounts to, Mr Kenzie, the dispute which has existed all along is now in the form of - is reflected in the second log, that is, it is modified.
MR KENZIE: That is right.
DAWSON J: You have always got to go back to the dispute.
MR KENZIE: Your Honour, if I can just find the passage that deals with the matter raised by Justice Gummow. It is page 973 of the book, your Honours.
BRENNAN CJ: Mr Kenzie, looking at the time, it is obviously necessary that you should develop your argument as you see fit, but bearing in mind what is already in the written submissions, it may suffice for you to identify the paragraphs or page references.
MR KENZIE: I was proposing to do that, your Honour. If I can deal with Justice Gummow's question. Page 973, that is where the Full Court deals with the attempts before it to deal with the validity of the April log under the heading "Whether the April log was abandoned," commencing at page 972 and, at page 973, the Industrial Relations Court said that it is "arid point" to debate the April log.
GUMMOW J: Yes, I see that, thank you.
DAWSON J: There is this tendency all this time, which, of course, only emphasises the artificiality to image that that bit of paper is the dispute. There has been a dispute going on all the time, and the evidence changes as to what the nature of the dispute is.
MR KENZIE: Yes, your Honour, and if - - -
DAWSON J: You do not replace one dispute with another. You replace one bit of paper with another but - - -
MR KENZIE: But, your Honour, the replacement of one bit of paper by another is one of the features which modifies the dispute. If the Union, in the context of a movement towards a federal industrial coverage of an industry, puts forward a piece of paper and says, "That's what we want," and then at a later point of time against that background puts forward a demand which modifies and reigns in that demand, that is going to have an effect on the scope of the dispute in the same way as it would as if were done orally, by someone standing up in the Commission and saying, "The Union has given away the claim for X and now seeks something less." It is part of the background.
DAWSON J: That has been pointed out in the cases that dispute ebb and flow during the course of negotiations.
MR KENZIE: Yes, your Honour. That is what the Court was accepting had happened in this case: the second log had been delivered; that had had an impact; it was now arid to go back and look at what would have been the situation before it was delivered. It was appropriate to look at what was now being demanded. The finding of the dispute was that on 510; that is the one that is the subject of the claim. Yours Honours, the only other matter - if I could remind the Court that in relation to the particular passage which excited a lot of attention on the application for leave to appeal, the passage where the Full Court talked about the legitimacy of a log which exceeded its most optimistic expectations, that - - -
GUMMOW J: This is your paragraph 5.
MR KENZIE: That is paragraph 5. That has been dealt with - and Mr Douglas has been good enough to point to clarify what might have been seen to be an ambiguity in what the Court was saying. There is no doubt that the Court was not talking about long-term expectations there but only immediate expectations and all the Court was doing, and was at pains to do, was apply Ludeke. Yours Honours, the only other aspect to which I would like to direct attention from the outline is that in paragraph 11. Paragraph 10, in the circumstances that are revealed in the annexure to our submissions, provided a clear basis for the Commission and a finding that there was a valid interstate industrial dispute notwithstanding that there was some evidence put before the Court that there had been industrial peace in Queensland.
None of that brought the situation into any position different from that in Ludeke. The Court looked at the evidence about the background to the claims and considered that in those circumstances the claims were genuine and that the opposite conclusion was not to be arrived at because there had previously been a different industrial relationship in Queensland or because an officer of the Union had said at an earlier point of time that Queensland might not be covered by a federal award. In any event, as was revealed in the discussion yesterday, the evidence that was really relied on there was relied on in relation to the April log. I do not need to expand that.
We do desire to emphasise the matters in paragraph 11 which are significant to our argument. Ludeke arises in this case on appeal in circumstances where it has recently and systematically been applied and applied without suggestion that it was improperly decided.
It stands in complete contrast to the position discussed in a constitutional context in, for example, the CYSS Case, which is referred to in paragraph 11. There, there had been a haphazard development of the concept of industry in industrial dispute over the years. There had been reached a situation by 1970 where, after the decision in Pitfield v Franki, a narrow construction had been arrived at. The Court considered in Coldham, in a constitutional context, the appropriateness of re-opening that and found that it is appropriate to do that because of the uncertainty and unsatisfactory nature of the decisions, and there were a number of different variations on a theme which were able to be perceived in those decisions. There were decisions that conflicted with one another and the position had changed dramatically over the years.
The contrast with Ludeke is startling. Here, there has been a steady and progressive development; a painstaking development over decades leading to a crystallisation of the position in Ludeke; subsequent application of the propositions not the subject of dissent and, suddenly, in this case an invitation to reinvent the wheel. Your Honour, I do not seek to labour the point in paragraph 11. We do point out that on any application of the tests referred to in those cases, whether in a constitutional context or other context, it is not an appropriate case.
Could I say something very briefly about the point raised by Justice Gaudron as to section 101(1). That section in its existing form may be a reflection of the acceptance of the views expressed by, amongst others, Justice Deane in the Wooldumpers' Case. I will not read it now but the passage is at 166 CLR 328 where his Honour suggested that it may well suffice for constitutional purposes if there was a grant of jurisdiction to an expert tribunal such as the Commission to form a view.
GUMMOW J: What page was that, Mr Kenzie?
MR KENZIE: Page 328.
GUMMOW J: Thank you.
KIRBY J: Surely you cannot be confusing - - -
MR KENZIE: If I can take your Honour briefly to where the authorities lie in relation to this - I do not propose to make a detailed submission about this now for reasons that I will very briefly go to. The language of Justice Deane in Wooldumpers may, depending on how one reads it, go further than the language in Victoria v The Commonwealth referred to by the Solicitor- General for South Australia this morning.
DAWSON J: You do not support that view?
MR KENZIE: Your Honour, we are not in a position to advance - - -
DAWSON J: You do not want to take sides?
MR KENZIE: What we actually say at the end of the day is that this case is not an appropriate vehicle for determining that matter; either the question of whether it is constitutionally possible to repose in the Commission the power to form an opinion which has any jurisdictional consequence or, more particularly, whether a provision which prevents an examination of that decision, if made, from examination in this Court; none of those questions have been examined in this proceeding.
