R v Moore; Ex parte NSW Public Service Professional Officers' Association

Each of the N.S.W. unions is an industrial union of employees registered under the Industrial Arbitration Act 1940 N.S.W.. Each is the applicant in one of the above-mentioned two matters before the N.S.W. Commission (i.e. "its matters Nos. 145 and203 of 1983"). Those matters had been instituted on 24 February 1983 and 10 March 1983 respectively by the filing in the N.S.W. Commission of a notice of motion for an award fixing, amongst other things, rates of salary and terms of preference of employment in respect of professional engineers employed under the provisions of the Public Service Act 1979 N.S.W.. By 6 May 1983, when the Commonwealth Commission purported to make the impugned order, orders and directions had been made and given by the N.S.W. Commission in relation to procedural aspects of the two matters including an order that they be joined to be heard together. The actual hearing on the merits had not, however, commenced.

On 10 March 1983, the federal union, which is an organization registered pursuant to the Act, had notified the Commonwealth Commission of the alleged existence of an industrial dispute in respect of matters raised in a letter of demand and log of claims which had been served by it upon the Public Service Board of New South Wales. Subsequently, in April 1983, the federal union had notified the Commonwealth Commission of the alleged existence of an industrial dispute in respect of matters raised in a letter of demand and log of claims which had been served upon "Her Majesty the Queen in right of the State of New South Wales". The proceedings instituted by those notifications (see Act, s. 25(4)) were numbered respectively C. No. 213 and C. No. 406 of 1983 in the Commonwealth Commission and were joined to be heard together. The respective logs of claim were, apparently, in identical form and related to the salaries and conditions of employment of professional engineers. Included in each log of claims was a claim in respect of preference of employment. By 6 May 1983, argument had been heard by a Deputy President of the Commonwealth Commission (Cohen J.) on the existence and scope of any industrial dispute but her Honour had reserved her decision on those matters.

The federal union is not a party to the proceedings in the N.S.W. Commission. The N.S.W. unions have intervened in the proceedings in the Commonwealth Commission but are not parties either to the proceedings in the Commonwealth Commission or to any industrial dispute which is the subject of those proceedings. Only a minority of the professional engineers employed in the New South Wales Public Service are members of both a State union and the federal union. As a broad generalization, it would seem that approximately half of such professional engineers are members of a State union alone and are not, on any approach, parties to the proceedings in the Commonwealth Commission: if the federal union succeeds in obtaining an award from the Commonwealth Commission, it will neither bind them nor confer rights which they are capable of directly enforcing: see Metal Trades Employers' Association v. Amalgamated Engineering Union [11] ; Blackley v. Devondale Cream (Vict.) Pty. Ltd. [12] . Moreover, the proceedings in the Commonwealth Commission, in so far as they are presently relevant, took place before the decision of this Court had been published in Reg. v. Coldham; Ex parte Australian Social Welfare Union [13] and it appears to have been common ground in the Commonwealth Commission that that Commission lacked jurisdiction to make an award in respect of professional engineers performing administrative functions in the New South Wales Public Service. Examination of the transcript of those proceedings also discloses that discussion had centred almost exclusively on a claimed increase in salaries.

1. (1935) 54 C.L.R. 387, at pp. 403, 437. 2. (1968) 117 C.L.R. 253, at p. 264ff. 3. (1983) 153 C.L.R. 297.

The impugned order of 6 May 1983 was made by the Commonwealth Commission on the application of the federal union. It is in the following terms:

A. The Industrial Commission of New South Wales is hereby restrained from dealing with its matters Nos 145 and 203 of 1983 being applications by the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales respectively, those being matters which are the subject of proceedings under Part III of the Conciliation and Arbitration Act 1904 in matters C. No. 213 of 1983 and C. No. 406 of 1983.

B. This order shall come into effect on 6 May 1983 and shall remain in force until further order of the Commission.

(1) If it appears to a Full Bench that a State Industrial Authority is dealing or is about to deal with an industrial dispute or with a matter which is provided for in an award or is the subject of proceedings under this Part, the Commission may make such order restraining the State Industrial Authority from dealing with that industrial dispute or matter as the Commission thinks fit, and thereupon the Authority shall, in accordance with the order, cease to proceed in that industrial dispute or matter.

