ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v THE HONOURABLE SENIOR DEPUTY PRESIDENT RIORDAN, AUSTRALIAN LIQUOR, HOSPITALITY and MISCELLANEOUS WORKERS UNION, ST JOHN AMBULANCE AUSTRALIA, AMBULANCE OFFICER TRAINING CENTRE VICTORIA

The Notice of Motion came before Dawson J of the High Court on 28 October 1994. On that day, by consent, his Honour remitted the application for an order nisi to this Court. The Victorian proceeding The second proceeding was instituted on 5 November 1994 when a Notice of Motion was filed in the High Court on behalf of the State of Victoria and the Victorian Minister for Health. The motion named as respondents Senior Deputy President Riordan, Senior Deputy President Keogh, Justice Munro, Commissioner Frawley and the ALHMWU. The Notice of Motion sought an order nisi for writs of prohibition and certiorari. A supporting affidavit specified the grounds of the order nisi as follows: "1. The findings and any awards which might be made in consequence thereof would: (a) inhibit or impair the capacity of the State of Victoria to function as a government and/or to exercise its constitutional and governmental functions or would do so unduly; (b) inhibit or impair the continued existence of the State of Victoria as an independent entity, or would do so unduly; (c) disclose an error of law on the face of the record in that there is and was no industrial dispute within the meaning of the Constitution or the Industrial Relations Act 1988 enabling those findings to be made, because, as the respondent to the dispute are state public sector employers only, the letter of demand and logs of claims cannot create an industrial dispute extending beyond the limits of any one state. 2. The logs of claims in matters C Nos. 20689 and 33189 of 1993 were fanciful and were in reality claims for increased wages, allowances and conditions of employment as determined by the Commission, and incapable of creating an industrial dispute within the meaning of the Constitution and the Industrial Relations Act 1988. 3. Alternatively, if the demands were capable of creating an industrial dispute, the service of the demands in matter C No 33189 of 1993 brought to an end the dispute in matter C No. 20689 of 1993. 4. There was no evidence upon which the Commission could find that the log of claims in matter C No. 33189 of 1993 was authorisedly made." The application for orders nisi came before Dawson J on 29 November 1994. By consent his Honour ordered that it be remitted to this Court. The hearing in this Court As relief was sought against Presidential members of the Commission, the applications were listed before a Full Court: see s.415(2)(d) of the Industrial Relations Act. None of the first respondents appeared to contest the applicants' claims to relief. Neither did the third and fourth respondents in the Queensland proceeding. But the second respondent in each proceeding, ALHMWU, appeared by counsel to contest the claims. During the hearing, without opposition from any other party, we granted leave to the Queensland Attorney-General to amend his proceeding by deleting as respondents the named members of the Commission Full Bench, and the Commission itself and by substituting Senior Deputy President Riordan. In the same way, we gave leave to the applicants in the Victorian proceeding to delete as respondents the three Full Bench members. The background facts For several years there has been discussion in union circles about the possibility of obtaining a national award for ambulance officers. The evidence includes correspondence on this issue from the General Secretary of the Federated Miscellaneous Workers Union of Australia ("FMWU") as long ago as January 1991. It appears that the Australian Council of Trade Unions ("ACTU") convened a meeting to discuss this question in March 1991, but at that stage the consensus was that employees should be dealt with on a State by State basis. But it was agreed that all interested were to supply information to Chris Christodoulou of FMWU regarding their wages, conditions and training, so that he could formulate a table on the matter in anticipation of a further ACTU-convened meeting. There was a conference of relevant unions in November 1991 at which it was determined, amongst other things, that there should be national training standards and, possibly, pursuit of consistent classifications and rates of pay. During 1992 there was further discussion, led by FWMU, about national pay rates. This discussion took place against a background described by the General Secretary of FMWU in one letter as "a push for increased rates of pay (occurring) anyway with or without national competencies being developed". In August the National Committee of Ambulance Unions ("NCAU") called a meeting to discuss award restructuring proposals made by Victorian employers. But it seems that, at this stage, there was no consensus for a national award. Some unions preferred to pursue negotiations on a State by State basis. Notwithstanding this, it appears that a log of claims, as a prelude to a federal award, was served in January 1993. The evidence does not reveal details about this log. On 4 February 1993 NCAU held a meeting which resolved "this meeting of the NCAU supports and endorses the move by those ambulance unions which choose to have the wages and conditions of employees in the ambulance industry regulated by a federal award or awards". Six reasons were stated: "1. To ensure that ambulance employees wages and conditions are not eroded by virtue of the ever changing and inconsistent Industrial Relation Acts evolving in each State. 2. To preserve in the short term the consistency in the rates of pay for a qualified ambulance officer which currently exists. 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. 5. To facilitate greater efficiency in terms of joint bargaining by unions or state branches of unions with employers from various states, and; 6. Is consistent with the greater degree of activity nationally by Ambulance unions to standardise practices with respect to occupational health and safety and training issues." It seems this resolution attracted support from several unions. On 23 February 1993 a Special General Meeting of the Ambulance Employees Association of Victoria ("AEAV") resolved: "This meeting of AEA members authorises the General Secretary to seek improvements in the terms and conditions of employment of all ambulance employees, to represent their industrial interests and secure awards under the provisions of the Industrial Relations Act 1988 to prescribe their terms and conditions of employment. To this end, this meeting authorises the General Secretary to serve a comprehensive log of claims and letter of demand on all employers in the ambulance industry including the Ambulance Officers' Training Centre. This meeting also authorises the General Secretary to seek the finding of an industrial dispute in the Australian Industrial Relations Commission between the AEA Victoria and the ambulance employers should they fail to accede to our demands." At about this time FMWU, by amalgamation, became part of ALHMWU. On 23 April 1993, ALHMWU and AEAV served a letter and log of claims on the Commissioner of Queensland Ambulance Services. The letter demanded that, within seven days, the Commissioner observe the terms and conditions of employment detailed in the log of claims. The log contained 77 items. It is not necessary to refer to them all. It is enough to note a few items. Item 1 required that all employees be paid a minimum wage of $2000 per week, with quarterly increases in line with increases in the Consumer Price Index. It also required that "(a) classification and career path determined by the Union shall be implemented by the employer". Item 2 required service payments for all employees of $100 per week for each year of service. Items 3 to 7 inclusive proposed various other allowances, payable to most (if not all) employees. Item 9 required a 30 hour week, to be worked between 9 am and 4 pm on Mondays to Friday inclusive. Item 12 dealt with overtime, requiring payment at treble rates. Item 14 required a minimum of eight weeks annual leave, with an additional three weeks leave for employees required to work on a weekend. Although not all the documents are in evidence, it appears that, on the same day, the two unions addressed a similar demand to employers operating ambulance services in Victoria, the Northern Territory and Western Australia and to the Ambulance Officers Training Centre, Victoria. The Commission proceedings None of the recipients acceded to the unions' demands. On 19 May 1993 the unions notified the Commission of a dispute and the matter was listed as matter C No. 20689 of 1993 before Senior Deputy President Riordan on 10 June 1993. Just before that hearing, on 3 June, the Full High Court of Australia delivered judgment in Re State Public Service Federation; Ex parte Attorney-General for the State of Western Australia (1993) 178 CLR 249 ("the SPSF case"), a decision to which we will return. When the matter was called for hearing before Senior Deputy President Riordan on 10 June, a number of other entities sought leave to appear. They included some employers and employee organisations and the Queensland and Victorian State Governments. Leave was granted and the Senior Deputy President embarked on an inquiry as to the existence of a dispute. That inquiry extended over several hearing days and culminated in a decision handed down on 11 October 1993. The decision referred to the January log of claims, but it concentrated attention on the April log of claims. Senior Deputy President Riordan noted that the employers served with that log of claims (other than the Northern Territory employers, who did not appear) objected to a finding being made of the existence of an industrial dispute. He said they contended: "that the claims are fanciful, lack genuineness and do not create a dispute as defined in the Act; that a claim for a classification structure and career path for employees as determined by the Union is an attempt to invoke a general regulatory power for the Commission which is beyond its jurisdiction, that there is no authority for the AEA to join with ALHMWU for the purpose of pursuing common claims, that the claim is not one which is capable of being acceded to by the employers, because the claims are not intelligible and are so far fetched that they cannot be treated seriously and that the claims generally represent an attempt to have the Commission exercise a general regulatory power that it does not possess." Senior Deputy President Riordan referred to an issue before him as to the onus of proof of a dispute but commented that it seemed "inappropriate to be unduly concerned" about that matter. He said: "When it is alleged that an industrial dispute exists there is a duty for the Commission to ascertain whether, as a question of jurisdictional fact, such an industrial dispute does exist. If such a finding is made in the affirmative the Commission is obliged to settle that dispute and/or to prevent further disputation by the procedures and processes provided in the Act." He went on: "A claim by a registered organisation of employees, correctly made after proper authorisation by the relevant person or authority, about an industrial matter will, if the claim is not acceded to by the relevant employers in more than one State, usually result in an industrial dispute. The ascertainment of who are the parties to that dispute and the subject matter of the disputation will, in some cases, require a more detailed examination. But that is not to say that the organisation which makes the claim does not have a duty or responsibility to discharge in order properly to establish the propriety and efficacy of its claim and to establish that proper service has been effected on the respondents and to provide information that it was within its capacity to make the claims. In other