R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association - [1982] HCA 5 - HCA 1980 case summary — Zoe

CTHHCA

R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association

[1982] HCA 5

High Court of Australia|1980-06-04|Before: Wilson JJ, Stephen J, Williams J

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Source facts

Court

High Court of Australia

Decision date

1980-06-04

Before

Wilson JJ, Stephen J, Williams J

Source

Original judgment source is linked above.

Judgment (133 paragraphs)

[1]

High Court of Australia Gibbs C.J. Stephen, Murphy, Aickin and Wilson JJ. R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association [1982] HCA 5

[2]

On this return of an order nisi made by Stephen J., the prosecutor, Australian Telephone and Phonogram Officers' Association, seeks mandamus to compel a member of the Australian Conciliation and Arbitration Commission (Mr. Commissioner Clarkson) and three members of the Commission (the President, Williams J. and Mr. Commissioner Clarkson) who constituted a Full Bench of the Commission for the purpose of hearing two matters (C. No. 1217 of 1979 and C. No. 343 of 1980), to hear and determine those matters in accordance with law, i.e. without binding themselves to determine the same in accordance with any "Indexation Guidelines" or "Wage Fixing Principles" determined upon in other proceedings of the Commission. Alternatively, the prosecutor seeks certiorari to remove and quash an award of Mr. Commissioner Clarkson and of the three members who constituted the Full Bench made in the two matters on 4 June 1980 and mandamus compelling the Commissioner and the three members to hear and determine the matters in accordance with law. The apparent incongruity of seeking mandamus to the Commission constituted by a Commissioner, and to the Commission constituted by a Full Bench, to hear and determine the same matters is, as will be seen, not without significance.

[3]

The two matters arose out of an industrial dispute between the prosecutor and Australian Telecommunications Commission ("Telecom") as to the salaries to be paid to members of the prosecutor who were employed by Telecom. The details of the course which the dispute took need not be set out in full. It appeared at an early stage that Telecom opposed any increase sought by the prosecutor which was outside the Wage Fixing Principles, or as they are sometime called, the Indexation Guidelines, adopted by the Commission, whereas the prosecutor contended that the Commission should not regard itself as bound by those principles but should settle the dispute on the merits of the case before it. The Wage Fixing Principles were first formulated by the Commission in the reasons given for its decision in the National Wage Case - April 1975. At the times material to the present case they were in the form in which they were stated in the Wage Fixing Principles Case of 14 September 1978. The principles provided for wage indexation, i.e. for the periodic adjustment by the Commission of award wages and salaries in relation to the movement of the Consumer Price Index. They further provided that the Commision would each year consider what increase in the total wage or changes in conditions of employment should be awarded on account of productivity. However, the only other grounds that would justify increases in wages and salaries were those stated in principle 7, which included changes in work value (principle 7 (a)), catch-up of community movements (cases in which awards had not been considered in the light of community movements in 1974) but applications under this principle had to be lodged before 31 December 1978 (principle 7 (b)) and inequities (cases where employees performing similar work were paid dissimilar rates of pay without good reason) (principle 7 (d)). Inequities were to be dealt with only through the Anomalies Conference - a conference of "peak trade union councils" - called by the President. These peak trade union councils were bodies to each of which a number of trade unions in related fields were affiliated. One of them was the Council of Australian Government Employee Organizations (CAGEO) to which the prosecutor was affiliated. The prosecutor was not a party to the disputes in which the relevant principles of wage determination were established, or to the conference called before the Wage Fixing Principle Case, although (if it matters) CAGEO intervened in the proceedings in relation to those disputes, and was a party to that conference.

