High Court of Australia|1992-08-27|Before: Gaudron JJ

Re Amalgamated Metal Workers Union of Australia; Ex Parte Shell Company of Australia Ltd [1992] HCA 38; (1992) 174 CLR 345 (27 August 1992)

RE THE AMALGAMATED METAL WORKERS UNION OF AUSTRALIA AND OTHERS;

EX PARTE THE SHELL COMPANY OF AUSTRALIA LIMITED AND OTHERS [1992] HCA 38; (1992) 174 CLR 345

Superannuation - Industrial Law (Cth) - Conciliation and Arbitration - Industrial dispute - Demand that employer take steps to persuade others to make changes to superannuation scheme - Whether capable of generating industrial dispute - Australian Industrial Relations Commission - Jurisdiction - The Constitution (63 and 64 Vict. c. 12), s. 51(xxxv) - Industrial Relations Act 1988 (Cth), s. 4(1) "Industrial dispute".

MASON C.J., DEANE, TOOHEY AND GAUDRON JJ. This is the return of an order nisi for writs of prohibition and certiorari directed to members of a Full Bench of the Australian Industrial Relations Commission ("the Commission") with respect to a finding that an industrial dispute exists between the prosecuting companies ("the Shell Companies") and the respondent unions ("the unions") concerning two superannuation funds, the Shell Australia Contributory Pension Fund ("the first fund") and the Shell Australia Superannuation Fund ("the new fund").

2. The Shell Companies are subsidiaries of Shell Australia Limited ("Shell Australia"). Shell Australia is not a party to these proceedings. Each of the Shell Companies has employees who are, or are eligible to be, members of one or other of the unions. Shell Australia has no employees.

3. In 1949 one of the Shell Companies, The Shell Company of Australia Limited ("Shell C.A."), established the first fund for its employees and for employees of its associated companies. The fund eventually extended to the employees of each of the Shell Companies and, from 1973 in the case of males and 1979 in the case of females, new employees of those companies were required to join and contribute to this fund.

4. In 1990 Shell Australia established the new superannuation fund. Members of the first fund were eligible to transfer to the new fund and almost all of them did so. And new employees of the Shell Companies were then required to join and contribute to this fund.

5. Each fund was established by and in accordance with a trust deed. Each is a defined benefits fund, the benefits ultimately deriving from contributions made by the employees and their employers, being one or other of the Shell Companies.

6. Each of the trust deeds makes provision for its revocation or modification. Indeed, the trust deed for the first fund was varied so that its members could transfer to the new fund. That trust deed, in cl.17(1), authorises the trustees, with the approval of Shell C.A., to revoke or modify all or any of its provisions by supplementarydeed. Leaving aside the amendments made to enable members to transferto the new fund, there is no provision for moneys or assets to bepaid out of the fund other than in payment of benefits to members. Clause 17(1) also limits the power of revocation or amendment,including by sub-par.(ii) which provides that a supplementary deed may not "(r)esult in ... (a) payment to any of the Member Companies (1) "Member Companies" is defined, subject to an exception which is not presently relevant, to mean "the Founding Company and the Associated Companies admitted to the Pension Scheme": cl.1(f). The Founding Company is Shell C.A. and the Associated Companies are the other Shell Companies who, together with Shell C.A., constitute the prosecuting companies out of the Fund".

7. The trust deed for the new fund confers power of amendment on Shell Australia: cl.1.37. The power is subject to certain limitations, but they are not presently relevant. What is relevant is that there is no limitation like that appearing in cl.17(1)(ii) of the trust deed governing the first fund. Instead, there is express provision for the payment out of the fund of what, for convenience, may be termed "the actuarial excess" (2) The trust deed, in cl.1.17.2, provides for the calculation, when required by Shell Australia, of an "excess" being the difference between "Total Fund Value" and "Total Accrued Benefit Value". Clause 1.17.2(a) relevantly provides that for the purpose of that clause:

"(i) 'Total Fund Value' means the total net market value

(as determined by the Actuary) of all of the assets

(ii) 'Total Accrued Benefit Value' means 125% of the sum

(A) the aggregate of all Accrued Retirement Benefits as

(B) the value, as determined by the Actuary, of the

accordance with cl.1.17.2. Clause 1.17.2(c) allows that, after calculation of that excess, Shell Australia may request payment and provides that:

"the Trustees shall as soon as reasonably practicable but in

any event not later than 30 days after the date the Trustees

receive such a request (or such further period as (Shell

Australia) may determine) cause such part of that excess

as may be requested by (Shell Australia) to be paid out of

the Fund and dealt with as directed by (Shell Australia)

including without limitation, by way of payment to (Shell

Australia) or such of (Shell Australia) and the (Shell

Companies) as (Shell Australia) may nominate".

8. It would seem that the unions did not realize that payments might be made out of the new fund in accordance with cl.1.17.2(c) of its trust deed until some time after their members transferred to it. In any event, after the transfers took effect with the consequential transfer of assets from the first fund to the new fund, the unions each served identical logs of claim on Shell Australia and on the Shell Companies with respect to the two superannuation funds.

9. Two separate matters were dealt with in the logs of claim. These proceedings relate only to a demand made with respect to the surplus assets or moneys of the funds ("the surplus demand"). That demand was modified or refined before the matter finally came before a Full Bench of the Commission pursuant to notifications of dispute based on the service and rejection of the logs. In their final form, the logs contain three distinct claims.

10. The first claim is for the appointment of actuaries by the Shell Companies and Shell Australia, on the one hand, and by the unions, on the other hand, to ascertain, in accordance with a stated formula, whether there is a surplus in either of the funds and, if so, to report its value. And in the event that there should be a surplus in either fund, the claim is that those companies should:

"use their best endeavours to procure such amendments to the

trust deed constituting the relevant fund and shall execute

and do all lawful assurances, directions and things for

procuring that the trustees of such fund credit the amounts

calculated ... (by the Actuaries in accordance with other

provisions in the logs of claim) to Fully Vested Accounts in

the said fund for each of the employees who on 30 June 1990

were members of the fund and who were employed on that date

by any of the companies in the Shell group of companies and

are or were on that date members of (one or other of the

unions)".

The claim contains detailed provisions for ascertaining the amount to be credited to an employee in a "Fully Vested Account".

11. The second claim is confined to the first fund. It is put as an alternative to the first claim and is based on the assumption that, contrary to the trust deed of the first fund, moneys or assets have been transferred out of the fund to Shell Australia or to one or more of the Shell Companies. In fact, most of the assets of the first fund went to the new fund as part of the transfer arrangements, but otherwise they remain intact.

12. The second claim is for any asset or money transferred to any of the Shell Companies or to Shell Australia to be re-transferred to the trustees of the first fund together with interest, and for an account to be taken of dealings by the companies with the assets or moneys involved.

