R v Ludeke; Ex parte Queensland Electricity Commission

This is an application by the electricity authorities in Queensland ("the applicants") for prohibition and certiorari directed to a Full Bench of the Australian Conciliation and Arbitration Commission ("the Commission") and to Commissioner Brown and the Electrical Trades Union of Australia ("the E.T.U."), a registered organization of employees under the Conciliation and Arbitration Act 1904 Cth, as amended, whose members are employed in all States of the Commonwealth. The application relates to proceedings initiated by the E.T.U. in the Commission for an award regulating wages and working conditions in the electricity generation and distribution industry. In the proceedings the E.T.U. seeks a settlement of an interstate industrial dispute said to have arisen out of the non-acceptance of a log of claims served by the E.T.U. on the applicants and electricity authorities in all States except New South Wales, and in the Northern Territory and the Australian Capital Territory in February and March 1985.

The first issue in the proceedings which came before Commissioner Brown was whether there was an industrial dispute within the meaning of the Act. Except for the applicants, the parties served with the log of claims did not oppose a finding that such a dispute existed. The applicants opposed such a finding on the ground that the only genuine dispute in existence was one between the southeast Queensland Electricity Board ("S.E.Q.E.B.") and the Queensland Branch of the E.T.U., the Branch being registered as an organization of employees under the State industrial legislation. The applicants claimed that this dispute, which related to the employment by S.E.Q.E.B. of contract labour in electrical work in southeastern Queensland, was confined to that State and that the apparent dispute which arose from the non-acceptance of the log of claims was not genuine or bona fide.

After hearing evidence and submissions Commissioner Brown made a finding under s. 24 of the Act that non-acceptance of the log of claims gave rise to a dispute within the meaning of the Act between the E.T.U. and the parties served. The applicants' appeal to a Full Bench of the Commission was dismissed.

In this Court the applicants challenge the jurisdiction of the Commission on the same ground as that advanced before Commissioner Brown and the Full Bench. The applicants submit that delivery of the log of claims was not a bona fide demand for the conditions set out in the log and that consequently non-acceptance did not generate a real or genuine dispute.

In conformity with s. 51(xxxv) of the Constitution, the jurisdiction conferred on the Commission by s. 18 of the Act is to prevent and settle industrial disputes by conciliation and arbitration. The expression "industrial dispute" is defined by s. 4(1) to mean a dispute as to industrial matters which extends beyond the limits of any one State and to include a threatened, impending or probable dispute. Because disagreement rather than disturbance or dislocation of industrial relations is the essential characteristic of an industrial dispute, a "paper dispute" evidenced by delivery and non-acceptance of a log of claims is sufficient to create such a dispute. But from the beginning it has been recognized that the dispute must be real and genuine, the formal demand being viewed prima facie as real and genuine, the prosecutor bearing the onus of clearly establishing the contrary: R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [1] ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Jones ("the Builders' Labourers' Case ") [2] ; R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. [3] ; Reg. v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd. [4] ; Melbourne and Metropolitan Tramways Board v. Horan [5] and Reg. v. Cohen; Ex parte Attorney-General (Q.) [6] . This means that the demands must be bona fide in the sense that they are being genuinely advanced (Metal Trades Employers' Association v. Amalgamated Engineering Union [7] ; Melbourne and Metropolitan Tramways [8] ). So, if the only purpose of serving a log of claims is to take a step in enabling the Commission to settle an intrastate dispute, non-acceptance of the log of claims does not generate a real and genuine interstate industrial dispute: Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation [No. 2] [9] ; R. v. Blakeley; Ex parte Association of Architects etc. of Australia [10] .

1. (1910) 11 C.L.R. 1, at p. 57. 2. (1914) 18 C.L.R. 224, at p. 246. 3. (1921) 29 C.L.R. 290, at p. 299. 4. (1952) 85 C.L.R. 138, at p. 153. 5. (1967) 117 C.L.R. 78, at p. 84. 6. (1981) 157 C.L.R. 331. 7. (1935) 54 C.L.R. 387, at p. 415. 8. (1967) 117 C.L.R., at p. 84. 9. (1930) 42 C.L.R. 558, at pp. 579-580. 10. (1950) 82 C.L.R. 54, at p. 69.