[5]

The Commission, as constituted by Mr. Commissioner Clarkson, then sat to hear and determine that part of the dispute which had been referred by the Full Bench. Before the Commissioner the prosecutor advanced two alternative propositions. First it was submitted that the salaries of telephonists employed by Telecom had not kept pace with general community movements for telephonists, and that this could be rectified without the Commission being constrained or inhibited by the Wage Fixing Principles, which it was said were not binding on the Commission as presently constituted. As to this Mr. Commissioner Clarkson said: "There is some merit in his proposition but in my view until this matter is decided in some other place I should follow the indexation principles." Alternatively, it was contended that the telephonists had not received the community "catch-up" within principle 7 (b), and although that principle could not now be directly applied, the power given by principle 7 (d) was wide enough to deal with the problem. With this contention the Commissioner agreed. He said however: "An examination [of salary surveys] shows a considerable drift occurred between 1974 and 1980 and I have to some extent corrected this but because of constraints imposed by the Indexation guidelines I have come to the conclusion that I cannot completely correct this drift. All of these have led me to the conclusion that under the combined operation of Principles 7 (a) and 7 (d) I should fix a new scale and this I have done." His decision containing the remarks quoted, and setting out the salaries he had determined, was dated 4 June 1980. On the same day, and in fact before the Commissioner's decision was published, the Full Bench determined that the date of its operation should be the beginning of the first pay period on and after 1 December 1979. Nothing whatever turns on the order in which the respective determinations of the two parts of the dispute were published. On 15 July 1980 Mr. Commissioner Clarkson made an order which is expressed to be in matter C. No. 1217 of 1979, and takes the form of a variation of the previous award by which the employees in question were governed. The order gives effect to the Commissioner's determination and, in conformity with the determination of the Full Bench, provides that it shall come into force on and from the beginning of the first pay period to commence on or after 1 December 1979.

[18]

The second question that arises in relation to these sections is whether an appeal lay to the Full Bench against the order made by Mr. Commissioner Clarkson. That order was, as has been indicated, an award within the meaning of the Conciliation and Arbitration Act. It was of course not made under s. 28, which deals with consent awards. At first sight therefore it appears to come within the words of s. 35 (2) which provide that an appeal lies to the Full Bench against an award made by a member of the Commission. On behalf of the prosecutor two arguments were advanced against this conclusion. In the first place it was said that since in making an award Mr. Commissioner Clarkson was exercising power pursuant to a reference made by a Full Bench what he did should be regarded as having been done by the Full Bench itself. However the provisions of ss. 34 (7B) and 34A (6) provide no support for this argument. Those sub-sections provide that where the Full Bench has referred a part of a dispute to a Commissioner the Commission constituted by that member shall hear and determine that part of the dispute. Clearly enough the determination is that of the Commissioner and not that of the Full Bench which made the reference. The second argument submitted on behalf of the prosecutor was that the award of 15 July 1980 could not be said to have been made by Mr. Commissioner Clarkson because it contained a provision, as to the date of its operation, which had been determined by the Full Bench. This argument also in my opinion cannot be accepted. In truth the order of 15 July was made by Mr. Commissioner Clarkson although it contained a provision upon which the Full Bench had determined. Even if that view be not accepted, the order of 15 July, excepting the provision as to the date of its operation, was certainly made by Mr. Commisioner Clarkson, and an appeal under s. 35 (2) would lie to the Full Bench from the order in so far as it was made by him, subject of course to the Full Bench forming the opinion that the matter was of such importance that in the public interest an appeal should lie. I conclude therefore that, subject to the Full Bench forming the requisite opinion under sub-s. (3) of s. 35, an appeal lay to the Full Bench from the order of Mr. Commissioner Clarkson.

