High Court of Australia|1993-04-21|Before: Munro J, Gaudron JJ

Boyne Smelters Ltd v Ex Parte Federation of Industrial Manufacturing & Engineering Employees of Australia [1993] HCA 75; (1993) 177 CLR 446; (1993) 112 ALR 359; (1993) 67 ALJR 449 (21 April 1993)

BOYNE SMELTERS LIMITED v. EX PARTE FEDERATION OF INDUSTRIAL MANUFACTURING AND ENGINEERING EMPLOYEES OF AUSTRALIA

[1993] HCA 75; (1993) 67 ALJR 449

BRENNAN, DEANE, TOOHEY AND GAUDRON JJ. In August 1990, the Federated Ironworkers' Association of Australia ("the F.I.A."), which later merged with the Australian Society of Engineers to become the Federation of Industrial Manufacturing and Engineering Employees of Australia ("the Union"), served a demand for security in employment ("the 1990 demand") on various employers in the aluminium industry, including Boyne Smelters Limited ("Boyne Smelters") which operates an aluminium smelting plant at Gladstone, Queensland.

2. The F.I.A. demand was that "employers observe for employees conditions of employment to the effect that:

(a) The employer shall not dismiss any employee (whether or

not such dismissal takes place before the making of any

Award or Agreement made in settlement of the Log of

Claims),

and

(b) The employer shall reinstate forthwith any employee

dismissed (whether or not such dismissal takes place

before the making of any Award or Agreement made in

settlement of this Log of Claims)."

3. The employers served with the demand were located in different States. None of them acceded to the demand and the F.I.A. notified the Australian Industrial Relations Commission ("the Commission") of the existence of a dispute under s.99 of the Industrial Relations Act 1988 (Cth) ("the Act"). On 19 October 1990, the Commission recorded the existence of a dispute in terms of the demand.

4. No immediate action was taken to have the Commission settle the dispute recorded on 19 October 1990. It is not clear what exactly was then happening in the industry but, for some months, discussions had been taking place between the F.I.A. and Boyne Smelters as to various matters, including the need for improved productivity at the Gladstone plant. The discussions continued until April 1991, but were inconclusive. And on 17 April 1991, Boyne Smelters announced the immediate retrenchment of 80 employees. The retrenched employees included 54 persons covered by the Boyne Smelters Limited Award 1984 ("the Award"), of whom 48 were members of the F.I.A.

5. On 18 April, the F.I.A. demanded the reinstatement of the retrenched employees previously employed under the Award. The demand was rejected and industrial action followed until June, albeit intermittently. There were proceedings in the Commission from time to time with respect to the industrial situation generally, and, in early July, the F.I.A. commenced reinstatement proceedings by notification of a dispute concerning the retrenchments. It was said in that notification that the dispute was "part of the dispute found by the Commission on 19 October, 1990" ("the 1990 dispute").

6. On 8 July, counsel for the F.I.A. made an oral application to the Commission constituted by Munro J. for an award imposing an obligation on Boyne Smelters to reinstate 27 named former employees. The application also involved a claim for the payment to each of them of an amount equivalent to the wages they would have received had they not been dismissed and the retention of superannuation and other non-wage benefits. On 12 July, counsel tendered a draft award which was intended to formalise the reinstatement application. It was in the following terms:

"A. If (Boyne Smelters) dismisses an employee without that

employee's consent (whether before or after the making

of this award) then (Boyne Smelters) shall, upon request

made within three months of the dismissal by the

employee or any organisation of which the employee is a

member:

(i) reinstate the employee to the position occupied

immediately prior to the dismissal on the same

wages and conditions as applied immediately prior

to dismissal and without loss of or interruption

to seniority or rights to superannuation, company

subsidised housing loans, training, or any other

benefit received by the employee or to which the

employee was entitled immediately prior to

dismissal, and

(ii) pay to the employee an amount equal to that which

the employee would have received by way of wages

had the employee not been dismissed.

B. If it is impossible for (Boyne Smelters) to reinstate

the employee to the same position then the employee

shall be reinstated in a position commensurate with the

employee's skills, abilities and experience and the

provisions of A. (above) shall likewise apply."

7. It was submitted on behalf of Boyne Smelters that the 1990 dispute conferred no jurisdiction on the Commission to entertain an application for the actual reinstatement of former employees, whether made by reference to named individuals or by reference to the class of persons set out in the draft award. The F.I.A. sought to counter that submission by showing that, over and above the 1990 dispute, there was a threatened, impending or probable interstate dispute between it, on the one hand, and Boyne Smelters and a related company in Tasmania, Comalco Aluminium (Bell Bay) Limited, on the other, arising out of the April 1991 retrenchments. However, that submission was later withdrawn and the F.I.A. then based its application wholly on the 1990 dispute.

8. The jurisdictional argument advanced on behalf of Boyne Smelters was rejected on 22 July 1991, Munro J. holding that the F.I.A. application was within the ambit of the 1990 dispute. He added that, even if some aspects were beyond the "technical ambit", an award in terms of the application would "have a rational tendency to settle part of the dispute as it now exists". It seems that, in this last observation, his Honour was concerned to relate the claim for wages that would otherwise have been paid and for the retention of superannuation and other non-wage benefits to the 1990 demand which, in terms, was concerned only with dismissals and reinstatement.

9. Boyne Smelters was granted leave to appeal from the decision of Munro J. of 22 July. Its appeal was allowed, it being held by a Full Bench of the Commission in a decision given on 23 September 1991 that the application was, in substance, an application for the "reinstatement of the named former employees" and that it was different in character from the 1990 dispute which was directed to obtaining "general provisions setting out relevant conditions of employment".

10. The Union now seeks certiorari to quash the Full Bench decision and mandamus directing the members of that Full Bench to hear and determine Boyne Smelters' appeal in accordance with law. As one of the persons who constituted the Full Bench has since retired and as the substance of the Union application is directed to the hearing and determination of the 1990 dispute (to the extent, if any, that it authorizes the reinstatement application), it is convenient to treat the application for mandamus as if directed to the Commission for the hearing and determination of that dispute so far as it concerns Boyne Smelters.