But it is not an objection to the genuineness of the dispute that the purpose of delivering the log of claims is to create an industrial dispute which will thereby give the Commission jurisdiction to make an award: Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [11] . This is a necessary consequence of the doctrine that industrial disturbance or dislocation is not an essential element of an industrial dispute and that disagreement as to terms and conditions of employment in a particular industry constituted by non-acceptance of a log of claims is enough to bring such a dispute into existence. And it is a recognition of the reality that generally lies behind paper disputes - the desire to create a dispute which will attract the jurisdiction of the Commission to make a general industrial award, that is, an award which will regulate terms and conditions of employment in the particular industry. The point is that the unions serving the log of claims seek both the conditions and an award making provision for them: Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [12] . The desire to give the Commission jurisdiction so that it can make an award must be a reflection of the organization's desire to obtain the conditions.

1. (1957) 97 C.L.R. 71, at p. 81. 2. (1938) 58 C.L.R. 436, at p. 441.

The existence of an interstate industrial dispute is not negatived by the fact that at an earlier time there came into existence an intrastate industrial dispute between the same parties relating to the same subject-matter for, as Evatt J. pointed out in Australian Tramway [13] , serious interstate industrial disputes very often have their origin in a dispute in one State. Of course, in some cases, of which Caledonian Collieries [No. 2] is an example, it may appear that the service of a demand apparently creating an interstate dispute is no more than a device to enable the Commission to intervene in an antecedent dispute which is confined to one State.

Although it has been said that in order to create a genuine dispute it must be shown that the organization "really wants what it demands" (Cohen [14] ), this does not mean that the organization or its members must be intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log. The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands. Because the provisions of an award which settles a dispute must be "relevant", "reasonably incidental", or "appropriate" to the statement of what is in dispute (Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [15] ; Reg. v. Holmes; Ex parte Victorian Employers' Federation [16] ), it is essential that the log is so expressed as to create a dispute which has sufficient breadth and scope: (1) to ground a general industry award free from objections on the ground of ambit; and (2) to justify variations of the award which may be made from time to time under s. 59 in order to preserve the settlement of the initial dispute or to prevent a fresh dispute arising: Reg. v. Kelly; Ex parte Australian Railways Union [17] : Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [18] . For this reason, and because disagreement generating a dispute may relate to what is to be done in the future rather than the present, it is unnecessary for an organization to insist that its demands be implemented immediately in order that they be bona fide. These demands, known as "ambit claims", are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seemed to be extravagant when made, appear, in the light of inflation, to be reasonable some years later.

1. (1981) 157 C.L.R., at p. 337. 2. (1952) 86 C.L.R. 34, at pp. 40-41. 3. (1980) 145 C.L.R. 68, at p. 76. 4. (1953) 89 C.L.R. 461, at pp. 473-474. 5. (1978) 140 C.L.R. 615.

As Evatt J. said in Australian Tramway [19] the question is whether the demand for the conditions in the log is genuine or a sham (Cohen [20] ). The demand is genuine if it emerges that the organization has put forward the log of claims with the intention of obtaining improved terms and conditions of employment within the framework of the claims made in a log, notwithstanding that there is no intention of obtaining immediately the claims as they have been expressed in the log.

1. (1938) 58 C.L.R., at p. 440. 2. (1981) 157 C.L.R., at p. 338.