words, the organisation or employer making the claim needs to establish that the claim has been 'authorisedly made'. Although I adhere to the view that it is neither necessary or nor appropriate to permit or require the discharge of a heavy burden of proof before exercising jurisdiction I do not mean to suggest that a finding of the existence or otherwise of an industrial dispute is a mere formality. Rather, because such a finding represents the jurisdictional base for all future action in respect of the matter great care is required in respect of the Commission's inquiry." Senior Deputy President Riordan then turned to the arguments raised by the employers in denial of the existence of a dispute. He dealt at some length with the submission that the log of claims was fanciful, discussing it by reference to the SPSF case. He commented that, although "those unfamiliar with the concept or doctrine of ambit" might find claims of this kind bewildering, it was "open to great doubt ... that the employers served with these claims would be in this category, particularly having regard to the level of representation on their behalf in these proceedings". Senior Deputy President Riordan dealt at length with the employers' submission that the claims were fanciful, and therefore incapable of giving rise to an industrial dispute. He rejected that submission, and also a related submission that they constituted a sham. He noted a further submission, made with particular reference to the Queensland Commissioner, that the alleged dispute was a mere "paper dispute" lacking bona fides, created solely to attract the Commission's jurisdiction. He acknowledged that, if this were the sole purpose of the log of claims, it would not create an industrial dispute but rejected the submission on the facts. A question had been raised about authorisation of the log of claims. Senior Deputy President Riordan examined the evidence about that matter and found that the log was properly authorised by both unions. He rejected the employers' submission that the claim by the two unions for implementation of "classification and career path determined by the Union" was not an industrial matter. He concluded by finding that there was an industrial dispute in existence, which he described in this way: "That industrial dispute relates to wages and other conditions of employment of persons employed by the relevant ambulance services in Western Australia, Queensland, Victoria and the Northern Territory. The parties to the dispute are the Australian Liquor, Hospitality and Miscellaneous Workers Union, The Ambulance Employees Association and the employers in those States and the Northern Territory who operate the relevant ambulance service. The dispute is in respect of ambulance services in the health and welfare services industry." An appeal against the decision of Senior Deputy President Riordan was filed. However, on 10 December 1993, before the appeal came on for hearing, the two unions served a further log of claims. They effected service on employers operating ambulance services in Queensland, Victoria, South Australia, Western Australia and Northern Territory, including some employers who had not been served with the April log of claims. The log of claims followed much the same form as the April log, but its demands were more modest. Instead of demanding $2000 per week for all employees, this log sought a basic $800 per week, with higher rates (up to $2500 per week) being paid to employees with special skills and experience. The "career path" demand was reformulated so as to remove prescription by the union and to substitute goals: job satisfaction, career advancement and occupational development. The special allowances were modified but item 10 retained the claim for a 30-hour week, to be worked between 9 am and 4 pm Mondays to Friday inclusive. The claim for treble overtime was retained. Provisions relating to part-time and casual work were inserted for the first time. In their letter enclosing the log of claims the secretaries of the two unions demanded compliance within seven days. This did not occur. The unions gave notice of a dispute concerning this log of claims and sought a finding of dispute. The Commission numbered their application C No 33189 of 1993. The appeal against the 11 October decision of Senior Deputy President Riordan came before a Full Bench of the Commission (Justice Boulton, Deputy President Polites and Commissioner Holmes) on 21 December 1993. The Full Bench was told about the new log of claims. In view of that development, the Full Bench decided to determine the appeal by referring the finding of dispute back to Senior Deputy President Riordan for further consideration. Both matters came before Senior Deputy President Riordan on 22 December 1993, and again on 7 January 1994. On 16 February 1994 the Senior Deputy President handed down a further decision, relating to both matters, in which he dealt with the question whether there was an industrial dispute. He noted that there had been "limited industrial action", apparently in November and December 1993, in support of the unions' demands. He commented that, although this action had not adversely affected the interests of patients, if it were allowed to continue, "there is every prospect that a situation could develop to a stage where this vital community service could be disrupted with serious consequences". He thought that the limited action taken by the employees indicated: "that the issues involve serious questions to be resolved and that the service of the demands in written form by the ALHMWU and the AEA is to be seen as representing a genuine desire by actual employees for improved benefits." Senior Deputy President Riordan noted that the arguments presented to him in regard to the December 1993 log represented a repetition of the arguments in relation to the earlier log. He said: "The service of the further log of claims containing a reduction in quantum in respect of certain of the demands contained in the original log of claims has, however, caused me some concern and I have once more reviewed what I decided earlier. In particular I have given very careful consideration to whether the service of the latest log of claims should be regarded as evidence of a lack of genuineness by the ALHMWU and AEA in the service of the original demands, as contended on behalf of employers. In fact, I raised this issue during the proceedings and I invited submissions with respect to it. Having reviewed all of the evidence and material produced both in the instant and earlier proceedings I have reached the conclusion that I should not alter my original finding that the demands are genuine, although they must be described as ambitious and, perhaps, extravagant. I, therefore, stand by the decision I made and the reasons therefor. I have reached this conclusion after having regard to all of the evidence and argument presented in each of the proceedings" After referring to particular arguments put to him and High Court authorities, Senior Deputy President Riordan concluded: "The conclusion I have reached, having heard the evidence, and observed those who gave it, in respect of both logs of claims is that the ALHMWU and the AEA are genuine in the demands they have made, although it is clear that, in the immediate sense, that they are ambit claims. It follows, therefore, in my view, that the dispute which I found to exist on 11 October, 1993 remains in existence but the scope of the dispute has been enlarged in that it now exists in South Australia but the ambit of the actual demands made has been diminished. The increase in the scope of the dispute is to include South Australia and the diminution of the ambit of the actual claims have occurred as a consequence of the service of the log of claims in matter C No. 33189 of 1993. The record of finding of the existence of an industrial dispute will be varied to reflect my conclusion that the industrial dispute which now exists is in respect of the demands contained in the log of claims served by the ALHMWU and AEA on 20 December, 1993; the subject matters of that dispute are wages and other conditions of employment specified in that log of claims; and that the dispute exists in Queensland, Victoria, South Australia and Western Australia." On 21 February 1994 the Commission made a formal order varying the order made on 11 October 1993 so as to make it take the following form: "THIS COMMISSION pursuant to S101 DETERMINES RECORDS AND FINDS as follows: 1. THAT there is in existence an industrial dispute within the meaning of the said Act between the ALHMWU, the Ambulance Employees Association and the employers in those States and the Northern Territory who operate the relevant ambulance service. 2. THAT the subject matter which forms the said dispute relates to wages and other conditions of employment as specified in the log of claims served by the ALHMWU and the AEAV on 10 December 1993, in matter C No 33189 of 1993, appended hereto. 3. THAT the dispute exists in the health and welfare services industry in the State of Western Australia, Queensland, Victoria, South Australia and the Northern Territory." Three employers, the States of Queensland and Victoria and the Ambulance Officer Training Centre, Victoria filed notices of appeal against the decision of 16 February 1994. They needed leave to appeal and the Full Bench (Senior Deputy President Keogh, Justice Munro and Commissioner Frawley) directed that the question of leave to appeal should be heard in conjunction with the merits of the appeal. The matter was argued on 19 July 1994, by which time AEAV had amalgamated with ALHMWU; so there was only one respondent to the proceeding. The argument proceeded on the basis that it related to both C No. 20689 of 1993 and C No. 33189 of 1993. On 21 July the Full Bench published a decision containing the following reasoning: "The matters in issue on the hearing of the appeal, in our view, can be reduced to the following points: (1) Did the service of the second log constitute an abandonment of the log upon which the dispute found on 11 October 1993 was based? Could the second log properly be found to be a refinement of the first log? (2) If service of the second log should properly be considered to have been an abandonment of the first log, was it open to Riordan SDP to refuse to revoke the dispute found in C No 20689 of 1993 but to vary the finding relating to it? (3) Were the demands comprehended by the second log genuine and capable of giving rise to an industrial dispute? (4) Was the view of onus of proof adopted by the Senior Deputy President wrong in law? (5) Is the finding of dispute invalid under the Constitution because it amounts to a breach of an implied prohibition operating against intrusion by the Commonwealth legislature on the functions of a State? The parties to the appeal appear to be agreed that there are only two possible ways in which the non-revocation of the first finding of dispute in this matter can be of practical consequence. The first is if the finding based on the second log is vitiated. The second is if an item demanded in the second log is withdrawn. Having regard to what has been put to us, each of those possibilities seems remote. It is sufficiently so to justify our refusing to accept that the first two questions in the circumstances are likely to be other than academic. We are disposed to the view that it will often be administratively tidier to separate a finding about a later log from an earlier finding based on a different log. But we acknowledge it was probably open to the Senior Deputy President to adopt the approach that he did in the circumstances of the case. What is of greater significance is that we see nothing of importance to be determined in the public interest raised by this part of the matter of the appeal. As to the questions of genuineness, and of the capability of the second log to give rise to an industrial dispute, the