Attorney-General (Qld) v Riordan

Attorney-General (Qld) v Riordan - [1997] HCA 32 - HCA 1997 case summary — Zoe

[35]

His Honour, though maintaining the doctrine that this Court must determine for itself questions on which the jurisdiction of the Commission depends, drew a distinction between questions of law and questions of fact. He said that if the jurisdiction depends on matters of fact, considerable weight is attached to the decision of the court. He was, of course, referring to the old Arbitration Court. His remarks have equal application to the Commission. He concluded by saying [17] , after referring to the remarks of Isaacs J in Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] [18] : "It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal." The weight to be given to the Commission's decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission's knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent. That case was followed by the Court in R v Ludeke; Ex parte Queensland Electricity Commission [19] : Whether the dispute is real and genuine, whether it is founded on a real and genuine demand, is a question of fact for the Commission to determine and it remains a question of fact for this Court to determine on an application for relief by way of prerogative writ [20] . Although it is for the Court to decide the question for itself, it will give considerable weight to a decision of the Commission so far as the decision turns on the facts, the degree of weight depending on the circumstances. If the evidence remains the same, if the Full Bench has confirmed the decision at first instance and if the issue of fact is one in which the Commission's knowledge and experience of the industry specially equips it to provide an answer, greater weight will be given than in cases in which one or more of these factors is absent [21] . 1. R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 338. 2. (1981) 153 CLR 376 at 390. 3. (1950) 82 CLR 54 at 92-93. 4. Blakeley (1950) 82 CLR 54 at 93. 5. (1930) 42 CLR 527 at 547-548. 6. (1985) 159 CLR 178 at 183-184. 7. R v Alley; Ex parte NSW Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376; Cohen (1981) 157 CLR 331 at 338, 342, 346. 8. Blakeley (1950) 82 CLR 54 at 92-93; Alley (1981) 153 CLR 376 at 390.

[144]

Both by the Constitution (s 51(xxxv)) and the Act (see s 101(1)), the Commission's jurisdiction, invoked in these proceedings, is restricted to the prevention and settlement of industrial disputes. The word "disputes" in the constitutional head of power, like the word "arbitration", attracted much attention from the start. This was because those words define the jurisdictional facts, the proof of which is essential to the powers of the federal tribunal [116] . Because of s 75(v) of the Constitution, the Commission cannot finally determine the limits of its own jurisdiction. Accordingly, no provision of the Act may protect a determination of the Commission concerning the existence of an industrial dispute from ultimate challenge in this Court [117] . During argument it was suggested by the unions (and contested by the employers) that jurisdiction could be granted to an expert tribunal, such as the Commission, conditioned upon no more than the opinion of the tribunal as to the existence of circumstances conducive to the prevention or settlement of interstate industrial disputes. Some support for that view may appear in earlier authority of this Court [118] . A question arose as to whether s 101(1) of the Act was such a provision, grounding the jurisdiction of the Commission not upon the factual existence of an industrial dispute but upon the consideration of the Commission "that the alleged industrial dispute is an industrial dispute". Section s 101 could not be construed in a way which purported to allow the Commission to make a final determination of the existence and scope of its arbitral powers, whatever the true facts [119] . The existence of an industrial dispute is a jurisdictional fact. The Commission must form an opinion as to its existence. However, only a court, ultimately this Court, could determine that issue conclusively [120] . I am therefore inclined to think that s 101 must be construed so that the phrase "if it considers" applies only where an industrial dispute, found by the Commission, exists in fact. If the Commission makes a finding under s 101 that an industrial dispute exists and this is contested, relief may be sought on constitutional grounds.