11. The argument that found favour with the Full Bench of the Commission and the primary argument made on behalf of Boyne Smelters in this Court is, in effect, an argument that an award imposing an obligation as to the actual reinstatement of former employees or allowing for such an obligation to come into existence is not relevantly connected with the 1990 dispute. More precisely, it is that an award of that kind is not within the ambit of that dispute, is not "relevant", "reasonably incidental" or "appropriate" to its settlement and has no "rational or natural tendency to dispose of the question" raised by it ((1) R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [1938] HCA 41; (1938) 60 CLR 507, at p 538; Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section) (1952) [1952] HCA 29; 86 CLR 34,at p 40; Reg. v. Holmes; Ex parte Victorian Employers' Federation [1980] HCA 37; (1980) 145 CLR 68, at p 76; Reg. v. Ludeke; Ex parte Queensland Electricity Commission [1985] HCA 55; (1985) 159 CLR 178, at p 183; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. [1989] HCA 10; (1989) 166 CLR 311, at pp 317, 334.)

12. The argument that an award for actual reinstatement is not relevantly connected with the 1990 dispute is based on a line of reasoning in a number of the judgments in Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. ("the Wooldumpers Case") ((2) [1989] HCA 10; (1989) 166 CLR 311.) In that case an antecedent interstate dispute with respect to permanency of employment was unsuccessfully advanced as the source of jurisdiction for the making of an award ordering the reinstatement of an employee later dismissed by an employer party to that dispute.

13. The demand in the Wooldumpers Case did not, in terms, make a claim with respect to reinstatement. Instead, it demanded that employment should not be terminated without the prior consent of the claimant union and only upon six months notice given otherwise than during a period of leave ((3) ibid., at p 323.) A majority of the Justices held that the dispute authorized the making of an award with respect to reinstatement and, in that context, a distinction was drawn between "a claim for the creation of an obligation to reinstate" ((4) ibid., per Mason C.J. at p 317; see also per Wilson, Dawson and Toohey JJ. at p 324.) or a "regime (to) ... regulate the nature of employment and the circumstances in which it could be terminated" ((5) ibid., per Deane J. at p 333; see also per Wilson, Dawson and Toohey JJ. at pp 324, 326.) on the one hand, and "a claim for actual reinstatement" ((6) ibid., per Mason C.J. at p 317; see also per Wilson, Dawson and Toohey JJ. at pp 324, 326; per Deane J. at p 333.) on the other. And also in that context, it was held that, although the demand authorized an award imposing a regime with respect to dismissal and reinstatement, it did not, in the circumstances, support an award ordering the actual reinstatement of the former employee.

14. It was argued on behalf of the Union that its application to the Commission, as reduced to writing, was not an application for the reinstatement of individual employees but for a general regime which, as it happens, might have led to an obligation on the part of Boyne Smelters to reinstate some or all of its retrenched employees.

15. However it be described, there can be no doubt that, at least when it was made before Munro J., the F.I.A. application was directly and immediately concerned with the actual reinstatement of individual former employees. In this respect, it is similar to that involved in the Wooldumpers Case. However, it differs from the application in that case insofar as it also involves a claim for a regime with future operation. Save to the extent that that latter aspect bears on the claim for actual reinstatement, it may be put to one side: the real issue in this case is not whether a regime may be brought into existence for the future, but whether, on the basis of the 1990 dispute, an award may be made which, whether directly or indirectly, imposes an obligation as to the actual reinstatement of former employees.

16. The demand which gave rise to the 1990 dispute is concerned with dismissals "whether or not ... (taking) place before the making of any Award or Agreement". It is clear enough that, even though the demand was expressed in the form of a draft award, it covered any dismissal occurring after the making of the demand, whether or not there was then an award regulating dismissal and reinstatement. However, it was suggested in argument that it also involved a claim for the reinstatement of persons dismissed before the demand was made ("past dismissals"), apparently for the purpose of demonstrating that the demand was necessarily concerned with actual reinstatement. It seems that the form of demand involved in this case is in common use and, thus, it is appropriate to deal with that precise argument, even though, as it later appears, it does not bear on the outcome of the case.

17. There are considerable difficulties in treating the demand as one concerned with past dismissals. As a matter of ordinary commonsense, a demand speaks from the time it is made ((7) See, for example, Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [1920] HCA 18; (1920) 28 CLR 1, at p 16.) And it is usually understood to relate to future events, unless, of course, it is expressly framed by reference to past events or is made in a context ((8) See, as to the need to read a log of claims in the context of the facts and circumstances giving rise to the demands, R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch (1938) 60 CLR, at p 538; Reg. v. Portus; Ex parte Transport Workers' Union of Australia [1977] HCA 72; (1977) 141 CLR 1, at p 11; the Wooldumpers Case (1989) 166 CLR, at p 335.) where it is clearly understood that it refers to events of that kind. In this case there is no express reference to past dismissals and no context which would suggest that it was intended or was understood to have an operation by reference to them.

18. There are two important considerations which tell against treating the demand in this case as involving a claim with respect to past dismissals. In the first place, there is no reason to think that the F.I.A. was, at any stage, concerned to advance any claim with respect to dismissals of that kind ((9) See, with respect to claims that are not seriously advanced, Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.2) [1930] HCA 2; (1930) 42 CLR 558, at p 570; R. v. Blakeley; Ex parte Association of Architects and C. of Australia [1950] HCA 40; (1950) 82 CLR 54, at p 94; Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR, at pp 181-182.) Secondly, to the extent that the demand was that employers not dismiss their employees, it could only relate to persons then in their employ and those whom they subsequently employed. If the claim related to persons who had already been dismissed, it would be, to that extent and as a matter of practical reality, one to which employers could not accede. And for that reason and to that extent, the demand would be incapable of generating a dispute ((10) See Reg. v. Portus; Ex parte City of Perth [1973] HCA 64; (1973) 129 CLR 312, at p 325; Re Amalgamated Metal Workers Union of Australia; Ex parte Shell Co. of Australia Ltd. [1992] HCA 38; (1992) 174 CLR 345, at pp 357-358.) Having regard to these considerations and to the nature of demands generally, the demand in this case must be understood as speaking only from the time it was made and with respect to subsequent events. Accordingly, it is concerned only with dismissals occurring after the making of the 1990 demand and the reinstatement of employees involved in those dismissals.

