Pitfield v Franki

AND: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

The nature and history of the proceedings 1 The essential question in these two applications is whether the rules of an organisation of employees, relating to the eligibility of employees to be its members, were sufficiently wide to enable that organisation to create an industrial dispute by serving a log of claims on two particular employers. The organisation is CPSU, the Community and Public Sector Union ('the CPSU'), which is registered as an organisation pursuant to the Workplace Relations Act 1996 (Cth) ('the WR Act'). The employers are respectively IBM Global Services Australia Ltd ('IBM GSA') and EDS (Australia) Pty Ltd ('EDS'). 2 Together with a letter of demand, dated 1 March 2001, the CPSU served on each of IBM GSA and EDS a log of claims, seeking rates of pay and conditions of work set out in detail in the log of claims, in respect of 'employees'. Clause 1 of the log of claims contained a definition of 'employee' in the following terms: '"employee" shall mean a person who: (i) is a member of the [CPSU]; (ii) is eligible to be a member of the [CPSU]; or (iii) becomes eligible to be a member of the [CPSU] by an order of the Australian Industrial Relations Commission.' 3 IBM GSA and EDS did not accede to the demands contained in the letter of demand and the log of claims. The CPSU therefore notified the Australian Industrial Relations Commission ('the Commission') of the existence of an alleged industrial dispute between the CPSU and IBM GSA and the CPSU and EDS respectively, arising from a failure to accept, within a specified period, a letter of demand and log of claims relating to conditions of employment for employees. 4 Responsibility for dealing with the dispute notifications fell to Senior Deputy President Drake. On 28 June 2002, her Honour published a reasoned decision, dismissing the application for a finding of dispute in relation to EDS. On 26 August 2002, her Honour published another reasoned decision, dismissing the application of the CPSU for a finding of dispute in relation to IBM GSA. 5 In respect of each of these decisions, the CPSU exercised its right to appeal, pursuant to s 45(1)(a) of the WR Act. The Full Bench, which consisted of Justice Munro, Senior Deputy President Marsh and Commissioner Deegan, heard both appeals together. On 17 October 2003, the Full Bench published its reasoned decision in relation to both appeals. It granted leave to appeal and allowed each appeal. In each case, it found that a dispute existed. On the same day, the Full Bench published two formal records of its findings. In one, it expressed a formal finding that there is in existence an industrial dispute, within the meaning of the WR Act, the parties to which are the CPSU and IBM GSA. The subject matters in dispute, in so far as they are industrial matters within the WR Act, are recorded as those: 'set out in the Letter of Demand and Log of Claims from the CPSU dated 1 March 2001 and attached to the notification of dispute lodged and retained on file C2003/335 in this matter; so far as those matters pertain to employment by IBM GSA of persons eligible for membership of the CPSU, and in particular to employment in relation to the organisation of work by IBM GSA pursuant to its contract with Telstra and to work currently performed at the Clayton Data Centre.' 6 In its other record of finding, the Full Bench expressed a formal finding that there is in existence an industrial dispute, within the meaning of the WR Act, the parties to which are the CPSU and EDS. The subject matters in dispute, in so far as they are industrial matters within the WR Act, are recorded as those: 'set out in the Letter of Demand and Log of Claims from the CPSU dated 1 March 2001 and attached to the notification of dispute lodged and retained on file C2003/336 in this matter; so far as those matters pertain to employment by EDS of persons eligible for membership of the CPSU, and in particular to employment in relation to the organisation of work by EDS pursuant to its contract with Telstra and to work currently performed within the elements that comprise the operation known as the Melbourne South Solution Centre.' 7 On 17 December 2003, IBM GSA and EDS filed separate notices of motion in the High Court of Australia, seeking writs of prohibition and certiorari against the Commission, the members of the Full Bench, and the CPSU. Each filed a draft order nisi, in similar terms, challenging the Full Bench's decision to allow the appeal from the decision of Senior Deputy President Drake and challenging the record of findings. The grounds expressed in the draft order nisi in each case may be paraphrased as follows: · the CPSU does not have the capacity under its rules governing eligibility for membership to enrol as members the persons identified in the record of finding of dispute of the Full Bench. · the CPSU therefore did not have the capacity to initiate an industrial dispute between itself and IBM GSA or EDS with respect to those persons, pursuant to the letter of demand and log of claims. · the Full Bench misconstrued r 2A1(iv) of Ch A of the CPSU's registered rules, when read with r 3E(b), and erred in the meaning and effect it ascribed to those rules. · the making of the finding of dispute constituted a wrong assumption of jurisdiction by the Commission with respect to the matters specified in the finding of dispute. 8 By order of Hayne J, made on 6 February 2004, the application of IBM GSA was remitted to this Court. By order of Kirby J, made on 11 April 2004, the application of EDS was remitted to this Court. The two applications were heard together in this Court. 9 Following the hearing, the Court directed the parties to file further information concerning the findings of fact they invited the Court to make. Subsequently, IBM GSA and EDS were invited to consider whether they should notify the Attorney-General for the Commonwealth and the Attorney-General for each State and Territory, pursuant to s 78B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'), of the fact that each proceeding involved a matter arising under the Constitution. Such notices were duly served. No Attorney-General desired to participate in the proceedings, so it was unnecessary to reconvene the hearing.