[151]

Australia's industrial law and practice cannot be understood in a vacuum. Each has derived from the historical evolution of the understanding of the conciliation and arbitration power in the Constitution. So-called "paper disputes" represent a procedural device to overcome limitations thought to be inherent in the process of arbitration [124] and apparent obstacles presented by the requirement of "interstateness". The latter, clearly expressed in the constitutional grant of power, would, if narrowly construed, have prevented the growth of the jurisdiction of the federal tribunal. In the early years of this century that growth was conceived to be linked to the desirable development of a national economy. The early Justices of this Court, who accepted and thereby facilitated the log of claims procedure, did so conscious of the fact that, although upon one view it was an artificial device, it would provide a simple means of creating an interstate industrial dispute by "concerted action against employers in [different] States for the making and enforcing of the same demands" [125] . The same Justices who upheld the device were also clearly affected by the memory of the dislocation caused by the industrial strikes which had paralysed Australia in the 1890s. Isaacs J said as much, explaining how the convulsion which had then occurred had "greatly influenced the introduction of the power in the Constitution" [126] . To avoid the repetition of the damaging interstate industrial disputation of the 1890s, a simple procedure to attract jurisdiction to the new Commonwealth Court of Conciliation and Arbitration was seen as doubly attractive. It would further the new body's national influence. It would also avoid the necessity to rely upon strikes and lock-outs as "real" evidence of an interstate industrial dispute. The procedure was also seen as more appropriate and seemly to a federal tribunal then constituted as a court. To require that the court's jurisdiction should depend upon the creation of a strike, which was illegal, was less attractive than the adoption of a formal initiating process, such as a demand with log of claims. In this way the Commonwealth Court of Conciliation and Arbitration, supported by this Court, came to enlarge the popular notion which the words "industrial disputes" might otherwise have conveyed [127] . So-called "paper disputes" were permitted. Once permitted, they soon became the standard means of invoking federal jurisdiction. Of course, the words "industrial disputes" in the Constitution and the statute remained to be given meaning. It was consistently pointed out that a ban or strike (or other like industrial disruption) was not itself the "dispute". It was necessary to go behind such conduct to identify the express or implied demands upon which employers and employees were in disagreement [128] . Strictly speaking, there is no such thing as a "paper dispute". For the purposes of the Act and the Constitution, there must be a "dispute", although ordinarily, this would be evidenced by paper, that is, by a demand with a log of claims. There were other ways by which "industrial disputes" might be created [129] . Yet for more than eighty years the procedure by demand with a log of claims has been accepted by this Court as a means of creating and evidencing an interstate industrial dispute. In 1949, Dixon J said that the "time has gone by" when the procedure could be challenged [130] . The procedure has certainly attracted critics. Windeyer J once remarked that [131] :

[152]

To permit the creation of a malady so that a particular brand of physic may be administered must still seem to some people a strange way to cure the ills and ensure the health of the body politic. More recently, the apparent extravagance of some union claims has attracted fresh criticism on the basis that such practices might tend to divert attention from "the actual industrial situation" [132] . The procedures imposed on the Commission by constitutional decisions have sometimes been criticised as "primitive, time-wasting and often expensive" [133] . However, there remains considerable scope for flexibility [134] , particularly where the prevention of disputes is concerned. The constitutional power in that regard is still largely undeveloped, despite the fact that it has been called to attention by this Court in several decisions [135] . Notwithstanding the critics, the demand and log of claims procedure has many advantages. It is a relatively simple way of invoking the Commission's jurisdiction. If the necessary steps are properly carried out, its legal effectiveness is undoubted [136] . It has enhanced the position of unions and employer organisations. It has contributed to the equalisation of costs of labour throughout Australia and hence to the growth of a national economy [137] . Disputes in other fields of the law are regularly created, and defined, by the exchange of correspondence. Although, as they have developed in the industrial relations context, "paper disputes" have artificial, formalistic features, they are now so deeply entrenched in the longstanding authority of this Court and in Australia's industrial practice that they should not be disturbed. No party to the present proceedings directly challenged the log of claims procedure as such. It is an established means of creating and defining "industrial disputes" in this country. It should remain so. 1. Australian Boot Trade Employ?apos; Federation v Whybrow & Co (1910) 11 CLR 311 at 317-318; cf R v Kelly; Ex parte Victoria (1950) 81 CLR 64 at 80. 2. Jumbunna Coal Mine, NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 352; cf Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 319-320. 3. Builders' Labourers' Case (1914) 18 CLR 224 at 241. 4. See, eg, the Builders' Labourers' Case (1914) 18 CLR 224 at 246-247; Holymans Case (1914) 18 CLR 273 at 294. 5. Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] (1930) 42 CLR 527 at 552-553; Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 at 429; R v Turbet; Ex parte Australian Building Construction Employees and Building Labourers' Federation (1980) 144 CLR 335 at 341, 348; Re Amalgamated Metal Workers Union; Ex parte Shell Co of Australia Ltd (1992) 174 CLR 345 at 369-370. 6. For example by intervention of the Commission. See R v Portus; Ex parte McNeil (1961) 105 CLR 537. 7. R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at 439. 8. Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 268. 9. Re PKIU; Ex parte Vista Paper Products (1993) 67 ALJR 604 at 613; 113 ALR 421 at 433. 10. R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 396. 11. R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 168. 12. eg, Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 320-321, 327-328. 13. SPSF Case (1993) 178 CLR 249 at 267-268. 14. cf Australian Boot Trade Employ?apos; Federation v Whybrow & Co (1910) 11 CLR 311 at 332.