19. The demand in this case is different in two important respects from that considered in the Wooldumpers Case. First, it is, in terms, directed to reinstatement, whereas the demand in the Wooldumpers Case was not. And, unlike the demand in that case, it does not postulate a regime circumscribing the right to dismiss. Nor does it postulate a regime formulating the circumstances in which an employer may come under an obligation to reinstate. It is directed, in terms and without qualification, to what an employer shall not do, namely, dismiss an employee, and to what, if it does, it should then do, namely, reinstate the employee concerned. In our view, it clearly comprehends actual dismissals and the actual reinstatement of dismissed employees. And, as already indicated, the express statement in the demand that it is concerned with dismissals "whether or not ... (taking) place before the making of any Award or Agreement" makes it clear that it is concerned with dismissals and the reinstatement of dismissed employees even if the dismissals take place at a time when there is no regime with respect to those matters.

20. It was argued on behalf of Boyne Smelters that, if and to the extent that the 1990 dispute is concerned with the actual reinstatement of employees dismissed before the imposition of a regime regulating dismissal and reinstatement, it is not concerned with the relationship between employers and employees and, hence, is not an industrial dispute as defined in s.4(1) of the Act. That definition requires that the dispute be "about matters pertaining to the relationship between employers and employees".

21. It is clear that the relationship required by the definition of industrial dispute in s.4(1) of the Act is not that of individual employer and individual employee or former employee ((11) Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656, at p 661. See also Jumbunna Coal Mine N.L v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 332, 341, 351, 353, 375; Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [1925] HCA 7; (1925) 35 CLR 528, at pp 548-549; Metal Trades Employers Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387, at pp 403-404, 441-442; Reg. v. Coldham; Ex parte Fitzsimons (1976) 137 CLR 153, at pp 171-172; Reg. v. Staples; Ex parte Australian Telecommunications Commission [1980] HCA 27; (1980) 143 CLR 614, at pp 623-624, 627.) but a more general relationship inhering in the subject-matter of the dispute such that it can be identified as involving the collective relationship between employers and employees as such ((12) Re Amalgamated Metal Workers Union of Australia; Ex parte Shell Co. of Australia Ltd. (1992) 174 CLR, at pp 359-361, 362-363, 372-373. See also Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures [1986] HCA 23; (1986) 160 CLR 341, at p 353; Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd. [1987] HCA 28; (1987) 163 CLR 117, at p 134.)

22. As was pointed out in Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia ((13) (1987) 163 CLR, at pp 660-661.) where a dispute as to the reinstatement of individual employees arises after dismissal, two questions will usually arise: is the dispute interstate, and, does it pertain to the relationship between employers and employees or merely to the relationship between the employer and the individual former employee or employees concerned? That second question will often also arise when it is said that a "paper" dispute authorizes an award for the actual reinstatement of a former employee or former employees.

23. A "paper" demand made only to enable the Commission to hear and determine applications for the actual reinstatement of individual former employees as and when dismissals occur would not, in our view, give rise to dispute about a matter involving the relationship between employers and employees unless the circumstances show that, in some way, it is a matter affecting the industrial interests of other employees. In the absence of circumstances of that kind, its subject-matter would involve no more than the relationship between an individual employer and the individual former employee or employees concerned.

24. Clearly, there may be circumstances where an award for the actual reinstatement of former employees may be relevantly connected with a demand for a regime regulating dismissal or formulating the circumstances in which an employer will come under an obligation to reinstate. This was recognized by Mason C.J. in the Wooldumpers Case. His Honour allowed that, "in appropriate circumstances, the Commission might well conclude that the making of an award reinstating particular employees was fairly incidental to the settlement of a dispute involving a claim to permanent employment", adding that it "would depend on the nature of the original dispute and the way in which it had evolved" ((14) (1989) 166 CLR, at p 318.) An obvious example is a case where it is necessary to restore the status quo pending arbitration of a claim for the imposition of a general regime.

25. And there may be circumstances where a demand for actual reinstatement (whether in respect of dismissals that have occurred or in respect of dismissals that might occur) will give rise to a dispute involving the required relationship between employers and employees and not merely the more limited relationship between employer and former employee usually encountered in situations where claims for reinstatement are made ad hoc or as and when dismissals occur. Thus, for example, the circumstances may reveal that the demand was made "on behalf of the remaining employees" because of their "interest in the security of their own employment" ((15) Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR, at p 661.) Or it may be that they show a concern with staffing levels or the skill and qualifications of fellow workers.

26. The full circumstances surrounding the 1990 demand are not known. But it is known that, in discussions between the F.I.A. and Boyne Smelters, Boyne Smelters asserted its need for improved productivity. It is reasonable to infer that, even if there was no other reason for concern, this generated an apprehension as to security of employment and staffing levels, not only in relation to Boyne Smelters but in relation to other employers in the industry who might be expected to be subject to the same conditions. If that be so, the circumstances relating to the service of the demand would indicate that it was not made solely to enable the Commission to deal with reinstatement applications ad hoc or as when dismissals occurred, but to deal with a matter involving the relationship between employers and employees generally.

27. Moreover, it is impossible to treat the reinstatement application, which contains a claim for a regime for the future, as merely an ad hoc application. It was made in circumstances which, themselves, raised an issue as to security of employment and which strongly suggest that the events leading to the application were a development in the 1990 dispute such that an award for the reinstatement of persons retrenched in April 1991 would be directly connected with that dispute. And if that be the case, an award providing for the payment of wages that would otherwise have been earned and for the retention of superannuation and other non-wage benefits would also be relevantly connected with the dispute in that it would be fairly incidental to the question raised by it.

