Federated Clerks' Union of Australia v Victorian Employers' Federation [1984] HCA 53;

Federated Clerks' Union of Australia v Victorian Employers' Federation [1984] HCA 53; - HCA 1984 case summary — Zoe

[40]

5. On behalf of the registrar of the Industrial Relations Commission (who was joined as an appellant) it was submitted that the wide words of this definition have the effect that any dispute between the parties mentioned in the definition is an industrial dispute and therefore by reason of s.34(1)(f) a matter in relation to which an award may be made under s.34(1). In other words, it was said that the definition shows that it is enough that there is a dispute between the parties mentioned and that the subject of the dispute is immaterial - it need have no industrial flavour. This submission cannot be accepted. It is a fundamental rule of interpretation that the words of a statutory provision must be understood in the context in which they appear; their construction "must be controlled by the subject-matter, and the general intention of the Act": Clancy v. Butcher's Shop Employes Union [1904] HCA 9; (1904) 1 CLR 181, at p 207; they should be construed so as not to go outside the scope and purpose of the Act: Attorney-General of Queensland v. Wilkinson [1958] HCA 21; (1958) 100 CLR 422, at p 424. This principle has frequently been applied in the construction of statutes dealing with industrial relations. It is not without importance that the Supreme Court of Victoria, in decisions given on the effect of the Labour and Industry Act 1958 (Vict.), the relevant provisions of which were replaced by the Industrial Relations Act, held, in conformity with this principle, that the general words of that statute must be understood in their context as applying only in the area of industrial relations: see Reg. v. Industrial Appeals Court; Ex parte Frieze [1963] VicRp 95; (1963) VR 709, at p 712 and Reg. v. Industrial Appeals Court; Ex parte Victorian Chamber of Manufactures [1975] VicRp 8; (1975) VR 84, at pp 93-94. Although the words of the present Act are different from, and somewhat wider than, those of the earlier legislation, the subject matter of the Act indicates that it was intended that an industrial dispute within the meaning of the Act should be a dispute having some connexion with industrial relations. It was pointed out by the Supreme Court in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. (1983) 1 VR 469, a case decided on the present Act, that if the definition of "industrial dispute" meant any dispute arising between the parties described in that definition, it would cover a dispute between an employer and one of his employees having nothing whatsoever to do with the employment and that an intention to bring about such a result should not be attributed to Parliament in the absence of express provisions compelling that result: see at p.475. The Supreme Court then went on to say, at p.475, that the scope and purposes of the Act suggest that the Act is to be understood as referring to industrial disputes as generally understood in the ordinary meaning of that expression. I agree with that conclusion. This view does not deprive the definition of "industrial dispute" of its proper effect. The definition makes it clear who may be the parties to such a dispute, and that it includes a threatened or impending or probable dispute, but it says nothing about the subject matter of the dispute. That is indicated by the context of the Act as a whole: the dispute must be an industrial dispute in the ordinary sense.

[55]

12. In my opinion the provisions of pars.(b) and (c) of the award do not deal with an industrial dispute. It is clear, as Anderson J. said in the Full Court, that the award could not validly give an effect to the outcome of consultation, or give the employees the right to control or direct the decision of management, for if it did it would be dealing with a matter of management and not with an industrial matter. Paragraphs (b) and (c) do not go so far, but they do give the employees and the union an opportunity to take a certain part in the management of the business. Those paragraphs require the employer to notify the union, and in some cases the employees, at the commencement of an investigation into the feasibility of technological change (however tentative or preliminary the investigation may be), to keep the union and the employees informed, amongst other things, of any such change that is being considered, and, if requested, to consult with the union and the employees about the technological change being considered, and material effects which might ensue, and alternative proposals which might eliminate or lessen such effects. The employer is thus required to reveal the nature of investigations made in the course of management and to consult about them, whether it is likely that they will lead to action which may affect the employees, or not. The object of those paragraphs is plainly to give the union and the employees an opportunity to influence the employer before he makes what is purely a management decision. Consultation often plays a valuable part in industrial relations but a demand for consultation does not give rise to an industrial dispute simply because the demand is made upon an employer by his employees. The topic on which the proposed consultation is to occur determines whether the demand is industrial in nature. The consultation required by pars.(b) and (c) relates to proposed or possible management decisions. Paragraphs (b) and (c) of the award do not relate to an industrial dispute within the meaning of the Act, for in my opinion a dispute regarding whether employees should have the right to be informed and consulted before a management decision is taken is a dispute as to management, and not an industrial dispute.