grounds relied upon in the appeal are substantially based upon the decision of the High Court in Re SPSF. As was submitted by Mr Nolan, nothing in the claims sets the logs in this case (or the issues) apart from those which have been considered in various decisions of Full Benches of this Commission, which have definitively dealt with the scope of SPSF. We have made a sufficient examination of the detail of the log, and of the criticisms advanced against it, to be satisfied that the jurisdictional finding made by Riordan SDP on 16 February 1994 was reasonably open to him. As to the question about onus of proof, we note that the decision of the last mentioned Full Bench refused leave to appeal in relation to an appeal which relied upon substantially the same ground. Finally, the ground of constitutional invalidity raised formally by Mr Douglas, in our view, does not activate any effective determinative function of the Commission. In the circumstances, we are not satisfied that the matter of the appeal is of such importance that it is in the public interest that leave to appeal should be granted. Leave to appeal is refused." No action was taken to challenge this decision until the Queensland application was filed in the High Court on 3 October 1994. Although the effect of the Full Bench decision was to sustain Senior Deputy President Riordan's finding of dispute, no consequential award has yet been made. The applicants' grounds As already indicated, each applicant raises a constitutional question about the findings of dispute made by Senior Deputy President Riordan. In the Queensland application the point was taken that each finding was "invalid and unconstitutional as it impinged upon the implied prohibition preventing the Commonwealth from impairing the capacity of States to function as governments". The Victorian formulation claimed that the findings, and any awards that might be made in consequence thereof, would inhibit or impair "the capacity of the State of Victoria to function as a government and/or to exercise its constitutional and governmental functions and would do so unduly" and "the continued existence of the State of Victoria as an independent entity, or would do so unduly". Although different in form, the constitutional grounds raised by the applicants are similar in substance. They are also similar to issues decided by the Full High Court in Re Australian Education Union; Ex Parte Victoria (1995) 69 ALJR 451. When counsel argued the present cases before us, that decision had not been given; but they knew about the case and expected judgment soon. So they sought, and obtained, our leave to refrain from arguing the constitutional grounds raised in these cases until after the High Court decision was known, if that should turn out to be necessary. Of course, it will not be necessary for us to deal with the constitutional grounds if we decide that the applicants are entitled to succeed on another ground. Leaving aside the constitutional grounds, the applicants raise six points. First, all applicants say the claims made in both logs of claim were "plainly fanciful"; the claims were not genuinely made and so were incapable of giving rise to an industrial dispute. Second, and related to the first point, the Queensland Attorney-General argues that the situation in that State was such that Senior Deputy President Riordan could not properly have found that any industrial dispute extended to it. Third, this applicant argues that Senior Deputy President Riordan misapplied the relevant principles concerning onus of proof. Fourth, the Victorian applicants claim that there was no evidence before the Commission of due authorisation of the December log of claims but, fifth, if the December log was authorised, all applicants say its service amounted to abandonment of the April log, so that a finding based on that log can no longer be sustained. Finally, the Victorian applicants take a point arising out of the April claim for implementation of a career path determined by the union. We will deal separately with these points. "Plainly fanciful" claims This ground relies heavily on the SPSF case, previously mentioned. The High Court was there concerned with Commission findings of industrial disputes arising out of the failure of some State and local government employers to accede to demands made in three logs of claim. One log contained only three claims. The first claim was for a minimum wage of $5000 per week for all employees, the second for an additional minimum allowance of $2500 per week for all employees and the third that the wages and allowances be adjusted quarterly to take account of cost of living increases. The second and third logs contained numerous demands. The second log of claim sought $2000 per week for all electrical tradesmen, with additional amounts for employees in various classifications. The third log of claims demanded $4000 per week for all tradesmen. The Court unanimously held that relief should be granted in respect of the finding of dispute based on non-compliance with the first log of claim, but not in respect of the findings of dispute based on the second or third logs. In relation to the first log of claims, Mason CJ, Deane J and Gaudron J noted at 266-267 that it "has long been recognised that an industrial dispute may be generated by a written demand" and that such disputes are commonly called "paper disputes"; but this does not mean that they are inherently artificial because there may be a disagreement about the terms and conditions that should apply as between employer and employee. They went on at 267-268: "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 frame work of the claims made'. 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. Generally speaking, and whether the question falls for decision in this Court or in the Commission, a demand, as to the wages or conditions of employees made by an organization of employees and authorized by its rules and in accordance with its procedures, will be treated as a genuine demand 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 in s.4(1) of the Industrial Relations Act 1988". Their Honours observed that the question "whether a claim is properly described as fanciful is one that can only be answered in the light of general industrial standards and general patterns of industrial regulation". They said these are "matters peculiarly within the experience and expertise of the Commission and, thus, this Court accords considerable weight to its findings with respect to the genuineness of demands and the existence or otherwise of a dispute arising out of these demands." However, notwithstanding the Commission's finding, their Honours thought there were features of the first log that indicated its demand was, in truth, fanciful: "The notion of weekly earnings of $7,500 for all employees, regardless of skill, qualification, or the nature of the work performed, is one that is at odds with established wage fixing principles. And, unless one subscribes to some extravagant, post-modern notion of equal pay involving the same rate of pay regardless of the work or the worker concerned, it is one that is at odds with those general theories and concepts that fashion those principles. Nor is the claim explicable as an ambit claim in which there is some in-built allowance for inflation, for the claim contains an express stipulation that wages and allowances should be adjusted for cost of living increases." Mason CJ, Deane J and Gaudron J went on to comment that, given that the matter had been pursued so far, "it is reasonable to assume that SPSF is pursuing some more realistic claim than the one that emerges from a strict reading of its demand. In our view, it is reasonable to assume that SPSF's claim is for increased wages and allowances as determined by the Commission", and would have been so understood by the bodies on whom it was served. So it was necessary to consider "whether a bare claim for increased wages and conditions as determined by the Commission gives rise to an industrial dispute as defined in s.4(1) of the Act". Their Honours held it did not. They gave two reasons: the Commission is not a general regulatory body but a tribunal established for the conciliation and arbitration of disputes and a claim for increased wages and conditions as determined by the Commission would make irrelevant the assent or dissent of employers. Mason CJ, Deane J and Gaudron J indicated their agreement with reasons advanced by Toohey J for rejecting other grounds of challenge to the finding in respect of the first log, namely lack of interstateness and that the log of claims sought to impose a special burden or disability on the relevant States. Their Honours also agreed with Toohey J in rejecting the challenges to the findings of dispute arising out of the second and third logs of claim. In connection with the second log, Toohey J said at 300: "The reasons which lead me to conclude that in the case of the Western Australian and Queensland matters there was no industrial dispute 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. That is by no means clear. Such an award may be 'relevant' or 'reasonably incidental' or 'appropriate' to the settlement of the differences between the parties. What has already been said about the interstate nature of any dispute and the notion of the integrity of the States and discrimination against them applies with equal force here. This application should be refused." Toohey J applied these same comments to the finding of dispute arising out of the third log of claims. It is not necessary to detail all the reasons of other members of the Court for holding that the first log of claims did not give rise to an industrial dispute. Brennan and Dawson JJ agreed with the reasons expressed by Mason CJ and Deane and Gaudron JJ. Toohey J's reasons were to the same effect. McHugh J held at 301 that SPSF was genuinely seeking to increase the salary and allowances of its members; however, having regard to the salary and allowances sought, "the correct inference is that the only purpose of the organization in serving the log was to attract the jurisdiction of the Commission so as to enable it to make an award for the 'disputants'". The present applicants say that the principles applied in SPSF apply to both the April and December logs of claim. Counsel for the Queensland Attorney-General refer to an affidavit of their instructing officer that exhibits, amongst other documents, two witness statements prepared by Terry Mark Allen, Senior Finance Officer with the Bureau of Emergency Services. Mr Allen made an analysis of the cost of complying with the April and December logs of claim, respectively. Without allowing for the additional staff needed to maintain services in the face of the reduced working hours demanded by the logs of claim, Mr Allen calculated that full compliance with the April log would increase the wages and salaries budget of the Queensland Ambulance Service, for its present 1735 employees, from $70.523 million to $1,175.266 million. The cost of implementation of the December log would be $766.925 million. The earnings of an individual sample employee, taken as being a full-time qualified ambulance officer with eight years' service, would rise from $28,699 per annum at the present time to $196,040 under the April log of claims or $171,200 under the December log. Counsel argue that these claims should be regarded as fanciful, when viewed in the light of general industrial standards and patterns. They say the claims are at odds with established wage fixing principles; and, if the December log must be read with the April log's claim for automatic cost of living adjustments, neither set of claims can be justified as an anticipation of future inflation. They refer to a witness statement by Brenda Forbath, an Industrial Officer of AEAV, to which was annexed an award restructuring proposal using rates of pay consistent with those in the