In his reasons for judgement in the same case Brennan J said:

"It would state the implication too widely to say simply that the Commonwealth is prohibited from making any discriminatory law which involves the placing on the States of special burdens or disabilities affecting the exercise of their power. It is not consistent with the plenary nature of the powers of the Commonwealth to deny the validity of discriminatory law enacted under a power which supports the

"If a power is available to support the imposition of that discriminatory burden or disability, it is for the Parliament alone to decide whether that burden or disability should be imposed." [159 CLR 233]

In his reasons for judgement in that case Deane J said:

"The fact that a general law imposes a particularly onerous burden upon the States (or upon a particular State) does not necessarily mean that the law relevantly discriminates against them (or it). To be caught by the reservation, the law must, as has been indicated above, discriminate in the sense that its operation involves a singling out of the States to make them 'the objects of special burdens or disabilities'. [Melbourne

Corporation - (1947) 74 CLR at p. 81]. That is not to say that a law cannot discriminate against the States in the relevant sense if it is cast in general terms and is of apparently general application." [159 CLR at 248]

As I understand it in order to be caught by this aspect of the principle of limitation the law must discriminate in the sense that its operation involves a singling out of the States to make them "the objects of special burdens or disabilities". That is not to say that a law cannot discriminate against a State in the relevant sense if it is cast in general terms and is of apparently general application which, of course, is the position in respect of the terms and provisions of the Industrial Relations Act.

The question of the application of the terms of the Act in respect of State government employees was discussed by the High Court of Australia in re Lee and Harper. Guidance is to be obtained from a reading of the joint judgement of Mason J, (as his Honour then was), Brennan J and Deane J. In particular the following is an explanation by their Honours of the Commission's

capacity to exercise statutory authority in this regard:

"There is no denying that the exercise by the Commission of its authority to settle the terms and conditions of employment of State employees effects a significant subtraction from the autonomy of the State, because the capacity of a government to set the terms and conditions of its relationship with its employees, which affects the services and benefits which it can provide, is an important aspect of its autonomy.

Traditionally, employers enjoyed the right to set the terms and conditions of employment of their employees, free from regulation by government or government agencies, subject, of course, to the freedom of the employee or potential employee to refuse to accept the terms and conditions offered or set by the employer. However, in the last century

the adoption in Australia of a system of industrial conciliation and arbitration as a means of settling industrial disputes resulted in the regulation of the employer's traditional right by means of awards made by industrial tribunals. Ultimately this system extended to the regulation of the terms and conditions of employment of public servants in the employ of colonial governments, just as it now extends to public servants in the employ of federal and State governments. The extension of the system by Commonwealth and State legislation from private to public employment was an inevitable development, especially in a country in which public authorities were owned and operated by a government or statutory authority. When based upon State legislation the extension of the system to State employees involved no threat to the autonomy of the

State or its capacity to govern. On the contrary, the extension was then an exercise by the State of its autonomy.

But the exercise by the Commission of its authority in respect of the terms and conditions under which employees are engaged in the administrative services of a State, if it be authorised by the constitution, involves no such legislative act on the part of the State. In a different context, dissociated from the tradition of industrial arbitration in Australia (which includes extension to public employment), the subjection by the Commonwealth Parliament of the relationship between

a State and its employees to the authority of its agency, the Commission, might perhaps be thought to involve such a radical subtraction from State autonomy as to attract the implied limitations on Commonwealth power. The scope of the arbitration power, viewed in the light of the history of industrial arbitration in Australia, does not support this view". [(1985 - [1986] HCA 30; 1986) 160 CLR 430 at 451 and 452] Their Honours went on to consider a further aspect of the implied limitation on Commonwealth power and the concept of there being a proper differentiation between functions of government which are regarded as being truly governmental or essential to the administration of the State and those which are not. After reviewing the authorities in respect of this aspect of the matter their Honours concluded:

"There is accordingly much to be said for the proposition that assuming that there is no discrimination against a State or singling out, such as occurred in Queensland Electricity Commission v. the Commonwealth, the exercise of the arbitration power in the ordinary course of events will not transgress the implied limitations on Commonwealth legislative power. The exercise by the Commission of its authority with respect to the employment relationship between a State and its employees in the course of settling an industrial dispute appears to fall within s.51(XXXV)." [Ibid., page 453]

The guidance given by the High Court of Australia in these two most recent cases has been followed by two Full Benches of the Commission during 1991 [State Public Services Federation re State government employees - Munro J, MacBean DP, Commissioner Johnson - Print J9104 and re ACT Teachers Federation - Hancock DP, MacBean DP, Commissioner Oldmeadow - 40 IR page 458].

