|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Brisbane No B88 of 2000
B e t w e e n -
THE MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS OF THE COMMONWEALTH OF AUSTRALIA
Applicant
and
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES, AND COMMISSIONER RAFFAELLI, COMPRISING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent
TRANSPORT WORKERS' UNION OF AUSTRALIA
Second Respondent
HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Third Respondent
Office of the Registry
Brisbane No B91 of 2000
B e t w e e n -
THE MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS OF THE COMMONWEALTH OF AUSTRALIA
Applicant
and
THE HONOURABLE JUSTICE GIUDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT WATSON, THE HONOURABLE DEPUTY PRESIDENT HALL, COMMISSIONER BACON AND COMMISSIONER EDWARDS, COMPRISING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Third Respondent
Office of the Registry
Brisbane No B92 of 2000
B e t w e e n -
THE MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS OF THE COMMONWEALTH OF AUSTRALIA
Applicant
and
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES, AND COMMISSIONER RAFFAELLI, COMPRISING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent
TRANSPORT WORKERS' UNION OF AUSTRALIA
Second Respondent
THE AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Third Respondent
Office of the Registry
Brisbane No B94 of 2000
B e t w e e n -
HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Applicant
and
THE HONOURABLE JUSTICE GUIDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT WATSON, THE HONOURABLE DEPUTY PRESIDENT HALL, COMMISSIONER BACON AND COMMISSIONER EDWARDS, COMPRISING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
THE MINISTER FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
Office of the Registry
Brisbane No B95 of 2000
B e t w e e n -
HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Applicant
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES, AND COMMISSIONER RAFFAELLI, COMPRISING A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent
TRANSPORT WORKERS' UNION OF AUSTRALIA
Second Respondent
AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Third Respondent
Applications for special leave to appeal
McHUGH J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 27 JUNE 2001, AT 10.14 AM
Copyright in the High Court of Australia
MR P.A. KEANE, QC, Solicitor-General of the State of Queensland: If the Court pleases, I appear with MR J.S. DOUGLAS, QC and MR S.J. LEE, for the Attorney-General for the State of Queensland. The Attorney is the applicant in the second block, that is B94 and 95 of 2000 and the third respondent in the first block, B88 and 91 of 2000. (instructed by the Crown Solicitor for the State of Queensland)
MR W.R. HAYLEN, QC: If the Court pleases, I appear for the registered organisations; I think they are the second respondents in B88, B92 and B95 (instructed by Transport Workers' Union of Australia) and for the second respondents in B91 and B94 of 2000. (instructed by Ryan Carlisle Thomas)
MR A.K. HERBERT: If the Court pleases, I appear for the Australian Workers Union of Employees, Queensland, which is a State registered organisation. It is the third respondent in B92 of 2000 and the fourth respondent in B95 of 2000. (instructed by Sciacca's Lawyers)
McHUGH J: Before you commence, Mr Martin, the Deputy Registrar has certified that she holds a letter from the solicitors for the first respondent in each of these matters, stating that the Australian Industrial Relations Commission does not wish any representations to be made on its behalf and will abide by any order of the Court save as to costs. Yes, Mr Martin.
MR MARTIN: With the Courts leave, your Honour, we have agreed between ourselves that Mr Keane will address first.
McHUGH J: Yes, certainly.
MR KEANE: If that is satisfactory?
McHUGH J: Yes, that is satisfactory, Mr Keane.
MR KEANE: Your Honour, the Full Court of the Federal Court in this matter held at page 59 of the application book, paragraph 40, that once it is found that a person is a party to an industrial dispute, that person has a right within the meaning of sections 8(c) and 8(e) of the Acts Interpretation Act, Commonwealth, to have that dispute arbitrated by the Commission according - - -
McHUGH J: Yes, I think we might hear from Mr Haylen on these matters. Yes, Mr Haylen.
MR HAYLEN: If the Court pleases.
McHUGH J: Mr Haylen why is not the very matter that the Solicitor has just mentioned itself an important question to be resolved, that is to say whether or not there are any rights, in the relevant sense, brought about by a party notifying a dispute?
MR HAYLEN: Your Honour, it seems to us that two things are in error in the approach of the applicants. Firstly, they misconstrue what the Federal Court did by saying that it applied Esber so as to equate an application for an award with a review in an administrative tribunal, when section 104 of the Act requires, in the absence of a settlement of a dispute, that the Commission arbitrate the dispute. What the court did was to find a principle, namely from Esber, that where you have an application you have a right to a hearing, and that is a simple statement and that is, simply stated, what the Federal Court did.