13. The third claim is expressed to be "(f)urther or in the alternative to" the first two claims. It is confined to the first fund and seems to have been made without an appreciation of the terms of its trust deed and, in particular, of cl.17(1)(ii) which, as earlier indicated, prevents any revocation or modification which would "(r)esult in any payment to any of the Member Companies out of the Fund".

14. The claim made is that each of the Shell Companies and Shell Australia should refrain from and should use its best endeavours to ensure that the other companies and the trustees refrain from:

"(1) making or concurring in any arrangement whereby any

assets or part of the ... (first fund) might be

transferred to any of (the Shell Companies) or any

company trust or partnership in which any of (the

Shell Companies) has any interest; and from

(2) approving any revocation or modification of all or any

of the provisions of the (first fund)

except with prior written consent of such proportion of the

Members as the Commission may determine or an order of the

Commission approving such an arrangement, revocation or

modification".

15. Various arguments were put to the Full Bench to the effect that the surplus demand contained in the logs of claim could not give rise to an industrial dispute. By majority (Ludeke and Peterson JJ., Commissioner Johnson dissenting) those arguments were rejected, save so far as concerns Shell Australia. That company was held not to be a party to the dispute because it has no employees.

16. The Industrial Relations Act 1988 (Cth) ("the Act"), in s.4(1), relevantly defines "industrial dispute" to mean:

"(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)".

17. To the extent that the definition allows that a dispute may be "about" matters, rather than "as to" matters, it may be wider than the definition effected by the combined operation of the definitions of "industrial dispute" and "industrial matters" which were found in the Conciliation and Arbitration Act 1904 (Cth) ("the Conciliation and Arbitration Act") prior to its repeal in 1988. Section 4(1) of that Act defined "industrial dispute" in terms of a "dispute as to industrial matters" (emphasis added); "industrial matters" was, in turn, defined in terms of "matters pertaining to the relations of employers and employees".

18. The effect of par.(b) of the present definition of "industrial dispute" is that an industrial dispute may be constituted by "a situation that is likely to give rise to" a dispute, be it an actual, threatened, impending or probable dispute, "about matters pertaining to the relationship between employers and employees". When regard is had to the language of that paragraph, the definition appears to be quite wide enough to encompass a dispute with a company that is not an employer but, like Shell Australia, is in a position, because of the relevant corporate structure and because of its powers and rights with respect to a superannuation fund, directly to affect the relationship between an employer and its employees with respect to their superannuation entitlements.

19. The Commission's finding that Shell Australia was not a party to the dispute created by the service and rejection of the logs of claim is not challenged in these proceedings. Thus, it is not necessary to consider whether and, if so, in what circumstances, a person or company who is not an employer may be a party to a dispute with an organization of employees. Even so, the arguments made on behalf of the Shell Companies are to be considered in the light of the definition which directs attention to whether the dispute is "about matters pertaining to the relationship between employers and employees" (emphasis added) and which extends to "a situation likely to give rise" to an actual, threatened, impending or probable dispute of that kind.

The first claim: the significance of "about" in the definition of "industrial dispute"

20. It was held in Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures (3) [1986] HCA 23; (1986) 160 CLR 341, at p 356. that:

"entitlement to participate in a superannuation scheme and

the means by which that scheme is to be funded are matters

which pertain to the relations of employers and employees".

21. Manufacturing Grocers arose under the Conciliation and Arbitration Act and concerned claims that payments be made by employers to superannuation schemes established or to be established in accordance with standards approved for the purpose of allowing tax concessions (4) ibid., at pp 354, 355. To that extent, the claims were concerned with the form of the relevant superannuation schemes. Thus and to that extent, the decision is also authority for the proposition that a dispute as to the form that a superannuation scheme should take is a dispute as to a matter pertaining to the relations of employers and employees.

22. Quite apart from the actual decision in Manufacturing Grocers, entitlement to participate in a superannuation scheme is an entitlement which means little unless considered in the light of the nature and level of the benefits and the circumstances in which those benefits are to be provided. In other words, entitlement to participate in a superannuation scheme is but one aspect of the larger question of entitlement with respect to superannuation benefits.

23. It was said in Manufacturing Grocers (5) ibid., at p 355 that:

"Superannuation benefits are frequently offered as part of

the total remuneration of a prospective employee as a

means of attracting his labour and, having regard to the

significant proportion of the workforce now entitled to

superannuation benefits, no doubt in many instances as a

necessary means of doing so."

The Court, speaking in general terms of "superannuation entitlements" (6) ibid., at p 356, went on to reject the notion that they constituted "provision for ... social security or welfare" and, on that account, could not form the subject of an industrial dispute.

24. It must now be accepted that the general question of superannuation entitlements is a matter which may form the subject of an industrial dispute. And that question is bound up with and determined by the form of the superannuation scheme involved. It follows that a dispute between an employer and its employees as to the form that a scheme should take is a matter pertaining to the relations of employers and employees. And that is necessarily so, whether the scheme has been or is yet to be established.

25. The primary argument made on behalf of the Shell Companies with respect to the first claim is that it falls outside the concept of "industrial dispute" because none of them (except Shell C.A.) has any power to do anything directly affecting the form that the funds should take. None of them, it was said, can do anything which, of itself, would result in the funds being changed in the manner which the unions ultimately seek: in particular, none of them has any power to confer authority on actuaries to do anything in relation to the funds, much less to investigate whether there is a surplus in them; none of them has any power to revoke or modify the trust deeds, Shell C.A. having only a power to approve amendments made by the trustees. This lack of power was said to deprive the claim of any industrial character.

26. According to this primary argument, a direct claim as to the form that an established superannuation fund should take would be industrial in character if it were within the power of an employer to bring about the change sought. But in this case, that power resides with the trustees with the approval of Shell C.A. (in the case of the first fund) and with Shell Australia (in the case of the new fund), and, according to the argument which was put successfully in the Commission, a claim against the trustees or Shell Australia cannot give rise to a dispute under the Act because they are not employers.

27. It is convenient to turn first to that part of the first claim which requires that the Shell Companies use their "best endeavours" to bring about amendments to the funds and otherwise take action with a view to ensuring that surplus funds are credited to fully vested accounts for the benefit of members. To that extent, the claim is directed to the superannuation benefits to which employees should ultimately be entitled. And as already indicated, that is a matter pertaining to the relationship between employers and employees.

28. Given that the Shell Companies have no power to amend the trust deeds which govern the funds, there is something to be said for the view that a "best endeavours" demand of the kind with which this claim is concerned is not a claim as to the entitlement of employees with respect to superannuation benefits. A requirement that a dispute be as to some matter might suggest that the dispute should be directly on that particular matter, and not on some related or consequential matter. Thus, it might be said that a demand that a person use his or her best endeavours to bring about a result over which he or she has no direct control is not a dispute as to the desired result, but only as to whether that person should take steps which might indirectly bear on that result.