[153]

Nevertheless, the Commission is not a super-legislator. It has no power to fix wages and conditions for parties to a log of claims according to its conception of the public interest or national benefit. It is, from first to last, a statutory tribunal created to settle defined industrial disputes by conciliation and arbitration [138] . This feature of the Commission's jurisdiction has repeatedly required of courts, and of the Commission itself, the examination of the precise "dispute" alleged and the consideration of whether it is "real and genuine" or merely a "sham" [139] , devised for impermissible purposes. So far as the scope of the dispute is concerned, it was held long ago that defining its "ambit" was important to the identification of the existence of a real "dispute" and to the subsequent performance of the functions of "conciliation" and "arbitration". Specifically, if an arbitrator were to proceed beyond the ambit of a claim as made, any ensuing decision would not be in settlement of the "dispute" which that claim initiated. It would, to that extent, be beyond power [140] . The failure to comply with a demand accompanying a log of claims (or the rejection of such demand) would naturally and properly be regarded as putting in issue or dispute the question whether the claims made, or any lesser entitlements within those claims, should be granted [141] . By such demands, the initiator of a "paper dispute" sought to leave itself the widest possible margin for negotiation, to avoid technical objections that an award went beyond the dispute and to afford ample scope for variation of an award, during its currency, without offending the strictures of ambit [142] . The concept of ambit thus developed to control arbitrators in what they might award rather than to limit parties in what they might demand [143] . By the "doctrine" of ambit this Court ensured a relevant relationship between the matters in dispute and any award made in settlement of the "dispute". Although, in a series of decisions, this Court has softened somewhat the strictness of the ambit "doctrine" (eg by broadening the scope of the relief that might be given [144] , by emphasising the power to settle future disputes [145] , by acknowledging the need to adapt the concept of ambit where terms and conditions of employment, rather than wages, were involved [146] and lately, by emphasising the scope of the preventive function of the Commission [147] ), the result of the "doctrine", in the context of "paper disputes", has undoubtedly been a tendency to encourage extravagant demands [148] :

[155]