metal industry. These rates ranged from $417 per week for an engineer tradesperson, through $604.90 for a qualified ambulance officer up to $895.15 for a senior station officer. Counsel suggested to Ms Forbath in cross-examination that she saw these rates as reasonable rates of remuneration for each category of employee identified in her document. She replied that she did not know "that we necessarily used the word reasonable. It was simply one structure or framework that you like that we used to look at a set of rates for this industry, probably not the only framework we could have looked at or we could look at." Ms Forbath said that considerable thought was given to the proposal. It was put together in early 1992. She agreed this proposal bore no resemblance to the log of claims. But she explained: "... it was one proposal that we sought to explore. The other proposal that is alluded to in this material that you have before you is to use the competency standards that were being developed at the time. That is another approach which could be used which might indeed produce different figures altogether. So there are a number of frameworks that you could use, and as I was saying this is one, yes we did think about it quite carefully and it was one framework which we have documented here." Counsel for the Queensland Attorney-General say that no obvious account had been taken of the practical consequences that would flow from allowance of the claims made in either of the logs of claim; that suggested that the union did not realistically assess its position but was using the claim as a means of having the Commission determine increases. Counsel also claim that ALHMWU "is affiliated with State registered unions throughout the Commonwealth and has no pressing need for an award that cannot be met by or through the available State industrial systems" and its members are also members of those unions. They suggest that these facts assist to cast doubt on the genuineness of the log and the Commission should have inferred that the claim was brought in an attempt to avoid recent Victorian industrial legislation. Counsel for the Victorian applicants put similar submissions. They say that written demands must be genuine demands, in the sense that there must be a desire to obtain the conditions sought and the claim is propounded as a demand upon which the union is resolved to insist or is what is wanted by the union and its members. They accept that a demand may be genuine, even though not every item is intended to be obtained forthwith in the terms and amounts claimed and that a claim may have ambit. But they say the doctrine of ambit does not validate claims but merely determines whether awards are valid, as not going outside the dispute or what is incidental to it. They particularly comment on the fact that, in the case of both logs, the unions demanded that the claim be agreed within seven days, whereas there was evidence before the Commission that the unions expected the demands to be realised only over time. Counsel for ALHMWU disputes that the logs of claim should be regarded as fanciful. He says it was for the applicants in these proceedings to establish that the demands were not genuinely made; but that cannot be done merely by showing that the demands were motivated by a perceived collateral advantage, including attracting the jurisdiction of the Commission. He refers to what was said by Gibbs CJ and Mason, Wilson, Brennan, Deane and Dawson JJ in The Queen v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 182: "But it is not an objection to the genuineness of the dispute that the purpose of delivering the log of claims is to create an industrial dispute which will thereby give the Commission jurisdiction to make an award: ... This is a necessary consequence of the doctrine that industrial disturbance or dislocation is not an essential element of an industrial dispute and that disagreement as to terms and conditions of employment in a particular industry constituted by non-acceptance of a log of claims is enough to bring such a dispute into existence. And it is a recognition of the reality that generally lies behind paper disputes - the desire to create a dispute which will attract the jurisdiction of the Commission to make a general industrial award, that is, an award which will regulate terms and conditions of employment in the particular industry. The point is that the unions serving the log of claims seek both the conditions and an award making provision for them ... The desire to give the Commission jurisdiction so that it can make an award must be a reflection of the organization's desire to obtain the conditions." Counsel observes, rightly we think, that nothing in SPSF casts doubt on the continuing authority of Ludeke. He says that the April and December logs were both genuine logs of claim, in the Ludeke sense; they were of a kind normally utilised as a vehicle for the prosecution of industrial claims, and recognised as such by the Commission. He points out that four experienced members of the Commission accepted the genuineness of the logs of claim and that the High Court has emphasised the weight that ought to be given to the Commission's view on this question. Counsel suggests that SPSF is distinguishable. The log of claims held in that case not to give rise to an industrial dispute was notable for its extreme brevity and lack of distinction between the position of radically different categories of employees. The log related to hundreds of thousands of public service employees in a wide variety of callings but offered no classification structure or means by which classifications might be determined. Counsel points out that this was a critical factor in the determination of Toohey J. He observed at 290-291 that, while it may not always be easy to draw the line between "demands made in a log of claims (that) have little prospect of success and ... do no more than set the ambit within which conditions of employment may be negotiated and, if negotiations are unsuccessful, determined by the Commission" and a "log ... so far-fetched, so lacking in industrial reality that it cannot possibly be treated seriously", a significant factor was the log's failure to distinguish between categories of employees. We accept the submissions of the respondent's counsel on this issue. The wages and conditions sought in the two logs of claim may fairly be described as optimistic, even extravagant. It is unlikely, to say the least, that those who framed the demands believed they were attainable in the short term. But we think they can fairly be described as providing a framework for negotiation. In determining whether or not a log of claims should be regarded as fanciful, it is not helpful to calculate the cumulative cost of acceding to each separate demand and to compare the result to the costs currently borne by an employer. Nobody would expect every demand to be granted in full. The notion of ambit requires a union framing its log of claims to exceed its most optimistic expectations in relation to each item in the log. Benefits may be provided in different ways. For example, a claimant cannot know in advance whether the Commission will be minded to fix a relatively high wage rate, with few or no special allowances, or a relatively low wage rate with substantial allowances. So it is necessary for the claimant to make a claim in relation to each item that is sufficient to cover any likely award in respect of that item, if it be selected for preferment by the Commission. During the course of argument, we asked counsel whether there was any case other than SPSF in which a log of claims had been held too fanciful to found an industrial dispute. They stated that they were not aware of any. Neither are we. This points up the conclusion, that might in any event be drawn from the High Court's reasons for judgment, that SPSF was a most exceptional case. There was more to the case than the fact that the log claimed a minimum wage or minimum allowance that exceeded the remuneration presently available to the relevant employees. Each of the reasons for judgment on this point emphasised the indiscriminate nature of the demand, no account being taken of the variation amongst those employees of skill, qualifications or experience: see Mason CJ, Deane and Gaudron JJ at 269, Toohey J at 291 and McHugh J at 307. The critical importance of this can be seen from the fact that none of their Honours was prepared to stigmatise as fanciful the second and third logs of claim, despite the fact that they made demands for wages far exceeding those presently payable to the relevant employees. And, for what it is worth, it should be noted that the wages sought by the third log ($4000 per week) were considerably higher than those sought in either of the subject logs of claim. The Queensland situation In relation to this ground counsel for the Attorney-General of Queensland relied on evidence in C No 20689 summarised by Senior Deputy President Riordan in his decision of 11 October 1993. The relevant matter was as follows: "Support for the contention that the sole purpose of the log was to attempt to attract jurisdiction rests broadly on two major grounds. The first relates to the existence of a 'modern' State award made by the Queensland State tribunal, which award is said to have been developed in full consultation with the 'State registered union'. Secondly it is argued that the classification structure in that State award is the result of an agreement which was reached after extensive consultation. In addition, evidence was given of the co-operative attitude of the parties towards the resolution of industrial disagreement which may arise in Queensland. It is within this setting of the existence of a 'modern' award regulating the terms and conditions of employees in the State of Queensland and the apparent harmonious relationship between the employer, the employees and their union that I have considered whether there exists an industrial dispute in Queensland or whether the service of the log of claims in that State is no more than a sham designed to drew up an intra-state dispute in Victoria. Jeffrey Slowgrove is the Assistant Secretary of the Miscellaneous Workers Division, Queensland Branch of the ALHMWU. His evidence relates to the question of the genuineness of the dispute. Evidence given earlier in the proceedings by Ian Shakespeare, Industrial Relations Officer of the Bureau of Emergency Services (Queensland), is to the effect that during February, 1993 he had a telephone conversation with Mr Slowgrove, some time prior to 18 February, 1993, in which Mr Slowgrove is said to have informed him 'that the Union really had no intention of creating a federal award in Queensland and that Queensland was only intended to be listed as a leave reserved matter'... This statement is supported by the notes of the meeting of the Queensland Ambulance Service Industrial Relations Consultative Forum held in Brisbane on 18 February, 1993 which contains a report in the following terms: '4. Federal Log of Claims J. Slowgrove stated that the Union had no intention of creating a federal award in Queensland at this stage and that Queensland would be listed as a leave reserved matter should a federal award be created. He added that the log of claims had also been served on Western Australia and Northern Territory.' Mr Slowgrove rejects this interpretation of the events and asserts the support of the Queensland members of the ALHMWU for the demands made, the creation of national standards of wages and other conditions of employment and the making of a federal award. His version of the matter is in quite different terms to the situation as understood and explained by Mr Shakespeare, whose account of the conversation is that he told Mr Slowgrove that the Queensland Ambulance Service was neither interested in being bound to a federal award nor in being listed on the basis that consideration