The approach of the Court 10 The jurisdiction of the High Court to grant a writ of prohibition against an officer of the Commonwealth is conferred on that court directly by s 75(v) of the Constitution. Where, as in the present cases, the High Court remits to this Court an application for a writ of prohibition, pursuant to s 44(1) of the Judiciary Act, jurisdiction is conferred on this Court by s 39B(1) of the Judiciary Act. Section 412(2) and (3) of the WR Act contain further grants of jurisdiction to this Court with respect to any matter in which a writ of prohibition is sought against an officer of the Commonwealth holding office under the WR Act, and with respect to matters remitted to this Court pursuant to s 44 of the Judiciary Act. 11 There is no express reference in s 75(v) of the Constitution, or in s 412 of the WR Act, to writs of certiorari. Indeed, there is no constitutional or express statutory conferral on the High Court of jurisdiction to grant certiorari, although the terms of ss 31 and 32 of the Judiciary Act are broad enough to include the conferral of the power to grant the remedy of certiorari in a case otherwise within the High Court's jurisdiction. It is clear that, at least in a case in which the remedy of prohibition is also sought, the High Court has power to grant the remedy of certiorari as an alternative, or in aid of, the remedy of prohibition. In Pitfield v Franki (1970) 123 CLR 448, a majority of the High Court (Barwick CJ, McTiernan, Menzies and Owen JJ) held that the High Court had power to order that a writ of certiorari issue against a deputy president of the Commonwealth Conciliation and Arbitration Commission (a predecessor of the Commission) and a deputy industrial registrar, quashing a decision of the latter, confirmed by the former, to register an ineligible organisation pursuant to the Conciliation and Arbitration Act 1904 (Cth) (repealed). 12 Subsequently, there have been attempts to explain the basis of Pitfield v Franki. One such attempt was by Mason J (with whom Gibbs, Stephen and Jacobs JJ agreed), in R v Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595 at 609 - 610. This was that the deputy industrial registrar's authority to register an organisation was necessarily confined by limits deriving from s 51(xxxv) of the Constitution to registering associations answering the relevant statutory description. This circumstance, possibly taken in conjunction with a bona fide claim for prohibition, was said to have given the High Court jurisdiction. In R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 26, Gibbs J (with whom Barwick CJ, Mason and Wilson JJ agreed) suggested that Pitfield v Franki could be explained because prohibition and certiorari were claimed as alternative remedies and, once the High Court was seized of jurisdiction because prohibition was sought in good faith against an officer of the Commonwealth, the Court had power under s 31 of the Judiciary Act to grant the more appropriate remedy of certiorari. In the alternative, Gibbs J thought that the case might have been regarded as one involving the interpretation of the Constitution. 13 It therefore appears that this Court can act safely on the assumption that it can order that a writ of certiorari be directed to the Commission, at least where the relief sought is based on a constitutional limitation on the Commission's power, and prohibition is sought in good faith. It is clear that the members of the Full Bench of the Commission, the first respondents in these proceedings, are officers of the Commonwealth, and are therefore amenable to prohibition pursuant to s 75(v) of the Constitution. 14 In order to obtain a writ of prohibition against a decision-maker, in respect of a decision, it is necessary to establish that the decision is the result of jurisdictional error, often described as want or excess of jurisdiction, on the part of the decision-maker. See R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194 per Gibbs CJ, with whom Mason J agreed, 208 per Wilson and Dawson JJ, and 216 per Brennan J, and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 83 at [53] per Gaudron and Gummow JJ, [142] per Kirby J, [160] - [163] per Hayne J. As Craig v South Australia (1995) 184 CLR 163 demonstrates, in the case of a decision-maker other than a superior court, certiorari is available either for jurisdictional error, or for error of law on the face of the record. As to what constitutes jurisdictional error, in Craig at 179, the High Court described the nature of jurisdictional error, where the decision-maker is an administrative tribunal, not a superior court: 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' 15 This description was adopted and explained by McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82]. 16 The reference in Craig to jurisdictional error where an administrative tribunal, at least in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, is apt to include the making of findings, or the reaching of conclusions, as to what are known as jurisdictional facts. Where the legislature has made a fact or event a condition upon the existence of which the jurisdiction of a tribunal depends, the tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists. See Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [127] per Gummow J. A jurisdictional fact is a threshold requirement, which must exist before the decision-maker is authorised to proceed to the making of some further decision, or to the exercise of some other function. It is clear that, lacking the power to determine its own jurisdiction conclusively, a decision-making body which makes a finding that a jurisdictional fact exists, when that fact does not exist, will exceed its jurisdiction and thereby become amenable to the remedies of prohibition and certiorari. 17 Section 101 of the WR Act confers on the Commission power to make a finding as to the existence of an industrial dispute in the following terms: '(1) Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute: (a) determine the parties to the industrial dispute and the matters in dispute; and (b) record its findings; but the Commission may vary or revoke any of the findings. (2) Where the Commission constituted in any manner has made findings in relation to an industrial dispute, the Commission (however constituted) may, for the purpose of exercising powers in subsequent proceedings in relation to the same industrial dispute (other than powers on an appeal in relation to the finding), proceed on the basis of the findings or any of them. (3) 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.' 18 Subsequent provisions in Pt VI of the WR Act confer on the Commission powers and duties in relation to an industrial dispute so found. Because of s 101(2), once a finding has been made that an industrial dispute exists, it is unnecessary for the Commission to revisit that question in the exercise of those powers and duties, unless it is invited to exercise the power in s 101(1) to vary or revoke the finding. The finding that an industrial dispute exists is therefore an example of a jurisdictional fact. It is a finding the correctness of which may be challenged as a means of establishing jurisdictional error in a proceeding in which prohibition and certiorari are sought. 19 In its terms, s 101(1) of the WR Act empowers the Commission to make a finding of an industrial dispute 'if it considers that the alleged industrial dispute is an industrial dispute'. On the face of it, the exercise of the powers and duties of the Commission is made to depend upon the formation by the Commission of an opinion that an industrial dispute exists, rather than on the actual existence of an industrial dispute. In some cases in which the jurisdictional fact is the formation of an opinion by the decision-maker that a particular fact exists, rather than the actual existence of that particular fact, there will only be jurisdictional error if the decision-maker has misunderstood the nature of the opinion required, or has acted in a way that is arbitrary, capricious, irrational or not bona fide. The court will not substitute its own opinion for that of the decision-maker. See, for example, R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407. It is established, however, that the exercise of the power of the Commission pursuant to s 101(1) of the WR Act does not fall within this category. The constitutional limitations on the concept of an industrial dispute, derived from s 51(xxxv) of the Constitution, the head of legislative power on which the WR Act depends for this purpose, are such that Parliament could not empower the Commission to give itself jurisdiction by forming an opinion that an industrial dispute exists where no industrial dispute, within the constitutional concept, in fact exists. 20 The phrase 'industrial dispute' is defined in s 4(1) of the WR Act in the following terms: 'industrial dispute (except in Part XA) means: (a) an industrial dispute (including a threatened, impending or probable industrial dispute): (i) extending beyond the limits of any one State; and (ii) that is about matters pertaining to the relationship between employers and employees; or (b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); and includes a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State)'. 21 Section 4(3) includes more elements in the definition. Nowhere does the WR Act explain what is meant by the concept of 'industrial dispute' or even define separately the words 'industrial' and 'dispute'. Inevitably, this means that the reader is left to assume that, except to the extent to which the definition is confined by specific provisions of the WR Act, the expression 'industrial dispute' has its constitutional meaning. In R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 at 312, the High Court held that the correct approach to the construction of the expression 'industrial disputes' in s 51(xxxv) of the Constitution is not to treat it as a technical or legal phrase, but to give to it its popular meaning. At 312 - 313, the court said: 'It is, we think, beyond question that the popular meaning of "industrial disputes" includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective "industrial" imports some restriction which confines the constitutional conception of "industrial disputes" to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern.' 22 In the present cases, IBM GSA and EDS claim that the CPSU cannot create an industrial dispute by the service on them of a log of claims, because those employed by IBM GSA and EDS were not, at the time of service of the log of claims, eligible to become members of the CPSU. The argument was directed to the proper construction of the relevant provision of the CPSU's rule relating to eligibility for membership. It was not argued that the CPSU's rules otherwise contained any limit on its capacity to serve a log of claims on IBM GSA or EDS, and thereby to create an industrial dispute. Nor was it contended that any provision of the WR Act expressly prohibits an organisation from creating an industrial dispute with an employer in respect of matters pertaining to the relations between that employer and its employees, where those employees are not eligible to become members of the organisation. It follows that IBM GSA and EDS are necessarily contending that one of the constitutional limitations on the concept of an industrial dispute is that an organisation, registered under the WR Act, lacks the capacity to create such a dispute by the service on an employer of a log of claims if that organisation cannot enrol as its members employees of that employer, because the rules governing eligibility for membership of that organisation do not extend so far as making those employees eligible to become members. The matter the subject of these proceedings is therefore necessarily 'a matter arising under the Constitution', because its success or failure depends upon the constitutional concept of an industrial dispute, rather than on any limitation on the nature of an industrial dispute derived from the WR Act, or from any other source. It was for this reason that it was necessary to serve notices pursuant to s 78B of the Judiciary Act on the Attorney-General for the Commonwealth of Australia, and on the Attorney-General for each State and Territory. 23 There is High Court authority that an organisation cannot create an industrial dispute by service of a log of claims on an employer, unless that organisation's rules relating to eligibility for membership permit it to enrol as members employees of that employer. An example is R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402. Much, if not all, of that High Court authority antedates the Social Welfare Union case and has not been re-examined in the light of that case. If the concept of an 'industrial dispute' bears its popular meaning, it may be that the CPSU has created an industrial dispute, by the service of its log of claims on IBM GSA and EDS, in respect of the terms and conditions of employment of the first category of persons on whose behalf the claim was made, namely those who were at the time members of the CPSU. The history of the telecommunications industry in Australia, to which reference is made later in these reasons for judgment, and particularly of attempts by the CPSU to continue to represent its existing members as their employment was transferred to corporations to whom functions formerly exercised by their original employer were 'outsourced', suggests that the CPSU might well have significant numbers of employees of IBM GSA and EDS who are still its members, even if the change of their employer means that they no longer fall within the provisions of the rule that would enable them now to enrol as members. There is authority that, provided that a person is eligible to become a member of an organisation at the time of joining, in the absence of a provision in the rules causing that membership to cease upon the person ceasing to be eligible to enrol, the person remains a member until an event such as resignation brings about the termination of the membership. See Troja v Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340 at 346 - 348 per Keely J (with whom J B Sweeney and Deane JJ agreed). There appears to be no rule of the CPSU to the effect that the membership of a member is terminated automatically if that member ceases to fall within the scope of the rule relating to eligibility to become a member. It might have been thought that the CPSU could create a dispute with IBM GSA and EDS with respect to those persons who remained its members at the time of service of the log of claims. At no stage does the CPSU appear to have argued to this effect. Those representing it, as well as those representing IBM GSA and EDS, and the members of the Commission who dealt with the matter, have all assumed that the principle that an organisation's capacity to create an industrial dispute is limited by the scope of its rules relating to eligibility for membership. It is therefore inappropriate to disturb that assumption. The proper approach to the case is to ask whether the Full Bench's decision was the result of jurisdictional error because the employees to whose terms and conditions of employment the log of claims related were not, at that time, eligible to become members of the CPSU. 24 In relation to the question of jurisdictional error, it is sometimes necessary to take note of a privative clause, such as that found in s 101(3) of the WR Act. In Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 (2003) 211 CLR 476, the High Court made it clear that, where the constraints on the jurisdiction of a decision-maker are statutory, it is necessary to examine the statutory provisions in conjunction with a privative clause, to determine whether it is the legislative intention that a failure to conform to the statutory requirements should result in the invalidity of the resulting decision. These considerations cannot be applicable to cases such as the present ones, in which the limitations on jurisdiction are derived from the Constitution. It is well-established that Parliament cannot extend its constitutional power by purporting to require courts to treat as valid a decision that is constitutionally invalid. See R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 and O'Toole v Charles David Pty Ltd (1991) 171 CLR 232. In the former of those cases, at 418 - 419, Mason ACJ and Brennan J invoked the principle, first laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614 - 615, that a privative clause will validate a decision so far as it can do so constitutionally, provided that there is a bona fide attempt to exercise the power given, the decision relates to the subject matter of the legislation, and the decision is reasonably capable of being referred to the power. Their Honours also spoke of 'inviolable limitations or restraints' on the jurisdictional powers of a decision-maker. In the absence of relevant statutory provisions, containing such inviolable limitations or restraints on the power of the Commission to make a finding of the existence of an industrial dispute in the present cases, attention must again be directed to the constitutional concept of an industrial dispute. It is necessary to accept that Parliament has not made (and could not make) provision for the Commission to exceed the extent of the legislative power in s 51(xxxv) of the Constitution by making a finding that there is an industrial dispute when, in the constitutional sense of that expression, no industrial dispute in fact exists. Section 101(3) cannot protect a finding of the existence of an industrial dispute if, according to the constitutional concept of an industrial dispute, there is not in fact an industrial dispute. 25 Section 101(3) might conceivably have effect, in a case such as the present, to the extent that it might remove from consideration the power to grant certiorari for error of law on the face of the record, if such an error were found to be an error within the jurisdiction of the Commission. It is unnecessary to deal at length with this issue. If the Commission in the present cases erred in law by misconstruing the eligibility rule of the CPSU, and if its error of law in this respect caused it to make a finding of an industrial dispute in respect of employees who were not in truth eligible to become members of the CPSU, then there will be jurisdictional error. It will be unnecessary to be concerned with the possibility of error of law on the face of the record. 26 There is also authority that, even if the Commission has gone beyond the constitutional concept of an industrial dispute in some respects, in the way in which it records its findings, the High Court will not necessarily grant prohibition or mandamus (and therefore also not certiorari) when it is clear that there remains before the Commission an industrial dispute validly found in some significant respects. See R v Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376. It is recognised that the power of the Commission to vary or revoke any of its recorded findings can be exercised to eliminate findings as to aspects of an industrial dispute lying outside the boundaries of the constitutional concept of an industrial dispute. 27 It is also clear that the onus of proof rests on a party seeking to establish jurisdictional error. This has been recognised at least since R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138. Ordinarily, the onus must be discharged, if it is to be, by the tendering to the court of evidence, admissible in accordance with the Evidence Act 1995 (Cth), establishing that the jurisdictional fact, which the decision-maker found to exist, actually did not exist. In Attorney-General for Queensland v Riordan (1997) 192 CLR 1 at 14, Brennan CJ and McHugh J recognised that the onus could be discharged by placing before the court the transcript of evidence and the documentary evidence tendered before the Commission. That was a case in which the issue was the genuineness of the demands made in a log of claims. It is easy to see how, in such a case, the evidence before the Commission would suffice to enable the court to make its own judgment as to whether the demands were so far-fetched as to lie outside the bounds of genuineness. It is more difficult to see how, in cases like the present, this Court can be expected to trawl through the evidence that was before the Commission, for the purpose of making its own findings of fact. 28 There are other problems arising from an attempt to discharge the onus of proof simply by placing before the court the evidence that was before the Commission. As the Commission is not bound by the rules of evidence (s 110(2)(b) of the WR Act), there is the possibility that there will thereby be placed before the court material that would not be otherwise admissible. To the extent to which the Commission has seen and heard witnesses, it is usually in a better position than the court, using a transcript of the evidence of those witnesses, to choose what evidence it will accept and what it will reject. Considerable weight must be given to the Commission's view when it has had this advantage. 29 It must also be recognised that the expertise of the court differs from that of the Commission. By s 10 of the WR Act, before a person can be appointed to the Commission, the Governor-General must form the opinion that the person has 'skills and experience in the field of industrial relations'. By s 20, the members of the Commission are under a duty to keep acquainted with industrial affairs and conditions. In deciding upon the correctness or otherwise of a finding of the Commission, great weight must be given to the specialist experience and knowledge of members of the Commission, and to the power of the Commission to inform itself on any matter in such manner as it considers just (s 110(2)(b) of the WR Act). For these reasons, in Riordan at 14 - 16, Brennan CJ and McHugh J recognised that, in evaluating the evidence that was before the Commission, the Court 'gives particular weight to the evaluation made by the Commission.' Their Honours cited a substantial line of authority for that proposition. 30 In the present cases, IBM GSA and EDS placed before the Court the whole of the material that was before the Full Bench of the Commission. They did not otherwise attempt to establish that, as a matter of fact, there did not exist an industrial dispute, consequent on the service of the log of claims on them by the CPSU. They invited the Court to make findings on particular issues of fact, in the hope and expectation that those findings of fact would lead the Court to the conclusion that there was no industrial dispute. This approach tended to treat the Court as if it were simply sitting on appeal from the decision of the Full Bench. Counsel for IBM GSA and EDS assured the Court that there was really very little disagreement about the facts. Attempts were made to require the parties to file during the hearing agreed statements of fact. Not surprisingly, complete agreement could not be reached. After the completion of the hearings, the Court directed that IBM GSA and EDS file statements of the findings of fact which they asked the Court to make, expressed in narrative form, with references to the material on which such findings might be made. The directions gave the CPSU an opportunity to submit alternative findings of fact, similarly referenced. The result was a further large quantity of material, which did not place the Court in a significantly better position to make relevant findings of fact than it had been. 31 The need to avoid treating the proceedings as if they were appeals from the Full Bench is obvious. So is the need to give the necessary weight to the conclusions of the Full Bench. The Court ought not to overturn any finding of fact, or conclusion, of the Full Bench without being satisfied that it is clearly wrong. A finding of fact made by the Full Bench ought to be accepted if it was reasonably open to the Full Bench to make that finding. Only a complete absence of material on which such a finding could be based, or a finding manifestly contrary to unchallenged evidence, or to the overwhelming preponderance of evidence, should be set aside. The fact that the Court might be disposed to make another finding should not cause it to succumb to the temptation to substitute such a finding for the finding made by the Full Bench. It should be remembered that Riordan was factually a very different case from the present cases. The necessity to delve into the material before the Commission was not great in that case. In the present cases, both IBM GSA and EDS invited the Court to go substantially further in second-guessing the Commission's findings. The Court should be very wary of being drawn into such a process. 32 In undertaking the task of determining whether it was reasonably open to the Full Bench to make the finding that an industrial dispute existed, it is necessary to begin with an examination of the relevant provisions of the rule of the CPSU governing the eligibility of employees to become its members.