We have not heard, for example, what our friends say. The issue has really arisen in the course of debate. They certainly have not been examined by the Industrial Relations Court in this proceeding. The Industrial Relations Court has not heard argument on whether there was material before the Commission which would have allowed it to form the opinion under section 101, if it be a different question from the section 24 question, neither has the Court of course heard argument on whether, if it be a separate question, section 101(3) precluding examination is valid.
That is analogous to what was described as the large question left open in O'Toole. I concede, your Honours, that there are certainly passages in O'Toole which, taken to their logical conclusion, would support the view that was being advanced in debate, that at the end of the day you either have an industrial dispute or you do not and, if you do not have an industrial dispute, the opinion of the Commission cannot be constitutionally conclusive. But the issue is an open one and - - -
DAWSON J: It does not seem to me it is open at all, but still.
MR KENZIE: If I could remind the Court that in O'Toole's Case at page 252 Chief Justice Mason said that the question of:
Whether Parliament can.....in the exercise of the powers.....validly make the opinion of a specialist tribunal as to the existence of actual, threatened, impending, probable or likely disputes immune from challenge.....is a question upon which I express no opinion. It is a large question on which we did not have benefit of argument -
and it was not in any event ultimately necessary. I think page 289 in the judgment of - - -
GUMMOW J: Page 289, I think.
MR KENZIE: Yes, your Honour. I am the first to agree that it is a large question. We are certainly not in the position to respond and to do justice to an argument as to that large question in a proceeding in which leave was given on an entirely different basis. If the question raised by section 101 is different, then the Industrial Relations Court was asked the wrong question and the resolution of this appeal on the basis that is contended may be thought to be little more than a hypothetical exercise. If that were accepted, then that would provide a basis for the revocation of leave. Alternatively, if the Court were of the view that full and proper argument were required on the question which your Honour Justice Dawson regards as having little left in it but does require some resolution at some time, then the appropriate course would be to make some provision for that to happen. If it please the Court.
KIRBY J: Mr Kenzie, there is just one question I have. We have not received any academic material. There is mention of.....Law Review, but is there any academic material that would be helpful? Is there anything in the Journal of Industrial Relations, for example, that discusses Ludeke and SPSF? Perhaps you need not deal with that now but, if you can make sure, speaking for myself, I would like to have reference to that.
MR KENZIE: Yes, your Honour. Not surprisingly, there has been some publication of the matter. We will endeavour to provide the Court with that.
KIRBY J: Thank you.
BRENNAN CJ: Thank you, Mr Kenzie. Mr Quick.
MR QUICK: May it please the Court, the submissions of the second respondent are largely those set out in the outline of submissions, and I do not propose to repeat any of those submissions, but to confine myself to a response to the submissions made orally here by the prosecutors and by others and, in addition, to adopt the submissions, in some respects, made by counsel for the interveners, the Attorney-General for South Australia and the Attorney-General for Western Australia, and also to adopt argument put by my learned friend, Mr Kenzie, in matter B52 in connection with the general issue of genuineness, fancifulness and the like. I also propose to correct one error of substance contained in our outline of submission.
But at the outset, we would wish to submit that prerogative relief should be denied the prosecutors in matters A38 and A44 on the narrow ground that the Commission did not act in the way suggested by the prosecutors. In particular, the Commission did not find the existence of a dispute merely on the content, service and non-acceptance of a log of claims within seven days; it did something quite different. Furthermore, we will submit that on the second aspect of the case, onus of proof, the Commission did not reverse the onus of proof and, in fact, the onus of proof had little, if anything, to do with the decision-making process of the Commission. And accordingly, on that basis as well, prerogative relief ought to be denied.
If I can just expand on those two submissions very briefly: first, the question of what did the Commission do in connection with the finding of an industrial dispute? It is suggested by the prosecutors that what the Commission did was to examine the log of claims, and to examine and decide merely - "merely" is the word they use - on the service and non-acceptance of a log of claims. In our submission, that is quite wrong. What happened was this; the situation began at or about the time of service of the log of claims, and it ended, 12 months later in one case and 13 months later in the other case, with a large number of parties still before the Commission, with the log of claims still not acceded to.
In the meantime, in the proceedings, the Commission heard evidence. It heard evidence from the Union officials that the Union was engaged in negotiations with supermarket operators, seeking improved wages and conditions, both in big supermarkets and in small supermarkets. So, it was not just a log of claims in isolation, there were negotiations going on; active conduct in pursuit of improved wages and conditions. In addition, the Commission heard evidence from the Union officials in the nature of specific denials that there was some ulterior motive for this log of claim.
It was put to them directly that in the case of the Western Australian respondents this log of claims was for the purpose of avoiding the legislative consequences, or the changes of industrial legislation in Western Australia, and that was specifically denied that was not the case and the officials reaffirmed that they were genuinely seeking improvements in wages and conditions as sought in the log. The same applied in relation to South Australia. It was put to the Union officials that, "What you will try to do is to avoid the consequences of potential change in legislation if there is a change of government." Specifically denied. Affirmation by the Union officials that they were seeking to improve wages and conditions.
Furthermore, there was evidence that the Union was intending to pursue the demands if they were not met, and it would pursue them by further negotiation and pursue them, if needs be, by arbitration in the Commission. What was being determined was not simply something to do with the log, it was something quite different. It was what was going on over a period of time and it involved a whole series of matters not simply the log. The log was but one part of the overall evidence which was considered by the Commission in making its finding.
BRENNAN CJ: How does that accord with paragraph 3 of the finding at page 386?
MR QUICK: I beg your pardon, your Honour?
BRENNAN CJ: Paragraph 3 of the finding of dispute at page 386 modified by paragraph 4.
MR QUICK: Is your Honour putting to me that that is adverse to the submission that I am making in relation - - -
BRENNAN CJ: I understood you to be saying that the dispute was something other than that which was contained in the log of claims.
MR QUICK: No, your Honour, I am not submitting that. What I am submitting is that the prosecutors are saying the finding of dispute was based merely on the presentation of the log of claims and merely on the content of the log and the non-acceptance of the log. My submission is contrary to that, not as to the description of the log. My submission is that what the Commission did in each case was to examine a number of things including the log, its rejection and its content.
It examined the course of negotiations between the parties. It heard the specific denials in relation to other things. What it found in the end was an industrial dispute which it said had that subject matter which is contained in paragraphs 3 and 4, that was the subject matter of it, but that was not the dispute and, in fact, that emerges - - -
BRENNAN CJ: I am not sure that I follow the, "that was the subject matter but that was not the dispute". What does that mean?