[56]

13. Paragraph (d) of cl.39 is different in kind. It deals with the situation that arises when the employer has decided to implement technological change. In that event the employer is required to notify the union and the employees who may be materially affected in their employment by the change. It is true, as Young C.J. pointed out, that the words of par.(d) are not well chosen and that sub-par.(ii) of par.(d) assumes that the employer may have room to change his mind and may be persuaded to adopt some alternative proposal. This consideration led Young C.J. to conclude that the notifications required by par.(d) are not different in essence from those prescribed by par.(b), and that both provide procedures for notification and consultation before a decision has become irrevocable or is implemented. Nevertheless, with all respect, it seems to me that a dispute between employers and employees as to whether the parties should consult about a decision which has been made by the employer, and which is likely materially to affect the employees in their employment, is a dispute which arises out of the relationship between the employers and the employees as such. It is true that the decision in question is one of management, but the mitigation of the undesirable effects which a management decision may have on the employees affected by it is a matter that arises in the course of the employer-employee relationship, and this, I think, is none the less so because the consultations may reveal an alternative proposal, preferable from the employees' point of view but suitable from that of the employer, which may be adopted in place of the original decision. The distinction may seem a fine one but in my opinion par.(d) is on the right side of the ill-defined borderline between questions which are industrial and questions which relate purely to management, and pars.(b) and (c) are not. Paragraphs (b) and (c) allow the union and the employees to intrude into management, whereas par.(d) requires the parties to consult regarding a decision which, having been made by the employer, may detrimentally affect the employees.

[137]

12. I have come to the conclusion that it was within the power of the Commission to make the award. I am not obliged to judge the wisdom or the appropriateness of the means which it has chosen to employ; indeed, if the effect of the award is to require the employer to divulge highly confidential information pertaining to the conduct of his business there could be serious practical difficulties in the way of its implementation. However, I am satisfied that, having regard to the finding of the Commission that technological change as defined in the award will significantly affect the livelihood and careers of employees engaged in clerical occupations in Victoria, any consideration by an employer which may lead to the introduction of such technology is a matter of crucial importance to those employees and hence brings into being a matter relating to the relations of that employer with his employees as such. I emphasize that it is the process of examining the feasibility and implications of a particular course of development rather than the decision to embark on that development which attracts the exercise of jurisdiction with respect to a contribution by the Union to that process. The Commission was therefore seized of an industrial matter within the meaning of s. 34(1) of the Act and empowered to make an award determining that matter. I do not think that so to recognize the existence of such a power conflicts with any received doctrine although nowadays there is probably a greater recognition of the importance and place of notification and consultation in the conduct of industrial relations. The award does not challenge the right of the employer to make decisions with respect to the introduction of technology into his business. But it does oblige him in cases where the introduction of that technology may have material effects on his employees to notify and inform the Union, and any employees who can be identified as being likely to be involved, of the steps that are being taken and to provide the opportunity for appropriate consultation.

[145]

3. It is in the above context that one must approach the question of the power of the Industrial Relations Commission of Victoria ("the Commission") to include in the Commercial Clerks Award the provisions relating to technological change which were introduced by the award purportedly made in September 1982. Those provisions require notification and consultation by an employer to or with the potentially affected employees and the appellant union in the event that technological changes are proposed or contemplated which "may have material effects in or on the employment" of employees. If valid, they involve a significant development in the relations between the affected employers and employees in that they introduce a compulsory procedure of notification and consultation in relation to planned technological changes of a type which may involve "the termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retraining or transfer of employees to other work or locations" (see the definition of "material effects" in the Award). Those are all matters which lie at the heart of the continuation and content of future industrial relations in that they relate to the continuation and content of the employment of any affected employees. In that context, the Award was, in so far as it introduced those disputed provisions, an award relating to an "industrial matter" for the purposes of s.34(1) of the Industrial Relations Act 1979 (Vic.) ("the Victorian Act") in that it was an award determining matters relating to the "terms and conditions of employment" (s.34(1)(d)) and to the "relations of employers and employes" (s.34(1)(e)). It is unnecessary to determine whether it was, to that extent, an award relating to such an "industrial matter" for the further reason or reasons that it determined matters relating to all or any of (i) "privileges, rights and duties of employers and employes" (s.34(1)(c)), (ii) "industrial disputes" which, by definition, include "a threatened or impending or probable dispute" (s.34(1)(f) and s.3) and (iii) "questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole" (s.34(1)(k)).

At a glance

Court

Decision date

Source

Judgment (148 paragraphs)

Federated Clerks' Union of Australia v Victorian Employers' Federation [1984] HCA 53; (1984) 154 CLR 472; (1984) 54 ALR 489; (1984) 58 ALJR 475; (1984) 8 IR 157 (20 August 1984)

Parties

Legislation Cited (3)

Cases Cited (20)