The CPSU's eligibility rule 33 The CPSU is the result of a series of amalgamations of earlier registered organisations. The history of those organisations is, at least predominantly, one of representation of persons employed in the public sector, and particularly in the Commonwealth public service. The structure of r 2 of the CPSU's rules, which contains the conditions of eligibility for membership, reflects this history of amalgamations and of a predominantly public sector background. So does r 3, which provides for the industries in or in connection with which the CPSU is registered. 34 For present purposes, the relevant provision of r 2 is found in Pt 1A.1(iv) of that rule, which provides: 'Without in any way limiting or being limited by subrules B, C, D, E, G and H, the following persons are eligible for membership of the Union; ... (iv) all persons employed in the telecommunications industry as defined in Rule 3E by any authority, corporation or other body (other than a person employed by the Crown in the right of a State, or by a statutory authority established under any Act of a Parliament of a State, or by any company in which 50% or more of the shares are held by the Crown in the right of a State).' 35 Rule 3E provides: 'Without in any way limiting, or being limited by, sub-rules A, B, C, D, F and G, the industry in connection with which the organisation is registered is the telecommunications industry. For the purposes of these Rules, the telecommunications industry means: (a) Any business, or part of a business, whose principal function is carrying on the supply and/or installation and/or maintenance of telecommunication services as defined in the Telecommunications Act 1991 and includes any business whose principal function is the supply and/or installation and/or maintenance of value added telecommunications services; and/or (b) Any business, or part of a business, whose principal function is incidental, ancillary or complimentary [sic] to the supply and/or installation and/or maintenance of telecommunication services as defined in the Telecommunications Act 1991; and/or (c) Any business, or part of a business, whose principal function is carrying on the installation and/or maintenance of equipment and line as defined in the Telecommunications Act 1991. Provided always that this definition does not extend to or include any business whose principle [sic] function is the manufacture and supply of equipment and line as defined in the Telecommunications Act 1991 whether or not such business also installs and maintains equipment and line as defined.' 36 The Telecommunications Act 1991 (Cth) (repealed) had in fact no definition of the phrase 'telecommunication services'. Rather, it contained a definition of 'telecommunications service' in s 5, in the following terms: '"telecommunications service" means a service for carrying communications by means of guided or unguided electromagnetic energy or both'. 37 It appears to be common ground that this is the definition to which r 3E refers. Section 5 of the Telecommunications Act 1991 (Cth) also contained definitions of 'equipment' and 'line', but it is unnecessary to set out the terms of those definitions for the purposes of these cases. It was common ground that the word 'complimentary' in r 3E(b) was to be read as if it were 'complementary'. 38 Prior to 1975, telephone services for the public generally were provided by the Commonwealth government through its Postmaster General's Department. By s 4 of the Telecommunications Act 1975 (Cth) (repealed), Parliament created the Australian Telecommunications Commission which, by virtue of s 21, was a body corporate. It was known as Telecom Australia, or just Telecom. In Bolwell v Australian Telecommunications Commission (1982) 61 FLR 154 at 157 - 158, Smithers J held that it was the Crown, or an emanation of the Crown, and was entitled to Crown immunity from prosecution for a criminal offence. Section 6 of the Telecommunications Amendment Act 1988 (Cth) substituted for s 4 of the Telecommunications Act 1975 (Cth) a provision which preserved and continued in existence the Australian Telecommunications Commission, under the name Australian Telecommunications Corporation. Section 12 of the Australian Telecommunications Corporation Act 1989 (Cth) (repealed) further continued the body corporate in existence under the same name. 39 On 1 February 1992, Pt IV of the Australian and Overseas Telecommunications Corporation Act 1991 (Cth) came into operation. By s 11, all property and rights of Australian Telecommunications Corporation became vested in Australian and Overseas Telecommunications Corporation Limited ('AOTC'). Section 3 defined AOTC as a company incorporated under the Corporations Law of the Australian Capital Territory. Section 26 provided that AOTC is taken for the purposes of the laws of the Commonwealth, or of a State or Territory, not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth, not to be a public authority or an instrumentality of the Crown, and not to be entitled to any immunity or privilege of the Commonwealth, except in so far as express provision may be made. This transfer marked the beginnings of a move of the provision of telecommunications services in Australia from the public towards the private sector. On 13 April 1993, AOTC changed its name to Telstra Corporation Ltd ('Telstra'). 40 No doubt motivated by the incipient move from the public to the private sector, and the consequent prospect that the CPSU would be unable to retain as its members persons employed in the provision of those services, or to represent their interests, the CPSU took steps to alter its rules relating to eligibility for membership and to the industry in or in connection with which it was registered. It fell to Senior Deputy President Williams to consider whether to exercise the power, then conferred on a Designated Presidential Member of the Commission by s 204(1) of the Industrial Relations Act 1988 (Cth), to consider whether to consent to the alterations. Without such consent, the alterations could not take effect. In consequence of two decisions of his Honour, dated 1 June 1993 (Commission's Print No. K7908) and 24 June 1993 (Commission's Print No. K8100), most of what is presently found in r 2A.1(iv) and r 3E became operative in the rules of the CPSU. The Court was told by counsel for the CPSU that the reference to 'carrying on the supply and/or installation and/or maintenance of telecommunication services' was adapted from the objects found in the memorandum of association of AOTC. 41 The words 'or part of a business' did not appear in r 3E(a), (b) or (c). In CPSU, the Community and Public Sector Union v TeleTech International Pty Ltd, on 11 June 1999 (Commission's Print No. R5801), a Full Bench of the Commission dismissed an appeal against a refusal by a Commissioner to make a finding of dispute between the CPSU and a company whose employees provided services to Telstra, on the ground that that company's business was not a 'business whose principal function' met the necessary description. This was because the principal function of the business of the company, taken as a whole, was a function other than those described in r 3E. The CPSU then made a further attempt to amend its rules by adding the words 'or part of a business' in the three lettered paragraphs of r 3E. The consent of the Commission, required by s 204 of the WR Act to make the alterations effective, was given by Senior Deputy President Duncan on 3 November 2000 (Commission's Print No. T2727). At that point, the provisions of the CPSU's rules relevant to the present cases came into their current form. 42 The relevant parts of the CPSU eligibility rule focus on what the employer does, rather than what the employees do. The question that the Full Bench had to determine was whether each of IBM GSA and EDS fell within the definition of 'the telecommunications industry' in r 3E. Because of the nature of the activities of IBM GSA and EDS respectively, particular attention was focused on par (b) of that definition. In essence, the question was whether there could be identified one or more parts of the business of IBM GSA or EDS, which part or parts had as their principal function a function incidental, ancillary or complementary to the supply and/or installation and/or maintenance of any service for carrying communications by means of guided or unguided electromagnetic energy or both. 43 Before dealing with questions of construction of r 3E(b), it is necessary to turn to the facts and to the reasons of the Full Bench.