MR QUICK: It means that the dispute was not confined to the event of presenting a log of claims and the non-acceptance of the log of claims. It means that the dispute extended over a course of conduct including the presentation of the log of claims and the non-acceptance of it, but having other features as well, but the description of the dispute, that is, as to subject matter, not as to the course of conduct but as to subject matter, fits within what was in the log of claims.
Our first submission, therefore, in relation to the prosecutor's claim in connection with the issue of genuineness and fancifulness is that the prosecutor's claim is fundamentally flawed in that the Commission found a dispute constituted by a wider range of events, albeit that it subsequently defined the subject matter as to items and scope in the same language as the log.
Now, if we are correct in that submission in connection with genuineness and fancifulness, the applications for prerogative relief should be denied without the need to go into for that purpose or re- examine the correctness Reg v Ludeke or the SPSF Case. Alternatively, if the Court decides to go into those matters, the outcome of that, if it is decided that there is to be a re-examination and a change, ought not to affect the application for prerogative relief. It ought to be denied in any event.
On the second aspect of the claim, that is, the claim for prerogative relief based on the onus of proof, we submit that that too should be denied on the basis that whether the Commission did or did not reverse the onus of proof - and we will be saying it did not - on an examination of the decisions it is plain that the matter of onus of proof just did not feature in the decision-making process - in the decision itself. It was not a matter which affected the result, nor is there any suggestion here of any procedural unfairness. If that be the case, in our submission, in the discretion of the Court prerogative relief ought to be denied in connection with that matter.
In relation to the matter of the wider dispute, as I submit that it is, might I just give the Court three references to evidence, without reading them, which are not stated in our outline in connection to the existence of negotiations and in connection with the specific denials of intent to avoid legislative consequences in South Australia and Western Australia and in connection with the intent to negotiate in the future if agreement to the log was not met. May I refer to the evidence of Mr Farrell at page 133 line 30 to page 134 line 26, to the evidence of the same witness at page 135 lines 31 to 40, to the same witness at 211 lines 5 to 32. That is in the Lamsoon matter. In the Action Food Barns matter to the evidence of Mr De Bruyn at page 339 lines 3 to 16 and at page 345 lines 2 to 11. I apologise for the fact that they are not included in our outline.
I turn now just briefly to illustrate by reference to passages in the judgments of the Full Commission and the Commission at first instance without referring to them in detail, the fact that the Commission did decide the issue of the existence of an interstate industrial dispute on the wider issue rather than the narrow issue simply of the service of the log. In Lamsoon it is contained at first instance in the decision of Commissioner Lewin at appeal book page 221 lines 11 to 24. There is a reference to deciding the issue on all of the evidence. In the Full Commission the reference is at appeal book page 228 line 40 through to page 229 line 22.
In the Action Food Barns matter that fact is not quite so clear - clearly stated in brief passages. But if one looks at the whole of the decision, the process of decision making as revealed as a step-by-step analysis of all of the evidence, it is plain that what was determined was the existence of an industrial dispute not simply on the rejection and content of a log of claims but on a process.
It is our submission that those findings were reasonably open to the Commission. Not only has the prosecutor not demonstrated that they were wrong - and the prosecutor in these proceedings must clearly demonstrate that they were wrong - the prosecution has not really attacked the relevant question, and that is the question of whether the finding of an interstate industrial dispute on all of the material and over a course of conduct which began with the negotiations and ended with the parties still before the Commission 13 months later. They just have not addressed that issue at all, and on that basis the application for prerogative relief in relation to the issue of a genuine interstate dispute ought to be declined.
I would wish to make some brief submissions in connection with some of the oral submissions put by my learned friend, Mr Bleby, yesterday in connection with the issue of genuineness. None of this detracts from the submission made to date but is in addition to it and addresses the weight of issues which he put to the Court. It will be remembered that yesterday my learned friend drew attention to a passage of cross-examination of Mr Farrell in the Lamsoon matter at pages 145 and 146 of the appeal book. It is the passage which deals with cross-examination of Mr Farrell on the issue of when do you expect to achieve what is in - I have paraphrased that and it is important the actual words used - "When do you think that what you have claimed will be awarded? And it was suggested by my learned friend that the answer, "Over the next millennium" was an indicator that the log of claims was not genuine. As to that a number of things need to be observed.
First of all, the question which was asked was in relation to when will something be awarded? He was addressing an issue of, when is the Commission likely to do something in these terms? The answer, it is submitted, may well have been tongue in cheek. It is hard to tell whether it is or is not, and this Court ought not to embark upon that. The answer is also unclear. The answer is, "Within the next millennium", not as my learned friend suggested yesterday, "Over the next millennium". So it could be as little as six years, that answer. In our submission, there ought not to be any weight attached to that at all. This Court is in no position to know, but the Commission below was - that is at first instance - whether or not what was being said was tongue in cheek or whether or not it was something that was seriously being advanced. It sometimes happens in proceedings that something like this can be said, particularly in an industrial situation.
Another point that was raised and argued yesterday was the suggestion that because the log was expressed to be "all or nothing" and because it required a response within seven days, those were indicators of the fact that the log was not genuine. The answer to that is contained in the reasons given by the Full Commission in the two matters which are reasons given by an experienced tribunal in this area. If I might just refer very briefly to the reasons given in Lamsoon by the Full Commission at page 229, lines 4 to 15. There the members of the Commission say as follows:
Normally a letter of demand comprises a separate document from the log of claims and (as is the case here) nominates a period of time within which an employer should advise the union whether the claims in the log are accepted. The period of time nominated by the union provides certainty to the recipient of the time within which it has to consider and form its attitude to the claims in the log, knowing that, at the expiration of that time the union, consistent with what has been foreshadowed in the letter of demand, will notify the Commission of the existence of dispute and seek (pursuant to s101 of the Act) a dispute finding. The Commission, however, is not obliged to find that the dispute did or did not come into being at the time nominated by the Union; and an employer which considers that the Union has given it insufficient time to respond to its demands is not thereby excused from considering them. If, by the time the Commission examines the alleged dispute, the employer has still not acceded to the demands the Commission may be justified in finding that a dispute then exists.