of its respondency to such an award was to be listed as a leave reserved matter. Mr Shakespeare is able to specify the date of the telephone conversation as being prior to 18 February, 1993 because on that date a meeting of the Industrial Relations Consultative Forum was held. The notes of record of that meeting are referred to above. Mr Slowgrove's version of event is quite different. It is his evidence that Mr Shakespeare's version represents a misunderstanding of the position which had been put to him. Mr Slowgrove asserts that, on 4 February, 1993, he attended a meeting of a body named the National Council of Ambulance Unions which endorsed the move to a Federal Award for those Unions who wished it. But at that stage the Queensland Branch of the ALHMWU wished to keep its options open. (Whether a branch of a registered organisation enjoys the right of any such option was not argued and, in the circumstances of this matter, requires no consideration in this decision.) The result of this evidence appears to me to be a significant misunderstanding of the intention on account of a failure to recognise a change in attitude by the Queensland branch, or one of its officials, from a position of reservation to one of support for the log of claims. Even if it be a fact that certain officials disagree with a decision to make certain demands on employers this would not mean that the claims were not genuine. It is the intention of the organisation which makes the claims which is important in the determination of matters such as this." Little more needs to be said about this point. It plainly raises no ground for prerogative relief. Even if Mr Shakespeare's understanding of Mr Slowgrove's position was correct, this would only be Mr Slowgrove's view, not necessarily that of the ALHMWU as an organisation, and in relation to the position in February 1993. This was a relatively early stage of the matter. Much happened between February and the service of the April log of claims. Onus of proof Counsel for the Queensland Attorney-General submit that the "evidentiary weight to be attached to the service of the log and the failure to accede to the demands (it) contained" are insufficient to prove that the alleged dispute was genuine. They rightly say that in proceedings before the Commission, the onus lies on a party asserting the existence of a genuine dispute to prove that fact. They point out that Senior Deputy President Riordan saw difficulties in applying conventional rules about onus and standard of proof to notification of industrial disputes. But, whatever the merits of those comments, as counsel recognize, Senior Deputy President Riordan concluded this section of his decision by saying: "having regard to the facts and circumstances of the instant matter the ALHMWU and the AEA have discharged their responsibility in this regard even if a strict onus were to be required and the burden of proof required in civil proceedings before the Courts were to be applied." We do not think that Senior Deputy President Riordan fell into error on this point. Even if he had, the error would have been a mere error of law, not going to the Commission's jurisdiction. Authorisation of the claims Only the Victorian applicants raised the matter of authorisation and then only in relation to the December log of claims. Their counsel rightly said that it is necessary that a log of claims be authorisedly made in accordance with the rules of the relevant organisation, citing Re Construction Forestry Mining and Energy Union; Ex parte W J Deane & Son Pty Ltd (1994) 125 ALR 16. They submit that there is no evidence upon which the Commission could conclude that the December log was authorisedly made. A similar submission was put to Senior Deputy President Riordan, but apparently only as an alternative to a primary submission (not put to us) that there was no authority for AEAV and ALHMWU to make common cause, each with the other, in framing their log of claims. In response to the alternative submission, Senior Deputy President Riordan said: "Similarly, there was some objection about whether the General Secretary of the ALHMWU was authorised to make the claims. There is no doubt, in my view, that the General Secretary has the authority pursuant to the registered rules of the ALHMWU to make such claims and his actions appear to be fully consistent with the views of the relevant members." It must be said that the evidence regarding authority was sparse and unsatisfactory. The letter of demand, in relation to each log, was signed by the Joint National Secretary of ALHMWU and the General Secretary of AEAV. It stated that each is "duly authorized to make this demand on behalf of" their respective organisations. But particulars of the authorisation were not provided. We note that, during the proceedings before the Commission in relation to the finding of dispute arising out of service of the first log of claims, an officer of the ALHMWU, during cross-examination, produced a page of the rules of that organisation that included this statement of the powers of the joint national secretary: " ... between meetings of the transitional national executive, a joint national executive, a joint national secretary shall have the general control and conduct of the business of the union." We have already quoted the terms of the resolution passed at the AEAV Special General meeting of 23 February 1993. That resolution authorised the General Secretary to serve a log of claims. However, in the absence of the rules, it is not clear what standing such a resolution has. The resolution was adopted before the first log of claims was served. It appears a similar resolution was passed at a meeting on 20 April 1993. So far as we are aware, neither organisation's rules were tendered to the Commission. And, apparently, there was no other evidence on this issue. We say "apparently" because, if there was relevant material, the Court was not directed to it. In conformity with the system of adversarial proceedings in operation in Australia, it is not the function of the Court to undertake an inquisitorial role by shifting through the mass of material haphazardly presented to the Court to see if it can find some reference, or absence of reference, to the authority given by the two organisations. The Court is entitled to expect the legal advisers of the parties to direct it to the relevant factual material. Counsel for the Victorian applicants submit, in relation to ALHMWU, that the rule referred to before the Commission, empowering a joint national secretary, at particular times, to "have the general control and conduct of the business of the union", was not a sufficient source of power to authorise the service of a log of claims. They say this power is limited to the day to day activities of the union, not to the taking of a major step that is likely to involve the union in great expense. In relation to AEAV, counsel say that the resolution authorized the service of one log, that that power was exercised in April and there was no continuing authority for the general secretary to make the claims contained in the December log. As we have indicated, we think the evidence on this issue is unsatisfactory. But we do not think it appropriate to find a lack of authority. So far as ALHMWU is concerned, there is at least a scintilla of evidence of authority. Counsel for the employers could have pursued this matter before the Commission. They could have insisted upon a tender of the organisation's rules, or tendered them themselves. They would have done so, presumably, if they had thought that, read as a whole, the rules did not support the witness' summary of their effect. In relation to AEAV, if a meeting of members has power under the rules of that organisation to authorise what the meeting purported to authorise, there is no warrant to impose a limit on the time during which the authority can be exercised nor to restrict the power to a single exercise. It is a general power directed to achieving an expressed purpose. The general secretary is authorized to exercise the power from time to time to seek to achieve the purposes expressed in the resolution. In relation to both organizations, we note that the persons signing the April letter of demand claimed to be properly authorized, as they did in December. If the issue of authority had been taken seriously by the employers it might have been expected, after the hearing leading to the making of the first finding of dispute, that they would have ensured the matter of authority was fully investigated during the hearings before the Commission leading to the making of the second finding of dispute. Further, it might have been expected that they would have taken care to ensure that evidence on the issue was presented to the Court in these proceedings and that our attention was directed to it. The facts of this case are very different from those in Deane. In the present case, no question of ratification arises. There is no evidence that the December demand was not authorized under the rules of the two organisations or not made in accordance with the procedures of the organisations. Although, before the Commission, the onus of establishing authority to serve a log of claims rests with the organisation asserting the existence of an industrial dispute by reason of the employers' non compliance with the demands of that log, the position is different when prerogative relief is sought in the High Court or in this Court on remittal. We refer to what was said in SPSF by Brennan J at 289: "When prohibition is sought the onus is on the prosecutor to demonstrate a lack of jurisdiction in the Commission." The applicants have not discharged this onus. This ground must be rejected. Whether the April log was abandoned The applicants in both matters argue that Senior Deputy President Riordan should have held that the service of the December log of claims constituted an abandonment by the two unions of the claims made in April, with the consequence that thereafter there was no dispute arising out of the employers' non-compliance with the April demands. Counsel for the Queensland Attorney-General say that the December log "cannot be viewed as an elaboration of or amendment to the April 1993 log as it deals point by point with exactly the same matters as the original log." They argue that the later log of claims cannot stand with the earlier log; having regard to the nature of the claims made in it, the existence of the later log "shows clearly that its proponents no longer wanted what was sought by the earlier log". Counsel contend that the unions should have been put to their election to save the respondents the trouble of dealing with repeated claims covering the same issue. Counsel for the Victorian applicants put similar contentions. They also criticise the Senior Deputy President's view that the dispute created by refusal of the April log, whilst remaining in existence, was merely altered by the December log. This view is incorrect, they say; first, because the December log was not framed in that way; and second, because in the case of a "paper" dispute, the dispute is defined and constituted by the documents and its refusal. Service of a later document covering the same field, they say, necessarily results in the first document being no longer pressed. With respect to counsel, it seems to us this is a particularly arid point. The argument on this point assumes the genuineness of the December log of claims, so it was capable of giving rise to an "industrial dispute" within the meaning of the Act. Senior Deputy President Riordan found that it did have this effect. As already recounted, on 21 February 1994 he varied the order made in October so as to record a finding that the subject matter of the then existing dispute "related to wages and other conditions of employment as specified in the log of claims served by ALHMWU and AEAV on 10 December 1993". That finding provides a