29. As has been seen, the present definition of "industrial dispute" is satisfied if there is a dispute "about (a) matter ... pertaining to the relationship between employers and employees". And that is satisfied by a less direct relationship than might be necessary in the case of a requirement that a dispute be as to an industrial matter. In our view, a dispute with employers as to whether they should take steps (and, if so, what steps) with a view to persuading others, who have the power, to make changes to the superannuation funds to which their employees belong is one that can fairly be described as a dispute about superannuation benefits. Hence, but subject to another argument to which we now turn, it is a dispute about a matter pertaining to the relationship between employers and employees.

30. It was also argued on behalf of the Shell Companies that that part of the claim which is directed to the appointment of actuaries is not one which is "within the capacity of the employers to bring about" (7) Reg. v. Portus; Ex parte City of Perth [1973] HCA 64; (1973) 129 CLR 312, at p 325 and, hence, is not an industrial dispute. Then, it was put that the "best endeavours" part of the claim is entirely dependent upon, and thus inseverable from, the claim for the appointment of actuaries so that the entire claim must fail, even if the "best endeavours" aspect is otherwise industrial in character.

31. It was said in Reg. v. Portus; Ex parte City of Perth (8) ibid. that a demand "which ... employers themselves ... have no power to grant" could not "give rise to an industrial dispute within the (Conciliation and Arbitration) Act or within s.51(xxxv) of the Constitution". In truth, a demand of that kind raised no dispute, whether under the Conciliation and Arbitration Act or otherwise. It may give rise to "a contrariety of opinion" (9) Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317, at p 323. But it cannot give rise to a dispute because "assent or dissent ... is completely irrelevant to the thing demanded" (10) ibid..

32. It may be accepted that it is not directly within the power of the Shell Companies to authorize actuaries to investigate either of the funds. However, it may be that, given their relationship with Shell Australia and taking account of the fact that it is their employees who are members of the fund, their assent or dissent in that regard would not be completely irrelevant. And now that an industrial dispute is defined in terms of "a dispute about", rather than in terms of "a dispute as to", it would seem that, at least in some cases, it may be necessary to look beyond the question whether it is within the power of an employer to grant a claim and to consider, instead, whether the employer's assent or dissent is completely irrelevant. Of course, in many, perhaps most, cases the fact that the employer has no power to grant the claim will indicate that it is not, in terms of the Act, "about (a) matter ... pertaining to the relationship between employers and employees" (11) See Reg. v. Coldham; Ex parte Fitzsimons (1976) 137 CLR 153, at p 161. In that event there will be no power in the Commission to make an award disposing of the claim. But that will not always be so.

33. It is not necessary to pursue the question whether the assent or dissent of the Shell Companies is completely irrelevant to that part of the claim directed to the appointment of actuaries. It would be contrary to the approach generally taken with respect to logs of claim (12) See Reg. v. Portus; Ex parte McNeil [1961] HCA 50; (1961) 105 CLR 537, at p 544; Reg. v. Heagney; Ex parte ACT. Employers Federation [1976] HCA 32; (1976) 137 CLR 86, at pp 100, 105-106. to identify the appointment of actuaries as central to the first claim or as critical to any part of it. The general approach is to look at the substance of the demand to see if there is an intelligible claim, rather than to construe it as if it were a document creating legal rights and obligations.

34. When the first claim is read in its entirety, it is, in substance, an intelligible claim for changes to the form of the superannuation funds and, hence, for the enhancement of superannuation benefits ultimately to be enjoyed by the employees. That part of the claim relating to the appointment of actuaries is no more than a machinery provision specifying the procedure that the unions would like adopted for the purposes of determining how the changes should be implemented. In substance, if not in form, it is subsidiary to the "best endeavours" part of the claim and is properly to be seen as an aspect of a general claim about superannuation benefits.

35. Even if that part of the claim that relates to the appointment of actuaries is read as central to the claim, the claim discloses a situation that can fairly be described as one "likely to give rise to" a dispute "about matters pertaining to the relationship between employers and employees".

36. To the extent that the claim discloses a situation in which surplus assets or moneys may be transferred to Shell Australia or the Shell Companies, it is likely - perhaps almost certain - that, unless the position is otherwise satisfactorily resolved, a demand will be made of the Shell Companies that they pay an amount equivalent to that paid out, or any surplus available for payment out, to a fund to provide additional superannuation benefits for the employees. And, to the extent that such a demand discloses that there may be a surplus in the first fund, it is equally likely that the unions will then demand that the employees should also have the benefit of the surplus or its money equivalent by way of improved superannuation benefits.

37. The first claim, read as a whole, gives rise to an industrial dispute as defined in s.4(1) of the Act.

The second claim: the relationship between employers and employees

38. It was also said in Manufacturing Grocers (13) (1986) 160 CLR, at p 353, in relation to the definition of "industrial dispute" in the Conciliation and Arbitration Act, that "a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee". That is also implicit in the present definition of "industrial dispute". The relationship to which the definition refers is that in which the rights and obligations of employers and employees arise. And that necessarily imports a relationship between employers and employees as such.

39. As earlier indicated, the general approach to be taken with respect to a log of claims is to see whether, in substance, it involves an intelligible claim. And that requires that the log be approached having regard to the general context in which it was made (14) R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [1938] HCA 41; (1938) 60 CLR 507, at p 538; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. [1989] HCA 10; (1989) 166 CLR 311, at p 335. Thus and although it seems clear that the second and third claims were made without a proper appreciation of the provisions of the trust deed governing the first fund, they must be read in the light of those provisions. Indeed, it is only when read in that way that they have meaning and practical significance.

40. When the second claim is read in the light of the relevant provisions of the trust deed, it is apparent that it is a claim that the employers return and account for assets or moneys which, if received from the first fund, could only have been received in consequence of a breach of trust. It is not a claim as to what the superannuation entitlements of employees should be: those entitlements are determined by the trust deed and remain the same, whether or not the claim is met. A claim as to what those superannuation entitlements should be would attract the arbitral power of the Commission, even if it were necessary for the Commission to form an opinion as to the nature and extent of rights or obligations arising under the trust deed or in relation to the trust property of the fund (15) Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656, at p 666.