If I might just pause there, this again supports the proposition that I made at the outset, that what the Commission was considering was not simply a short space of time and the log of claims in itself. It was considering a wider dispute. If I can continue on:
Moreover, we think that the period of seven days was sufficient time for the recipient to read and understand the claims demanded in the log and to form a view as to its intention to accept or reject them. The fact that the demand was for all of the claims to be agreed to does not make the claim other than genuine. At the hearing before the Commissioner he enquired into whether there was an industrial dispute and was entitled to rely on the evidence then given that the claims made would be pursued by the union over a period of time.
So the answer to the proposition that is it not genuine because it is all or nothing and within seven days, as to the seven days is answered by the proposition that that was not what was being considered. What was being considered was the dispute over a period of time and that dispute was the genuine dispute. Then one loses the seven-day period; it simply vanishes.
As to the "all or nothing" aspect of it, the answer appears in the reasons of the Full Commission in Action Foods at page 381 and in particular at lines 22 to 30:
Mr de Bruyn's evidence was that if employers were to concede some but not all of the demands, there would be a dispute about those demands which were not conceded. His answers were to hypothetical questions. We do not think that much turns upon his opinion as to what the SDA would do in the unlikely event that many of its claims were conceded. If employers were - quite improbably - to agree to a major part of the log, the union might well consider its position. It might think that the remaining claims were actually within reach; or it might abandon them. All this is so far from reality and so speculative that it should not control the Commission in its present task. Mr de Bruyn's evidence, in our view, does not exclude the perception of the log as a catalogue of claims.
So, again, what the Commission is saying there is, "We're not simply going to look at the seven day period and we're not simply going to look at each individual item on an all or nothing basis. The reality of the situation is that we don't know what might happen and, therefore, it's not really an indicator of whether or not it was genuine". The fact is that, in this case, 12 months in one case and 13 months in the other the log was persisted with.
Yesterday, my learned friend also made again the point in his outline of argument - in the prosecutor's outline of argument, that there was delay between the authorisation of the log of claims and service of the log of claims in one case, and in the other case a delay between the authorisation of the log of claims and notification of an industrial dispute to the Commission. It said in the outline of the prosecutor's submission at paragraph 4.14 and 7.10 that that delay evidences a lack of genuine desire behind the log of claims.
The response to that is in our outline of submission at paragraph 3.2 and 3.3 and is simply this. The delay in each case was the subject of evidence and explanations were given in each case. In one case, the delay was explained by the fact that there was difficulty in establishing, because this is an industry of small supermarkets spread all over the place with heaven knows trusts, companies, individuals, there was difficulty in establishing who the potential employer was. That took some time. That was a delaying factor in one case.
In the other case, there was delay because this very log of claims, which was the standard log of claims of the SDA, was the subject of proceedings, so they thought we might as well wait and see what happens in those proceedings, a very reasonable attitude to adopt. So that, in our respectful submission, the matter of delay cannot be said somehow or other to evidence a lack of genuine desire. From the submissions made by my learned friend, Mr Bleby, on particular aspects of the facts of this case, I turn now to the broader aspect - - -
KIRBY J: Are you not going to deal with Appendix 1 which calculates what is said to be the amount that your claim would cost in toto, $421,875 a year as against the current 21,000, and it is put to us that because of that, that reveals that this is moon and stars, this if fanciful, and that the Commission and the Court, or in this case the Commission, are mouthing the test in Ludeke, but they do not really understand it. You have to deal with that point.
MR QUICK: Your Honour, first of all, a number of things. First of all, what is set out in Appendix 1 does not mirror what was actually found by the Commission. There is severance of a large number of - - -
KIRBY J: It is said to be the economic value of your claim as against what is currently being paid and that it reveals by contrast a fanciful claim, $421,875 a year as against the current $21,000; page 6 of Appendix 1. Unless I have misunderstood it?
MR QUICK: Your Honour, first of all, might I submit this? Appendix 6 ought not to be relied upon by reason of the fact that the Commission held that a number of the claims which were in the log were fanciful and it severed them, and it cited authority of this Court which enabled that to be done. This appendix contains both those that are severed and those that are not. It does not reflect the position in any way - the true position. For example, 18 weeks pay for annual leave, that was one of the severed items, if I remember correctly.
Your Honour, the other submission that I would make in relation to that is, here we have an experienced industrial tribunal, used to dealing with these things, with an industrial background behind it, which considered the log of claims as an item, but not the only aspect of the dispute. So that, when one considers the finding of an industrial dispute, one is not simply considering a finding created by the log of claims, it is the whole course of conduct. The log of claims simply expresses the subject matter of the dispute, and the boundary of it.
On the whole of the evidence, there was a finding that the dispute was genuine, not simply on examination in isolation of the log of claims. That is what appendix 1 is; it is an examination in isolation of the log of claims.
BRENNAN CJ: Mr Quick, do you accept that the nature of a dispute, for the purposes of 51(xxxv) in the Act, is a disagreement as to an industrial condition?
MR QUICK: I do, your Honour.
BRENNAN CJ: Then the question for consideration is, what were the disagreements with respect to what industrial conditions, is that right?
MR QUICK: That was a consideration, and the Commission - - -
BRENNAN CJ: Is it the question for determination?
MR QUICK: It was, both before the Commission, and it is here. I agree with that, your Honour.
BRENNAN CJ: The finding which the Commission made, then, is that there was a disagreement with respect to the terms and conditions which are to be found by reference to paragraphs 3 and 4 of the finding, is that right?
MR QUICK: Not entirely.
BRENNAN CJ: However it arose, that is the disagreement. And whatever course the disagreement followed, the essence of the disagreement, the nature of it, is a disagreement as to those matters.
MR QUICK: Your Honour, could I just refer to what the Commission said in its dispute finding - the decision, as well as to what is in the dispute finding itself?
BRENNAN CJ: I would prefer you to identify the question of principle first. Is it right that one looks for the conditions that are the subject of disagreement in order to identify what the dispute is?
MR QUICK: As to subject matter, for example, wages by comparison with a trip around Australia once a year for the relatives and family, yes.
BRENNAN CJ: I do not know why you qualify it in that way. Is there something about a dispute other than a disagreement as to terms?