McHUGH J: Well, I understand the way you put it, but we are dealing in a very different context here from an administrative laws regime as in Esber. I mean, the arbitrator is not declaring existing rights to make a new regime for the parties to settle the dispute. It does seem to me at the moment that it raises quite substantial questions of law.
KIRBY J: The point you raise may ultimately be a winning point for you, in the sense that you say, you do not get that far; you simply look at what has been enlivened, namely a right to get the hearing before the arbitrator, and that is the right. But it does seem to be quite an important question and it is amazing that it has not been decided at some time in 100 years.
MR HAYLEN: Well you get the flavour both before the Full Court and in the submissions here of a desire to revisit Esber, to look at the categorisation of cases and to see if one can - - -
McHUGH J: You would be surprised how many times Esber is under threat in this Court. I have been sitting in this Court for 121/2 years and I cannot count the number of times that there is going to be a challenge to Esber to get it - - -
MR HAYLEN: I remember particularly Lee's Case where actually, I think, Lee was revoked in the end, but that is a constant flavour. We say all Esber did, firstly - Esber said it was a question of construction; the Court decided the question of construction and then moved to the issue of the Interpretation Act and found that it supported its first view. The Court did a very similar thing here. It looked at the provisions of the Act, section 104. It found that there was a right to have an award arbitrated, not a right to a favourable outcome as in Esber, and then also looked at the Acts Interpretation Act and said, that was confirmed. So, in that sense, it does not raise for consideration some wider aspect of Esber.
McHUGH J: But it does seem almost unreal in this field to say you settle an industrial dispute by not having regard to what is the relevant law at the particular time. I mean, this is a special case, but on your argument, no matter how much the law is changed from the time of notification of dispute, the case has got to be decided on the - - -
MR HAYLEN: No, we did not put that. That is put against us, and a Full Court in the Federal Court last Friday has actually ruled on that issue. What is put against us is that to give full effect to what the Federal Court found, it means that so long as there was a dispute with ambit, you had always decided under the 1988 Industrial Relations Act. Our reply to that was if you look at all these cases, from Ho Po Sang, Lee, Esber and the like, all of them required some form of application. There was an application here. Unless you make an application for an award, nothing is protected. The ambit of the dispute will not be sufficient; you need an application for an award and be pursuing that application to obtain the protections. Now, the Full Federal Court last Friday, in a case dealing - - -
McHUGH J: On your argument, is it sufficient that the dispute is notified?
MR HAYLEN: No, your Honour, you need more than the dispute being notified. You need the dispute being notified, the finding of dispute, the parties to it, what is in dispute and an application for an award that you are pursuing. If you have not got those, and all of them, nothing is protected. In the Liquor Trades' Case in Western Australia, a Full Court in the Federal Court last week - - -
McHUGH J: Just before you go on to that case, does that mean then that you can take account of changes in the law between notification of dispute and the time at which you make your application for the award?
MR HAYLEN: It means that if you have not made your application, changes in the law will be effective.
McHUGH J: That seems fairly arbitrary, does it not.
MR HAYLEN: No, your Honour. We say - that is the line cases; we set them out in our written submission - that all of the Acts Interpretation cases, or cases applying the common law rule against retrospectivity, require an act to be done, some step to be taken by the party to obtain the protection. That really was the case that was argued before the Full Federal Court last week.
McHUGH J: I know, but your rights are fixed by the terms of the dispute - - -
MR HAYLEN: Yes.
McHUGH J: - - -and yet - - -
MR HAYLEN: The ambit of your dispute.
McHUGH J: The ambit of your dispute, but yet, you say, and although that occurs on an anterior point of time, the Interpretation Act only bites after you have made an application.
MR HAYLEN: Relevant application, yes, and what I am about to tell your Honours is that the issue that was raised in the Western Australia case was that the dispute was found prior to the Workplace Relations Act becoming effective. An interim award was made prior to the Workplace Relations Act coming into operation and about nearly 18 months later the employers applied for a federal award, and that was resisted by the unions, and the Full Federal Court accepted the reasoning of the Full Court in the State of Queensland case, but said there was not a relevant application; an interim award was an award. That was the only step that had been taken. There had been no relevant step taken afterwards that would attract the protection of either the common law protection against retrospectivity or the provisions of section 8 of the Acts Interpretation Act. So that case as decided just last week, that if you do not have an application that you are pursuing, the parties that seek it will not be able to secure the protections. Now that is a major - - -
KIRBY J: That is a natural decision at that level in the Federal Court; that is consistent with the present decision. The issue is whether or not we should look at it.