41. It is not clear exactly what is asserted by the second claim. It may assert that there is an obligation to return property and money and to account for their use which exists by virtue of their receipt out of the first fund. On the other hand, it may assert that an obligation of that kind should be imposed by reason of that receipt. If it is the former and assuming receipt of the property, the claim is about an existing legal right and seeks the exercise by the Commission of judicial, as distinct from arbitral, power. Thus, it cannot be the subject of an industrial dispute (16) ibid., at p 663. If it is the latter, the claim identifies the relationship which founds the claim as a relationship between persons beneficially interested in a fund (who happen to be employees) and recipients of property belonging to that fund (who happen to be their employers). In that case, the claim does not pertain to the relationship between employers and employees as such and, thus, falls outside the definition of "industrial dispute" in s.4(1) of the Act. It cannot be made the subject of an award.

The third claim: the relevance of assent or dissent by the Shell Companies

42. The third claim is in two parts. The first part is concerned with arrangements which might result in the transfer of assets from the first fund to the Shell Companies. So far as it is concerned with arrangements which, if effected, would involve a breach of trust, it suffers from the same defect as the second claim and, thus, is not an industrial dispute as defined in the Act.

43. It may be that the first part of the third claim is to be understood as concerned with arrangements intended to result in modifications to the trust deed which would permit the transfer of assets from the first fund to the Shell Companies. If so, it is similar in intent to the second part of the claim which requires, amongst other things, that the Shell Companies refrain from approving any modification to the provisions of the trust deed except with the consent of employees or pursuant to an order of the Commission.

44. As has been seen, the trust deed for the first fund makes no provision for the transfer of assets or money to the Shell Companies and cl.17(1)(ii) prevents any revocation or modification which would have that result. Thus, to the extent that the first part of the claim is concerned with some modification of the trust deed which would permit of the transfer of assets to the Shell Companies, the assent or dissent of those companies is entirely irrelevant: the matter is concluded by the terms of the deed.

45. The second part of the third claim is not confined to amendments having the result of permitting the transfer of assets from the first fund to the Shell Companies. To the extent that the second part deals with amendments permitted by the trust deed, it is a claim which directly concerns Shell C.A. for, by cl.17(1) of the trust deed of the first fund, it is necessary for Shell C.A. to approve amendments made by the trustees if those amendments are to take effect. And, although the other companies have no direct authority with respect to revocation or amendment of the trust deed, their "best endeavours" might well bear upon what the trustees and Shell C.A. might do in that regard.

46. If the amendments which are precluded by the trust deed and approval of amendments by companies other than by Shell C.A. are excepted from the second part of the claim, it founds a dispute as to whether the present form of the first fund should be maintained. And that inevitably bears on the nature of the entitlements with respect to superannuation benefits. Putting to one side the suggestion implicit in the claim that the Commission might approve modifications to the trust deed, it is, thus, a dispute about a matter pertaining to the relationship between employers and employees.

47. To the extent that the second part of the third claim is concerned with the powers of the Commission, it is not a dispute about a matter pertaining to the relationship between employers and employees (17) Reg. v. Portus; Ex parte City of Perth (1973) 129 CLR, at pp 324-326, 328. However, that aspect of the claim is severable from the claim that modification be approved by a proportion of employees to be determined by arbitration. Severance of that part which suggests that the Commission might approve modifications to the deed does not alter the nature of the claims: if, for example, an award were made to the effect that Shell C.A. should not approve modifications unless approved by a specified proportion of employees of the Shell Companies, an order setting aside or suspending the operation of the award would allow for modification in the manner permitted by the trust deed.

48. The order nisi should be discharged so far as it concerns the first claim and so far as it concerns a demand in the third claim that Shell C.A. not approve and that the Shell Companies use their best endeavours to prevent the trustees and Shell C.A. respectively from making or approving, within the limits set by its trust deed, any modification to the first fund without the approval of such proportion of employees as may be determined by arbitration. Otherwise, the order nisi should be made absolute.

BRENNAN J. The connotation of the term "industrial dispute" which is relevant to the present case is to be found in par.(a)(ii) of the definition of that term in the Industrial Relations Act 1988 (Cth) ("the Act"). It is a dispute -

"that is about matters pertaining to the relationship

between employers and employees".

Those matters were described by Mason J. in Federated Clerks' Union (Aust.) v. Victorian Employers' Federation (18) [1984] HCA 53; (1984) 154 CLR 472, at pp 488-489 and by the Court in Re Manufacturing Grocers' Employers Federation of Australia; Ex parte Australian Chamber of Manufactures (19) [1986] HCA 23; (1986) 160 CLR 341, at p 353 and in Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd. (20) [1987] HCA 28; (1987) 163 CLR 117, at pp 133-134. One element of that description is that the relationship between employers and employees is a relationship between those classes in those respective capacities. That is to say, the relationship must be that of parties to the relevant employment.

2. When the scope of a power to arbitrate an industrial dispute is in question, the real issue is the power to make an award affecting that relationship. An award is capable of affecting that relationship if it affects the duties and obligations of employees owed to their employers and the duties and obligations of employers owed to their employees. Of course, employers and employees may dispute about matters touching some aspect of the employment which arises from legislation or from the action of third parties, but the Industrial Relations Commission has no jurisdiction to arbitrate disputes of that kind. If such a dispute leads to some disruption or threatened disruption of the employment, the Commission has jurisdiction to conciliate or arbitrate to avoid or to terminate the disruption but its award cannot impose obligations on, or affect the obligations of, persons who are not parties to the employment.

3. Generally speaking, disputes about "matters pertaining to the relationship of employers and employees" are disputes about duties and obligations owed by employees to employers which confer benefits on employers and about duties and obligations owed by employers to employees which confer benefits on employees. When an award is made in settlement or part settlement of an industrial dispute it prescribes the duties and obligations owed by employees to employers or by employers to employees. It may be framed in terms of a right to a benefit rather than in terms of a corresponding obligation to provide the benefit but, in that case, the benefit awarded is one dependent on the fulfilment of the obligation of a party to the award to provide it. Superannuation benefits are significant benefits of employment but those benefits are not provided to an employee by an employer: they are provided by a third party, usually the trustee of a superannuation fund.

4. In Manufacturing Grocers it was held that a dispute as to the liability of employers to make a contribution to a superannuation fund for the benefit of employees was an industrial dispute, but the Court drew a distinction between the right of employees to have the employer make such contributions and the right to receive the superannuation benefits purchased by the contributions. The Court said in reference to the claims there pending before the Commission (21) (1986) 160 CLR, at p 351.:

"To the extent to which they relate to superannuation

benefits, they are no more than claims for payments to be

made by employers by way of contributions to superannuation

funds answering a particular description. The right to the

payments in each instance is to arise out of the employment

of the employee by the employer; it is to arise during

the currency of an award; and it is to arise during the

currency of the mutual relations of employer and employee.

The right to the superannuation benefits themselves is to

arise, not under the award, but under the trust deed by

which the particular superannuation fund is constituted and

for the continuance of which there is no dependence upon

any award."