[20]

It is established that the Commission, acting under legislation enacted under s. 51 (xxxv.) of the Constitution, has no power to make a common rule in an industry, i.e., to prescribe a provision applying to industry generally or to a specified branch of industry; its power is to make orders or awards directed to the prevention or settlement of particular industrial disputes: R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [2] . An award made by the Commission creates rights and duties only as between those persons who were parties to the industrial dispute in relation to which the award was made: R. v. Kelly; Ex parte Victoria [3] . Although the provisions of the Telecommunications Act were not enacted under s. 51 (xxxv.) it may be assumed that when the Parliament by s. 67 (1) of that Act empowered the Commission to prevent or settle, by conciliation or arbitration, industrial disputes in respect of the Telecommunications Service, and to hear and determine industrial questions in respect of the Service submitted to it, it did not intend to give the Commission the power, which it otherwise lacked, to make a common rule. However, to make this assumption does not assist the prosecutor in the present case. Although the Commission must determine particular disputes or questions, and may not prescribe a system of industrial legislation, it may in the course of settling particular disputes formulate a principle and consistently apply it to cases falling within it. In Reg. v. Kelly; Ex parte Australian Railways Union [4] Dixon C.J. said, that to adopt a provision in common form for wage adjustment, and to insert it in a number of awards, or to depart uniformly from such a provision, was not to make a common rule. The Commission must, however, proceed from dispute to dispute. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [5] the Court, after referring to the inability of the Arbitration Court (as it then was) to declare generally a basic wage, said:

[24]

As the words of Lord Reid indicate, it would be wrong to apply literally to the situation of the Commission statements of principle enunciated in relation to the exercise by other tribunals or administrative bodies of discretionary powers different from those exercised by the Commission. The Commission stands in a special position, not directly comparable with that of other administrative or quasi-judicial tribunals. When the Commission has formulated a principle, such as that a particular figure should be adopted as a basic or minimum or total wage, or that wages should be increased only in accordance with particular guidelines, it may apply that principle consistently from case to case. If an application is made to it to depart from any such principle, it should hear the application. That of course does not mean that it must embark upon a full scale hearing on each occasion on which a disputant seeks a departure from the principle. The Commission, in hearing and determining industrial disputes, is, subject to the Conciliation and Arbitration Act and regulations thereunder, the master of its own procedures: see ss. 40 and 41. It has power to decide in what manner it shall hear the application and how it shall determine it. It is not obliged to traverse well-trodden ground on each occasion on which a disputant seeks a review of principle. Moreover, the general duty of the Commission to determine particular disputes does not require an individual Commissioner to regard himself as bound to consider for himself whether he should depart from a principle which a Full Bench has formulated and which is applicable to the case before him. It would lead to chaos if each individual Commissioner constituting the Commission was required to decide for himself whether he should follow and apply the principles laid down by a Full Bench, and if a Commissioner did make an award which contravened such principles his determination could be overturned by a Full Bench on appeal. The commonsense for a Commissioner to adopt is to adhere to the principles which the Full Bench has evolved. It was right for Mr. Commissioner Clarkson to take the course which he did in the present case. The Commission may be constituted by a Commissioner, a Presidential Member or a Full Bench: s. 6 (4). Where a principle has been laid down by a Full Bench, the members of the Commission are entitled to act on the view that only a Full Bench should consider whether there should be a departure from that principle. In the present case, if an application had been made to a Full Bench under s. 35 (3) of the Conciliation and Arbitration Act, the Commission, in deciding whether in its opinion the matter was of such importance that in the public interest an appeal should lie, would have been able to consider whether or not in the circumstances there ought to be a departure from the Wage Fixing Principles. On such an application the submission by the prosecutor that there should be a departure from the principles could have been given such consideration as the Commission decided it warranted. However, no such application was made.

[109]