Whether the dispute is real and genuine, whether it is founded on a real and genuine demand, is a question of fact for the Commission to determine and it remains a question of fact for this Court to determine on an application for relief by way of prerogative writ:Reg. v. Alley; Ex parte N.S.W. Plumbers and Gasfitters Employees' Union [21] ; Cohen [22] . Although it is for the Court to decide the question for itself, it will give considerable weight to a decision of the Commission so far as the decision turns on the facts, the degree of weight depending on the circumstances. If the evidence remains the same, if the Full Bench has confirmed the decision at first instance and if the issue of fact is one in which the Commission's knowledge and experience of the industry specially equips it to provide an answer, greater weight will be given than in cases in which one or more of these factors is absent: Blakeley [23] ; Alley [24] . Here we should give considerable weight to the finding that there is a dispute because: (1) the evidence is essentially the same; (2) the Full Bench affirmed the Commissioner's decision; and (3) the Commission was specially equipped by reason of its knowledge and experience of industrial relations in the industry to make value judgments on some of the issues which arose.

1. (1981) 153 C.L.R. 376. 2. (1981) 157 C.L.R., at pp. 338, 342, 346. 3. (1950) 82 C.L.R., at pp. 92-93. 4. (1981) 153 C.L.R., at p. 390.

The antecedent dispute in Queensland began in January 1984 with resistance by E.T.U. members to the employment of contract labour in electrical work carried out by S.E.Q.E.B. This resulted in industrial action by the E.T.U. Negotiations took place intermittently for some months without success. In October 1984 bans were imposed on certain work which S.E.Q.E.B. proposed to have carried out by contract labour. By 5 December 1984 all 1,300 members of the E.T.U. employed by S.E.Q.E.B. were on strike. Proceedings in the Industrial Conciliation and Arbitration Commission of Queensland ("the State Commission") resulted in a return to work on 7 December and the commencement of a series of fruitless conferences between the parties. The dispute was not resolved. On 6 February 1985, the union directed its members to commence a strike and when a direction to resume work by the State Commission was ignored, the Queensland Government proclaimed a state of emergency on 7 February. By Order in Council of 8 February the General Manager of S.E.Q.E.B. was authorized to dismiss striking employees.

On 8 February 1985, S.E.Q.E.B. required its employees to resume work. On 11 February some 900 employees who remained on strike had their employment terminated. On the same day an Order in Council altered the conditions of employment for those who were subsequently employed or re-employed by S.E.Q.E.B. The Order in Council required employees employed under the State award during the emergency to enter into a contract of service with S.E.Q.E.B. on terms that included a thirty-eight-hour week, a ten-day fortnight, a clause providing for no preference to unionists, and a clause prohibiting participation in strikes. The effect was to displace the terms and conditions of the State award which provided for a thirty-six and a quarter-hour week, a nine-day fortnight, preference to unionists, and said nothing about participation in strikes. The immediate consequence was that power station operators commenced industrial action which reduced power output throughout the State and this continued while the State Commission endeavoured to resolve the dispute.

Subsequently by the Electricity (Continuity of Supply) Act 1985 Q., which came into operation on 6 March 1985, the State Commission was deprived of jurisdiction to make any decision or recommendation, or give any other indication directed to the reinstatement or re-employment of S.E.Q.E.B. employees (s. 8). By the Electricity Authorities Industrial Causes Act 1985 Q., which came into operation on 30 April 1985, the State Commission was deprived of its jurisdiction in relation to industrial disputes and industrial matters in which electricity authorities or their employees were concerned, except those relating exclusively to apprentices, and that jurisdiction was vested in a new tribunal created by that Act (ss. 10, 11).

It is apparent that by mid-February an industrial dispute of very serious dimensions had come into existence with the potential to develop into an interstate, even a nation-wide, dispute. Members of a national union were at the centre of the dispute and were receiving support from trade unions generally. The potential interstate quality of the dispute was demonstrated by the subsequent strike by Western Australian members of the E.T.U. in support of the Queensland members and by a transport blockade of Queensland organized by the Australian Council of Trade Unions and supported by unions participating in the transport industry.