It is claimed as part of the argument that Sections 44, 109 and 121 of the Act discriminate against the States. The terms of these Sections are said to represent "an inverted form of discrimination in that the source of the discrimination in each of the three provisions is a benefit conferred by the Act upon the Commonwealth which is not conferred upon the States".

The provisions contained in each of these Sections need to be considered separately in order to ascertain the merit of the argument, but it should be observed from the outset that even if the Commonwealth enjoys any advantage or benefit, as a result of the respective provisions any possible or perceived disadvantage which might exist, it would have equal application to all other parties to the proceedings and no State or States could be seen to have been singled out for special treatment or disadvantage as a consequence of any or all of these particular provisions.

The terms of Section 44 of the Act create a right for the Commonwealth Minister for Industrial Relations to intervene in certain specified proceedings before the Commission. It is argued that as there is no corresponding right for the relevant State ministers to intervene in the same or similar proceedings and that the provisions, therefore, particularly in respect of sub-Section (1), result in discrimination against the States.

Section 44 is in the following terms:

"(1) The Minister may, on behalf of the Commonwealth, by giving written notice to the Industrial Registrar, intervene in the public interest in a matter before a Full Bench.

(2) The Minister may, on behalf of the Commonwealth, by giving written notice to the Industrial Registrar, intervene in the public

interest in a matter before the Commission so far as the matter involves public sector employment."

In my view, there is no substance in the argument that the terms and provisions contained in this Section represent a form of discrimination against the States.

The legislature has certainly given the Minister a right to intervene in certain specified proceedings before the Commission. But this right to intervene is a narrow one confined to the protection of "the public interest"

rather than to permit the Minister to adopt a narrow partisan position in an effort to influence a decision on such a basis. In this respect Parliament has imposed upon the Minister a duty to protect the public interest in the relevant proceedings. The grant of such a right, or the imposition of such a duty, could not be seen reasonably as discrimination against any single State or the States generally.

Mr McDonald, counsel for a number of respondents, made the point that he had applied for leave to intervene in these proceedings on behalf of "the State of Victoria" and that this had been refused. There were two grounds advanced in support of the application for leave to intervene in this respect.

Firstly, it was argued that a large number of the establishments, that had been served with the log of claims, employed persons who were "Crown employees" whose conditions of employment were regulated pursuant to the terms and provisions of the Victorian Public Service Act. The detail of the coverage in this regard of the officers and employees in the various establishments is set out in an affidavit sworn by Peter Carver, an officer of the Victorian Department of Health and Community Services. The same position was said to apply to officers and employees of the Melbourne Remand Centre and certain special development schools. All of the relevant employees are said to be Crown employees. In these circumstances, it was argued, "the State has a direct interest to the extent that its own employees, and large numbers of them, are affected by the service of the log of claims". [p.83 of transcript]

The second ground on which the application for leave to intervene was based related to "the standing pursuant to which the State advances those arguments set out in the written submission concerned with the application of the doctrine of the implied limitation on the exercise of the Commonwealth's Constitutional power."

It was made very clear that the argument in respect of the suggested Constitutional limitation on the coverage and application of the provisions of the Act would be advanced by the same counsel on behalf of the relevant institutions but it was desired to make the same submissions on behalf of the State as well.

The HSUA made it very clear that it did not seek, as a result of these

instant proceedings, any finding of the existence of an industrial dispute in respect of institutions employing its members, or persons eligible to be its members, where those persons were employees of the Crown and who were covered by the provisions of the Victorian Public Service Act. There were, therefore, no direct Crown employees subject to consideration in the proceedings at this

The second ground speaks for itself. There was no different argument to be advanced by the Crown to that intended to be advanced on behalf of the relevant institutions. Having regard to the basis of the application I made the following decision:

"In view of the fact that the Union is not pressing its claim against employers (of employees) of the Crown in the right of the State of Victoria and the doctrine of implied limitation will be raised anyway by

the same counsel on behalf of a significant number of public hospitals, the application for leave to intervene by the State in its own right is refused." [page 88 of transcript - 16.11.1992]

But this is not to say that an application by a relevant Minister of a particular State who had a particular interest in respect of employees of the State, or if an argument was intended to be advanced in respect of the public interest, that such an application would be refused. Indeed, it would be unthinkable, in my view, to refuse to hear such a submission and I am not aware of any case where such an application has been refused.