The facts 44 The issues arising in these cases resulted from a decision of Telstra to 'outsource' information technology services, which had been provided by its own employees. Telstra entered into contracts with IBM GSA and EDS for the provision of information technology services. The contracts involved the transfer from Telstra of premises formerly occupied and used by Telstra employees, and of those employees themselves, to IBM GSA and EDS respectively. 45 In relation to EDS, the Full Bench appears to have accepted a version of the facts derived from evidence that had been accepted by Senior Deputy President Drake. The Full Bench also heard additional evidence, which it summarised in its reasons. From the material set out in the Full Bench's reasons, the following summary of facts may be derived. 46 EDS had organised its business into four lines of business. The largest, in terms of income generation and the dedication of employees and other resources, was called Information Solutions or 'ISolutions'. ISolutions offered information technology consulting, design, planning, development, applications, implementation and management. Approximately 75 per cent of EDS employees had some involvement with ISolutions. The second line of business, management consulting, provided top-level advice on business strategies, organisation, operations and technology, and an executive search service. The third line of business, business process management, involved performing a client's business processes or functions, to improve the client's business performance. Finally, the ESolutions line of business provided strategic planning, design, implementation and ongoing management of electronic business, including extensive internet and intranet consultancy assignments. 47 The contract between Telstra and EDS was treated as an ISolutions contract. It involved applications, development and support. EDS provided software development and maintenance support to Telstra in Telstra's operation of its billing and shared services functions. To some extent, services were provided from more than one line of business in combination. The role of EDS in the Telstra business billing was quite minor. It involved the provision of maintenance and support of Telstra billing applications, a component of Telstra's billing function. EDS provided a complex set of computer programs to assist Telstra in producing its bills. These programs were supported and maintained for Telstra. Telstra billed the customer and provided the billing rate. EDS provided the computer program for Telstra to use as a tool to produce those accounts. Telstra collected the billing information, which was fed directly into the billing system maintained by Telstra, without any need for data entry. The information was recorded when the service was used, and was extracted without human intervention. EDS provided a small part of the billing function, namely the provision of software that produced the bills. If requested, EDS would design, develop and maintain or enhance a system for Telstra. EDS corrected problems within Telstra's billing system. EDS looked after various Telstra databases containing records that were shared by a number of systems. The maintenance and function of the system was EDS's responsibility. The systems were required to be available for a number of other systems, as a central pool of information. 48 There was some focus on what was called the Melbourne South Solutions Centre ('the MSSC'). Most of the employees working in the MSSC were based at 484 St Kilda Rd, Melbourne ('the St Kilda Rd site'), a site taken over by EDS from Telstra when the contract between them came into effect. At that time, Telstra was the only client serviced from the MSSC and the St Kilda Rd site. Subsequently, other clients of EDS were serviced through the MSSC, but approximately 90 per cent of the MSSC workforce was directed to the provision of services to Telstra, pursuant to the contract between EDS and Telstra. There was mobility of staff to and from the MSSC. Approximately 500 of the MSSC staff were in the St Kilda Rd site, with about 50 others located at six other sites, two in Melbourne, three in Sydney and one in Adelaide. At the time the additional evidence was given to the Full Bench, it was said that the MSSC was in transition, until about June 2003, towards a merger with the Melbourne Solutions Centre, to create a single virtual site, to provide services to Telstra and other clients. 49 In relation to IBM GSA, the Full Bench expressly accepted findings of fact made by Senior Deputy President Drake, which may be summarised as follows. There was a particular focus on a location known as the Clayton Data Centre, which IBM GSA took over from Telstra. At that centre, IBM GSA operated and monitored computer systems, which managed the installation, billing and maintenance of Telstra's telephones, mobile and terrestrial, as well as the hardware on which those applications run. The equipment comprised computer hardware, including mainframe and mid-range computers, computer software, and computer applications running beneath the software. Ninety per cent of billable time at the Clayton Data Centre was spent working on Telstra applications. They included a system receiving call charging records from exchanges, a system for processing those records and passing them to billing systems, and systems for handling requests for telephone services, tracing customer orders from initiation to completion, scheduling and managing resources, and fault reporting and maintenance. The work performed by employees at the Clayton Data Centre for Telstra had not changed fundamentally since the move from Telstra, except for the acquisition of other work for other clients, amounting to between 2 and 5 per cent of total workload. 50 Outside the Clayton Data Centre, there were IBM GSA applications and development teams working solely on Telstra applications, eg updating the Mobile Integrated Customer Accounts. There was also technical support work provided across all clients. Within technical support, there was production support. Within production support, there were people who worked only on Telstra work. 51 The business of IBM GSA was divided into strategic outsourcing services and business transformation services. Seventy-five per cent of the business and between 60 and 65 per cent of the revenue of IBM GSA was in strategic outsourcing services. Twenty-five per cent of the business and between 20 and 25 per cent of the revenue of IBM GSA was in business transformation services. Within strategic outsourcing services, 46 per cent of revenue arose from telecommunications clients (including clients other than Telstra), 26 per cent from finance sector clients and 28 per cent from transport clients.