(2) An order, award, decision or determination of a State Industrial Authority made in contravention of an order made under this section is, to the extent of the contravention, void.

It is common ground that the above order cannot be justified unless it comes within the power which the section, in terms, confers upon the Commonwealth Commission to restrain a State Industrial Authority from dealing with "a matter which is the subject of proceedings" under Pt III of the Act.

Much of the argument before the Court was concerned with the identification and scope of any legislative power of the Parliament of the Commonwealth to invest the Commonwealth Commission with jurisdiction to make an order restraining a State Industrial Authority, such as the N.S.W. Commission, from performing its ordinary functions. As at present advised, I am not persuaded that there exists any proper ground for questioning the correctness of the decisions in this Court to the effect that the provisions of the predecessor of s. 66 (the former s. 20 of the Act) and of s. 66 itself are within the constitutional competence of the Commonwealth Parliament in that they represent a valid exercise of the legislative powers conferred by s. 51(xxxv) and (xxxix) of the Constitution: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Engineers etc. (State) Conciliation Committee [14] ; Western Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association [15] ; Australian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association [16] . It is, however, unnecessary to form any concluded view on that question. Nor is it necessary to attempt to charter the outer limits of the powers conferred upon the Commonwealth Commission by s. 66. Even if it be assumed that the provisions of s. 66 are completely valid and should be given full operation in accordance with their terms, it is apparent that those provisions did not authorize the purported order of 6 May 1983.

1. (1926) 38 C.L.R. 563. 2. (1929) 43 C.L.R. 185. 3. (1935) 53 C.L.R. 665.

In a case where it appears to the Commonwealth Commission that a State industrial authority "is dealing or is about to deal with a matter which is the subject of proceedings" under Pt III of the Act, the power which s. 66 purportedly confers upon the Commonwealth Commission is a power to "make such order restraining the State industrial authority from dealing with that matter as the Commission thinks fit " (emphasis added). It is a condition of the existence of the relevant power that the Commonwealth Commission identify a particular matter which is the subject of the proceedings before it under Pt III and with which, as it appears to the Commonwealth Commission, the State industrial authority is dealing or is about to deal. Once such a matter is identified, the Commission has a discretion which "goes not only to the question whether an order should be made at all, but also to the extent of the restraint and to terms and conditions limiting the restraint": Australian Timber Workers' Union Case [17] . If the Commonwealth Commission decides to make a restraining order, the scope of any order must be limited to restraining the State industrial authority from dealing with the whole or part of the particular identified matter which is the subject of proceedings before the Commonwealth Commission under Pt III. A specific description of the thing with which the State industrial authority is restrained from dealing, being the whole or part of the matter the subject of proceedings under Pt III, must be contained in the order so that the section may operate upon it by directing that the authority "cease to proceed in that matter" [18] . A State industrial authority and the parties to proceedings before it are entitled to be told "with substantial precision", in any order under s. 66, "just what "matter" " is removed from the jurisdiction of the State industrial authority: see, per Isaacs J., Western Australian Timber Workers' Industrial Union Case [19] .

1. (1935) 53 C.L.R., at p. 674. 2. (1935) 53 C.L.R., at p. 675. 3. (1929) 43 C.L.R., at p. 201.

As has been seen, the purported order in the present case refers to the N.S.W. Commission's "matters Nos. 145 and203 of 1983 being applications by" the N.S.W. unions and asserts that those matters are "matters which are the subject of proceedings under Pt III in matters C. No. 213 of 1983 and C. No. 406 of 1983". That assertion is plainly wrong. The applications of the N.S.W. unions which comprise matters Nos. 145 and 203 of 1983 before the N.S.W. Commission are not matters which are the subject of proceedings under Pt III of the Act before the Commonwealth Commission. Quite apart from the differences, indeed contrasts, between the parties to the applications before the respective Commissions, there is an obvious absence of correspondence between the two sets of "matters". The "matters" before the N.S.W. Commission are applications by the N.S.W. unions for an award in respect of all professional engineers employed under the provisions of the Public Service Act. Those "matters" need not involve any industrial dispute at all; it has not been suggested that they involve an actual or threatened interstate industrial dispute. They are not - and indeed could not be - the subject of proceedings under Pt III. In contrast, the "matters" before the Commonwealth Commission are proceedings instituted under Pt III of the Act by the notification of the existence of an interstate industrial dispute; the objective to be pursued in each of those proceedings is the settlement of the relevant dispute. Moreover, to the extent that the subject of the proceedings in the Commonwealth Commission involves the terms and conditions of employment of professional engineers under the Public Service Act, it was, as has been said, common ground, at the time when the purported order was made, that the Commonwealth Commission lacked jurisdiction to make an award in respect of those professional engineers performing administrative functions in the N.S.W. Public Service.