sufficient jurisdictional basis for the Commission to exercise its arbitral powers and make an award, if that is what it decides to do. It is important to note that, as counsel's arguments recognise, the items included in the second log are the same as those in the first; so there is no possibility of an award dealing with a matter raised by the first log but not the second. Whether or not the pre-December dispute now continues is of no practical consequence. In any event, we see no merit in the point. The argument on this point assumes that a dispute arose out of the employers' non-compliance with the demands of the April log of claims and that this dispute was continuing when the December log of claims was served. Senior Deputy President Riordan had described that dispute in wide terms in October. He said it "relates to wages and other conditions of employment of persons employed by the relevant ambulance services" in three States and the Northern Territory. He did not define the dispute in terms of the precise demands of the April log. The December log related to the same subject matter. It seems to us that it was accurate to say, as he did: "I do not believe that the original dispute has been settled ... it has been altered but not resolved". Even if Senior Deputy President Riordan erred in his finding about the nature of the dispute, this would be an error of fact. It would not attract prerogative relief. Career path The final point may be dealt with briefly. Counsel for the Victorian applicants say that, insofar as the April log claimed that "a classification and career path determined by the Union shall be implemented by the employer", "such a claim is incapable of creating an individual dispute because it is not about matters pertaining to the relationship between employers and employees". They cite The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228. That case concerned a dispute over one-man buses. The Australian Tramway and Motor Omnibus Employees' Association served a demand for the addition to existing awards of a clause providing that "employees shall not without the consent of the (Association)", or an order of the Arbitration Court, "require an employee to operate on his own, a bus on (certain) routes". At 247-248 Taylor J said this demand: "simply sought an award which would leave it to the Association to say yea or nay in any particular case, and providing that that in the event of disagreement each particular dispute should be settled by the Commission. It is true that an award in the terms of the demand would prohibit the operation of buses on additional routes by one man but it would be a conditional prohibition only and subject to relaxation, not by reference to any condition or conditions prescribed with respect to the relations of employer and employees inter se, but only by reference to the consent of the organization which it might, at its discretion, withhold or grant upon such conditions as it saw fit". These observations must be read in the light of the subsequent High Court decision in The Queen v Holmes; Ex parte Victorian Employers Federation (1982) 31 ALR 487. The Federation served a log of claims containing a demand in relation to wages that "(a)n employee shall be paid an amount determined by the employer who will consider" certain matters. The respondent union persuaded a Commissioner that its failure to accept this demand did not give rise to an industrial dispute. The High Court thought otherwise. At 483-484 Mason J, with whom the other four members of the Court agreed, said: "The Association's next submission is that the log of claims is too uncertain in that, in relation to wages, it creates no definable ambit because, in point of amount, there is no limit to the sum which might be determined as a weekly wage rate. The submission again fails to appreciate that the thrust of cl 1 lies in the claim that the wage rates shall be determined from time to time by employers. It is therefore not in point to say, as the Association does, that the employer can fix any wage rate. If the Commission were to make an award in the terms of cl 1, no question of ambit could possibly arise. Such a question can only arise when some disconformity between claim and award emerges". This ground must fail. Disposition of the case As will be evident, we see no merit in any of the argued grounds. However, as we previously mentioned, the applicants in both matters also take a constitutional point, about which we have not heard argument. In the light of the High Court's decision in Australian Education Union, they may not wish to be heard on that point. But we must give them the opportunity. Accordingly, we will not dismiss the applications at this stage. We propose to direct that any applicant who wishes to argue a stated constitutional ground file and serve written submissions in support of the ground within 14 days and that the respondent file and serve written submissions in reply within a further 14 days. We will then deal with the relevant grounds upon the basis of the written submissions. If, in either matter, no submissions are filed within 14 days of today, that application will stand dismissed at the expiration of that period.

I certify that this and the preceding fifty-one (51) pages are a true copy of the Reasons for Judgment of Chief Justice Wilcox and Justice Spender. Associate: (Sgd) E. Collins Dated: 4 July 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No QI 221 of 1994 No QI 252 of 1994 QUEENSLAND DISTRICT REGISTRY ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA B E T W E E N : THE STATE OF QUEENSLAND AND OTHERS Applicants A N D : THE HONOURABLE JOSEPH MARTIN RIORDAN AND OTHERS Respondents COURT: WILCOX CJ NORTHROP J SPENDER J PLACE: BRISBANE DATE: 4 JULY 1995 REASONS FOR JUDGMENT NORTHROP J These two applications for prerogative orders against a Presidential member of the Australian Industrial Relations Commission ("the Commission") are before a Full Court following the matters being remitted by the High Court of Australia to this Court; see subsections 412(2) and (3) and paragraph 415(2)(d)(i) of the Industrial Relations Act 1988 ("the 1988 Act"). In proceeding No 221 of 1994 the State of Queensland, in substance, is challenging the validity of a finding of dispute made by Senior Deputy President Riordan on 21 February 1994 under the provisions of the 1988 Act. In proceeding No 252 of 1994 the State of Victoria, in substance, is challenging the validity of the same finding of dispute. The two proceedings were heard together. The facts giving rise to these proceedings are somewhat confusing but as a result of orders made during the course of the hearing as well as the clarification of issues that occurred during the hearing, the relevant facts can be stated simply. In doing this, reference will be made to the Australian Liquor, Hospitality and Miscellaneous Workers Union ("the Organisation") as the party who sought the finding of dispute and which is opposing the orders sought by the applicants, even though other parties had a part to play in the history of the matters. Likewise reference will be made to the State of Queensland and the State of Victoria as if they were the only parties seeking relief although other parties had a part to play in the history of the matters. On 14 October 1993, the Commission constituted by Riordan SDP made a finding of dispute pursuant to section 101 of the 1988 Act. Among others, the State of Queensland, the State of Victoria and the Organisation were named as parties to that dispute. The dispute was founded on the non-acceptance of a log of claims served by the Organisation. The State of Queensland and the State of Victoria sought to appeal against that finding of dispute but on 10 December 1993 the Organisation served a further log of claims which replaced some of the claims which may have offended the opinions contained in Re State Public Services Federation Ex parte Attorney-General for the State of Western Australia (1993) 178 CLR 249, judgment in which was published on 3 June 1993. Following the service and non-acceptance of the second log of claims, the appeal was referred back to Riordan SDP for further consideration. On 21 February 1994 Riordan SDP made a finding of dispute based upon the non-acceptance of the second log of claims. The finding was headed "VARIATION TO FINDING OF DISPUTE" and took the form of varying the first finding. Since the finding of dispute made on 21 February 1994 is the finding being challenged in these proceedings, it is helpful to set out the relevant parts of that finding even though the contents are taken from two different documents: "THIS COMMISSION pursuant to s101 DETERMINES RECORDS AND FINDS as follows: 1. THAT there is in existence an industrial dispute within the meaning of the said Act between the ALHMWU, the Ambulance Employees Association and the employers in those States and the Northern Territory who operate the relevant ambulance service. 2. THAT the subject matter which forms the said dispute relates to wages and other conditions of employment as specified in the log of claims served by the ALHMWU and the AEAV on 10 December 1993, in matter C No 33189 of 1993, appended hereto. 3. THAT the dispute exists in the health and welfare services industry in the State of Western Australia, Queensland, Victoria, South Australia and the Northern Territory." Since that finding was made the ALHMWU and the AEAV have amalgamated and thus are one with the Organisation. Since some submissions were made relating to the form of the claims, the relevant parts of the letter of demand on which the finding of dispute is based are set out: "10 December 1993 "SEE ATTACHED SCHEDULE OF RESPONDENTS" Dear Sir/Madam, Having been duly authorised to make this demand, we demand on behalf on the Australian Liquor, Hospitality and Miscellaneous Workers Union and the Ambulance Employees Association of Victoria, that you observe the terms and conditions of employment detailed in the attached log of claims with respect to persons eligible to be members of the union: (a) employed by you; (b) employed by contractors engaged by you; (c) employed by persons who provide services for you. We require you, within seven (7) days of service of this letter, to observe the said terms and conditions. No reply to this letter within seven (7) days will be treated as a refusal of the demand. Yours faithfully JEFF LAWRENCE JOHN TAPLIN JOINT NATIONAL SECRETARY GENERAL SECRETARY Australian Liquor, Hospitality Ambulance Employees and Miscellaneous Workers Association of Union Victoria" That letter, the log of claims and a list of the employers served are appended to the finding of dispute dated 21 February 1994. On 22 July 1994, a Full Bench of the Commission refused leave to appeal against that finding. Having regard to the authorities relating to the nature of a "paper dispute" and the role of an organisation as a party principal for the purpose of creating an industrial dispute under the 1988 Act, prima facie the finding of dispute is valid. The State of Queensland and the State of Victoria challenge the validity of the finding on a number of grounds. It is necessary to consider each of these grounds. The genesis of the contentions made on behalf of the States appears to be the opinions expressed in State Public Services Federation, but the contentions go further. That authority will be considered in some detail later. In their outline of submissions, counsel for the State of Queensland referred to State Public Services Federation and claimed that in the context of the evidence before the Commission in the present case: "(a)the claim made by the Organisation was similarly "fanciful" to that made in State Public Services Federation; (b) the Commission should have found that there was no dispute involving Queensland in any event; (c) the Commission misdirected itself as to the relevant onus of proof or misapplied the appropriate standard in the