28. However, the circumstances surrounding the 1990 demand and the application for reinstatement of the persons retrenched by Boyne Smelters in April 1991 have not been fully explored. At all stages the focus of the proceedings has been on the characterization of the demand, either as one confined to a claim for a general regime or as one involving a claim for the actual reinstatement of particular employees.

29. Given that the demand which gave rise to the 1990 dispute was not confined, as the Full Bench held, to a demand for general conditions and that the circumstances attending the making of the demand and the application, so far as they are known, point to the existence of an interstate dispute which would authorize the making of an award for the actual reinstatement of employees retrenched in April 1991 and for incidental matters, the Full Bench decision must be viewed as a constructive failure on the part of the Commission to exercise its jurisdiction to conciliate and arbitrate the 1990 dispute so far as it concerns Boyne Smelters ((16) See Ex parte Hebburn Ltd. (1947) 47 SR(NSW) 416, at p 420. See also R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, at pp 242-243; Re Coldham; Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338, at pp 349-350.)

30. There should be an order for certiorari for the removal and quashing of the Full Bench decision of 23 September 1991 and for mandamus directed to the Commission for the hearing and determination, in accordance with law, of the 1990 dispute and proceedings based on the dispute so far as that dispute concerns Boyne Smelters.

McHUGH J. The prosecutor seeks an order for the issue of a writ of certiorari to quash a decision allowing an appeal by the Full Bench of the Australian Industrial Relations Commission ("the Commission") against the making of an award by a member of the Commission. It also seeks a writ of mandamus to compel the Full Bench to hear the appeal according to law. The question to be determined in the proceedings is whether an award, which incorporated an obligation on the part of an employer to reinstate dismissed employees, fell within the ambit of an earlier industrial dispute and was otherwise an award which the Commission had jurisdiction to make.

2. At all relevant times, the parties to the proceedings in the Commission have been parties to the Boyne Smelters Limited Award 1984 ("the Boyne Smelters Award"). In August 1990, the Federated Iron Workers' Association of Australia, the union then responsible for the coverage of employees now covered by the Federation of Industrial Manufacturing and Engineering Employees of Australia, served a log of claims on six employers in the aluminium smelting industry. (It is convenient to refer to each organisation as "the Union"). One of the employers was the second respondent ("Boyne Smelters"), which operates a smelting premises at Gladstone, Queensland. The employers' refusal of the demands in the log of claims, and the subsequent notification to the Commission of an alleged dispute, led to a finding by the Commission on 19 October 1990 that an industrial dispute existed between the Union and the employers ("the 1990 dispute"). The Commission found that the subject-matter of that dispute was:

"(T)hat the employers observe for employees conditions of

employment to the effect that:

(a) The employer shall not dismiss any employee (whether or

not such dismissal takes place before the making of any

Award or Agreement made in settlement of the Log of

Claims),

and

(b) The employer shall reinstate forthwith any employee

dismissed (whether or not such dismissal takes place

before the making of any Award or Agreement made in

settlement of this Log of Claims)."

3. Prior to the finding of this dispute, negotiations between the Union and Boyne Smelters had been underway in relation to Award restructuring. The negotiations continued during the latter part of 1990 and into 1991. On 17 April 1991, Boyne Smelters terminated the employment of 54 employees covered by the Boyne Smelters Award, 48 of whom were members of the Union. Industrial action at the premises of Boyne Smelters ensued. Consequential industrial action also took place at a smelting and refinery complex at Bell Bay, Tasmania.

4. On 1 May 1991 the Commission, acting on its own motion, intervened in the "dispute". On 3 May 1991, it recommended that normal work continue without further industrial action. However, further industrial action took place. In the Commission on 8 July 1991, the Union sought to settle the dispute by varying the Boyne Smelters Award. Counsel for the Union said to Munro J. who heard the matter:

"I wish to reduce to writing the demands, or should I say

requests, of the union, but without being bound to these

terms, I would put it as follows: the union seeks first an

award creating an obligation on Boyne Smelters Limited to

reinstate those persons named in the notification; secondly,

that the award contain a provision that Boyne Smelters

Limited provide to each of those named employees an amount

equivalent to that which he would have received had he not

been dismissed; thirdly, that each employee's - that each

of those employees rights as to leave of all types,

superannuation and other non-wage benefits be regarded as

unaffected by the dismissal.

...

Your Honour, I would expect that upon reflection, those

demands could be better expressed, and I seek to reserve the

right to do that, upon notice of course to the commission

and to the company. But those are the basic demands."

Subsequently, the Union tendered an exhibit before the Commission. The exhibit was expressed as follows:

"A. If the Company dismisses an employee without that

employee's consent (whether before or after the making

of this award) then the Company shall, upon request

made within three months of the dismissal by the

employee or any organisation of which the employee is a

member:

(i) reinstate the employee to the position occupied

immediately prior to the dismissal on the same

wages and conditions as applied immediately prior

to dismissal and without loss of or interruption

to seniority or rights to superannuation, company

subsidised housing loans, training, or any other

benefit received by the employee or to which the

employee was entitled immediately prior to

dismissal; and

(ii) pay to the employee an amount equal to that which

the employee would have received by way of wages

had the employee not been dismissed.

B. If it is impossible for the Company to reinstate the

employee to the same position then the employee shall

be reinstated in a position commensurate with the

employee's skills, abilities and experience and the

provisions of A (above) shall likewise apply."

5. The tender of the exhibit was accompanied by the following exchange between counsel for the Union and the Commission:

"(Counsel): This is in fact the written version of what I

placed on transcript, your Honour.

...

(The Commission): And is this intended to be substituted

for what you read onto transcript?

(Counsel): Yes."