In addition to the obligation to make a contribution of a particular amount, the claims considered in Manufacturing Grocers related to the payee to whom the contribution was to be made. The identity of the payee is an element in the right of the employee and the corresponding obligation of the employer: only by payment of the prescribed sum to the prescribed payee can the employer discharge the obligation and only by that payment does the employee acquire the benefit which "is to arise out of the employment of the employee by the employer".

5. The Commission, in exercising its power to prescribe the identity of the payee to whom superannuation contributions are to be paid on behalf of employees, might legitimately take into account the terms of the particular superannuation trust deed or the administration of the particular superannuation trust fund, but it can claim no jurisdiction to control or affect the terms of the trust deed or the administration of the trust fund. Neither of those matters is capable of being the subject of an industrial dispute as defined in the Act. Even if employers and employees are in dispute about those matters, that dispute is not an industrial dispute, for the matter of the dispute does not pertain to the relationship of employers and employees in those respective capacities. In my opinion, that relationship is confined to the obligations and duties owed by one party to the employment relationship to the other, albeit the performance of the obligation results in a benefit to third parties (22) Metal Trades Employers Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387. The present case is the converse of that. Here the claims are calculated to result in a benefit to employees by imposing, directly or indirectly, an obligation on a third party. The only benefits of substance which the employees are claiming are benefits which lie within the power of Shell Australia Limited or the trustee of the first fund; they cannot be obtained by the imposition of a duty on the employers. The obligations which the claims in this case seek to impose on the employers merely dress up the substantial claim which is incapable of giving rise to an industrial dispute. The terms of a superannuation trust deed or the administration of a superannuation trust fund may be factors relevant to the identification of a fund to which payments are to be made and may therefore be factors relevant for consideration in arbitrating a settlement of an industrial dispute as to the liability of an employer to make payments to a superannuation fund, but they are not the subject matter of a dispute about matters pertaining to the relationship of employer and employee.

6. It follows that I am in general agreement with the reasons for judgment of Dawson J. I would therefore make absolute the order nisi.

DAWSON J. The company which heads the Shell group of companies in Australia, Shell Australia Limited ("Shell Australia") has no employees. The other companies in the group, including The Shell Company of Australia Limited ("SCA"), do. On 28 July 1949 SCA entered into a trust deed with certain nominated trustees to constitute a contributory pension fund called the Shell Australia Contributory Pension Fund ("the pension fund"). The deed operated retrospectively upon a fund previously constituted in 1947. The pension fund was established for the employees of SCA and for the employees of other companies associated with SCA which were admitted to the pension scheme. SCA and these other companies are collectively referred to as the "member companies". Employees of the member companies who were members of the pension fund were required to contribute to the pension fund but contributions were also to be made by the member companies "to make and keep the Fund actuarially solvent". The amounts required from member companies for this purpose were to be notified from time to time by an actuary.

2. It was possible for the pension fund to have an actuarial surplus in the sense that the value of its assets exceeded the value of its liabilities. Such a surplus could arise, for example, from the fund's investments yielding more than anticipated or from employees of the member companies ceasing employment before retirement age and so relinquishing benefits for which provision had been made or from the contributions of the member companies being set at a higher than necessary level. The trust deed of the pension fund contained no provision dealing with the application of an actuarial surplus while the fund was ongoing. However, the trust deed did prohibit the amendment of the trust deed so as to enable any part of the surplus to be distributed amongst member companies because it prohibited any amendment which resulted in any payment to any of the member companies out of the fund.

3. It is apparent that the Shell group wished to devise some means by which the actuarial surplus in the pension fund could be dealt with by way of payment to member companies. It was at least partly for this purpose that the Shell Australia Superannuation Fund ("the superannuation fund") was established pursuant to a trust deed dated 22 June 1990.

4. The pension fund trust deed could, with the exception I have already mentioned and certain other exceptions, be amended by the trustees with the approval of SCA. An amendment was made on 21 May 1990 to provide that a person presently or prospectively entitled to a benefit under the pension scheme might elect to terminate his interest and transfer it to a superannuation scheme established for the benefit of the employees of any member company and approved by SCA. If he did so, the trustees might at the request of SCA and with the consent of the person concerned transfer to the trustee of the superannuation scheme the equitable share of the person concerned. "Equitable share" was defined and, for present purposes, it is sufficient to note that it included a proportion of the actuarial surplus, calculated with regard to the benefits, present or prospective, to which the person was entitled from the pension fund. Thus if all persons entitled to benefits, presently and prospectively, from the pension fund elected to transfer their equitable shares to such a superannuation scheme, the total net realisable value of the pension fund's assets (and, consequently, the entirety of the fund's surplus) would be transferred to the superannuation scheme.

5. The superannuation fund was established for the benefit of the employees of SCA and of the employees of certain other companies admitted to the superannuation fund and designated as "associated employers". Beneficiaries of the pension fund were able to elect to transfer to the superannuation fund or to remain as participants in the pension fund and, in the latter case, they retained the benefits to which they were entitled in that fund. It appears that most of the beneficiaries of the pension fund have elected to transfer to the superannuation fund.

6. Unlike the pension fund trust deed, the superannuation fund trust deed does make specific provision for dealing with the transfer of an actuarial surplus out of the fund. For these purposes the actuarial surplus is the excess of the "total fund value" over the "total accrued benefit value". The "total fund value" is defined to mean "the total net market value (as determined by the Actuary) of all the assets of the (superannuation fund) as at the date of determination". The "total accrued benefit value" is defined to mean 125% of the sum, as at the date of determination, of the aggregate of all accrued retirement benefits and of the value (as determined by an actuary) of the benefits presently or prospectively payable from the fund. Whenever required by Shell Australia the actuary is to report to the trustees and Shell Australia concerning the total fund value and the total accrued benefit value and, if the report reveals an actuarial surplus, the trustees may be required by Shell Australia to cause such part of that surplus as may be requested by Shell Australia "to be paid out of the (superannuation fund) and dealt with as directed by (Shell Australia) including without limitation, by way of payment to (Shell Australia) or such of (Shell Australia) and the (associated employers) as (Shell Australia) may nominate".

7. The superannuation fund trust deed can be amended by Shell Australia without any participation by the trustees but, speaking generally, only with the consent of those persons whose interests would be adversely affected by the amendment.

8. A log of claims by the relevant trade unions was served upon Shell Australia and employer companies in the Shell group demanding that the employees of the latter companies have the right to share in any actuarial surplus in the pension fund or the superannuation fund. The demand was that the companies appoint an actuary who, together with an actuary appointed by the unions, should investigate the pension fund and the superannuation fund and make a report concerning the "total fund value" and the "total accrued benefit value" of each of the funds as at the "effective date". The terms "total fund value" and "total accrued benefit value" were defined by the log in a manner generally consistent with the definition of the same expressions in the superannuation fund trust deed. The "effective date" was nominated as 1 November 1990 or such other date as the Industrial Relations Commission might determine. The actuarial surplus in each fund was to be the amount by which the total fund value exceeded the total accrued benefit value.