MR QUICK: Your Honour, a dispute, for example, as to wages as between $10 a week and $2,000 a week, in our submission, that would always remain an industrial matter because it relates to the conditions of employment.
BRENNAN CJ: If there were a disagreement about that, there would be a dispute about that?
MR QUICK: Yes, your Honour.
BRENNAN CJ: Is there anything else in the element or in the nature of a dispute other than the disagreement about those terms?
MR QUICK: No, your Honour, it is only a question of how it is evidenced.
BRENNAN CJ: Yes. Now, the finding was that there was a disagreement about the terms referred to in paragraphs 3 and 4, is that right?
MR QUICK: That is the way the order is expressed. It is not how they expressed the reasons, but the reasons are expressed.
BRENNAN CJ: Is there some other dispute other than that which consists of a disagreement as to the matters in 3 and 4 and, if so, what is the other dispute?
MR QUICK: The Commission itself expressed the other dispute in the terms that the dispute is - what is contained in the log of claims, and I am now quoting from page 383, line 13:
"that the subject matters which are in dispute, in so far as they are industrial matters within the meaning of the said Act, are as set out in the Letter of Demand and Log of Claims -
et cetera. So what the Commission is saying is that the log of claims may be expressed in terms which are too wide but within it there is an industrial dispute over matters which might properly be characterised as industrial and that those matters form the basis of an industrial dispute.
BRENNAN CJ: Yes.
MR QUICK: May I turn then to the broader issue of genuineness and fancifulness as debated in the last day and a half. I propose not to traverse the same ground but to make several submissions to supplement what has already been said. May I say at the outset that we specifically adopt the written submissions of my learned friend, Mr Kenzie - that is the three-page document which was handed up to the Court - in so far as they concern reconsideration of the decisions in Ludeke and SPSF, and, more particularly, in paragraphs 1, 3, 4, 9 and 11 of that outline.
We adopt those as our argument in relation to the desirability of reconsidering Ludeke and SPSF. On the same topic we adopt the oral submissions made by my learned friend, Mr Kenzie, today. There are some additional matters to which I should refer.
KIRBY J: Can I just ask one very brief question. I assume that our order, the order of this Court, would be directed to the orders of the Commission and not its reasons. We must focus our attention on page 386.
MR QUICK: Yes, your Honour, it would be directed to the order. Your Honour, I do not think that detracts from the force of the submission that I was putting in answer to his Honour the Chief Justice. The point of the matter is that a dispute has been found. It is a dispute as to an industrial matter. Paragraphs 3 and 4 express the subject matter of the dispute and it is to be found within and is not simply what is stated in the log of claims.
I refer to the submission made yesterday by the Solicitor-General for South Australia in connection with the issue of genuineness. It was his submission that the issue of genuineness or fancifulness goes to the issue of the evidentiary weight attaching to the log as an item of evidence and not to the validity of the claim per se. We adopt that submission and would add the following observation. If the issue has this limited purpose, the doctrine of ambit and the concept of paper dispute as presently understood and as has been applied for a long period time can continue without many of the difficulties to which reference has been made - many of the semantic difficulties to which reference has been made.
For example, if the issue is confined to evidentiary weight of an item of evidence, one needs to inquire only, "On the whole of the evidence is there an interstate industrial dispute?" If the claim in the log of claims is so fanciful that it cannot be taken seriously, then that as an item of evidence is put to one side, either in support of the claim or it might be put on the other side as being indicative of there being some ulterior purpose which is not industrial. So that if one asks the question simply, not is the claim genuine, but is there on the whole of the evidence - and the claim is one aspect of the evidence - - -
DAWSON J: What if the claim is the only evidence?
MR QUICK: That is a different matter, your Honour.
DAWSON J: That is mostly the situation, is it not?
MR QUICK: It is supposed to be by the prosecutors, and we deny that. We reject that, your Honour. We submit that there was a mound of evidence as to what the Union was doing, what it intended and what it proposed to do, and it was not simply the log of claims. Furthermore, not only was there that evidence but the Commission took it into account. In our submission, if what the learned Solicitor-General submits is correct - and we submit that it is - you do not have to ask such difficult questions as, is an exaggerated claim a real claim in relation to that part of it which is not exaggerated? You do not have to ask the question, "Do you genuinely demand anything when your demand contains an element of exaggeration?" All of those questions are avoided if one confines the issue of genuineness and fanciful to the issue of evidentiary weight of one piece of evidence.
BRENNAN CJ: Perhaps we can test this by a hypothetical case. If the log of claims had contained a claim not for $1,500 per week but for $1,500,000 per week but the Union decided that it would pursue the log of claims in the way in which it has done and the finding was made in the terms in which it was made, would this Court be able to look at the $1,500,000 and say, to use Justice Kirby's phrase, "There's the moon and the stars."?
MR QUICK: What the Court would do is to say, as an item of evidence in determining whether or not there was an interstate industrial dispute, the form of the claim might well suggest that there is some ulterior motive which needs to be explained lest the log of claims be taken as an indication that the log is not on an industrial matter and it is for some other purpose. That would be what the Court would say. If there was an explanation offered the Court would assess that explanation, as in this case, when it was put, "This log of claims isn't genuine, it's for the purpose of attracting federal jurisdiction to escape the consequences of the Western Australian legislation and the South Australian legislation." The answer is, "No, that's not right, we are genuinely seeking these claims and we've been in negotiations with the employers about them. Furthermore, they are exaggerated because this is how we understand the doctrine of ambit."
The Court would then say, "I find those explanations plausible. I am not going to hold that piece of evidence as being adverse, bearing in mind the explanations which have been given, namely, an explanation to ambit, as they understand the doctrine of ambit, and denial of the ulterior purposes." So that it is not simply a matter of looking at the log, it is matter of looking at everything else and seeing whether there is an explanation for the log in those terms and we would submit that in this case there was, it was the Union's understanding of the doctrine of ambit and there was a specific denial of the evidentiary purpose which the log might otherwise serve if it was fanciful.
Might I turn now to the issue of onus of proof? We put a series of alternative propositions, each of which, if correct, would be sufficient ground to deny prerogative relief on the basis claimed that there was an error in onus of proof. The first of those propositions is whether the Commission correctly or incorrectly applied the onus of proof. That matter was of no consequence in the decision, or the decision-making process. First of all, there is no complaint about the decision-making process. One has to read through the decision. There is no suggestion that anywhere does the onus of proof actually feature as a relevant factor in deciding whether or not the existence of a dispute was made out.