In the light of the events described earlier, a special meeting of the National Executive of the E.T.U. was held in Brisbane on 18 February to discuss the worsening industrial situation in the electricity supply industry in Queensland. The meeting passed a lengthy resolution which began with the following recital:

The National Executive of the Electrical Trades Union is prepared to take whatever actions [sic] necessary to ensure the re-instatement of those workers who have been sacked by the Queensland Government.

The Executive believes that the State Government should now start acting in a responsible and democratic manner and accept the most recent recommendation of the State Industrial Commission, to re-instate the sacked workers.

While the Government insists on maintaining its current position no satisfactory resolution to the dispute is possible and in fact the real possibility exists that the dispute will spread throughout Australia.

The Executive will not resile from taking national industrial action in the power industry if it becomes necessary to protect those E.T.U. members or members of other Unions who have been sacked or fined, however, the Executive will not act in the same irresponsible and provocative manner as the Queensland Government has acted. We believe that we have a responsibility to the Australian people to explore every avenue possible to settle the dispute and restore sanity and democracy to the Queensland Industrial System.

The first two paragraphs of the operative part of the resolution called for approaches to be made to the Premier, to the Prime Minister and to other persons with a view to restoring industrial relations in the industry in Queensland. The remaining parts of the resolution were in these terms:

(3) The Executive instructs the National Secretary to immediately make application for a Federal Award to cover Power Industry workers in Queensland, and to prepare a programme to transfer all Queensland branch members to awards under the jurisdiction of the Australian Conciliation and Arbitration Commission.

(4) States will hold meetings of members and/or take all steps necessary to advise members especially those in the Power Industry of the reasons for the dispute and the necessity to support our Queensland Members by Industrial Action if necessary.

The Executive authorizes the Executive Committee [the National Secretary, the National President and the National Vice-President] and the Queensland Secretary to carry out the steps outlined in the resolution and in consultation with other Executive Members take other actions that may be necessary to protect E.T.U. members in Queensland. This includes consultation with the A.C.T.U. and other Federal Unions.

The National President and Secretary advise the media of the decisions and the reasons for same.

The national secretary of the E.T.U. instructed the assistant national secretary to serve copies of the E.T.U.'s standard log of claims on employers in the electricity supply industry in Queensland and Western Australia and to make claims with a view to securing benefits for industry employees in those States in a federal award. The assistant national secretary thereupon made arrangements for a letter of demand (which called on the parties served to answer within seven days) and the log of claims to be served on the authorities already mentioned. He decided to include authorities in all States, other than New South Wales, and in the two Territories, because existing federal awards regulating terms of employment in the industry bound parties in these jurisdictions except Queensland and Western Australia (where salaried workers only, not being E.T.U. members, were governed by a federal award) and it was thought inconvenient that the industry should be regulated by two federal awards containing different provisions. New South Wales was excepted because there was a distinct possibility of opposition in that State to a move to a federal award.

On the same day the national secretary made a statement which was reported in The Canberra Times on 19 February 1985:

A special meeting in Brisbane yesterday decided to apply to have Queensland's power workers brought under a Federal award. A national dispute would then be deliberately provoked.

We have decided to take the power industry into Federal jurisdiction so we are not in a situation where the Premier can stand over the Industrial Commission. An application will be served in every State except N.S.W. to lodge a log of claims.

Most States are due for updating anyway, but these claims are going to be deliberately outrageous.

The applicants regard this statement as an accurate description of the claims contained in the log. This is because the claims are inflated and certainly extravagant by comparison with equivalent conditions under the existing State award and for that matter under the existing federal award (which did not apply to Queensland). By way of illustration, reference may be made to: (1) the claims in cl. 1 (Weekly Wage Rates) par. (a) for a rate of $1,000 per week for the base tradesman classification and par. (g) for a rate of $2,000 per week for all technicians grades, professional and sub-professional, electrical or electronics classifications and any other officer or employee in a classification higher than base tradesman and not otherwise specifically dealt with; (2) the claim in cl. 4 (Extra Payments) for $200 per week in addition to all other payments - no ground or reason being assigned for it; (3) the claims in cll. 5, 6, 7 and 8 for a site allowance, a district and divisional allowance, an industry allowance and disability/special rates, each for $200 per week and each expressed to be in addition to all other payments. Other claims are eight weeks annual leave for each twelve months service (cl. 14(a)) and twenty days in each year as paid holidays: cl. 15. On the other hand under the State award the base rate is less than $400 per week, the industry allowance is $55.70 and annual leave entitlement is four weeks. The wage rates paid by the applicants were, with one exception, higher than those paid elsewhere in Australia.