circumstances of this case; (d) the original log of claims should have been treated as having been abandoned by the second log." Ground (d) has no basis as the finding of dispute is based solely on the second log. Nevertheless many of the submissions put were based on the first log. On the facts of this case, there is no basis for that and the Court looks only at the second log which is the one referred to in the finding of dispute. Ground (b) was based upon submissions that awards made under State legislation applied in Queensland, that these awards were adequate and that the claims by the Organisation were, therefore, not genuine. In essence these submissions were based upon a misapprehension of the nature and role of an organisation in the creation of an industrial dispute under the 1988 Act. The State regulation in Queensland relies upon the existence of separate legal identities, State registered bodies. In truth, the State of Queensland has the option, if the finding of dispute is valid, to make application to the Commission under paragraph 111(1)(g) of the 1988 Act. Ground (b) has no relevance to the application before this Court. In their outline of submissions, counsel for the State of Victoria relied upon the following additional grounds: (1) That the demand by the Organisation was not genuine. (2) That the demand was made without the proper authority of the Organisation, being at the time the two separate organisations referred to in the letter of demand. (3) The claim for a classification structure could not give rise to an industrial dispute. Ground (3) was not pursued. In any event, having regard to the history of this matter, it is not appropriate that the Court should consider that ground at this stage. It is appropriate to consider whether the demand contained in the log of claims if not acceded to by the employers served, is capable of creating a "paper dispute" as an industrial dispute under the 1988 Act. In a number of authorities of the High Court, Justices have commented upon the incongruity of the creation of a "paper dispute" being created by the service of a claim by an organisation in the form of an award of the Commission. Nevertheless the authorities show that, with limited qualifications, a valid industrial dispute is capable of being created by this method. In the present case, it is necessary to make some reference to the log of claims served by the Organisation under cover of the letter set out earlier in these reasons. The log takes the form of an award. It is a lengthy document containing 74 clauses extending over a wide range of terms and conditions of employment regulating the employment of persons in the industries described in the incidence clause of the log of claims. Clause 2 is headed "Weekly Wage Rates" and contains five categories of employees ranging from Category 1 being persons not required to have formal qualifications, work experience or on the job training to employees required to have high levels of skill and knowledge including persons in supervisory, instruction, training and management positions. The weekly wage rate for each category range from $800.00 to $2500.00. In addition Clause 2 seeks the creation of a career path providing for job satisfaction, career advancement and occupational development. A claim is made also for the creation of grades within each category. In addition other clauses demand service payments, extra payments, an industry allowance, special rates, site and/or establishment allowances and district and divisional allowances. Another clause demands a 30 hour working week. As stated earlier the log sets out 74 clauses, there is a clause 10A but clauses 69 and 72 are identical. It is not necessary to refer to the subject matter of all of these clauses. The essence of the submissions made on behalf of the State of Queensland and the State of Victoria is that the wage rates and other payments demanded are so extravagant and fanciful that the demand is not genuine and so is incapable of founding an industrial dispute under the 1988 Act. At the very outset, it should be noted that these submissions ignore the great majority of the demands contained in the other clauses of the log. This factor detracts from the force of the submissions made. Counsel relied strongly on the opinions expressed by the High Court in State Public Services Federation. That case involved a number of separate matters including a log of claims served by the State Public Services Federation ("the Federation") on the States of Western Australia and Queensland and a log of claims served by the Electrical Trades Union of Australia ("the ETU") on the State of New South Wales and instrumentalities in that State. The log served by the Federation was "startling in its simplicity" and is set out in the judgment at 282. It contained four clauses but three only went to substance. In their joint judgment, Mason CJ, Deane and Gaudron JJ at 266 summarized the claims as follows: "Its claims are simple: a minimum wage of $5000.00 per week for all employees; and an additional minimum allowance of $2500.00 per week, again for all employees. As well, there is a claim that pay and allowances be adjusted quarterly to take account of increases in the cost of living as measured by the consumer price index." The Court held that this log of claims could not found the creation of an industrial dispute. In their joint reasons, Mason CJ, Deane and Gaudron JJ at 266-271 give a very useful and helpful summary of the legal principles to be applied to the analysis of the log involved and their conclusion on this aspect of the case. This passage should be read in full. Short extracts are set out: At 268: "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. Generally speaking, and whether the question falls for decision in this Court or in the Commission, a demand, as to the wages or conditions of employees made by an organization of employees and authorized by its rules and in accordance with its procedures, will be treated as a genuine demand 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 in s4(1) of the Industrial Relations Act 1988 (Cth)." At 268-9: "The question whether a claim is properly described as fanciful is one that can only be answered in the light of general industrial standards and general patterns of industrial regulation. These are matters peculiarly within the experience and expertise of the Commission and, thus, this Court accords considerable weight to its findings with respect to the genuineness of demands and the existence or otherwise of a dispute arising out of those demands." At 271: "We would read the log of claims as involving a claim for increased wages and allowances as determined by the Commission. However, and as already indicated, a claim of that kind does not give rise to an industrial dispute as defined in s4(1) of the Act. That is sufficient to entitle the prosecutors in the SPSF matters to the relief which they claim." Brennan J and McHugh J agreed with these reasons; see 272 and 307-8. At 277 Dawson J said: "I agree with Mason CJ, Deane and Gaudron JJ that the demands made by the log of claims in those matters in which the State Public Services Federation is a respondent amount in effect to no more than a bare claim for improved wages and conditions to be fixed by the Australian Industrial Relations Commission. The mere failure of the employers upon whom the log was served to accede to a claim of that kind cannot give rise to an industrial dispute. At most it would amount to a dispute concerning the power of the Commission to entertain such a claim. Since the Commission lacks jurisdiction to regulate terms and conditions of employment otherwise than in settlement of an industrial dispute, the orders nisi must be made absolute in those matters." Toohey J held that the Federation log was not genuine. His Honour considered this matter at 286-294. Much of the reasons consisted of an analysis of the reasons of the Commission. Toohey J gave the main judgment in relation to the ETU log. The other Justices agreed with his Honour's reasons on this issue. In the context of this case, it is helpful to note the terminology used by Toohey J. The relevant passage commences at 286 where his Honour is considering the Federation log. After making reference to a number of authorities his Honour suggests that the preferable question is whether a genuine demand has been made, 290, and accepts the view expressed in R v Ludeke Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181: "[T]he demands must be bona fide in the sense that they are being genuinely advanced." Toohey J considered the ETU log commencing at 299. There the letter of demand referred to the log of claims which was in far more detail than the Federation log. It claimed: "... a weekly wage of $2,000.00 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." At 300 Toohey J concluded: "The reasons which lead me to conclude that in the case of Western Australian and Queensland matters (No P43 of 1991 and No B42 of 1991) there was no industrial dispute 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. That is by no means clear. Such an award may be "relevant" or "reasonably incidental" or "appropriate" to the settlement of the differences between the parties." 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: "When prohibition is sought the onus is on the prosecutor to demonstrate a lack of jurisdiction in the Commission. But when a matter is before the Commission the onus is on the party who alleges that an industrial dispute exists. In many, perhaps most, circumstances the service of a log of claims and a failure to accede to the demand contained in the log will be enough to satisfy the Commission that an industrial dispute does exist. But the ultimate onus does not shift to the respondent." As was said earlier in these reasons, prima facie the service of the log of claims in the present case and the non-acceptance by the employers served to accede to those demands should have been enough to support the finding of dispute made by the Commission. Counsel for the State of Victoria sought to challenge the validity of the finding of dispute by taking the Court through a detailed examination of all aspects of the claims insofar as they related to wages in an attempt to show that the demand was not genuine, particularly when the demand required a response within seven days. Such an exercise is not permissible. In reality it is directed to questions that go to the merits of the claim if it goes to arbitration. Critical examination of evidence given by an officer of the Organisation in an attempt to show that the Organisation did not expect to achieve its demands immediately does not assist the State of Victoria. On the facts of this case, the log of claims must speak for itself. 