The Full Bench's reasons 52 A substantial part of the written reasons of the Full Bench is devoted to a discussion of the proper construction of the CPSU eligibility rule. Before embarking on an examination of the rule itself, the Full Bench referred to a number of authorities and set out some principles of construction, which it intended to apply. In discussing those principles, the Full Bench said: '[W]e consider that the application of established principles of construction to an eligibility rule must take into account the statutory and industrial milieu. In particular in this case, the observation that the activity of an employer may fit the description of more than one industry has not diminished in force in the years that have now passed since a specification of an industry, of employers or of employees, was a necessary condition of registration for an industrial organisation. Since 1996, the statutory tolerance of overlapping coverage between organisations and for that matter between industries, whether defined as those of employers or of employees, has increased. Likewise since 1993, the expression business or part of a business has become a relatively commonplace item in industrial usage. That usage has arisen primarily in the context of the single business focus of the regulatory process for certified agreements. It has also been fed by increased debate about the transmission of business ingredient of maintaining the binding effect of awards or agreements under sections 149, 170MB and 170VS of the Act.' 53 The Full Bench then turned to the rule itself. It did so in the context of the eligibility rule as a whole, and relying on the history of the rule and of expressions used in it, as 'establishing a perspective for contemporary industrial usage of expressions that are ingredients of the subrule.' It detected ambiguity in the expressions 'principal function' and 'business or part of a business' and called in aid context and history to resolve such ambiguity. 54 The Full Bench relied on dictionary definitions of 'business' and 'function'. It referred to the use of similar language in other provisions of the CPSU eligibility rule. It examined the history of the alterations to rr 2A(1)(iv) and 3E in the light of the history of amendments to the WR Act and its antecedent legislation, and the manner in which courts had construed expressions used in the legislation. In particular, it referred to the use of the words 'the business or part of the business' in s 149(d) of the WR Act, a provision extending the binding effect of an award to a successor, assignee or transmittee to or of the business or part of the business of an employer who was a party to the relevant industrial dispute. The Full Bench also referred to views expressed by Senior Deputy President Williams when he approved the alterations to the CPSU eligibility rule that involved the insertion of r 3E. In particular, reference was made to the view that the telecommunications industry was one industry, which included both public sector and private sector activity. 55 The Full Bench referred to s 170LB of the WR Act, which contains a definition of 'a single business', an expression used in the provisions of the WR Act relating to the negotiation and approval of certified agreements. The Full Bench referred to the approach taken by another Full Bench to the construction of the phrase 'part of a single business' in that definition, and particularly to what it described as the flexibility and width given to the construction of that expression. 56 The Full Bench expressed the view that the reference to 'part of a business' in r 3E was probably intended to overcome the difficulty referred to in the Teletech decision. 57 Following this discussion, the Full Bench said at [124] - [125] of its reasons: 'We have taken into account all these background matters. We have done so in an attempt to arrive at a true construction of the CPSU eligibility rule by reference to legal principles. We consider that we may, indeed must, take into account the findings and reasoning of Williams SDP in determining the consent to the alteration in 1993. What he said is not to be substituted for the words used in the rule. By reference to the principles stated at the outset of this section, which we are bound to apply, the finding identifying the class of employees to be brought within coverage by the altered rule, and the reason given for deleting the words "or activity" are both to be treated as extrinsic aids in the construction of the rule. So also is the industrial usage of the expressions used in the context, or analogous usage, at the time of both alterations to what is now a compound rule. We also take into account the rule as a whole. We note the relatively diverse and indiscriminate use of the word function or functions in senses that connote either the activity and work of employees, or the activity and work undertaken by employers. Drawing those matters together, we consider that a broad construction of the rule is appropriate and consistent with principle. It will accord to the words used their ordinary meaning, which is comprehensive and relatively flexible. We construe business to be used in a sense that connotes the organisation of work or resources, by an employer, for commercial, public purpose, or like activity. That meaning reflects the use understood by Williams SDP and is consistent with an application to the context of the industrial usage to which we have referred. We construe part of a business to be used in a sense that connotes an identifiable or discrete activity within a business of the kind described. We construe whose principal function to be read, as a requirement that, from the whole or substantial portion of which business or organisation of work by an employer, the effective outcome is activity that either is, or is incidental, ancillary or complementary to, the supply, installation or maintenance of telecommunications services. We have arrived at the following paraphrase: Subject to relevant exclusions, a person is eligible for membership of the CPSU under the relevant part of the rule, if employed by a body in the telecommunications industry comprised of business, projects or undertakings of employers, which in whole or part, perform commercial, governmental or public sector activities that require a substantial organisation of work by the employer to supply services of kind that are, or are incidental, ancillary or complementary, to the supply, installation or maintenance of telecommunications services, or value added telecommunications; or, that is a service carrying on the installation and maintenance of equipment and line.' 58 The Full Bench then turned briefly to the application of the CPSU eligibility rule, so construed, to the facts of the particular cases. In relation to EDS, the Full Bench said: 'No substantial challenge is made to the facts found by Drake SDP. We note that a rearrangement of the lines of business described has since been brought about. We do not consider that those changes materially affect the outcome in this matter. The CPSU did not press its appeal in relation to the former ESolutions. We are satisfied that there are two well delineated areas of organisation of work and activity by EDS as employer to provide services that are incidental to the supply of telecommunications services. We are satisfied that all the contracted work activity to be undertaken by EDS for Telstra is sufficiently incidental, ancillary or complementary to the supply of telecommunications services. That is especially manifest in respect of work related to billing activities, (and without going to detail), to matters that fall within the definition of terms and conditions in relation to supplying telecommunications services. We are satisfied that the organisation of work by EDS pursuant to its contract with Telstra as a client for services, is to support the systems used by Telstra to bill its clients for telecommunications services and for supporting its shared service databases. That organisation of work by EDS is substantial. The existence of it causes it to be a part of EDS business, the principal function of which is incidental to the supply of telecommunications services. We find similarly in relation to the organisation of work currently performed within the elements that comprised the MSSC, as at the date that the evidence in this case concluded. We do not intend by that qualification to curtail the finding of dispute to the physical location of that organisation of work to the centre known as the MSSC, should it be merged. It follows that we are satisfied that EDS employs persons who are eligible to be members of the CPSU. The CPSU has capacity to generate a dispute in respect of them. We allow the appeal. We find a dispute exists. The terms of it will be reduced to writing and supplied to the parties in due course.' 59 In relation to IBM GSA, the Full Bench said: 'Nochallenge was madeon the appeal to the substance of the facts found by her Honour. The findings, which we accept, are sufficiently summarised at [40] to [42] above. Those findings included an acceptance that the work performed pursuant to the IBM GSA Telstra contract is incidental to the supply of telecommunications services. We agree. We are satisfied the related organisation of work by IBM GSA is substantial. The existence of it causes there to be a part of the business of IBM GSA, the principal function of which is incidental to the supply of telecommunications services. We are satisfied that IBM GSA employs persons pursuant to the Telstra contract, and at the Clayton Data Centre who are eligible to be members of the CPSU. It follows that the CPSU has capacity to generate a dispute about the terms of employment of those persons. It has done so. We allow the appeal. We find a dispute exists, the terms of which will be reduced to writing and supplied to the parties in due course.'