6. The nature of the demand implicit in the written exhibit was very different from the demand formulated orally by counsel, notwithstanding that counsel said it was a "written version" of that formulation. The change was from a demand for the reinstatement of particular employees to a demand for a general condition of employment providing for the reinstatement of an employee dismissed without consent before or after the making of the award. A general condition to that effect would have the consequential effect in this case of requiring the reinstatement of the employees dismissed in April 1991.

7. The basis on which the Union contends that the Commission had jurisdiction to make an award giving effect to the demands implicit in the exhibit was that the demands were for an award in part settlement of the 1990 dispute. A notification of dispute dated "July 1991", filed with the Commission, had also claimed that the dispute was "part of the dispute found by the Commission on 19 October, 1990".

8. Justice Munro found that the Commission had jurisdiction to hear and determine the Union's application as submitted. He made an award in terms of the exhibit tendered by the Union ("the 1991 award"). The effect of this award was that 27 men were reinstated. His Honour thought that the award sought by the Union "or some variant on it" could be regarded as reasonably appropriate as a part settlement of the 1990 dispute.

9. Boyne Smelters appealed to the Full Bench of the Commission which allowed the appeal and quashed the decision of Munro J. It held that Munro J. had no jurisdiction to make the award. The Full Bench seems to have determined the nature of the dispute between Boyne Smelters and the Union by reference to the objectives of the Union in so far as they could be deduced from counsel's oral statement in the proceedings before Munro J. After referring to the "basic demands" made orally on behalf of the Union, counsel's "right to better express the union's claims, and (tender) the draft award", the Full Bench said that there was "no other comment made on, or variation suggested to, the statement of the (Union's) objectives". The Full Bench concluded that the 1990 dispute "provided a basis for the prescription of general provisions setting out relevant conditions of employment", but that the Union's claims before Munro J. "were concerned with a dispute about reinstatement of the named workers who had been dismissed by the Company". Their Honours found that such claims did not fall within the ambit of the 1990 dispute.

10. The prosecutor contends that the Full Bench was in error in construing the Union's claim by reference to counsel's oral statement made on 8 July 1991. The prosecutor contends that the validity of the 1991 award is to be determined by reference to the exhibit which was tendered and that the demands implicit in that document demonstrated that the 1991 award was within the ambit of the October 1990 dispute. Alternatively, the prosecutor contends that even if the approach of the Full Bench was correct, the demands formulated orally by counsel were within the ambit of the 1990 dispute and otherwise within the jurisdiction of the Commission.

11. The first issue to be resolved concerns the characterisation of the Union's demands in the proceedings before Munro J. Were they demands for the reinstatement of 27 men who had been dismissed in April 1991 which were unrelated to the 1990 dispute? Or did they comprise a formula for settling part of a dispute which had been in existence since the rejection of the log of claims in 1990? If the demands were a bare demand that Boyne Smelters reinstate the 27 men and were unrelated to the 1990 dispute, there would be no interstate dispute and the Commission would not have had jurisdiction. If, however, the demands constituted a formula for settling part of the 1990 dispute, the Commission had jurisdiction to make the award which it did, provided that that award was reasonably and appropriately adapted or incidental to the settlement of the 1990 dispute.

12. In my opinion, the Union's demands are to be evaluated by reference to the exhibit and not by reference to the objectives of the Union in so far as those objectives can be deduced from counsel's initial oral formulation of the Union's demand. When they are so evaluated, they are demands which are within the scope of the 1990 dispute. Furthermore, the 1991 award was an award reasonably incidental to the settlement of the 1990 dispute.

13. The scope of the Union's demands before Munro J. is a question which relates to the jurisdiction of the Commission because it involves the scope and extent of the dispute with which the Commission was dealing. Since a jurisdictional issue is involved, this Court must determine the question. In determining the question, much weight is to be attributed to the decision of the Commission ( (17) Reg. v. Alley; Ex parte N.S.W. Plumbers and Gasfitters Employees' Union [1981] HCA 61; (1981) 153 CLR 376, at p 390; Reg. v. Cohen; Ex parte Attorney-General (Q.) [1981] HCA 66; (1981) 157 CLR 331, at p 346; Reg. v. Ludeke; Ex parte Queensland Electricity Commission [1985] HCA 55; (1985) 159 CLR 178, at p 184.) Nevertheless, two aspects of the proceedings in the Commission justify this Court in arriving at a conclusion contrary to that reached by the Full Bench. First, a difference of opinion as to the nature of the demands exists between the Full Bench and Munro J. ((18) See Alley (1981) 153 CLR, at p 390; Ludeke (1985) 159 CLR, at p 184.) Secondly, defining the scope of demands in this case is not a question the resolution of which calls for the Commission's special industrial expertise. It is simply a matter of interpreting what occurred during the proceedings before Munro J.

14. Upon the foregoing account of the facts, the Full Bench was in error in identifying the demands and ascertaining the nature of the dispute by reference to the oral submissions of counsel for the Union. Before orally expounding the Union's demands, counsel for the Union stated that the Union would not be "bound to these terms". He reserved the right to express the demands in a better form. The exhibit which was tendered was intended to be substituted for the demands which had been read onto the transcript. Undoubtedly, the Union desired the reinstatement of the named persons who had been employees of Boyne Smelters; counsel said so on numerous occasions during the hearing before Munro J. But the approach of the Full Bench does not distinguish between the motive or occasion for the making of the demands and the scope of the demands which were made and rejected. The nature of matters in dispute is not to be ascertained by the associated purposes, objectives or motives of the persons allegedly in dispute. The ambit of an industrial dispute is a matter to be determined by reference to objective phenomena, not by reference to the states of mind of the parties apparently in difference.