9. The primary demand was that, if the actuarial report revealed a surplus in either of the funds as at the effective date, the employers should use their best endeavours to procure amendments to the trust deed of the relevant fund to cause the trustees to credit an amount to a fully vested account in the fund for each employee who, on 30 June 1990, was a member of the fund, was employed by any of the companies in the Shell group of companies and was a member of the relevant union. The thirtieth of June 1990 was the day after the last day on which members of the pension fund could elect to terminate their interest in the pension fund and transfer it to the superannuation fund. The amount to be credited to each of these fully vested accounts was to be an apportionment among the qualifying employees of 50% of the actuarial surplus in the particular fund.

10. There was an alternative demand that the value of any assets or money paid out of the pension fund to any employer after a specified date be accounted for to the trustees of the pension fund. A further alternative demand was that each of the employers should refrain from and use its best endeavours to procure the other employers and the trustees to refrain from:

"(1) making or concurring in any arrangement whereby

any assets or part of the Pension Fund might be

transferred to any of the Member Companies or any

company trust or partnership in which any of the

Member Companies has any interest; and from

(2) approving any revocation or modification of all or

any of the provisions of the Pension Scheme

except with the prior written consent of such proportion of

the Members as the Commission may determine or an order of

the Commission approving such an arrangement revocation or

modification".

11. The companies upon whom the log was served refused to accede to it and the Commission found that an industrial dispute existed consisting of "the demands relating to any surplus of assets in the (superannuation fund) or the (pension fund)". Although Shell Australia was included in the companies upon whom the demand was made, it was found not to be a party to the dispute because it was not an employer.

12. The prosecutors, who are members of the Shell group of companies, contend that the Commission was in error in finding that an industrial dispute had been created. "Industrial dispute" is defined by s.4(1) of the Industrial Relations Act 1988 (Cth) as:

"(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)".

13. In Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures (23) [1986] HCA 23; (1986) 160 CLR 341. this Court held that the refusal of a demand for the payment by an employer of contributions to a superannuation fund in respect of his employees could constitute an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904 (Cth). In that case it was pointed out that the entitlement of employees to the superannuation benefits themselves did not arise from any obligation imposed by an award upon the employer to make contributions to the superannuation fund, but arose instead under the terms of the relevant trust deed. The purpose of that observation was to indicate that the limited duration of an award did not affect the ultimate entitlement of the beneficiaries under the trust deed, but it serves to emphasize what seems to me to be crucial in this case.

14. The definition of "industrial dispute" in the Industrial Relations Act is in a different form from that appearing in the previous Act, the Conciliation and Arbitration Act. The definition in the latter Act spoke of a dispute "as to" industrial matters and there was a separate definition of "industrial matters", but since it defined "industrial matters" generally as meaning "all matters pertaining to the relations of employers and employees", the difference is immaterial for present purposes. For my part, I am unable to draw any distinction between a dispute "as to" industrial matters (the previous definition) and a dispute "about" industrial matters (the present definition).

15. It is not every dispute between employers and employees which constitutes an industrial dispute (24) See Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks [1968] HCA 86; (1968) 121 CLR 313, at p 318. Or, to put it as this Court put it in R. v. Kelly; Ex parte State of Victoria (25) [1950] HCA 7; (1950) 81 CLR 64, at p 85, "(a) matter does not become ... the subject of an 'industrial dispute' simply because it is a matter with respect to which persons who are employers and employees are disputing". For a dispute to be an industrial dispute it must be about matters pertaining to the relationship between employers and employees. As Stephen J. observed in Reg. v. Portus; Ex parte AN.Z. Banking Group Ltd. (26) [1972] HCA 57; (1972) 127 CLR 353, at p 371, "the subject matter of demands by either party which are, for example, of a political or social or managerial nature will not be industrial matters" (27) See also R. v. Wallis [1949] HCA 30; (1949) 78 CLR 529, at p 545; Reg. v. Coldham; Ex parte Fitzsimons [1976] HCA 42; (1976) 137 CLR 153, at pp 163-164. Perhaps, in the light of the later comments in Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd. (28) [1987] HCA 28; (1987) 163 CLR 117, at p 135, it should be said that not all managerial decisions are incapable of constituting an industrial matter, but it remains true that there are matters which of their very nature cannot be industrial matters and hence the subject of an industrial dispute. The mere fact that a dispute may have industrial consequences does not of itself convert it into an industrial dispute. It is important not to confuse the subject-matter of the demand with the industrial action which may be threatened or taken to enforce the demand (29) See Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association [1956] HCA 43; (1956) 94 CLR 614, at p 619.

16. In Manufacturing Grocers it was said that "a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential for it to be an industrial matter capable of being the subject of an industrial dispute" (30) (1986) 160 CLR, at p 353. The claims in that case were for payments to be made by employers by way of contributions to superannuation funds answering a general description. And, as I have said, the rights to the superannuation benefits themselves were to arise, not under the award sought, but under the trust deed by which the particular superannuation fund was constituted and for the continuance of which there was no dependence upon any award. It was held that the payments sought were to be regarded as part of the reward provided by the employer to the employee for his services, notwithstanding that they did not represent moneys to which the employee was immediately entitled. It was for this reason that the payments were held to "represent money earned in an industrial relationship" (31) ibid., at p 357 and therefore to be capable of being made the subject-matter of an industrial dispute.

17. But while the contributions made by an employer for the benefit of his employee to a superannuation fund may be regarded as being an aspect of the terms and conditions of employment, any obligation of the employer in his capacity as employer with respect to those moneys is fulfilled upon the making of each contribution which he is required to make. The benefits payable from the superannuation fund are dependent upon the obligations imposed upon the trustees of the superannuation fund. And the relevant relationship with respect to the moneys comprising a superannuation fund is the relationship of trustee and beneficiary, not the relationship of employer and employee. In any event, at the time benefits are payable to a particular beneficiary of a superannuation fund the relationship of employer and employee will ordinarily have ceased.

18. Turning first to the primary demand which is made, what is sought are amendments to the trust deeds to enable and cause the trustees to distribute a portion of the trust funds to certain employees who are beneficiaries of those funds. The real claim made is a claim for benefits out of the trust funds. It is a claim made by or on behalf of persons who happen to be employees, but it is not made by or on behalf of them in their capacity as employees. It is made by or on behalf of them in their capacity as beneficiaries. It is the trust deed which governs the relationship between trustee and beneficiary and it is the trust deed which the claimant unions seek to have amended.