The second submission that we make in relation to onus of proof is the Commission did not hold that the onus of proof rested on the employer, save for one possibility, and one limited context in relation to the issue of whether or not the parties served were employers. But on the wider issue of the existence of an interstate industrial dispute, the Commission did not do what the prosecutors say it did. One struggles through the judgments - and in response to the question put by your Honour Justice Gaudron to the Solicitor-General for South Australia this morning - one cannot find, in the reasons for decision in either matter, a statement made, or even a hint of the fact that the Commission held that the onus of proof rested on the employer.
The one exception to that is in relation to the limited issue, which is not in issue here, that is the issue of whether or not particular parties served were employers and, as to that, the passage that was referred to by my learned friend Mr Bleby in his outline might just as easily be read as a statement: the Commission will do what the courts do in prerogative proceedings and accept as genuine the statement of claim, and accept that these are people who are employed, particularly, "Am I comfortable in doing that, accepting that as being reasonable?", when the parties who might be taking the point are before the Commission and do not call any evidence to rebut it The matters would be specifically within their knowledge.
But generally speaking, on the issue of onus of proof, we submit that the Commission simply did not hold that the onus of proof generally rested on the employers.
TOOHEY J: The onus of proof will rarely arise, in fact, because if the Commission accepts the demand is genuine, then the demand had been rejected in the ordinary course of events, and there you have your industrial dispute. If the demand is not genuine, then, without going to the question of onus, there is really no industrial dispute. I assume that is really the way it works out in most of these cases, so the Court does not have to address, four square as it were, the onus of proof.
MR QUICK: The proposition your Honour puts to me is correct, except in the circumstances when one then has, after the issue of the evidence of the presentation and non-acceptance of the log, a lot of evidence which follows. In those circumstances, onus might arise.
TOOHEY J: Arise as to what? As to whether there is an industrial dispute?
MR QUICK: No, perhaps as to who beings or - - -
TOOHEY J: I did not mean it in that context. I meant in the context of whether there is an industrial dispute. All I am putting to you is that, as a matter of practicality, the question of onus will rarely arise.
MR QUICK: I agree, your Honour, will rarely arise and, in this case, it was not a matter which was considered by the Commission and had an effect on its decision-making process. In short, it is a matter that ought not to trouble this Court. Might I add to the submissions? First of all, we refer to and adopt the submissions made by the learned Solicitor-General for Western Australia in connection with the matter of onus of proof and the effect of section 101 of the Act. May we add simply to that the following.
First of all, there was no legal imperative as to where the onus of proof lay by reason of the content of section 101, but we also draw attention to section 110(2) which provides that the rules of evidence do not apply, so that could not give rise to a legal imperative and it provides that the procedure of the Commission is in the hands of the Commission.
Secondly, we point to the fact that if, in prerogative proceedings, the onus clearly rests on the party claiming - I am sorry, this is an additional submission. We adopt Western Australia and point in addition to section 110(2). Furthermore, we say that if there had to be an onus somewhere, there was nothing wrong with it being on the employer and, in particular, in support of that, we would refer to the fact that the onus rests in prerogative proceedings on the employer in these circumstances and, by close analogy, the same ought to apply in the Commission. In practice, the issue will rarely arise and no unfairness was being complained about.
I submitted at the outset that I wish to correct an error in our outline of submissions. That error appears in paragraph 4.2, at the bottom of paragraph 4.2 in particular on page 10, the last four lines, the sentence beginning, "The reasons of Justice McHugh are supported by". I would seek to delete that sentence. The passage involved there does not support the proposition which is made. It is in another context. May it please the Court, those are the submissions which the second respondent seeks to make.
BRENNAN CJ: Yes, thank you, Mr Quick. Mr Bleby.
MR BLEBY: May it please the Court. May I just deal firstly with a question that your Honour Justice Kirby raised yesterday concerning costs and get that out of the way? The provisions of section 347 of the Act have not been amended, they stay in the same form, and I concede that there is authority in this Court, and it is Re Polites [1991] HCA 25; 173 CLR 78, which has held that costs in prerogative proceedings of this nature are caught by this section. In other words, they cannot be awarded.
As to the other matters concerning section 101, we would adopt the submissions of the Solicitor-General for Western Australia and I think I need say no more than that. In relation to the some of the submissions of the Solicitor for South Australia - and I say this in case there is any misapprehension on the part of the Court as to the nature of our submissions - we do not, contrary to the suggestion of the learned Solicitor, argue or seek to argue that there is no dispute unless the demand is reasonable or, to use Mr Kenzie's words, foreseeable. It has never been suggested by us as being a necessary criterion for genuineness.
What we do say is that if the demand is extravagant or fantastic or implausible in itself - and that is a matter in the absence of any other evidence or inference, of course, from the content of the document - and if there is no other evidence pertaining to the nature of the dispute, that cannot constitute even prima facie evidence of a dispute and particularly where there is evidence, as here, of the award conditions and a simple comparison can be made.
BRENNAN CJ: Mr Bleby, I do not wish to interrupt you, but having regard to the time it would seem appropriate that if you need quarter of an hour, take quarter of an hour; if you do not, do not take quarter of an hour, but if you do you will be limited to a quarter of an hour and you can supplement that by written submissions. The same time will apply to Mr Douglas.
MR BLEBY: As your Honour pleases. Do I understand I have quarter of an hour, no more? I am happy with that.
BRENNAN CJ: Yes, from when you started.
MR BLEBY: I do not know when I started.
BRENNAN CJ: Take two or three minutes off.
KIRBY J: Could I take up half a minute of it by asking what are we to now make of Appendix 1 when it is pointed out that a number of the matters which are valued in that have been excluded and, therefore, it is a false comparison to compare with 421,000?
MR BLEBY: The short answer to that, your Honour, is that if you go to the part where your Honour was looking before on page 6 the only item in that summary which the Commission excluded was 18 weeks pay for annual leave loading which is a weekly amount of $1,298. In the overall picture it does not make a great deal of difference, but in any event it is our submission that the genuineness of the demand is to be treated by whether or not - I am sorry, the question has to be examined against what the supermarket proprietor receives, which is really, after all, what the Commission has had to consider, and whether or not he or she would appropriately respond to that demand or throw it in the bin.