In this case the argument to be advanced was advanced by the same counsel, on behalf of direct respondents to the claims rather than on behalf of a Minister of State, and that argument has been considered. It suffers no less because it was not advanced specifically by or on behalf of the State or one of its Ministers.

Although the particular circumstances of this case did not justify the grant of leave this is to be seen as unusual. That decision does not establish that Section 44 of the Act discriminates against the States.

Section 109 of the Act authorises the Minister to apply to the President for the establishment of a Full Bench of the Commission to review an award or order made by a single Member of the Commission.

"(1) The Minister may apply to the President for a review by a Full Bench of:

(a) an award or order made by a member of the Commission; or

(b) where it appears to the Minister that the award, order or agreement is contrary to the public interest.

(2) Where an application is made to the President under subSection (1), the President shall establish a Full Bench to hear and determine the application.

(3) The Full Bench shall, if in its opinion the matter is of such importance that, in the public interest, the award, order or decision should be reviewed, make such review of the award, order or decision as appears to it to be desirable having regard to the matters referred to in the application.

(4) Subsections 45(4) to (8) (inclusive) apply in relation to a review under this Section in the same manner as they apply in relation to

an appeal under Section 45. (5) In a review under this Section:

(a) the parties to the proceeding in which the award, order or decision was made are parties to the proceeding on the review

(6) Each provision of this Act relating to the hearing and determination of an industrial dispute extends to a review under this Section.

(7) Nothing in this Section affects any right of appeal or any power of a Full Bench under Section 45, and an appeal under that Section and a review under this Section may, if the Full Bench considers

(a) an award constituted by a certified agreement; or

This Section of the Act is to be seen as part of a legislative scheme whereby matters of importance, in the public interest, may be referred to a Full Bench for determination. Sections 107 and 108 are part of this scheme and Section 106 reserves certain matters for the consideration of a Full Bench.

The Minister's right to make an application pursuant to Section 109 does not affect the right of any other relevant person to lodge an appeal against a decision pursuant to the terms of Section 45 of the Act.

This "right of the Minister" provided in Section 45 is to be considered in the setting of the legislative scheme of the Act and it is open to argument

that the right of the Minister contained in Section 109 also represents part of his duty to represent the public interest and to make appropriate submissions to the Commission where the circumstances of a particular matter make it desirable to do so. The Section does not result in an improper discrimination against any State.

"(1) In relation to an industrial dispute involving public sector employment, the Commission may, where it considers it proper to do so, make an award, or order, that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory.

'enactment' means an ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Northern Territory (Self-Government) Act 1978; 'relevant law' means a law of the Commonwealth or an internal Territory relating to matters pertaining to the relationship between employers and employees in public sector employment,

(a) the Commonwealth Employees' Rehabilitation and Compensation Act 1988, the Long Service Leave (Commonwealth Employees) Act 1976, the Superannuation Act 1976 or the Superannuation Act 1990;

(b) a prescribed Act or enactment, or prescribed provisions of an Act or enactment."

The terms of this Section do not give any special protection to the Commonwealth. The legislature has limited the power of the Commission so as to prevent awards or orders being made in respect of Commonwealth employees which are not consistent with the particular statutes specified in Section 121 (2)(a) or (b) set out above, whilst specifically granting power to over-ride other

relevant Commonwealth legislation. This provision has the effect of saving four statutes which are beneficial to employees but awards may be made which are inconsistent with other Commonwealth legislation.

The legislature has also directed the Commission to "take into account" relevant State laws when determining industrial disputes concerning apprenticeship schemes or safety, occupational health and welfare.

The legislation which restricts or contains the jurisdiction of the Commission in this regard could not reasonably be seen as being discriminatory against a State or States nor could it be described as unreasonably interfering with the capacity of a State or States to function.

I find little merit in this aspect of the argument.

I have considered all of the submissions made by the respective parties, some of whom have expressed no objection to the finding of the existence of an industrial dispute, but have foreshadowed the intention to make appropriate applications pursuant to Section 111(1)(g) of the Act for the use of the Commission's discretion not to make an Award or to have no further proceedings on one or other of the grounds specified in the Act.

Having regard to all of the facts and circumstances of this case I have reached the conclusion that there is in existence an industrial dispute between the HSUA and the relevant employers included on the schedule attached to its notification excluding those against whom the claims have not been pressed. The resultant dispute is in the health services industry and exists in the States of Victoria, Tasmania and Western Australia. A record of finding to this effect will be made.