19. So much is apparent from the form in which the demand is made. It is not a demand upon those who have the power to amend the trust deeds because those who have such power are not the employers and the refusal by them of such a demand would clearly not give rise to an industrial dispute. Instead, the demand is made upon the employers but, because the employers do not have the power to amend the trust deeds, the demand is limited to requiring the employers to use their best endeavours to cause those who have that power to do so. But that is not a call upon the employers in their capacity as employers or, to put it another way, it is not a call upon them to do anything about matters pertaining to the relationship between them and their employees in their capacities as employers and employees respectively. It is a call upon them to exert their influence to achieve an alteration in the relationship between the trustees and the beneficiaries under the trust deeds by the amendment of those trust deeds.

20. Casting a claim which is not about a matter pertaining to the relationship between employers and employees in a form which calls upon the employer to use his best endeavours to bring about the desired result does not convert the claim into one about an industrial matter. As Gibbs J. observed in Reg. v. Portus; Ex parte City of Perth (32) [1973] HCA 64; (1973) 129 CLR 312, at p 325:

"An industrial dispute will only arise from the failure of

employers to accede to the demand of their employees if the

demand is for some change in the conditions of employment,

or for something otherwise pertaining to the relations of

employers and employees, which it is within the capacity

of the employers to bring about. A demand for legislative

action, for example, would not give rise to a dispute which

the Commission would have jurisdiction to settle."

If it were otherwise, any matter upon which an employer could bring his influence to bear could be converted into an industrial matter simply by calling upon the employer to exert his influence.

21. The alternative demands made in the log of claims are of no different character. The first of them seems to be based upon a misapprehension of events and of the terms of the pension fund trust deed. That trust deed does not permit and cannot be amended to permit any payment to any of the member companies out of the fund. Accordingly, any such payment would be in breach of trust and whatever claim might be made by the employees in respect of any such payment would clearly not be about a matter pertaining to the relationship between them and their employers but instead about a matter pertaining to the relationship between them (as beneficiaries) and the trustees. Similarly, the second of the alternative claims appears to be based upon a misapprehension of what is permitted by the pension fund trust deed. But in any event, this claim also concerns the terms of the trust deed governing the relationship of trustee and beneficiary and is not about a matter pertaining to the relationship between employers and employees.

McHUGH J. In the Industrial Relations Act 1988 (Cth), the term "industrial dispute" is defined to mean an industrial dispute (including a threatened, impending or probable industrial dispute) extending beyond the limits of any one State that is "about matters pertaining to the relationship between employers and employees" (33) s.4(1). To come within this definition, the dispute must be about the relationship of employers as such and employees as such (34) Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures [1986] HCA 23; (1986) 160 CLR 341, at p 353; Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Ltd. [1987] HCA 28; (1987) 163 CLR 117, at p 134.

2. In Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (35) [1966] HCA 32; (1966) 115 CLR 443, at p 450, Barwick C.J. said that "the relationship of employer and employee must be directly involved in the demand" before it can create an industrial dispute. Similarly, in Reg. v. Portus; Ex parte AN.Z. Banking Group Ltd. (36) [1972] HCA 57; (1972) 127 CLR 353, at p 371, Stephen J. said that the "matter demanded must always pertain to the employer-employee relationship so that the subject matter of demands by either party which are, for example, of a political or social or managerial nature will not be industrial matters". What his Honour said about demands of a managerial nature must now be read in the light of what this Court said in Re Cram about matters concerning management. But otherwise the statement of Stephen J. in Portus remains an accurate statement of the law notwithstanding the expanded meaning which this Court gave to the term "industrial dispute" in Reg. v. Coldham; Ex parte Australian Social Welfare Union (37) [1983] HCA 19; (1983) 153 CLR 297.

3. Thus, in Manufacturing Grocers (38) (1986) 160 CLR, at p 353, which was decided after Coldham, this Court said:

"a matter must be connected with the relationship between

an employer in his capacity as an employer and an employee

in his capacity as an employee in a way which is direct and

not merely consequential for it to be an industrial matter

capable of being the subject of an industrial dispute".

4. Counsel for the respondent unions argued, however, that the meaning of "industrial dispute" was wider under the 1988 Act than under the Conciliation and Arbitration Act 1904 (Cth) because the requirement under the 1904 Act that matters pertain to the relations of employers and employees in any industry had been replaced in the 1988 Act by the requirement that the matters pertain to the relationship between employers and employees. But, as Commissioner Johnson said in his judgment in the decision of the Full Bench of the Australian Industrial Relations Commission in the present case, "there appears to be no difference between that Act and its successor." Any relevant differences are matters of form and not substance. Decisions on the 1904 Act continue to remain relevant to the construction of the 1988 Act.

5. Thus, despite the change of wording in the 1988 Act, a dispute between employers and employees concerning the times at which the employers' shops should close is still not a matter which pertains to the relationship between employers and employees (39) R. v. Kelly; Ex parte State of Victoria [1950] HCA 7; (1950) 81 CLR 64, at p 84. Although the trading hours of employers may affect their capacity to pay award rates of pay, the effect of the trading hours on the relationship between the employers and employees is indirect or remote because it can only affect the capacity to pay a fair and reasonable wage if it affects turnover or outgoings in such a way as to affect profitability.

6. Similarly, a demand made by a registered organisation of employees does not affect the relationship of employers and employees when the demand is that the employer make deductions and payments from salaries due and payable to its employees in accordance with authorities provided by them (40) Portus. Menzies J. who gave the leading judgment in Portus said (41) (1972) 127 CLR, at p 360:

"In my opinion, the relationship that would be affected by

such an obligation is a financial relationship of debtor

and creditor arising from the earning of salary, not the

industrial relationship in which the salary has been earned

and has become payable."

"The payment of subscriptions is a matter pertaining to

the relationship between the employees and their union. In

my opinion it is not a matter with which the employer, as

such, has any concern and it does not become an 'industrial

matter' merely because the association makes a demand upon

the employers to which they are not willing to accede."

His Honour went on to say (43) ibid., at p 365 that it was outside the scope of "matters pertaining to the relations of employers and employees" that an employer should be required to discharge the personal obligations of those whom he employs.

8. Stephen J. said (44) ibid., at p 370 that the definition of "industrial matters" in s.4(1) of the 1904 Act was concerned with "either of the broad aspects with which the relations of employers and employees are concerned, namely the performance of work by the employee and the receipt of reward for that work from the employer".