It is both permissible and desirable that, in any order under s. 66 of the Act, the Commonwealth Commission identifies the proceedings before the State industrial authority in which, as it appears to the Commonwealth Commission, the State authority is dealing or is about to deal with the proscribed matter. As has been said however, the relevant power of the Commonwealth Commission under s. 66 is limited to the making of an order restraining the State authority from dealing with the whole or part of an identified matter which is before the Commonwealth Commission in proceedings under Pt III of the Act. It is conceivable that circumstances might arise in which there is complete correspondence of parties and subject between a matter before the State authority and the whole or part of a matter before the Commonwealth Commission under Pt III: see the discussion in the Australian Timber Workers' Union Case [20] . If such correspondence be present, an unqualified order restraining the State authority from dealing with the proceedings before it in their then form might arguably be made under s. 66. I say "in their then form" for the reason that any such order would need to be framed in a manner which did not restrain the State authority from dealing with a different "matter" which might subsequently arise, whether by amendment or otherwise, in the proceedings before it. Such correspondence of parties and subject-matter will however be found, if ever, but rarely. Where, as in the present case, it does not exist, an order which in terms restrains a State authority from dealing with particular proceedings before it will not be within the relevant power conferred by s. 66 unless it be so restricted that it restrains the State authority only to the extent that dealing with its proceedings would involve dealing with the whole or a specified part of the identified matter which is the subject of the proceedings before the Commonwealth Commission. This, as has been seen, the order which the Commonwealth Commission purported to make in the present case signally failed to do. Indeed, neither the transcript of the proceedings before the Commonwealth Commission nor Commission's published reasons disclose what order the Commission would have made if it had directed its attention to the precise identification of what should be removed from the jurisdiction of the N.S.W. Commission for so long as it remained the subject of proceedings before the Commonwealth Commission.

The purported order of the Commonwealth Commission was a nullity. That being so, the appropriate order is that a writ of prohibition issue directed to the respondents prohibiting them and each of them from acting or proceeding on the basis that the order purportedly made on 6 May 1983 was an order validly made pursuant to s. 66 of the Act.

On 24 February 1983 and 10 March 1983 respectively, the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales each lodged with the Industrial Commission of New South Wales an application for an award. The applications were in the same terms and sought in each case an increase of some 4 per cent in the salaries of professional engineers employed in the New South Wales Public Service. Each application also sought, amongst other things, preference in employment for members of the relevant Association. The matters were given the numbers 145 of 1983 and 203 of 1983 respectively and were listed for hearing before Bauer J. in the Industrial Commission on 17 May 1983.

During March 1983, the Association of Professional Engineers Australia ("A.P.E.A.") served a letter of demand and a log of claims upon the Public Service Board of New South Wales demanding an increase in salary of 50 per cent for "all professional engineers who occupy positions the adequate discharge of any portion of the duties of which employment required qualifications of the employee as (or at least equal to those of) a Member of the Institution of Engineers, Australia". There were other demands which included a claim for preference in employment for members of the A.P.E.A. On 10 March 1983, the A.P.E.A. notified the Australian Conciliation and Arbitration Commission of the existence of a dispute in relation to the matters raised in the letter of demand and log of claims. Later the A.P.E.A. went through the same procedure with the Queen in right of the State of New South Wales. The two matters, C. No. 213 of 1983 and C. No. 406 of 1983, came on for hearing before Cohen J. who ordered that they be joined and granted leave to both the Public Service Association of New South Wales and the New South Wales Public Service Professional Officers' Association to appear as interveners. On 5 May 1983, she reserved her decision whether or not an industrial dispute existed within the meaning of the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"). Subsequently the A.P.E.A. made application to a Full Bench of the Conciliation and Arbitration Commission for an order pursuant to s. 66 of the Act restraining the Industrial Commission of New South Wales from dealing with the matters before it, namely, matters Nos. 145 and203 of 1983. Section 66 provides:

(1) If it appears to a Full Bench that a State Industrial Authority is dealing or is about to deal with an industrial dispute or with a matter which is provided for in an award or is the subject of proceedings under this Part, the Commission may make such order restraining the State Industrial Authority from dealing with that industrial dispute or matter as the Commission thinks fit, and thereupon the Authority shall, in accordance with the order, cease to proceed in that industrial dispute or matter.