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. In a long passage in Ludeke commencing at 180, the Court, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ restate a number of principles of law relevant to these questions. The passage, concluding at 184, should be read in full. These principles have application to the facts of this case. The submissions made on behalf of the State of Queensland and the State of Victoria on this ground are rejected. It becomes necessary now to consider the ground relating to the onus of proof. The Commission seems to have accepted that the Organisation carried the overall burden of proving the existence of an industrial dispute. The shifting, or evidentiary, onus is something different. Prima facie the proof of service of the log of claims and its non-acceptance is sufficient to satisfy the existence of the dispute. This is consistent with what was said by Toohey J in State Public Services Federation where, after considering a number of authorities, at 288 concluded: "It follows that when the Commission is faced with a challenge to the existence of an industrial dispute, the onus does not shift to the respondent to demonstrate the absence of any dispute. It is for the applicant who has invoked the jurisdiction of the Commission to make good the proposition that jurisdiction exists. But, in doing so, the applicant will be assisted by the evidentiary weight to be attached to the service of a log of claims and a failure to accede to the demands contained in the log." This ground is, in truth, an appeal point. As expressed in the outline of submissions of the State of Queensland "No reasonable person could properly accept that the unions really wanted what they claimed in these logs". This ground must be rejected. The final ground to consider is whether the demand made by the Australian Liquor, Hospitality and Miscellaneous Workers Union and the Ambulance Employees Association of Victoria respectively for acceptance of the log of claims was made with the authority of each of the organisations. As appears from the passage from the joint judgment in State Public Services Association at 268 quoted earlier in these reasons, given the purported existence of a "paper dispute": "Generally speaking, and whether the question falls for decision in this Court or in the Commission, a demand, as to the wages or conditions of employees made by an organization of employees and authorized by its rules and in accordance with its procedures, will be treated as a genuine demand ... " An organisation is a corporate body. An organisation can act only through natural persons. Persons taking action on behalf of the organisation must have the authority to take that action. The action must be within the powers of the organisation and must have been given in conformity with the rules of the organisation. The importance of these principles is illustrated starkly by a reference to Re Construction Forestry Mining Energy Union Ex parte W.J. Deane & Sons Pty Ltd and Others (1994) 125 ALR 16. There a letter of demand containing a log of claims and expressed to be made on behalf of five organisations was served on employers. The letter, dated 14 March 1991, was signed by an officer of each of the five organisations. The letter was expressed to be made jointly and severally on behalf of the five organisations. Following non-acceptance of the demands, the Commission made a finding of dispute. In October 1991 the Commission made an award based on that dispute but reserving leave to the employers to make applications under paragraph 111(1)(g) of the 1988 Act. Such an application was made. In that application the employers sought production of the documents of the organisations giving authority for the making of the demand. The organisations gave the employees a written statement that they did not have any such documents. Relying on this the employers sought a revocation of the finding of the dispute. Subsequently, the organisations purported to ratify the action taken by the officers on their behalf. The High Court held that the authority had to be given before the demand was made and in the absence of that authority the action taken could not be satisfied. The finding of dispute, therefore, was invalid. The letter of demand in the proceedings presently before the Court has been set out earlier in these reasons. It was signed by the joint national secretary of the Australian Liquor, Hospitality and Miscellaneous Workers Union and the general secretary of the Ambulance Employees Association of Victoria. The letter states that each is "duly authorized to make this demand on behalf of" their respective organisations. During the hearing of the matter before Riordan SDP leading to the making of the finding of dispute, the employers raised the issue of authority. The evidence led before the Commission on this issue was very unsatisfactory. The evidence before the Court on this issue is also very unsatisfactory. It appears that the rules of the organisations were not in evidence before the Commission. During the hearing before this Court, the parties did not refer the Court to the rules of the organisations. It must be remembered that the two organisations have now amalgamated and comprise the Organisation. At all relative times the two organisations were engaged in activities preparatory to the amalgamation. During the proceedings before the Commission in relation to the finding of dispute arising out of service of the first log of claims on 17 June 1993 an officer of the Australian Liquor, Hospitality and Miscellaneous Workers Union, during cross-examination, produced a page of the rules of that organisation which included a statement of the powers of the joint national secretary. The relevant power was stated: " ... between meetings of the transitional national executive, a joint national executive, a joint national secretary shall have the general control and conduct of the business of the union." At the hearing of the proceedings before the Commission prior to the making of the finding of dispute the subject of the proceedings before the Court, apparently nothing further was directed to this issue. The Court was not directed to any such material. The Court was not directed to any evidence given in the proceedings before this Court or the High Court relating to this issue. In conformity with the system of adversarial proceedings in operation in Australia, it is not the function of the Court to undertake an inquisitorial role by shifting through the mass of material haphazardly presently to the Court to see if it can find some reference, or absence of reference, to the authority given by the two organisations. The Court is entitled to expect the legal advisers of the parties to direct it to the relevant factual material particularly when evidence is by way of affidavit. The Court is exercising original jurisdiction. It is not exercising appellate jurisdiction. An applicant should ensure the evidence to be relied upon is in a clear form and not hidden in material presented to the Commission. The evidence relating to the authority given by the Ambulance Employees Association of Victoria is even more unsatisfactory. The rules of that organisation appear not to be in evidence before the Court. There is evidence before the Court of a resolution passed at a special general meeting of that organisation held on 23 February 1993. That resolution was as follows: " AEA SPECIAL GENERAL MEETING 23 FEBRUARY 1993 7.30 PM HELD AT VICTORIAN TRADES HALL 54 VICTORIA ST, CARLTON SOUTH 3053 This meeting of AEA members authorises the General Secretary to seek improvements in the terms and conditions of employment of all ambulance employees, to represent their industrial interests and secure awards under the provisions of the Industrial Relations Act 1988 to prescribe their terms and conditions of employment. To this end, this meeting authorises the General Secretary to serve a comprehensive log of claims and letter of demand on all employers in the ambulance industry including the Ambulance Officers' Training Centre. This meeting also authorises the General Secretary to seek the finding of an industrial dispute in the Australian Industrial Relations Commission between the AEA Victoria and the ambulance employers should they fail to accede to our demands." In the absence of the rules, it is not clear what standing such a resolution has. In any event, this resolution, although general in nature, appears to have been given before the first log of claims was served. It appears a similar resolution was passed at a meeting on 20 April 1993. The comments made earlier with respect to the duties of the legal advisors have equal application here. The submissions made on behalf of the applicants were that the rule empowering a joint national secretary, at particular times to "have the general control and conduct of the business of the union", was not sufficient power to authorise the making of the demand made in this case. It was put that the power was limited to the day to day activities of that union, not to what might be described as a major development likely to incur the union in great expense. In relation to the Ambulance Employees Association of Victoria, it was put that the resolution authorized the service of the April log, that that power had been exercised and that there was no authority to authorize the general secretary to make the documents contained in the December log. Accepting that a meeting of members has power under the rules of that organisation to authorise what the meeting purported to authorise, there is no warrant to impose a limit on the time during which the authority can be exercised nor to warrant one exercise of power only. It is a general power directed to achieving an expressed purpose. The general secretary is authorized to exercise the power from time to time to seek to achieve the purposes expressed in the resolution. The facts of this case are very different from the facts in Deane. No question of ratification arises. There is no clear evidence that the demand was not authorized by the rules of the organisations. There is no clear evidence that the demands were not made in accordance with the procedures of the organisations. The persons signing the letter of demand claimed to be properly authorized. If the issue of authority had been taken seriously by the applicants it would have been expected, after the hearing leading to the making of the first finding of dispute, that the applicants would have ensured the matter had been fully investigated during the hearing of the proceedings before the Commission leading to the making of the second finding of dispute. Further, it would have been expected that the applicants would have taken care to ensure that evidence on the issue was presented to the Court in these proceedings and that the attention of the Court was directed to that evidence. The Court refers to what was said in State Public Services Federation by Brennan J at 289: "When prohibition is sought the onus is on the prosecutor to demonstrate a lack of jurisdiction in the Commission." This obligation on a prosecutor includes the obligation to call or to point to evidence to demonstrate, in this case, that the demand was not authorized by the organisations. On the facts of this case, the applicants have not done this. In the absence of all the relevant rules of the Australian Liquor, Hospitality and Miscellaneous Workers Union, it is impossible to construe the nature of the power conferred upon a joint national secretary by the extract of the rules referred to earlier in these reasons. In all the circumstances of the case, this ground must be rejected. The State of Queensland and the State of Victoria had each sought to rely in their applications to the High Court on a ground that the dispute constituted an implied prohibition on the capacity of a State to function as a government and thus was invalid. The issue so raised had been argued in other proceedings then pending in the High Court. Counsel for the States were given leave to raise these grounds, if necessary, after judgment had been given in those proceedings. On 7 April 1995, the High Court gave judgment in those proceedings: Re Australian Education Union and Others v State of Victoria and Others (1995) 128 ALR 609. On its face, that judgment is adverse to the interests of the States in the proceedings before the Industrial Relations Court. Subject to the reservation proposed by the Chief Justice and Spender J each application should be dismissed. I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop. Associate: (Sgd) Ian Taylor Date: 4 July 1995

APPEARANCES Counsel for the Applicants in QI 221 of 1994: J S Douglas QC and R S Jones Solicitor for the Applicant: in QI 221 of 1994: Crown Solicitor for the State of Queensland Counsel for the Applicant in QI 252 of 1994: A G Uren QC & L Kaufman Solicitor for the Applicant in QI 252 of 1994: Victorian Government Solicitor Counsel for the Respondent Union: J W Nolan Solicitor for the Respondent Union: Steve Masselos & Co Dates of Hearing: 27 & 28 February 1995