9. Demands upon employers are claims about matters pertaining to the relationship between employers and employees, however, when the demands require employers, during the currency of an award, to make contributions to a superannuation fund for the benefit of employees (45) Manufacturing Grocers. In Manufacturing Grocers, the Court said (46) (1986) 160 CLR, at p 357:

"There is no reason why those payments should be seen in any

other way than as contributions by an employer to a fund for

the benefit of an employee. No doubt the payments represent

money earned in an industrial relationship, but they do not

represent money to which an employee is himself presently

entitled. They must be regarded as having been made to the

fund by the employer in his capacity as employer and not as

an agent acting on behalf of an employee."

10. A demand upon an employer is also a demand about matters pertaining to the relationship between employers and employees when it is concerned with the mode of recruitment of labour and involves a claim for preference for members of the union enshrined in a pre-existing arrangement for recruitment (47) Re Cram. Contrary to what had been said in earlier judgments of this Court, the Court held in Re Cram that such a demand pertains to the relationship between the employer and its employees even though it impinges on the recruitment policies of management. The Court said (48) (1987) 163 CLR, at p 135:

"It has a direct impact on the work to be done by employees;

it affects the volume of work to be performed by each

employee and the conditions in which he performs his work.

So also with the mode of recruitment of the workforce. The

competence and reliability of the workforce has a direct

impact on the conditions of work, notably as they relate

to occupational health and observance of safety standards.

Employees, as well as management, have a legitimate interest

in both these matters."

11. The demands in the present case, however, are in a different category to those in Re Cram and Manufacturing Grocers. The present demands involve claims concerning what the employers should do with respect to the administration of two superannuation funds and claims as to the rights and liabilities of the parties interested in the assets of those funds.

12. Between 1947 and 1990, superannuation for employees in the Shell group of companies was provided for pursuant to the terms of a deed made between the Shell Company of Australia and certain trustees. In May 1990, a supplementary trust deed was executed modifying the earlier deed. The supplementary deed enabled members to transfer from the fund to a new fund.

13. The first demand in dispute in this Court is for the appointment of actuaries by the Shell group of companies and by the respondent unions to determine whether there is a surplus in the two funds or in either of them. If there is a surplus in either fund, the respondent unions demand that the employers "use their best endeavours" to procure certain amendments to the trust deed and to procure the trustees of the fund to credit certain amounts, calculated by the actuaries, to those employees who, on 30 June 1990, were members of a fund, employed in the Shell group of companies, and members of the respondent unions.

14. However, neither in form nor in substance does this first demand have any direct relationship on the employer-employee relationship. Even if the employers acceded to the demand, the fulfilment of the demand would not necessarily affect the relationship between the employers and the employees. At best, the endeavours of the employers could only influence the trustees to confer benefits on the employees: the employers have no power to authorise the actuaries to do anything in relation to the fund and no power to amend the trust deed or to give directions to the trustees concerning the crediting of the calculated amounts for the benefit of the employees. Acceptance of the employees' demand would have no direct effect on the relationship between the employers and the employees.

15. If the employers had made contributions to a general fund administered by a professional trustee corporation, it is difficult to see how a demand of the kind described in the present log of claims could be perceived as giving rise to a dispute pertaining to the relationship of employers and employees. No relevant distinction exists between that situation and the first demand. Any benefits which would flow to the employees from the demand in question are indirect and do not pertain to the relationship between employers and employees.

16. The second demand is that, if any asset or money has been transferred to any of the Shell group of companies, it be re-transferred to the trustees of the first fund together with consequential relief including interest.

17. In so far as the second demand seeks an accounting of the rights between the employees and their employers, it seeks the exercise of judicial power and is outside the jurisdiction of the Commission. Even if the second demand is construed as seeking an order that the receipt of the property or money by the employer now requires that the employer be obliged to compensate the employees - and I doubt that it can - the demand has nothing to do with the nature of the work performed by the employees or to do with the rewards which they should receive from the employer as the result of performing work. On that construction of the demand, it is a demand that the employers pay money to the employees simply because the employers have received money from a distribution of the assets of the trust fund. It is, therefore, not a demand about matters pertaining to the relationship between employers and employees.

18. The first part of the third demand seeks an order that the employer refrain from and use its best endeavours to ensure that the other companies in the Shell group and the trustees refrain from making or concurring in any arrangements which could result in the transfer of assets from the original fund to the Shell group of companies. The first part of the third demand, therefore, does not require the employer to do anything which has a direct effect on the relationship between employers and employees. It is not a claim about the relationship of employers and employees but about the rights and duties of each employer and its relationship, in respect of the trust, with the trustees and with other companies in the Shell group.

19. The second part of the demand seeks an order that the Shell group of companies not approve any revocation or modification to the provisions of the trust deed except with the consent of a proportion of the employees or pursuant to an order of the Commission. In so far as the second part of the demand concerns the making of amendments pursuant to the terms of the trust deed, it concerns only The Shell Company of Australia. Because it is a demand about the terms of the trust deed and the power of The Shell Company of Australia to approve amendments made by the trustees, only indirectly can it have any effect on the relationship between The Shell Company of Australia and its employees. It is therefore not a dispute about a matter pertaining to the relationship between employers and employees but about the way the employer should exercise a power conferred on it by the trust deed. Any direct or immediate effect on the employees of The Shell Company of Australia will be the result of the conduct of the trustees.

20. Thus, although the logs of claim have given rise to a disagreement between employers and employees as to the means of protecting the superannuation benefits of the employees, the disagreement does not directly affect the relationship between the employers in their capacity as employers and the employees in their capacity as employees. Accordingly, the claims are incapable of giving rise to an industrial dispute within the meaning of the Act. The order nisi should be made absolute.

Order nisi for writs of prohibition and certiorari discharged:

(i) so far as it concerns the claim referred to in pars 2, 3, 4,

5 and 6 of the log of claims incorporated in par. 2(c) of the

finding of dispute made by the first respondents as a Full

Bench of the Australian Industrial Relations Commission on 27

May 1991; and

(ii) so far as it concerns a demand in the claim referred to in

par.8 of that The Shell Company of Australia Limited not

approve and that the applicants/prosecutors use their best

endeavours to prevent the trustees of The Shell Australia

Contributory Pension Fund and The Shell Company of Australia

Limited respectively from making or approving, within the

limits set by its trust deed, any modification to The Shell

Australia Contributory Pension Fund without the approval of

such proportion of employees as may be determined by

arbitration.

Conciliation and Arbitration Act 1904(Cth)

Re Amalgamated Metal Workers Union of Australia; Ex Parte Shell Company of Australia Ltd [1992] HCA 38; (1992) 174 CLR 345 (27 August 1992)

At a glance

Court

Decision date

Before

Source

Judgment (131 paragraphs)

Re Amalgamated Metal Workers Union of Australia; Ex Parte Shell Company of Australia Ltd [1992] HCA 38; (1992) 174 CLR 345 (27 August 1992)

Legislation Cited (2)

Cases Cited (20)