It is too late to deny that the legislative power derived from s. 51 (xxxv.) of the Constitution does not [sic] extend far enough to enable the legislature to give to the Arbitration Court a power of varying an award within the limits of the original industrial dispute, and that is so whether the variation is made during the period specified in the award for its operation or during the period thereafter whilst it remains in operation by virtue of s. 48 (2). The award is in operation as a settlement or determination of the dispute and, within the limits arising from the subject matter and the boundaries of the dispute, the court may revise or review the settlement it has made. Section 49 of the Act, which confers the power to set aside any terms of an award and the power to vary it, does not distinguish between the specified period of the operation of an award and the period when it is continued in operation until a new award is made. There is nothing to necessitate such a distinction. But the reason for reviewing or revising the terms of an award may be found in changing circumstances as well as in a reconsideration of the wisdom or expediency of the provision independently of any change brought by time and the longer an award is kept in force, the greater is the likelihood of circumstances changing so as to make a variation necessary or expedient. That the provision is valid which continues the operation of an award after the expiry of its fixed term is of course well established. From that conclusion it follows almost as a corollary that the Arbitration Court may be empowered to vary the terms of the award in order to give it a reasonable application to altered conditions. It must be incidental to the prevention and settlement of industrial disputes by arbitration to empower the arbitral tribunal to vary any of its awards so long as it is in operation, not only to correct or improve upon the provisions it contains independently of change of circumstances, but also to meet altered conditions. It is true that the power must be exercised in respect of the subject constitutionally described as conciliation and arbitration for the prevention and settlement of industrial disputes. But that subject includes all that is incidental thereto, and to maintain a settlement made by award of an industrial dispute in an expedient and satisfactory form adjusted to changed conditions must be incidental to the subject. Variations cannot go beyond what is appropriate to the general purpose of the settlement of the industrial dispute and continuing the settlement in force. That means that the limits set by the scope and nature of the original dispute cannot be transcended. In the original settlement of an industrial dispute, so long as those limits are observed, the arbitral tribunal is at liberty, in deciding what kind of award it will make for the purpose of determining the dispute, to take into account the social and economic effects that may be produced. While an arbitral tribunal deriving its authority under an exercise of the legislative power given by s. 51 (xxxv.) must confine itself to conciliation and arbitration for the settlement of industrial disputes including what is incidental thereto and cannot have in its hands the general control or direction of industrial social or economic policies, it would be absurd to suppose that it was to proceed blindly in its work of industrial arbitration and ignore the industrial social and economic consequences of what it was invited to do or of what, subject to the power of variation, it had actually done. This is equally true of the exercise of the power of variation itself, and it is true whether the exercise of that power is addressed to bettering a provision of the award independently of changes in circumstance or to adjusting the settlement made to changes of circumstance.

[125]

The scheme of s. 31 appears to me to require the conclusion that the authority of a Commissioner is limited by decisions of the Full Bench made under sub-s. (1). It would be contrary to that scheme for a Commissioner to make an award granting, for example, indexation plus 10 per cent or other increases on a basis not included in the specified exceptions in the Full Bench's decision. Section 31 (1) has both a positive and a negative aspect. There would be no point in confining jurisdiction to make awards in respect of wages based on matters related to the national economy to the Full Bench if an individual Commissioner could destroy the operation of those principles by granting increases on grounds other than the specified exceptions. If it were otherwise an individual Commissioner would have power to destroy in part the operation of the Full Bench's decision based on "grounds predominantly related to the national economy". The fact that the Commissioner was asked to grant those increases on the basis of facts concerning a particular industry does not of itself have the consequence that he would have been free to make such an award. The exception in the sub-section of cases where the provision or alteration (by a single Presidential Member or a Commissioner) is one "which gives effect to matters, or is in accordance with principles, determined by a Full Bench" lends force to this view of the sub-section. Sub-section (3) likewise supports this construction in that it gives to the President the exclusive power to determine whether a matter falls within sub-s. (1). The "guidelines" had both positive and negative aspects and it would have been destructive of the operation of any award made under s. 31 (1) if individual Commissioners were free to make awards in individual disputes which contained provisions in contradiction of the Full Bench's award. That does not appear to me to represent the intention of the legislature; indeed it would be contrary to the intention which appears from the words themselves. The Full Bench concluded that, if its award provided for indexation of wages, the national economy required limitations on other increases in wages, and its award so provided. For Mr. Commissioner Clarkson to have made an award inconsistent with the Full Bench's decision and the awards implementing it would have interfered with and contradicted the Full Bench's award and in my opinion to do so would have been outside his jurisdiction.