The construction of the CPSU eligibility rules 60 For present purposes, the construction of Pt 1A1(iv) of r 2 of the CPSU's rules does not occasion significant difficulty. It is common ground that each of IBM GSA or EDS is a corporation, not falling within any of the exceptions in parenthesis in that provision of the rules, employing people. The only difficulty arises from the phrase, 'in the telecommunications industry as defined in r 3E', which draws attention to r 3E. Rule 3E itself gives rise to a number of problems of construction. 61 At first sight, the juxtaposition of the words 'supply', 'installation' and 'maintenance' might be thought to restrict r 3E(a) and (b) to those businesses engaged in setting up the means by which telecommunications are to be carried, rather than businesses engaged in the actual carriage of telecommunications. Both 'supply' and 'maintenance' are apt to apply to the provision either of the means for carrying telecommunications, or to the carriage of telecommunications. It might be thought that the presence of the word 'installation', in between 'supply' and 'maintenance' was intended to convey the former. No party has contended for this construction at any stage. This is for the good reason that there are two powerful indicators that it is the wrong construction. Once it is accepted that the reference to 'telecommunication services as defined in the Telecommunications Act 1991' requires resort to the definition of 'telecommunications service' in the Telecommunications Act 1991 (Cth), it becomes clear, from an examination of that definition, that what is intended is the activity of carrying communications by means of guided or unguided electromagnetic energy or both, and not merely the provision of the means for that carriage. Second, if there remained any doubt, it would be resolved by resort to par (c) of r 3E, which expressly includes businesses installing and maintaining the means of carrying telecommunications, namely equipment and line. If pars (a) and (b) referred to nothing more than the means of carrying telecommunications, equipment and line would already be included, and par (c) would be unnecessary. 62 It might be thought that the phrase 'incidental, ancillary or compl[e]mentary' in par (b) of r 3E was intended to suggest a connection of a very broad kind. The Macquarie Dictionary defines 'incidental' as meaning 'happening or likely to happen in fortuitous or subordinate conjunction with something else', or 'liable to happen or naturally appertaining'. The word 'ancillary' is defined as 'accessory' or 'auxiliary'. In turn, 'accessory' is defined as 'contributing to a general effect' or 'subsidiary'. 'Auxiliary' is defined as 'giving support; helping; aiding; assisting' or as 'subsidiary; additional'. 'Complementary' is defined as 'forming a complement' or 'completing'. A 'complement' is defined as 'that which completes or makes perfect'. In its entirety, therefore, the phrase 'incidental, ancillary or compl[e]mentary' contains elements of activities which are subordinate, naturally appertaining to, contributory, subsidiary, supportive and helpful to, as well as completing, the noun to which the phrase relates. It is hard to imagine an adjectival phrase that would connote a broader spectrum of relationships. 63 Counsel for EDS contended that, at least so far as the words 'incidental' and 'ancillary' used together were concerned, the connection required is a very direct one. For many years prior to the judgment of the High Court in the Australian Social Welfare Union case, the phrase 'ancillary or incidental' was part of the test applied to determine whether an industrial dispute existed. It was considered necessary either that the dispute be as to the terms and conditions of employment of employees engaged in an industry, or that it be about the terms and conditions of employment of employees engaged in an activity ancillary or incidental to an industry. Counsel for EDS referred to R v Holmes; Ex parte Public Service Association of New South Wales (1977) 140 CLR 63 and R v McMahon; Ex parte Darvall (1982) 151 CLR 57. In Holmes, the High Court held by a majority that clerical and administrative employees of the Commissioner for Motor Transport in New South Wales could not be the subject of a dispute, as they were neither employed in an industry, nor in an activity ancillary or incidental to an industry. The reasoning of the majority appears in the judgment of Gibbs J at 76 - 77. At 77, his Honour said: 'The question whether one activity is incidental to or ancillary to another is one of degree. For example, the duties of traffic police, and of magistrates sitting in the traffic court, might in one sense be said to be ancillary to transportation, but nevertheless it could confidently be said that their activities are not directly connected with transportation. Similarly it should in my opinion be held that the duties performed by the clerks and administrative officers employed in the Department of Motor Transport are only incidental to transportation in a remote and indirect way.' 64 In McMahon, the High Court held that an industrial dispute could not be created with respect to the employment of the staff of universities. The majority, Gibbs CJ, Mason and Brennan JJ held that neither the teaching nor the research functions of universities were ancillary or incidental to industry, except in a remote and indirect way. See the judgments of Gibbs CJ at 63, Mason J at 65 - 69 and Brennan J at 74 - 75. At 66, Mason J echoed the comment of Gibbs J in Holmes that the question is one of degree. 65 On the basis of these authorities, counsel for EDS submitted that the phrase 'incidental, ancillary or compl[e]mentary' in par (b) of r 3E requires a direct connection between the relevant business on the one hand and the supply, installation or maintenance of telecommunication services on the other. In addition, he submitted that the one must be sufficiently proximate to the other to avoid the necessity for the connection to be described as 'remote'. It may be accepted that the application of the phrase 'incidental, ancillary or compl[e]mentary to' involves questions of degree, and also that there are elements of directness and remoteness to be considered. Beyond that, Holmes and McMahon do not provide specific guidance on the application of the phrase to the specific cases of IBM GSA and EDS. The questions of degree, directness and remoteness must be considered in relation to the facts of each case. 66 The word 'business' by itself does not pose great difficulties of construction, at least in the present cases. The phrase 'part of a business' occasioned much argument. If the words 'business, or part of a business' stood by themselves, it might be thought that 'part of a business' referred only to something less than the whole of that business. Such a construction would be consistent with the history of the insertion of the phrase 'or part of a business' into the three paragraphs of r 3E. The mischief which the insertion of that phrase was designed to overcome was revealed in the Teletech case, which demonstrated that, in assessing whether a particular business fell within or without one of the paragraphs, it was necessary to look at the whole of the business. It is easy to see that the intention of the amendment was to make it necessary only to look at something less than the whole of the business. The problem with construing 'part of a business' as simply meaning less than the whole of the business is that the phrase is followed by the words 'whose principal function'. In order to identify the principal function of part of a business, it is necessary to be able to identify the part. Only in that way is it possible to determine what are the functions of that part, and which of them might be said to be the principal function. It follows that the 'part' of a business to which each of the paragraphs of r 3E refers is intended to be a part identifiable separately from any other part of the business. 67 The question, then, is how the identification of such a part is to be carried out. In this respect, not much assistance is to be found in other aspects of the rule. One thing is plain. To frame the rule in the terms in which it is framed makes it necessary to examine the manner in which the business of the relevant employer is organised. To some extent, the meaning of the CPSU eligibility rule in relation to employees of a particular employer will depend upon the way in which that employer's business is organised. This is not to say that the content of the rule is left entirely up to each employer. If all that is required is an identifiable part of a business, then there is no reason why the identification of that part cannot be by reference to any available criterion. In particular, there is no reason why the identification of a part of a business should be left only to the manner in which an employer chooses to designate what it regards as parts of a business. Whatever departments or sections of the business the employer identifies will obviously be relevant in attempting to discern whether a 'part' of the business exists. The employer's designation of departments or sections will not be conclusive, however. 68 There is no reason why a part of a business, identifiable by reason of geographic considerations, should not be considered to be a part of the business for the purposes of the application of the rule. Similarly, identification by means of organisational criteria might well be possible. For instance, the identification of a particular person with responsibility to manage a major contract in the telecommunications industry, to whom a number of employees report, directly or indirectly, may result in the identification of a part of a business, even though that organisational structure is not identified by the employer by means of any particular name or other designation. In undertaking such an exercise, the size of the part identified might be relevant. One person with responsibility to carry out work for someone operating in the telecommunications industry could hardly, by himself or herself, be described as a 'part of a business'. Obviously, no arbitrary rule as to size can be laid down. All that can be said is that the size of a particular identified organisational structure must be viewed in the context of the overall size and scope of the business concerned, in order to determine whether, for the purposes of r 3E, it constitutes 'a part' of that business. The important point is that, as long as the relevant part is of significance, and is identifiable by reference to some objective criterion (which may not be limited to geography, or to organisational structure), then it can answer the description of a 'part of a business' for the purposes of the rule. 69 It is also clear that, in determining what is a part of a business, it is unnecessary to establish that employees who perform work in the functions of that part do so exclusively. What the employees do in relation to various aspects of a business will obviously have a bearing on the identification of a part of a business, but it will not be determinative of that question. 70 The remaining question, then, is as to the 'principal function' of the part so identified. This requires ascertaining what are the functions of that part, and determining whether the one said to be incidental, ancillary or complementary to the supply and/or installation and/or maintenance of telecommunication services can be said to be the principal one. Again, this is an exercise as to which no arbitrary rule can be laid down. There will undoubtedly be many factors relevant to the exercise. Among them will be the percentage of employee time and other resources committed to the function concerned, and the ratio of outputs to the overall output of the part of the business. What is required is an evaluation of the relative importance of the particular function, as against any other function or functions of the part of the business, for the purpose of determining whether the particular function can properly be described as 'principal'. 71 With these considerations in mind, it is clear that the Full Bench was correct to adopt a broad construction of r 3E. In the passage quoted above in [57], the Full Bench construed the various elements of the rule according to their ordinary meanings. It did so correctly, so far as its references to 'business' and 'part of a business' are concerned and it plainly applied the ordinary meanings of 'incidental', 'ancillary' and 'complementary'. In speaking of the 'effective outcome' in relation to the 'principal function', the Full Bench is to be taken to have understood that the question is one of identification of the relative magnitude of what occurs in the part of the business concerned. The Full Bench therefore took a correct view of the meaning of r 3E of the CPSU's rules. Once this is understood, the only question arising is whether the Full Bench made a significant error in the manner in which it applied the rule to the facts it found.