An order was made restraining the Industrial Commission of New South Wales "from dealing with its matters Nos. 145 and203 of 1983 being applications from the New South Wales Public Service Professional Officers' Association and the Public Service Association of New South Wales respectively, those being matters which are the subject of proceedings under Pt III of the Conciliation and Arbitration Act 1904 in matters C. No. 213 of 1983 and C. No. 406 of 1983."

In delivering the judgment of the Full Bench, Sir John Moore said:

This is a complex situation, particularly as it has emerged that there appear to be two standards at the moment between the two tribunals. The Industrial Commission of New South Wales has awarded an amount of 4 per cent to public servants generally, an amount that this commission was not prepared to award to engineers in New South Wales government instrumentalities and therefore, according to the historical pattern would not go to engineers employed by the Crown.

It is that 4 per cent which is at the core of these proceedings and which appears to be the issue which the New South Wales unions wish to litigate before the Industrial Commission of New South Wales.

The two New South Wales Public Service Associations sought to challenge in this Court the order made by the Conciliation and Arbitration Commission and on 6 June 1983 Deane J. granted an order nisi for writs of prohibition and certiorari upon the ground that the order was made without jurisdiction and was invalid.

Section 66 deals with three situations: where a State industrial authority is dealing with or about to deal with (a) an industrial dispute, (b) a matter which is provided for in an award or (c) a matter which is the subject of proceedings under Pt III of the Conciliation and Arbitration Act, an order can be made restraining the authority from dealing with that industrial dispute or matter. It is only the third of these situations which is relevant in this case.

Originally, the Conciliation and Arbitration Court was, under what was then s. 20 of the Act, able only to give directions to a State industrial authority where it was dealing or about to deal with a dispute (being, as in the present section, by definition a dispute extending beyond the limits of any one State) and was able only to direct that the authority not deal with the dispute. Moreover, the section then provided that the Court should deal with the dispute. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Engineers etc. (State) Conciliation Committee [21] the validity of the section in that form was upheld. In 1928 the section was repealed and re-enacted in substantially its present form, although it was the Court which was empowered to give the direction and not, as at present, the Commission.

The section was next considered inWestern Australian Timber Workers' Industrial Union of Workers (South West Land Division) v. Western Australian Sawmillers' Association [22] . The general validity of the provision was not questioned. Nevertheless, Isaacs J. dealt with the question whether it purports to confer judicial power and concluded that it does not because it creates no rights and, apart from its legislative operation on the factum of a restraining order, it creates no duties. In other words, the force and effect of any order under the section derives from the section and not from the order itself. The result is, of course, that unless the order is made within the limits of the section it is ineffective, not so much because it is made beyond jurisdiction but because the section does not operate to give it effect. The section confers executive authority to which parliament attaches its direct legislative consequences. That analysis provoked Isaacs J. [23] to say of the section as it was then worded:

The important words for the present purpose are: "Order restraining the State Industrial Authority from dealing with that dispute or any part thereof, or with that matter. " That is to say, the order must identify the thing which it appears to the Court the State Authority is dealing with, or is about to deal with, and with which it is to be told not to deal. It is not to be an order restraining the State Authority from dealing with Federal disputes generally, or with the matter of a Federal award generally, leaving the State Authority to conjecture what it is that is forbidden and will be valueless. 1. (1929) 43 C.L.R. 185. 2. (1929) 43 C.L.R., at pp. 200-201.