KIRBY J: That seems to be a suggestion that you cannot sever certain fantastic claims and deal with what is held to be the real matter in dispute.
MR BLEBY: Yes, that is so.
KIRBY J: That does not seem to gel with the notion that you define what is truly in dispute.
MR BLEBY: If there is no other evidence we would merely say if the form of the demand is expressed in a cumulative way you must read it as a total demand. If one aspect happens to make that a quite fantastic demand, well, then, so be it. If I can just return to the question of what our position was. I have already indicated that one tests a demand against its own terms and against the actual evidence as to what might be said to be current standards. Even more so does it become apparent, of course, that the demand is fantastic, where a senior union official does not even believe that the claims as stated are attainable within the time specified in the demand. That is strong evidence, if any other is needed, that the Commission could act on to say that the claims are fantastic and the Court can so act as well.
Where one relies solely on the paper demand as, we submit, is the case here, with no other relevant factual background, and I will address the question that Mr Quick raised a moment ago, it must be capable of acceptance or rejection. It will not be so if it cannot be taken seriously or if it is vague or unclear even if stated as a series of objectives or a shopping list.
Might I just also comment on a question that your Honour the Chief Justice raised this morning on the question of whether the Commission could act to prevent a dispute about a 10 per cent wage increase in the light of the service of a log of claims of this nature. Our submission is it may in certain circumstances be able to so act if the evidence showed that, but if we are relying solely upon service and non-compliance with a log of this nature, one needs more evidence than that to say that there is an apprehension of a dispute about a 10 per cent wage increase. That could be the case in certain circumstances.
Briefly, on the question of ambit might I say this that we repeat that the ambit test cannot be determinative of the genuineness of the demand and we do not believe that the Ludeke Case necessarily says that in the light of the Court's apparent acceptance of the Holmes' Case and similar cases, but to the extent that Ludeke was driven by the ambit doctrine or the comments of this Court driven by the ambit doctrine, it was, with respect, an incorrect application of the ambit doctrine and it is properly described in the Holmes Case to which we have referred.
In our respectful submission an attempt in these proceedings to reconstruct the ambit doctrine to introduce some notion because of the purposive power of a doctrine of reasonable proportionality, as submitted by the South Australian Solicitor-General, is not necessary. Indeed, it may be a matter which can be aired at some time when the appropriate case comes before this Court if it does, but it is certainly not necessary to decide in these proceedings.
We have suggested other possible exploitations of the constitutional power which, subject to the Commission being satisfied as to the facts in a particular case at a particular time, will assist the parties to overcome what they might perceive to be restrictions brought about by a decision of this Court if it were to decide these cases in the prosecutors' or the appellants' favour as being a restriction on the application of the ambit doctrine and, therefore, on the power of the Commission. All we are suggesting is that the sky is not going to fall in, there are other ways if the players consider what they are really on about and act accordingly. That was the only purpose in suggesting those other avenues. It is not necessary, in our submission, for the Court to pronounce on them.
It follows, then, we do not accept submissions such as that of my learned friend, Mr Kenzie, that the sky will fall in if the cases are decided the way we would have the Court do so. The sorts of matters of which he speaks and the proceedings in the Commission can and do happen on occasions. They will possibly happen with increasing frequently in the light of some recent amendments to the Act, and I point particularly to the new section 111AAA, which I will not take the Court to now but that has the potential, I would suggest, of extending proceedings quite significantly in matters before the Commission. Much of the protraction of those proceedings where it happens - and it does not always happen - is the product of the legislation itself rather than the product of the application of the constitutional provisions relating to industrial disputes. It is our submission that much of that could be avoided by a more realistic and sensible attitude to the formulation of claims.
We do not argue that there cannot be a dispute about future conditions. That will depend upon the facts that come before the Commission at a particular time. But those, in our submission, are not these facts; the log is not framed in that manner.
Mr Kenzie's fears, I suggest, are based on substantially outdated and perhaps rigid thinking that pervades the industrial system. In many respects, it would be overcome by an imaginative use of other existing constitutional provisions, even realistic or natural demands, maybe even a resort to the corporation's power, maybe even greater use of State systems, but that is not for us to comment.
On the question of onus, the Act, in our submission, we accept, does not state in precise terms that there is an onus on the notifier to establish the jurisdictional fact of the existence of an interstate industrial dispute. We would agree with the submissions of the Western Australian Solicitor-General that the tribunal, at the end of the day, must be satisfied as to the existence of those facts, and one must bear in mind that, on some matters, on some occasions, the matters may come before the tribunal of its motion. May I point, for example, to section 100 of the Act, which says, and I quote:
Where an alleged industrial dispute is notified under section 99 or the relevant Presidential Member otherwise becomes aware of the existence of an alleged industrial dispute, the relevant Presidential Member shall, unless satisfied that it would not assist the prevention or settlement of the alleged industrial dispute, refer it for conciliation by himself -
et cetera. There is the capacity there for the Commission to act of its own motion and section 101(1), which has already been the subject of other earlier discussion, goes on to provide that:
Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission -
that may be by notification or may be the Commission acting in itself - it has to act in accordance with that section. Our submission is that where the jurisdiction is invoked by a party, however, against the will of another, common sense and basic principles demand that the legal onus at the end of the day rests on the party who asserts the jurisdiction of the Commission. That is not necessarily to say that the Commission will follow that course on every occasion because, as has been pointed out, section 110(2) gives the Commission very wide powers of inquiry.
But if the players do nothing, whilst the Commission may adopt a type of inquisitorial role, it does not necessarily have to do so, but it will have to be satisfied at the end of the day. It may do that by its own investigation, it may do that by relying on those who assert that it has jurisdiction placing sufficient evidence before it to say so. But it cannot say that if there is insufficient evidence that, "Another party must satisfy us that there is not jurisdiction".