Nevertheless, as a further implication of the constitutional notions of "conciliation" and "arbitration", and the requirement that there be an "industrial dispute", this Court, from its earliest days, also derived the requirement that the "paper dispute" must evidence a demand which is real [149] , that is, genuine in the sense that those making the demand are doing so seriously to reflect their industrial contentions [150] . The requirement that the demand should be "real and genuine" may be tautologous or even misleading [151] . Unless the "dispute" is "real", it will not be a "dispute" for constitutional and statutory purposes. Moreover, the word "genuine" may have a tendency to suggest a concern with the subjective desires or intentions of the union officials who drafted the log of claims and made the relevant demand. That notion could initiate an erroneous inquiry. The correct question is an objective one. It is whether the demand made, and the neglect or refusal of it, sufficiently evidence the existence of a dispute of the requisite character. The more extravagant the claims made, the greater is the risk that the Commission, or the courts, will find that the suggested "paper dispute" is not only contrived (which is permissible) but is also fictitious or instituted for purposes other than the creation and definition of an "industrial dispute" (which is not). Impermissible purposes might include the purported use of a demand and log of claims as a sham device purely to give the federal tribunal jurisdiction over an intrastate dispute [152] . Or the presentation of demands so unrealistic as to indicate that there is no real dispute because the assent or dissent of the respondents is entirely irrelevant to what is being demanded [153] . In such circumstances, the "paper dispute" will be revealed as a "bare claim" for improved wages and conditions, lacking the necessary connection with the conciliation and arbitration of a "dispute". The Parliament, at least under the conciliation and arbitration power, cannot confer such a jurisdiction on the Commission [154] . Where it is contended that the demands made are not "real and genuine", the answer to the inquiry thereby initiated is not to be found by measuring the log against inferred standards derived from the perjorative descriptions invoked in a string of epithets. It is more likely to be answered by responding to the questions: Do the claims indicate, by their apparent extravagance, that they are not seriously advanced? Do they indicate that there is no real intention that they should be pursued? Do they suggest that the party making the demands is indifferent to the respondents' response to them [155] ? Or do they, although exaggerated in a way which the ambit "doctrine" has encouraged, nonetheless indicate a framework for serious negotiation of a dispute and, to the extent that it is unresolved, conciliation and arbitration by the Commission? Challenges to the "reality" and "genuineness" of industrial disputes are amongst the long-established weapons in the armoury of employers resisting union demands. There are many other grounds of challenge, some of them in evidence in these proceedings. These include whether the demand and log of claims were authorised by union members; whether they were within the union's constitution; whether they relate to an industrial matter [156] ; whether they are defined with sufficient precision [157] ; and whether, properly characterised, they have a purpose different from that of laying a foundation for the valid exercise of the Commission's jurisdiction. In this last connection, the purposes of general employment regulation, escaping State regulation and unwarranted enlargement of union power are frequently suggested as the "real" (and impermissible) reasons for inflated demands.

[157]

Whether a "paper dispute" lacks the necessary "reality" and "genuineness" is a question of fact. It is to be resolved by the Commission in the first instance [158] and, where necessary, by a court on judicial review. But once the formal ingredients of the service of a demand, with a log of claims, are proved, and the demand is either rejected or ignored, evidence is available upon which the Commission may find the existence of an "industrial dispute". The proof of the ingredients of a "paper dispute" will ordinarily be treated as some evidence that a real and genuine industrial dispute exists [159] . Whether it is appropriate, in the context of the statutory duties of the Commission, to talk in terms of the onus and burden of proof is a matter upon which opinions have differed [160] . Clearly, it is open to a respondent to such a demand to endeavour to prove facts which will displace the conclusion which might otherwise be drawn from the observance of the formalities of a "paper dispute" [161] . The requirement to establish the existence of an industrial dispute is always the obligation of the notifier [162] . On the other hand, if the formalities of a "paper dispute" are properly established, it will ordinarily be the case that the evidentiary burden of demonstrating that the suggested "dispute" is a "sham", "pretended demand" or a "mere device" [163] will rest upon the objector. In certain cases, this will be no great burden because an examination of the log of claims will disclose how plainly fanciful or misconceived the demands are: warranting the conclusion that they lack the "reality" and "genuineness" necessary to give rise to a "dispute". But once the Commission has found the existence of an "industrial dispute" and proceedings are commenced for constitutional prohibition or like relief, the prosecutor bears the onus to establish that it is entitled, in law, to such relief [164] . The onus is a heavy one. It is only in a clear case that a court will disturb the finding of the Commission that an industrial dispute exists [165] .