MR HAYLEN: Your Honour, the first thing of importance about it is that was one of the important planks in the arguments for the applicants for special leave here, that properly approached, the finding of the Federal Court would mean that, so long as you have a dispute - it could be years old with plenty of ambit - you would be running a regime for - - -
KIRBY J: You say it is not the dispute, it is the application. You have to fix a regime of the law at one point so that it can be determined and you are not in a state of flux and that that point is the point of the application.
MR HAYLEN: The application, yes, indeed.
KIRBY J: Well that may be right, but it is still an important question where the statutory regimes are lent colour by the constitutional nature of constitutional arbitration.
MR HAYLEN: Yes.
KIRBY J: And that is the issue which is of interest and, as I said before, it is astonishing that it has not come up at some earlier stage.
MR HAYLEN: Could I move just to this matter for a moment, as to whether this is a proper vehicle, because it seems, in our submission - and we have laid some emphasis on that, now especially after the Liquor Trades' Case - one of the major questions about how far the State of Queensland case might apply, in one sense has been answered. The second matter that we raise is - - -
KIRBY J: Answered by the Federal Court.
MR HAYLEN: By the Federal Court. The second matter is this: since 1 January 1997 there are only three cases that we have been aware of where this issue of section 8 of the Acts Interpretation Act has arisen, the two that are before this Court and the one that was before the Federal Court in Perth.
KIRBY J: That is not a suitable vehicle point, that is a special point, and you say it is not all that special - - -
MR HAYLEN: It is unlikely to arise again as an issue in relation to this legislation.
McHUGH J: In relation to this particular legislation, that is possible, but, see, consider the importance of the point that is involved here, it really is an Esber point. It has ramifications for the purpose of section 51(xxxi) of the Constitution, acquisition of just terms, taking away people's rights.
KIRBY J: And it also has relevance to changing governments with changing philosophies in industrial relations as to what they can enact and not be fixed with a regime which may be contrary to their philosophy and the popular mandate.
McHUGH J: If your argument is right, a government tomorrow could not pass retrospective legislation abolishing this right of yours without paying just compensation.
KIRBY J: It does not sound very democratic.
MR HAYLEN: Yes, well, some of the legislation might suffer from that description, but - - -
KIRBY J: No, but I am not commenting on the substance of the legislation, I am commenting on the right of Federal Parliament to enact laws which have been put before the people and which the people have accepted and - - -
MR HAYLEN: Your Honour, all the legislature had to do was to make it clear that it was to affect all cases. That was one of the real limbs which the Federal Court relied upon.
McHUGH J: But if you have rights, if this is a right, then it cannot be taken away by the Federal Parliament without paying proper compensation. We have held that in the Commonwealth Employees' cases.
KIRBY J: Depending whether they apply in the creative nature of arbitration.
McHUGH J: Yes, well that is part of the argument against you, really, as to whether or not we are in that same area of discourse.
McHUGH J: Justice McHugh is making this sound more and more interesting, Mr Haylen.
MR HAYLEN: He has that capacity I have noticed over the years.
KIRBY J: He has, indeed.
MR HAYLEN: Could I just say this, your Honour, the point that I was really highlighting was it is in the hands of the legislature initially to say, quite apart from whether an issue of unjust acquisition arises, whether or not the legislation will become effective immediately or to make transitional provisions. Here they have a list of schedules of some length, making very different provisions, some preserved - - -
McHUGH J: Yes, we are very familiar with those schedules.
MR HAYLEN: So some proceedings were preserved, some were not, and the new Act became immediately effective. Nothing was said about applications for awards, and the normal principle is, in those circumstances, the legislature has taken not to have tried to retrospectively remove the right found in section 104. That was very much at the heart of this particular case.