15. The Commission would find itself in an impossible position if its jurisdiction depended on the objectives, purposes or motives of those who make or reject demands on industrial matters. Purpose, object or motive is relevant when the question is whether a dispute is "real and genuine", but it is not relevant in determining the nature or ambit of the dispute. That depends on what has been said or written. Of course, a demand is not to be construed literally if such a construction would defeat the practical concerns of the party making the demand ((19) Reg. v. Heagney; Ex parte ACT. Employers Federation [1976] HCA 32; (1976) 137 CLR 86, at pp 98-100, 104, 105-106.) But this does not mean that the ordinary and natural meaning of a demand - which gives effect to the intention of the claimant - can be disregarded because that person seeks to achieve some collateral objective or purpose by means of that demand. If a party genuinely intends to press a demand which has been refused, it is not open to the Commission to hold that the scope of the dispute is different from the scope of the demand because that party was seeking to achieve an additional, ultimate or collateral objective or purpose.

16. The approach taken by the Commission appears to have been based upon the following statement of Mason C.J. in Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. ( (20) [1989] HCA 10; (1989) 166 CLR 311, at p 316.) ("Wooldumpers"):

"The question then is whether the proceedings before

the Commissioner involved such a claim. In considering this

question, it is necessary to ascertain the nature of the

dispute and to identify what one side is claiming and what

the other side is refusing. Once this is done we can

determine whether what was claimed was something that was

sought and denied in the earlier dispute or something that

stands apart from that dispute."

But that statement lends no support to the view that the objectives sought to be obtained by a demand can be used to disregard the actual dispute between the parties as it appears from the terms of the demand. In Wooldumpers, Mason C.J. was dealing with a demand which on its face was not within the ambit of an earlier dispute. His Honour sought to determine whether the demand went further than it appeared to do. That is not the situation here.

17. The final statement of the Union's demands was contained in the exhibit tendered by counsel. The scope and nature of the dispute is to be determined by reference to that document. To the extent that the Commission relied on the objectives of the Union as appearing from counsel's oral statement, it was in error.

The 1991 award falls within the ambit of the 1990 dispute

18. When the contents of the exhibit tendered before Munro J. are examined, the Union's demands can be seen to be within the ambit of the 1990 dispute. The relationship between the terms of the award and the terms of the dispute found to exist in 1990 provides a solid foundation for the inference that the demands, implicitly settled by the 1991 award, were a more particular reiteration of the 1990 demands and that the 1991 award was made in part settlement of the 1990 dispute and not in settlement of a fresh local dispute. True it is that the making of the 1991 award was actuated by what occurred in April 1991. But that means no more than the events of 1991 prompted the Union to obtain a particular award to settle a local dispute which fell within the ambit of the general dispute which had existed since 1990.

19. The 1990 dispute concerned conditions of employment to the effect that the employer would not dismiss any employee and would reinstate forthwith any employee dismissed in breach of that condition. These conditions of employment were to be observed "whether or not such dismissal takes place before the making of any Award or Agreement made in settlement of (this) Log of Claims". The demands implicit in the 1991 award are a particular application of the more general demands which supported the finding of the 1990 dispute. The log of claims which led to the 1990 dispute sought to impose a duty on employers to reinstate employees dismissed contrary to the regime that employees were not to be dismissed. Both the terms of the finding of the 1990 dispute and the terms of the 1991 award refer to circumstances of dismissal occurring prior to the making of an award or agreement. Both refer to reinstatement in the case of dismissal. However, the 1990 dispute involved an absolute prohibition on the dismissal of any employee and referred to reinstatement forthwith in the event of dismissal.

20. The 1991 award differs in the following respects from the demands involved in the 1990 dispute. First, the 1991 award does not expressly prohibit dismissal; it refers to circumstances of dismissal in order to ground the reinstatement claims. Secondly, the 1991 award relates only to dismissal without the relevant employee's consent. Thirdly, the 1991 award relates only to circumstances in which the relevant employee, or an organisation of which the employee is a member, requests reinstatement. Fourthly, the 1991 award provides for compensation for lost wages, for retention of benefits, and for reinstatement to the same position or a similar position to that occupied prior to dismissal. But these differences between the 1990 dispute and the terms of the 1991 award are not sufficient to take the demands implicit in that award outside the ambit of the 1990 dispute.

21. The most significant difference between the terms of the 1990 dispute and the terms of the 1991 award is that the 1990 dispute involved a demand that employers observe "conditions of employment to the effect that" etc. The 1991 award does not provide for Boyne Smelters to observe terms and conditions of employment; rather it provides for a regime for the reinstatement of dismissed employees. Boyne Smelters contends that this circumstance necessitates a finding that the 1991 award was not within the ambit of the 1990 dispute. According to Boyne Smelters, the 1990 dispute, properly understood, was one concerning a regime whereby it was to be a condition of the employment of every employee that he or she not be dismissed and that, if dismissed, he or she be reinstated. Boyne Smelter's contention is that the 1990 dispute, so characterised, did not encompass a demand that employees not the subject of that regime be reinstated following their dismissal; to so hold, it was argued, would be to grant to an individual a right of reinstatement before it was agreed that the employee should have a condition of employment to that effect.

22. This contention over-emphasises the reference to "conditions of employment" in the 1990 dispute finding at the expense of the words "whether or not such dismissal takes place before the making of any Award or Agreement made in settlement of the Log of Claims" in that finding. The latter words clearly indicate that included within the dispute was a demand that the status quo be preserved pending the making of any formal award or agreement. The finding concerning the ambit of the 1990 dispute reflects the log of claims served in August 1990. In this case, the concern of the Union, expressed in the finding of the 1990 dispute, was that, from the time of the service of the log of claims, no employee should be dismissed and, if dismissed, should be reinstated.

23. The circumstances of this case are significantly different from those considered in Wooldumpers where there was a dispute arising from a union's claim that all employment, with the exception of casual employment, should be permanent and that termination of employment should not be undertaken without the prior consent of the union and prior notice being given to the employee concerned. Subsequently, an individual was dismissed. The Commission was then notified of a dispute arising out of the termination of this individual's employment. The union sought an award ordering reinstatement of the employee on the ground that the dismissal was harsh, unfair or unreasonable. This Court found that the Commission had no jurisdiction to entertain such a dispute.