The log of claims served in February and March 1985 contained provisions dealing with changes in the performance of work, termination of employment and redundancy (cll. 28-30 inc.), which reflected the decision of the Commission in the Termination, Change and Redundancy Case [25] given in August 1984. These provisions had no counterpart in the State award.

On 6 October 1983 the E.T.U. had given an undertaking to the Commission that it would not pursue extra claims, award or over-award, except in compliance with "the Principles", a set of conditions enunciated by the Commission regulating the pursuit of claims outside the national wage determinations. By its decision in the National Wage Case [26] the Commission declared that it would vary its award wages and salaries every six months in accordance with movements in the Consumer Price Index unless persuaded to the contrary, on condition that unions entered into a public and unequivocal commitment to abide by the Principles, which were to apply until October 1985. Principle 10 [27] , which governs "First Awards and Extensions of Existing Awards", provides, so far as it is material:

(a) In the making of a first award, the long established principles shall apply i.e. prima facie the main consideration is the existing rates and conditions (General Clerks Northern Territory Award [28] ).

(c) In awards regulating the employment of workers previously covered by a State award or determination, existing rates and conditions prima facie will be the proper award rates and conditions.

1. (1983) 4 I.R. 429. 2. (1983) 4 I.R., at p. 476. 3. (1965) 111 C.A.R. 899, at p. 916.

In the light of these events the applicants submit that the purpose of the special meeting of the E.T.U. Executive on 18 February 1985 and the terms of the resolution then passed indicate that the E.T.U.'s real concern was with the Queensland dispute and the reinstatement in employment of its members who had been dismissed by S.E.Q.E.B. According to the applicants, the E.T.U.'s object in serving the log was to give the Commission jurisdiction to intervene so as to settle the Queensland dispute. They point to the statement by the national secretary, as reported in The Canberra Times, that the Queensland workers were to be brought under a federal award, that a national dispute would be deliberately provoked and that the claims would be "outrageous". The limited time given for acceptance of the log and the inflated value of the claims made, so it is said, also indicate that the object of the E.T.U. was not to seek the claims made in the log but merely to provoke a dispute which would enable the Commission to intervene in the Queensland dispute. And it is suggested that the undertaking to comply with the Principles made the attainment of the claims impossible or virtually so.

However, the evidence reveals that the log of claims served in February and March was not brought into existence on the instant, so to speak, but was in its essentials a reflection of a standard form log of claims, called "the standard Union log", which the E.T.U. had adopted late in 1984. The E.T.U. had served a log of claims in 1983 which had resulted in the finding of a dispute and a number of award variations relating to the industry in States and Territories other than Queensland, New South Wales and Western Australia. The E.T.U. regularly reviewed the current provisions of the federal award against the existing standard Union log with a view to amending that log to provide for the terms and conditions of employment to be sought thereafter. The E.T.U. claims that it decided to adopt a new standard log in December 1984 largely by reason of the Commission's decision in the Termination, Change and Redundancy Case in August 1984. Commissioner Brown found that the E.T.U.'s involvement in that case would have enabled it to know whether its 1981 or 1983 logs needed to be updated. The Full Bench also accepted that the decision in the Termination, Change and Redundancy Case could have been an event so important as to warrant in December 1984 the adoption of another log of claims. This is a matter on which we should give significant weight to the Commission's finding, a finding which is supported by the evidence.