The other thing about this is a vehicle, I should mention, is this: the TWU Award was made in, I think, 1997. It was a roping-in award. Once granted, it was simply a roping in of those who where named as respondents to it. The Furnishing Trades Award was also a roping-in award. It was finally made in 1999. The employers' representatives, the confederation, in particular, and I think the Furnishing Trades Association of Employers in the CFMEU Case participated only as far as the Full Bench. They did not seek relief in the Federal Court. They are not applicants for special leave. The employers have ceased to play an active role in this case since the Commission determined that the Interpretation Act applied. These awards now are being replaced. The award for the Furnishing Trades has been now consolidated into another award, and under section 111AAA, in any event, if it was found to apply there is still a discretion allowed in the Commission to determine that it is in the public interest that the award should nevertheless be made.
We say that there is an element considering all of those things of Stead v GIO in this where it could be fairly confidently predicted in those circumstances where there is a settled regime, now in place for a number of years, that the Commission would not alter what has been in place. That is another reason why, we say, this is not a good vehicle, it is not an appropriate vehicle, and the issue was unlikely ever to arise again in relation to this legislation. Will it have any effect for any other legislation? In our submission, no. The fact that there are some differences of opinion in the Federal Court, dealing with purely administrative bodies, is quite irrelevant.
McHUGH J: But the point seems to have ongoing importance in the jurisdiction, does it not, because if your argument is right, then you have a right and, as I put to you earlier, it raises questions as to whether or not the federal legislature can interfere with those rights without compensation. I mean, it seems to me it is a very important point and, as Justice Kirby said, it is amazing that it has not come up for consideration before now.
MR HAYLEN: Yes. Well, the argument about affecting a right, a question of compensation arises, certainly has played no part of the argument in this case whatsoever.
McHUGH J: I know it has not, but it is all part. Once you establish that you have a section 8 right, then maybe you have a short step to say that that is a right that Federal Parliament has a number of restrictions on it if it seeks to interfere with that right.
MR HAYLEN: Well, the other thing, of course, is then, what is meant by "a right"? There has been a lot of debate and we have gone to it in our outline, but the applicants in their outline seems to elevate the question of "right" to a very high level when a long line of authority treats a right as being even a power. As long as there is a power to do something, that will be sufficient. This Court in Carr v Finance Corporation of Australia 150 CLR, Justices Mason, Murphy and Wilson said that it is no narrow conception, and it should not be narrowly looked at, otherwise the essential justice of the rule would be eroded.
McHUGH J: Well you say it is not a Hohfeldian - - -
MR HAYLEN: As Justice Windeyer said, and that is really the level to which the debate has been elevated.
KIRBY J: Can I bring you down from that level of abstraction to the practicalities? What is actually happening on the ground, to the award and the industrial, they are all suspended, are they, the industrial proceedings?
MR HAYLEN: No, your Honour, no employer has sought the staying of the award either in the Commission, in the Federal Court or here. The regulation of these various employees has been by federal award now for a number of years and that has not been - - -
KIRBY J: This is the attenuated award provided by the Workplace Relations Act or the old award under the Industrial Relations Act?
MR HAYLEN: No, the awards have been, I think the term is, "simplified", under the Workplace Relations Act, have been stripped back, so they now reflect the modern regime, because that always had to happen no matter where you had a part-heard award or an existing award; there was a time frame for that. The applicants here, for special leave, the Commonwealth and the State of Queensland, are not employers covered by these awards. They come here because they have an interest in the question, but the direct parties have long since ceased to have an interest in it. That is why we say - - -
KIRBY J: That is true, but these are the two polities under the Constitution and one cannot ignore that they come at the matter from a different angle, but they join in this application.
MR HAYLEN: The point is, your Honour, that their interest is at another level and, we say, a level of some extraction about the general nature of a point rather than the operation of these particular awards. That is another reason why this case is not an appropriate vehicle. If your Honours please.
McHUGH J: Mr Herbert.
MR HERBERT: The Australian Workers' Union as a State registered organisation was affected - its interest is that it was greatly affected by the matters that occurred because the failure on the part of the Commission to cease dealing with these matters resulted in the making of the awards to which my learned friend has referred and thereby blotting out, as it were, the State awards to which the AWU was the relevant union party at the time. That is the interests of the AWU in the matter. For my friend to say - I only really need to add - that the entities interested in those awards have not pursued the matter is to ignore the interests of the AWU in pursuing the matter to this point and has been in the matter throughout and therefore has a very significant interest in the resolution of this point, because - - -
McHUGH J: So in substance, you are supporting the application?
MR HERBERT: The AWU supports the applications that are made.
McHUGH J: Yes. There will be a grant of special leave in this case.
AT 10.36 AM THE MATTER WAS CONCLUDED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2001/312.html