24. Mason C.J. found that implicit in the earlier dispute was a claim for reinstatement ((21) (1989) 166 CLR, at p 315.) However his Honour found that the dispute arising from the dismissal of the individual did not have the requisite connection with the earlier dispute so as to fall within the ambit of that dispute. His Honour found nothing in the materials before the Court suggesting that "settlement of the disputed claim to reinstatement can be regarded as reasonably incidental or appropriate to the settlement of the earlier and wider interstate dispute" ((22) ibid., at p 319.)

25. The essential reasoning in the joint judgment of Wilson, Dawson and Toohey JJ. is similar to that of Mason C.J. Their Honours found that the earlier dispute sought an award establishing a regime regarding the dismissal of employees whereas the dispute as to the reinstatement of the individual merely sought an award ordering the reinstatement of that individual ((23) ibid., at pp 324-325.) Their Honours stated ((24) ibid., at p 326.)

"Both principle and authority require a distinction

to be drawn between a claim for conditions relating to

the dismissal or reinstatement of employees generally and

a claim that a specific individual be reinstated in

employment, not by the application of any predetermined

standard, but merely to deal with the one instance. Each

claim is of a different kind and the one does not embrace

the other. That being so, the dispute about the

reinstatement of the dismissed employee in this case does

not fall within the ambit of the 1986 log of claims".

26. Deane J. also made the distinction between a dispute "about whether certain rules should govern dismissals generally" and a dispute "about the justification or consequences of a particular dismissal in the absence of such rules" ((25) ibid., at p 333.) His Honour found that the dispute as to the individual's reinstatement did not fall within the ambit of the earlier dispute.

27. The distinction made by Deane J. also informed the decision of Gaudron J. ((26) ibid., at p 336.) with which Brennan J. agreed ( (27) ibid., at p 327.) Her Honour further found that at the time the log of claims giving rise to the earlier dispute was served the recipients of that log would not have understood that log included a claim for reinstatement ((28) ibid., at p 335.)

28. Thus, Wooldumpers decided no more than that, by itself, a dispute as to the reinstatement of a particular employee does not fall within the ambit of a dispute concerning the establishment of a regime regarding security of employment and dismissal generally.

29. However in the present case, both the terms of the 1990 dispute and the terms of the 1991 award provide for a general regime as to reinstatement and are not limited to an individual employee or individual employees. Moreover, to the extent that Gaudron J. in Wooldumpers relied on the absence of a reference to reinstatement in the earlier dispute, that is of no assistance to Boyne Smelters in this case because the 1990 dispute specifically referred to reinstatement. Finally, unlike Wooldumpers, there was specific reference in the 1990 dispute to the period between the dispute and its settlement - the period in which the dismissals which prompted the 1991 award took place. Wooldumpers does not determine this case.

30. Indeed, statements in the judgments in Wooldumpers indicate that the award sought in this case does fall within the ambit of the 1990 dispute. In Wooldumpers, Deane J. specifically referred to "a demand to the effect that an employer shall not, at any time between the service of the log and the making of an agreement or award disposing of the Union's demands, dismiss any employee in respect of whom the award is sought" as one likely to include within it a dispute about reinstatement of individual employees ((29) ibid., at p 333.) It is also implicit in the judgments of other members of the Court that an award providing for a general regime concerning reinstatement is within the ambit of a dispute relating to a general regime concerning dismissal and reinstatement. Moreover, Mason C.J. thought that an award could be legitimately made in respect of employees dismissed prior to the making of the relevant award. His Honour said that, in such circumstances, "the award might be given an operation dating from the occurrence of the dispute on the footing that the award effects a settlement as from that date of a claim made for the creation of an obligation commencing at that time" ((30) ibid., at p 316.)

31. Once it is accepted that the claim of the Union before Munro J. was within the ambit of the 1990 dispute, it follows that the 1991 award was "reasonably incidental" or "appropriate" to the settlement of the 1990 dispute. Although the 1991 award referred only to Boyne Smelters, that fact did not make it inappropriate as a settlement of part of the 1990 dispute. Disputes may be settled in a piecemeal or partial manner ((31) Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [1920] HCA 18; (1920) 28 CLR 1, at pp 9, 13-14, 18, 21; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR 615, at pp 619, 627, 631.) Furthermore, the 1991 award was necessary to restore the status quo ante until the 1990 dispute was settled.

32. It is true that the Commission has limited power to make an award which directly or consequentially reinstates a particular employee or employees. When an organisation makes a demand on employers in more than one State that the general conditions of employment of their employees should contain a clause providing for reinstatement, the power of the Commission to make an award giving effect to that demand is not open to doubt ((32) See Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia ("Re Ranger Uranium Mines") [1987] HCA 63; (1987) 163 CLR 656, at pp 660, 661.) But once the award is made, the Commission has no power to enforce that award because the enforcement of the award is a matter calling for the exercise of judicial and not arbitral power. In some circumstances, however, notwithstanding the existence of an award containing a prescription for reinstatement, the Commission may be able to make an award reinstating a particular employer or employees by an independent award or by a variation of the earlier award ((33) ibid., at pp 661-662; Wooldumpers (1989) 166 CLR, at p 318.) But before it can do so, the award must be in settlement or part-settlement of an interstate dispute and pertain to the relationship of employers and employees generally and not to a particular employer-employee relationship ((34) Re Ranger Uranium Mines (1987) 163 CLR, at p 661.) One case where it is always open to the Commission to make an award reinstating a particular employee is the case where the award is necessary to restore the status quo pending the determination of a demand for a general condition of employment providing for reinstatement. In such a case, the making of the award for reinstatement is incidental to the power to settle the dispute concerning the demand for the general condition of employment.

33. One of the demands in the 1990 dispute was that the general condition of employment should apply to an employee dismissed before the making of the award or agreement giving effect to the demands. To make an award reinstating a particular employee pending the determination of a demand for that general condition is an incident of the power to make an award settling the interstate dispute arising out of that demand. It follows that the award made by Munro J. was within the jurisdiction of the Commission. Moreover, the foregoing train of reasoning leads to the conclusion that the award of his Honour would have been within jurisdiction even if it had been based on counsel's oral formulation of the Union's claim.