The application of the CPSU eligibility rules 72 The arguments put on behalf of IBM GSA and EDS emphasised the nature of the commercial operations that each carried on, and the general nature of those activities. It was argued that each operated in the computer, or information technology, industry and that the work carried out by employees related to computers, or information technology, and was not specific to the telecommunications industry. Indeed, it was said that the functions performed were applicable across a range of industries, without modification to make them specific to any industry, such as the telecommunications industry. This character was said to make the computer, or information technology, industry a discrete industry. 73 So much may be accepted, but it does not lead to the conclusion that the commercial operations of IBM GSA and EDS are not caught by r 3E of the CPSU's rules. In order to fall within par (b) of that rule, it is unnecessary for a business, or part of a business, itself to operate in the telecommunications industry, as that expression is defined. It is par (a) of the rule that applies to employers operating within that industry. Paragraph (b) requires only that the business, or part of a business, be incidental, ancillary or complementary to the telecommunications industry. The rule itself therefore contemplates that there will be businesses operating in industries other than the telecommunications industry as defined, and therefore falling outside (a), but nevertheless falling within (b), because of their incidental, ancillary or complementary relationship with the telecommunications industry. To attempt to characterise the industry in which IBM GSA and EDS operate is therefore something of a distraction. 74 A good deal of the submissions made on behalf of IBM GSA and EDS was devoted to emphasising the mobility of their employees between working on their respective Telstra contracts and working on contracts with other entities. There is contention between the parties as to the extent to which there are employees engaged solely in work directed to the performance of the Telstra contracts. It may be accepted that there is at least the potential for significant numbers of employees of IBM GSA and EDS to share their working time between work on the Telstra contracts and work on contracts with other entities not in the telecommunications industry. Again, this is something of a distraction. Neither the wisdom nor the feasibility of making an award to cover the terms and conditions of employment of particular employees is in issue in the present cases. Even if it be acknowledged that an attempt to make such an award might face practical difficulties, all that is in issue in the present cases is whether an industrial dispute was created by the service on IBM GSA and EDS of the CPSU's log of claims. That question must be answered by reference to the terms of the rule relating to eligibility for membership of the CPSU of employees of IBM GSA and EDS, at the time of service of the log of claims. As long as the employees were eligible to join the CPSU at that time, the fact that they, or some of them, might from time to time perform work that would not, by itself, give rise to that eligibility does not defeat that eligibility. IBM GSA and EDS cannot at the same time contend that the existence of a dispute depends upon the meaning of the eligibility rule of the CPSU, and that it is not clear precisely which employees might have lacked that eligibility at a particular time, when the evidence clearly establishes that significant numbers of employees were eligible. 75 On the findings of fact made by the Full Bench, it is clear that there was at least one part of the business of each of IBM GSA and EDS that satisfied par (b) of r 3E of the CPSU's rules at the time of service of the log of claims. In the case of IBM GSA, that part was the Clayton Data Centre. In the case of EDS, it was the St Kilda Rd site. Each was clearly identifiable as a part of the business, principally by its geographical location, but also because each was a site control of which had been taken over from Telstra at the time when the relevant Telstra contract was made. 76 It was clear that, on any measure, the principal function of that part of each business was to engage in work on the relevant Telstra contract. In the case of IBM GSA, the Full Bench found that 90 per cent of billable time at the Clayton Data Centre was spent working on Telstra applications. Work for other clients amounted to between 2 and 5 per cent of total workload there. Similarly, the St Kilda Rd site contained the vast bulk of the employees organised in the MSSC. In turn, approximately 90 per cent of the MSSC workforce was directed to the provision of services to Telstra. In the light of these findings, there is no difficulty about the conclusion that the principal function of the Clayton Data Centre and the principal function of the St Kilda Rd site were the provision of services to Telstra. It remains to consider whether the services provided were incidental, ancillary or complementary to the activities of Telstra, which was indisputably engaged in the telecommunications industry as defined. 77 At the most fundamental level, it must be acknowledged that very little present day business activity (using that term in the broadest sense) would be conducted efficiently, or at all, without the use of information technology. Even at this level, it is easy to say that information technology services are subordinate, naturally appertaining to, contributory, subsidiary, supportive and helpful to business activities, and even that information technology completes those activities. It is not necessary to go to this level, however. The specific services supplied to Telstra by IBM GSA through the Clayton Data Centre, and by EDS through the St Kilda Rd site, according to the findings of the Full Bench, plainly fall within the phrase 'incidental, ancillary or compl[e]mentary'. They are certainly not too remote or indirect from the supply, installation and maintenance of a service for carrying communications by means of guided or unguided electromagnetic energy or both. So far as EDS is concerned, it is clear that the provision of software development and maintenance to support Telstra in its billing is intimately connected with Telstra's provision of telecommunications services. Billing is an essential part of the provision of such services. Pursuant to its contract with Telstra, EDS provides Telstra with an essential part of the means chosen by Telstra for billing, namely the collection of data electronically from within the system and the conversion of that data into information to provide to its customers in the form of statements of account or invoices. The connection is a close one indeed. 78 The connection between the services supplied to Telstra by IBM GSA through the Clayton Data Centre and the services provided by Telstra to its customers is also close. As the Full Bench found, IBM GSA operates and monitors computer systems which manage the installation, billing and maintenance of Telstra's telephone systems. The specific applications set out in the findings of Senior Deputy President Drake, which the Full Bench accepted, are clearly of vital importance in the provision by Telstra of telecommunications services to its customers. 79 It is therefore clear that the Full Bench was correct to find, and to record, the existence of an industrial dispute, arising from the service of the CPSU's log of claims on IBM GSA with respect to the Clayton Data Centre. Similarly, the Full Bench was correct to find, and to record, the existence of an industrial dispute arising from the service of that log of claims on EDS, with respect to the MSSC, given that the geographically identifiable major component of the MSSC was the St Kilda Rd site. To that extent, at least, IBM GSA and EDS have not succeeded in demonstrating error on the part of the Full Bench. 80 It is not so clear what the Full Bench intended by the reference in its finding of dispute relating to IBM GSA to 'employment in relation to the organisation of work by IBM GSA pursuant to its contract with Telstra' and in the finding relating to EDS to 'the organisation of work by EDS pursuant to its contract with Telstra'. The Full Bench's reasons do not shed light on precisely what these expressions were intended to mean. It is possible that the reference in the IBM GSA finding was to what the Full Bench expressed in its reasons as 'applications and development teams which work solely on Telstra applications' and to its finding in relation to the people within production support who work only on Telstra work. In relation to EDS, it is possible that the finding was intended to relate to the entire ISolutions line of business, or to some other properly identifiable part of the business. 81 The lack of clarity in the expression of the Full Bench's records of findings does not demonstrate that the Full Bench exceeded the Commission's jurisdiction in making those findings. It is for IBM GSA and EDS, as applicants for relief, to establish excess of jurisdiction on the part of the Commission if they are to succeed. IBM GSA has failed to establish that it was not possible to identify, within its structure, applications and development teams working solely on Telstra applications, or that such teams were not of sufficient significance within that structure to be identifiable as parts of IBM GSA's business. Nor has EDS established that it would not have been open to the Full Bench to find that the ISolutions line of business was identifiable as a part of its business answering the description in par (b) of r 3E of the CPSU's rules, or that there was some other identifiable part of its business. Each of IBM GSA and EDS attempted to argue its case on a narrow construction of r 3E. Once the true construction is established, it becomes very much more difficult to say that the Full Bench could not have identified parts of each business answering the description in par (b). 82 The problem may be no more than one of the terms in which the Full Bench expressed its records of findings, and may therefore be remediable within the Commission, by means of its power to vary its findings, expressed in s 101(1) of the WR Act. Alternatively, each case may be viewed as one in which the Full Bench clearly did not exceed the Commission's jurisdiction when it made findings of dispute, because of those elements of the findings relating to the Clayton Data Centre and the MSSC respectively. Even if the other element of each finding of dispute were to be found to involve a finding beyond the Commission's jurisdiction, this would not necessarily give rise to a right to relief. Only if, in the future, the Commission made, or proposed to make, an award which was not in settlement of an industrial dispute, would the occasion arise for a grant of prohibition. In that circumstance, it would be crucial to know whether the Commission had been invited to vary its finding of dispute by revoking whatever part of it that was found not to relate to an actual industrial dispute.

Conclusion 83 For the foregoing reasons, both IBM GSA and EDS have failed to establish any ground for the remedies of prohibition and certiorari against the Commission, arising from the Full Bench's findings that industrial disputes exist between the CPSU and IBM GSA and EDS respectively. The applications must be dismissed. In order to make it clear that the Court's judgment is final, and not interlocutory, in each case the Court should grant an order nisi and discharge it, as well as dismissing the application.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

IN THE MATTER OF: AN APPLICATION FOR WRITS OF CERTIORARI AND PROHIBITION AGAINST THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE MEMBERS OF THE FULL BENCH THEREOF CONSTITUTED TO HEAR AND DETERMINE THE APPEAL IN C2002/4585

AND: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

IN THE MATTER OF: AN APPLICATION FOR WRITS OF CERTIORARI AND PROHIBITION AGAINST THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE MEMBERS OF THE FULL BENCH THEREOF CONSTITUTED TO HEAR AND DETERMINE THE APPEAL IN C2002/2268

AND: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

REASONS FOR JUDGMENT WHITLAM J 84 I am greatly indebted to Gray J for the exposition of the issues and evidence in these two proceedings. I agree with his Honour's construction of par (b) of the definition in Rule 3E of the CPSU's rules, and I also agree with the conclusion that services provided by IBM GSA and EDS fell within the scope of that rule. It follows that the applicants have not made out any ground for relief and that the orders proposed by Gray J should be made so as to dispose of the proceedings. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

IN THE MATTER OF: AN APPLICATION FOR WRITS OF CERTIORARI AND PROHIBITION AGAINST THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE MEMBERS OF THE FULL BENCH THEREOF CONSTITUTED TO HEAR AND DETERMINE THE APPEAL IN C2002/4585

AND: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

IN THE MATTER OF: AN APPLICATION FOR WRITS OF CERTIORARI AND PROHIBITION AGAINST THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE MEMBERS OF THE FULL BENCH THEREOF CONSTITUTED TO HEAR AND DETERMINE THE APPEAL IN C2002/2268