[159]

In determining whether the log of claims procedure has given rise to a dispute, it is clear that proof of actual industrial disruption, to supplement the paper demand, is unnecessary [166] . It is also clear that the demands set forth in the log of claims may not contemplate acceptance, immediately and without qualification [167] . It will be sufficient if the conclusion is reached that the notifier "genuinely advanced the log of claims for the purpose of engaging the jurisdiction of the Commission with a view to its making in due course an award regulating terms and conditions of employment in the industry within the framework of the log of claims" [168] . Apparent extravagance in some of the claims made will not, of itself, destroy the "genuineness" of the demand or its capacity to give rise to a real industrial dispute [169] . In examining the demand made in a particular case, the Commission at first instance, and the courts thereafter, will be justified in considering the real industrial context in which the demands are to be evaluated. This context includes current and projected levels of salaries generally; differentiation between economic rewards for work of differing skills; any wage-fixing principles adopted by the Commission [170] ; current and projected conditions in the industry in question; and the role of industrial arbitration in Australia in introducing conditions of employment once considered "fanciful" but, in time, viewed as standard [171] . Regard may also be had to the projected duration of the award and any variation of it which may legitimately be made upon the basis of the original dispute (see the Act, s 113). The ambit doctrine will not sustain demands which are so extravagant that they demonstrate the lack of any foundation for a real and genuine dispute. However, if, despite the apparent excess of ambit claims, the demand and log of claims, as originally presented (or as amended by the notifier or pared down by the Commission), represent the framework defining the demands of the notifier which are genuinely advanced, it will be open to the Commission to confirm that an industrial dispute has been created. That dispute is evidenced by the document. If the Commission so finds, it will only be in a clear case that the courts will disturb such a finding.

[222]

The essential feature of the log of claims in the SPSF Case which convinced this Court that it could not give rise to a real industrial dispute was the bare claim for undifferentiated rates of pay and allowances for all employees regardless of their skill and experience. This is clear enough from an examination of the reasons of the members of the Court [214] . It emerges most clearly from the holding of Toohey J [215] (with which other members of the Court agreed) [216] that the same disqualifying features were absent from the claims made in that case by the Electrical Trades Union of Australia upon the Electricity Commission of New South Wales and electrical employers in New South Wales. The characterisation of the other demands in the log of claims were regarded, for reasons variously expressed, as incapable of giving rise to an "industrial dispute". Whether a similar conclusion should have been reached by Senior Deputy President Riordan upon the first demand and log of claims in this case is now beside the point. ALHMWU abandoned the first log of claims. It relied solely on the second. Any defect in the way in which Senior Deputy President Riordan allowed the first finding to stand is purely a mechanical one. It is apt for correction, if at all, within the Commission. The second log of claims, whilst also expressed in very general terms, lacks the disqualifying features which convinced the Court in the SPSF Case that no "industrial dispute" was created. Wage differentiations are included. Indexation is deleted. The log includes seventy-five clauses which have features which readily sustain a finding that they evidence a real industrial dispute. True, a number of the clauses, including those dealing with wage rates, represent excessive demands, beyond those attainable in the short term. However, they present claims which it was open to the Commission to find amounted to a framework for further discussion, negotiation and ultimately, if necessary, arbitration. The complaint about the time-frame in the letters of demand (seven days) is as meritless as is the complaint about the size of the increases sought and the aggregate cost to industry. Read in isolation, and without regard to the way in which "paper disputes" and ambit claims have developed, such a complaint might have forensic merit. But when those considerations are given the weight which the Commission decided was appropriate, it was clearly open to the Commission to conclude that employers could have sought further time for negotiation and could have negotiated significantly diminished terms and conditions within the ambit of those demands, had they elected to do so.

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