In the same case, Dixon J. pointed to a limitation upon the extent of the section which arose because it was to be found then (although not now) in a division of the Act which was headed "Cognizance of disputes and ordinary procedure". A number of provisions led Dixon J. to the conclusion that the Court's power to deal with a dispute depended upon whether that dispute had come within its cognizance and that the making of an order under s. 20 was consequential upon the Court having taken cognizance of the dispute in relation to which the order was made. Although cognizance has disappeared as a condition of the exercise of power by the Commission in dealing with disputes, the significance of the observations of Dixon J. lies in the fact that its disappearance may have widened considerably the application of the section, now s. 66, so as to bring into question the relationship between the section and the constitutional power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

InAustralian Timber Workers' Union v. Sydney and Suburban Timber Merchants' Association [24] , the Court accepted Isaacs J.'s analysis of the section and the power which it confers and reiterated that if an order is to be made there must be in the order a specific description of the thing with which the State industrial authority is restrained from dealing so that the section may operate on the order. If the dispute or matter is not defined with sufficient precision, the section cannot operate because its operation depends upon the identification in the order of those things within its scope. The Court went on to say [25] :

At the root of the decision of this Court in the Western Australian Timber Workers' Case [26] lies the principle that under sec. 20 the State industrial authority cannot be restrained from performing its functions in relation to persons who are not parties to the industrial dispute of which the Commonwealth Court of Conciliation and Arbitration has cognizance and are not bound or liable to be bound by an award made or to be made in that dispute. 1. (1935) 53 C.L.R. 665. 2. (1935) 53 C.L.R., at p. 675. 3. (1929) 43 C.L.R. 185.

It is, I think, apparent that the order which the Conciliation and Arbitration Commission made in this case cannot, upon these principles, have a valid operation. That is enough to dispose of the matter without dealing with the validity of s. 66. Although its validity is not beyond question having regard to the changes made to the structure of the Act since the decisions which I have cited above, it is undesirable to deal with that question where it is unnecessary to do so and where, as a consequence, there is no factual situation against which the relevant limits of the constitutional power can be brought into focus.

The reason why the order in this case cannot have a valid operation is because the only identification of the disputes to which it purports to apply is by reference to the matters before the Industrial Commission of New South Wales. The powers and functions of that Commission have a wider scope than those of the Conciliation and Arbitration Commission which reflect constitutional limitations on the legislative power of the Commonwealth. The Industrial Commission is not limited to dealing with an industrial dispute and it does not appear, nor could it be expected to appear, whether it was dealing, or was about to deal, with the matters before it in the context of a dispute. But even assuming that it was, the parties in the proceedings before it were different from the parties before the Conciliation and Arbitration Commission. The applicants before the Industrial Commission were industrial unions of employees registered under the State legislation and the party seeking an award in the Conciliation and Arbitration Commission was a union registered as an organization under the Commonwealth Act. The membership of the State unions on the one hand and the federal union on the other was not co-extensive. The capacity which the Industrial Commission had to confer rights upon non-unionist employees was a capacity which the Conciliation and Arbitration Commission did not possess, notwithstanding that it might impose duties upon employers in relation to them: see Blackley v. Devondale Cream (Vict.) Pty. Ltd. [27] , per Kitto J.

Moreover, there may have been professional engineers employed by the State who were engaged in the provision of administrative services and who, upon the application of the principles referred to in Ex parte Professional Engineers' Association [28] , may not have been within the constitutional reach of the Conciliation and Arbitration Commission but may have had rights conferred upon them by an award of the Industrial Commission. At the time that the Conciliation and Arbitration Commission made its order this Court had not given its decision in Reg. v. Coldham; Ex parte Australian Social Welfare Union [29] . Notwithstanding the widened interpretation given in that decision to the words "industrial disputes" in s. 51(xxxv) of the Constitution, the character of disputes between a State or a State authority and employees engaged in the administrative services was reserved for further consideration and it was observed that there may be limits upon the power of the Commonwealth to affect the terms of employment of State public servants. Certainly at the time the Conciliation and Arbitration Commission made its order there was a question whether some of the persons subject to the powers of the Industrial Commission could be directly affected by any award which the Conciliation and Arbitration Commission might make.

1. (1959) 107 C.L.R. 208. 2. (1983) 153 C.L.R. 297.

For these reasons, the order made by the Conciliation and Arbitration Commission is not authorized by s. 66 of the Act and is ineffective. The order nisi for a writ of prohibition should be made absolute.