As to the reversal of the onus in this case, it is our submission that, yes, it was discussed in both the Lamsoon and the Action Food Barns Cases, and in Lamsoon it was dealt with at page 228, lines 6 to 13, and in Action Food Barns, pages 374 to 378 but in particular 378, lines 4 to 18, and I accept that that was in the context of an identification of employers or whether the parties served were employers. But it does arise also, of course, on my learned friend Mr Quick's submissions that somehow the dispute is not evidenced by the content of the log itself. If it is said that the dispute is evidenced by something else other than the nature and content of the log of claims, it is for that party propounding that to put evidence before the Commission to that effect. Whatever may have been said about the supposed dispute in evidence, that was not done in a way in which the Commission could identify what the dispute was all about.
I fear I may have run out of time, but there are other matters to which I might need to say something about in response to my learned friend Mr Quick, but I am happy to put those in writing, if the Court would find it of assistance.
BRENNAN CJ: Yes, very well. That could be done within seven days, I suppose?
MR BLEBY: Yes, your Honour.
BRENNAN CJ: Mr Douglas?
MR DOUGLAS: If the Court pleases, we adopt what has been said so far by my learned friend Mr Bleby in reply. That eliminates a lot of what I wanted to say. We were asked earlier by Justice Gaudron and Justice Toohey to provide references to the appeal book in respect of the applications for prerogative relief and in respect of the dispute findings we wish quashed. We have put those in writing and can hand them up.
BRENNAN CJ: Thank you.
MR DOUGLAS: It will appear from the document responsive to your request, Justice Gaudron, that there is a further document not in the appeal book which is a notice of motion requested by the Industrial Relations Court because the order nisi application to this Court was referred simply to that court with no order nisi having been made. That court treated it as an application for final relief and asked for a notice of motion seeking that. So that was done. Unfortunately it is not on the record. It is not on the file in the Court, but my instructing solicitor when he gets back to Brisbane next week will obtain a copy and will provide a copy.
BRENNAN CJ: Thank you.
MR DOUGLAS: The relief sought in the draft order nisi which is in the appeal record and in the notice of appeal includes the seeking of the quashing of both findings and orders made by Senior Deputy President Riordan and we believe that that is necessary because the Senior Deputy President did not overturn the original dispute finding pursuant to the submissions we made. He regarded it as extant, as not having come to an end by the service of the second log, but really thought that it stood as varied by the second log and made an order to that effect, substituting as the content of the dispute that raised by the second log of claims. So there are, in effect, two dispute findings made, both of which we seek to have quashed for the grounds we set out before.
In adopting our learned friend, Mr Bleby's submissions, we also adopt the submissions for the learned Solicitor-General for Western Australia in respect of section 101, and, really if that were to be an issue, it should have been an issue raised by the Union challenging our right to seek this relief. We would assert that this Court always has the right to look at jurisdictional facts and it was appropriate to seek prerogative relief under the Constitution to do so. Further, we also are of the view that the Court should not use this as an occasion to decide the width of the ambit doctrine and whether ideas of proportionality should be imported into it for similar reasons as those advanced by Mr Bleby. And, similarly to Mr Bleby, in our contention our learned friend Mr Kenzies' worries that the sky will fall are not legitimate.
When one considers what we are submitting is an appropriate test and considers it in the context of Reg v Ludeke, what we are really saying is that if the Union does demand what it really wants and part of what it wants is obtainable over time it can express it in that way and avoid the problems raised by a too literal reading of the sentence in Ludeke to which we took particular objection or expressed concern about, namely, the requirements of the ambit doctrine not only promote but necessitate the making of inflated demands. Viewed in the context that some demands which, if made properly, may be attainable over time can be expressed in that form and if the demands are made in that form by a union which expresses clearly what it wants, there is really no problem.
KIRBY J: You say there is no problem and that the whole issue of genuineness will just go away?
MR DOUGLAS: Yes.
KIRBY J: I find that very hard to accept.
MR DOUGLAS: Put it this way, your Honour, I really do not get a whole lot of pleasure out of saying to union deponents in cases like this, "You really don't want that now, do you?" I have said it a few times now and it is not something that I really enjoy or look forward to with great delight. In spite of what my learned friend says about the system it is probably notable here that our client did not pursue what he regards as a technical issue, the question of authority. We are concerned with questions of substance and wish to see the system operate properly, not in some artificial format. Those are our submissions.
BRENNAN CJ: Mr Douglas, adopting that approach though in this case, is it simply a matter then of looking at the industrial background, perceiving the terms of the log of claims and, without reference to what any particular piece of evidence may be, forming an informed view as to whether the claims are claims which are genuinely made in the sense of being desired to be achieved by the claimant?
MR DOUGLAS: One has to do that. One would have to do so, as I think Justice McHugh suggested, objectively by looking at the evidence and if the evidence objectively says, as in this case, "We want everything immediately," the conclusion would be, "That cannot be genuine, especially when they are inflated claims of this nature." But if the evidence is that the dispute is one where the Union says, "We want this now and we want these demands, which are not fantastic demands, over time," that may well create the basis for a dispute.
BRENNAN CJ: But if you have a log of claims which are couched as the present log of claims is in quite large terms, is the test which the Court is to apply simply one of the impression saying, "Dear me," or, "Goodness me, it cannot be true", or do you look for something else?
MR DOUGLAS: Or is it fanciful.
BRENNAN CJ: Or fanciful.
MR DOUGLAS: The test so far is fanciful. That is probably as good a word as any.
BRENNAN CJ: Yes, but is it a matter of judicial impression, as it were, informed by the industrial background?
MR DOUGLAS: That is the best that can be said so far. One would think that if the test were - let me rephrase that. If the claims were made in the way we say they can be made, the occasion to examine it further probably would be unlikely to arise.
BRENNAN CJ: That is not quite the problem that the Court faces.
MR DOUGLAS: It is not the problem your Honour is faced with. I think at the moment it can only be a question of judicial impression, and that is really the view Justice Toohey took in the SPSF Case.
BRENNAN CJ: So that if there be evidence which says, "No, we genuinely want it," that can be discarded as incredible. Is that the proposition?
MR DOUGLAS: Yes, if the nature of the claim is obviously inconsistent with the facts, your Honour Unless there are further questions, they are my submissions.
KIRBY J: You will recall that I asked Mr Kenzie for any academic writing. If you have any, it would be helpful.
MR DOUGLAS: Yes, we will make inquiries, your Honour.
KIRBY J: I find it helpful.
BRENNAN CJ: The Court will consider its decision in this matter.
AT 4.16 PM THE MATTER WAS ADJOURNED
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