AND: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

moore J 85 I have gratefully read the judgment of Gray J in a draft form. I agree with his Honour's reasons concerning the proper construction of eligibility rules of the Community and Public Sector Union ("CPSU") and, having regard to that reasoning, his conclusion that the CPSU can create a dispute with IBM Global Services Australia Ltd and EDS (Australia) Pty Ltd in relation to the employees in question. I agree with the orders his Honour proposes. 86 I only wish to add some observations about two matters. The first concerns the state of the evidence in the proceedings in this Court. The proceedings are in the original jurisdiction of the Court though, by operation of s 415(1)(d) of the Workplace Relations Act 1996 (Cth) ("the WR Act"), that jurisdiction must be exercised by a Full Court constituted by at least three judges as the proceedings relate to the exercise of powers under the WR Act by a Presidential member of the Australian Industrial Relations Commission ("the Commission"). 87 As Gray J has noted, the joint judgment of Brennan CJ and McHugh J in Attorney-General for the State of Queensland v Riordan (1997) 192 CLR 1 at 14 indicates that evidence in proceedings such as these can be constituted by the transcript of evidence and documentary evidence before the Commission. That approach is consistent with the following observations of Mason J in R v Alley; Ex parte NSW Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376. As to the role of the High Court, and by parity of reasoning this Court, his Honour said at 389-390: … It has been repeatedly affirmed by this Court that it has to determine independently for itself whether in a particular case the Commission has or lacks jurisdiction and that in reaching its decision this Court will apply the ordinary rules of evidence: Federated Engine-Drivers' and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd; R v Blakeley; Ex parte Association of Architects, etc., of Australia. There are several reasons why this is so. The Commission is not a court. It is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks just: s 40(1)(b). Conversely, it may apply, or by bound to apply by virtue of the statute, a specific rule of evidence or procedure which has no application to the High Court. And it is at least doubtful whether Parliament could legislate so as to qualify by a rule of evidence (not being an onus of proof provision) the High Court's constitutional jurisdiction under s 75(v) to determine whether an interstate industrial dispute exists: see Milicevic v Campbell. In passing I note the comments of Fullagar J in Blakeley. 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, after referring to the remarks of Isaacs J. in Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1]: "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. (Emphasis added) 88 The law regulating the admission of evidence in any proceedings in the original jurisdiction this Court is the Evidence Act 1995 (Cth) ("the Evidence Act"), subject to any legislative qualifications or exceptions: see s 8 of that Act. Different considerations may obtain in the High Court for the reasons alluded to by Mason J when referring to Milicevic v Campbell (1975) 132 CLR 307 at 318 -319. Nonetheless (and perhaps for reasons referred to in the preceding sentence) it does not appear that in Attorney-General for the State of Queensland v Riordan any issue arose about the operation of the Evidence Act. At the time that matter was argued in the High Court, the Evidence Act had been operating for less than two years. 89 One possible basis on which the approach in Attorney-General for the State of Queensland v Riordan would be conformable with that Act in this Court would be if it is comprehended by s 52 of the Evidence Act. That section provides that the Evidence Act "does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence". It may be that the approach discussed by Brennan CJ and McHugh J constitutes a "rule of practice" for the purposes of s 52 which is a view reinforced by the earlier observations of Mason J inR v Alley; Ex parte NSW Plumbers and Gasfitters Employees' Union. If it does not constitute a rule of practice then it might be necessary to determine the extent to which the Evidence Act otherwise permitted the tender in this Court the transcript of the proceedings in the Commission and documents admitted into evidence in the Commission. 90 Without surveying exhaustively the Evidence Act, it may be necessary to consider the scope of s 48(1)(f) having regard to definition of "public document", whether, for the purposes of s 157, the Commission is a court (see Australian Liquor, Hospitality and Miscellaneous Workers' Union v Home Care Transport Pty Ltd [2002] FCA 497; (2002) 117 FCR 87) and the transcript is "other process" (see Romer v HJ & J Wilson Carriers Pty Ltd (unreported, Supreme Court of New South Wales, Sperling J, 9 August 1996)), and also the operation of s 190. If s 190 is the mechanism by which the transcript of proceedings before the Commission and documentary evidence might be admitted into evidence in this Court, then it would be by court order. Before making an order, it may be appropriate for a Judge to require the parties to scrutinise selectively and critically the material they propose to rely on and determine with some measure of precision what facts were and were not in issue, what evidence was necessary to prove facts in issue and what would be irrelevant surplusage. 91 Generally, there are obvious benefits in enabling parties in proceedings for constitutional writs against members of the Commission to draw on the record of the proceedings in the Commission and, in particular, the transcript and documentary evidence. There are compelling reasons why it would be undesirable (including reasons concerning expense and delay) for the moving party to have to establish in this Court, by original and admissible evidence (assuming the transcript and documentary evidence before the Commission were not admissible under the Evidence Act simply by its tender as that record), the factual foundation for any challenge to the exercise of jurisdiction by the Commission or for the opposing party to establish the facts supporting jurisdiction. 92 However, there can be significant difficulties and potential unfairness in the evidence being adduced in that way, particularly if it involves the uncritical tender of all the transcript and other evidence before the Commission. First, it is difficult, and certainly is in a case such as the present, for this Court (all the more so when it is constituted by three judges) to make a considered assessment of evidence given orally by witnesses before the Commission where there is a contest between the witnesses and where it might be necessary to resolve which of the competing accounts given by witnesses should be preferred. The difficulty in making that assessment (not only of witnesses but also of documentary evidence) is potentially compounded by the statutory license the Commission has to receive evidence which would not be admissible in this Court: see s 110(2)(b) of the WR Act. Secondly, the evidence may be extensive, discursive and sometimes irrelevant which imposes an additional burden on this Court to distil what is relevant and probative of the facts in issue. 93 Were the Commission to make detailed findings of fact and the parties accepted those findings, the task of this Court could be limited to considering the operation of the applicable law on those accepted findings of fact. If a party to proceedings in this Court challenged a finding of the Commission, this Court could take those findings as a starting point and give them the weight referred to by Mason J in the passage quoted at [3] above. The practical effect would be the party challenging a finding would have to demonstrate it was erroneous. 94 In the present case, the findings of the Commission both at first instance and on appeal were not, in all respects, detailed or clear. The parties did not accept the findings of the Commission were correct in relation to some matters of detail. This situation, it seems to me, raises the question of what is the evidentiary status of the transcript of the evidence of witnesses given before the Commission and documents tendered in circumstances where their admissibility had not been evaluated by reference to the Evidence Act. Ultimately it is unnecessary to determine this question. First it was not argued before us and secondly, for the reasons given by Gray J, the issue raised in these proceedings can be resolved without delving into the evidence with great particularity. 95 The second matter concerns the notices under s 78B of the Judiciary Act 1903 (Cth). I refer to this issue to advance a different perspective to that of Gray J and only do so to ensure that, if the issue arises again, a judge or Court might be able to consider the question perhaps assisted by two perspectives. I do not, with respect, share Gray J's view that it was necessary for notices to issue under that section. At the very least, it must be doubtful that they had to issue. The principle that a registered organisation cannot create a dispute nor secure an award in relation to employees who are not eligible for membership appears to have its origins in a judgment of Dethridge CJ in Amalgamated Engineering Union v Australian Gas Light Co (1936) 38 CAR 653, though that judgment does not contain any analysis of the basis upon which the principle is founded. As a limit on the jurisdiction of what was then the Commonwealth Court of Conciliation and Arbitration, it is a principle that appears to have first been articulated by the High Court in R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1951) 85 CLR 138 at 153. To the extent that there was any discussion about the source of the principle in R v Foster, there appears to be a suggestion that it flowed from the legislation. The correctness of the principle has been challenged: see Australian Transport Officers Federation v Roads and Traffic Authority of NSW (1989) 30 IR 187 and, in the High Court, Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation (1990) 96 ALR 513. 96 It may be that the principle is ultimately founded on some inherent limit in the concept of "industrial dispute" in s 51(xxxv) of the Constitution because the parties have to be in an industrial relationship. It might be thought that for organisations of employees, such a relationship can only arise in relation to employees (actual or future) who are or can be eligible for membership. But equally it would be a limit on the Commission's statutory powers under the WR Act to find and settle an "industrial dispute" as defined. In a case such as the present, where no party challenged the principle that the Commission's statutory powers were, relevantly, limited and an industrial dispute could only be found between an organisation and employer if the organisation's eligibility rules comprehended employees of that employer, it is difficult to see how there is "a matter arising under the Constitution" for the purposes of s 78B. That section is enlivened only where there is a constitutional question which is a live issue in the proceedings: see Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489 which was approved by a Full Court in Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396; (2002) 125 FCR 488 at [31]. For my part, I find it difficult to see how there was, in the present matter, a live issue about a constitutional question and, accordingly, that it was necessary to serve the notices. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 28 April 2005 HJ Dixon SC and BJF Mueller Counsel for the applicant IBM Global Services Australia Ltd:

Solicitor for the applicant IBM Global Services Australia Ltd: Blake Dawson Waldron

Counsel for the applicant EDS (Australia) Pty Ltd: JL Trew QC and F Turner

Solicitor for the applicant EDS (Australia) Pty Ltd: Baker & McKenzie

Counsel for the second respondent: A Hatcher and A Rich

Date of Hearing: 16, 17, 18 August 2004

Date of Judgment: 29 April 2005