The 1991 award was not an exercise of judicial power

34. Furthermore, the award made by Munro J. was not beyond the jurisdiction of the Commission on the alleged ground that it involved an exercise by the Commission of the judicial power of the Commonwealth. An order for the reinstatement of employees is not an exercise of judicial power unless it involves the enforcement of rights. What was claimed by the Union in this case was the creation of legal rights and obligations with respect to reinstatement, not their enforcement. In Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia ((35) [1987] HCA 63; (1987) 163 CLR 656, at p 663; see also Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. [1987] HCA 29; (1987) 163 CLR 140, at p 149.) the Court stated:

"(T)he creation of legal rights and obligations is a

function which may be performed in the exercise of arbitral

power. This is so even if the function is performed in

settlement of a dispute relating to past transactions,

events and conduct".

That an award providing for reinstatement may involve findings relating to the impropriety of the dismissal does not indicate that an exercise of judicial power is involved. Functions "may be classified as either judicial or administrative, according to the way in which they are to be exercised" ((36) Reg. v. Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617, at p 628.) The finding of facts and the formation of value judgments attaching to the facts as found may give rise to exercises of judicial or administrative power depending on the context in which those findings are made ((37) Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, at p 371; Re Ranger Uranium Mines (1987) 163 CLR, at pp 665-666.) In this case, any findings the Commission may have made in relation to the award were findings made in the context of the exercise of arbitral, and not judicial, power. Similarly the award made by the Commission involved the exercise of arbitral, and not judicial, power.

The validity of the 1990 dispute and the award sought

35. One further matter has to be determined. Although the Union's claims fall within the ambit of the 1990 dispute and the 1991 award was reasonably incidental to the settlement of that dispute, it is necessary to determine whether the 1990 dispute was within the jurisdiction of the Commission. This depends on whether a dispute concerning the reinstatement of employees dismissed prior to the making of an award which imposes a general regime of reinstatement is within the jurisdiction of the Commission.

36. For a dispute to be an industrial dispute for the purposes of the Industrial Relations Act 1988 (Cth) ("the Act"), it must pertain to the relationship of employees and employers ((38) Re Amalgamated Metal Workers Union; Ex parte Shell Co. of Australia Ltd. [1992] HCA 38; (1992) 174 CLR 345, at pp 359-360, 362-363, 372.) If a dispute concerning the reinstatement of an employee before the creation of a duty to reinstate does not pertain to the relationship of employee and employer, it does not conform to the requirement of an industrial dispute ((39) See the Act, s.4(1).)

37. Boyne Smelters contends that the 1990 dispute concerned the reinstatement of employees dismissed prior to the existence of a condition of employment that employees were not to be dismissed and, if dismissed, were to be reinstated. Thus, it contends that, at least in part, the 1990 dispute pertains to the relationship between ex-employees and ex-employers. A dispute between ex-employees and ex-employers cannot be an industrial dispute ((40) Reg. v. Portus; Ex parte City of Perth [1973] HCA 64; (1973) 129 CLR 312, at pp 329-330.) Boyne Smelters contends, therefore, that, in so far as the 1990 dispute pertains to the relationship between ex-employees and ex-employers, the dispute was outside the jurisdiction of the Commission.

38. Contrary to the contention of Boyne Smelters, the 1990 dispute did not pertain to the relationship between ex-employees and ex-employers. The 1990 dispute was a dispute between existing employees and existing employers as to dismissal and reinstatement. The dispute finding reflected that dispute. True it is that the dispute finding referred to a period of time, prior to the settling of the dispute, during which employees were not to be dismissed and, if dismissed, were to be reinstated. But that part of the dispute did not pertain to a relationship between ex-employees and ex-employers. It concerned a dispute as to the protection to be provided for existing employees until the dispute was resolved by way of award or agreement. At all times, the dispute pertained to the relationship between existing employees and existing employers. Consequently, the terms of the 1990 dispute as found by the Commission were within jurisdiction. This makes it unnecessary to determine what the effect of s.101(3) of the Act would have been if it had been held that the 1990 dispute was outside the jurisdiction of the Commission ((41) Section 101(3) of the Act provides:

"A determination or finding of the Commission on a

question as to the existence of an industrial dispute

is, in all courts and for all purposes, conclusive and

binding on all persons affected by the question."

As to the effect of s.101(3) (previously s.60(2) Conciliation and Arbitration Act 1904 (Cth)) on a constitutional challenge to the validity of proceedings undertaken by the Commission, see O'Toole v. Charles David Pty. Ltd. [1991] HCA 14; (1991) 171 CLR 232, at pp 250, 272-273, 292-293, 306.)

39. The applications for writs of certiorari and mandamus should be granted.

Order that a writ of certiorari issue to the Australian Industrial Relations Commission ("the Commission") and the members of the Full Bench of the Commission constituted for the hearing and determination of appeal C No. 31924 of 1991, removing the decision of the Full Bench of 23 September 1991 into this Court and quashing that decision.

Order that a writ of mandamus issue to the Commission directing it to hear and determine, in accordance with law, the industrial dispute the subject of proceedings C No. 21481 of 199O and proceedings based on that dispute so far as that dispute concerns Boyne Smelters Limited.

Conciliation and Arbitration Act 1904(Cth)

Boyne Smelters Ltd v Ex Parte Federation of Industrial Manufacturing & Engineering Employees of Australia [1993] HCA 75;

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)

Boyne Smelters Ltd v Ex Parte Federation of Industrial Manufacturing & Engineering Employees of Australia [1993] HCA 75; (1993) 177 CLR 446; (1993) 112 ALR 359; (1993) 67 ALJR 449 (21 April 1993)

Parties

Legislation Cited (2)

Cases Cited (31)