The national secretary's description of the claims as "outrageous" has to be evaluated in light of the circumstance that the log served was a reflection of the standard Union log adopted in December 1984. The secretary's description was no doubt inspired by a desire (a) to make a dramatic response which would capture media attention, and (b) to create a dispute which would attract the Commission's jurisdiction to make an award. But the fact that the log of claims which was served corresponded in its essentials with the updated standard log suggests that the E.T.U. was genuinely demanding the terms and conditions now in question. The existence of the E.T.U.'s undertaking to abide by the Principles presents an obstacle to the making of a new federal award regulating terms and conditions of employment in the industry and to any application by the E.T.U. for variations of existing federal awards designed to give effect to the standard log. The Queensland branch of the E.T.U. had also given an undertaking to the State Commission to abide by the Principles. However, the regime in which the Principles hold sway ends in October 1985 and, in the ordinary course of events, it is unlikely that the making of an award in settlement of the dispute would take place until after that date. Whether the Principles will stand as an impediment to the making of an award is a matter for the Commission to determine. Paragraphs (a) and (c) of Principle 10 merely provide respectively that the existing rates and conditions are prima facie the main consideration and the proper award rates and conditions. It is significant that there is nothing in the decisions of Commissioner Brown and the Full Bench to indicate that the Principles are an absolute bar; indeed, Commissioner Brown suggested that the situation of industrial conflict in the industry might itself provide a justification for giving effect to some of the E.T.U. claims conformably with the Principles.

There is no reason to doubt that it was within the authority of the assistant national secretary to determine that the log should be served on States other than Queensland and Western Australia. The resolution of the National Executive did not limit his authority. And his decision, according to his evidence, was influenced by the understandable wish to avoid having a multiplicity of federal awards.

On the evidence it is fair to conclude that, but for the existence of the Queensland dispute and the situation in which it then stood, the National Executive would not have decided on 18 February to serve the log and to provoke a dispute with a view to attracting the jurisdiction of the Commission. The expressed purpose of convening the special meeting on that day and the terms of the resolution then passed demonstrate that it was concern with the Queensland dispute and the situation in which it stood that prompted the National Executive to serve the log and to seek a federal award giving effect to its claims.

But it does not follow that the demand for those claims was a sham or a mere device to give the Commission jurisdiction to settle the antecedent intrastate dispute. The essential claims had been arrived at independently in December 1984; they were not invented or contrived in February and March 1985. And there is no doubt that, notwithstanding the attractions which the State award - with its higher wage rates - formerly had for members of the Queensland Branch, they, in common with the National Executive, genuinely desired to come under a federal, in preference to a State, award. Neither the National Executive nor the Queensland members of the E.T.U. were content to have the terms and conditions of employment in the industry in that State regulated by a State award. Although the National Executive's decision was inspired by the hope that the action taken would enable the Commission to exercise jurisdiction in relation to the Queensland dispute, this is not a critical factor. Indeed, the dispute arising from non-acceptance of the log would not endow the Commission with jurisdiction to reinstate the dismissed Queensland electricity workers because reinstatement was not dealt with in the log and perhaps because reinstatement involves the exercise of judicial power. In these circumstances, according to authority in this Court, the Commission cannot order reinstatement: Reg. v. Gough; Ex parte Cairns Meat Export Co. Pty. Ltd. [29] ; Reg. v. Portus; Ex parte City of Perth [30] .

1. (1962) 108 C.L.R. 343. 2. (1973) 129 C.L.R. 312, at pp. 318, 323, 329-330.

What we have already said leads to the conclusion that the Queensland dispute was not only the occasion, but also a reason, and perhaps the principal reason, for the E.T.U. serving the log of claims in February and March 1985. Nonetheless the E.T.U. genuinely advanced the log of claims for the purpose of engaging the jurisdiction of the Commission with a view to its making in due course an award regulating terms and conditions of employment in the industry within the framework of the log of claims.