Re Australian Bank Employees' Union; Ex parte Citicorp Australia Ltd [1989] HCA 41

Oct. 3 Mason C.J., Deane, Dawson, Gaudron and McHugh JJ.

Citicorp Australia Ltd. ("Citicorp") was served with a log of claims by The Australian Bank Employees Union ("the Union"). Proceedings were thereafter instituted by the Union in the Conciliation and Arbitration Commission. In those proceedings Citicorp requested the Commission to exercise its powers pursuant to s. 41(1)(d) of the Conciliation and Arbitration Act 1904 Cth to dismiss or refrain from hearing that part of the matter as it affected Citicorp without determining under s. 24(1) of that Act whether Citicorp was party to an industrial dispute. The Commission, constituted by Commissioner Laing, held that the power conferred by s. 41(1)(d) could only be exercised after the making of a dispute finding under s. 24(1).

The Conciliation and Arbitration Act was repealed with effect from 1 March 1989 when the Industrial Relations Act 1988 Cth came into force. An appeal by Citicorp from the decision of Commissioner Laing was heard by a Full Bench of the Industrial Relations Commission and determined by reference to the provisions of the Industrial Relations Act. See Industrial Relations (Consequential Provisions) Act 1988 Cth, s. 14. The appeal was dismissed, it being held that the power to dismiss or refrain from further hearing a matter conferred by s. 111(1)(g) of the Industrial Relations Act could only be exercised after the making of a dispute finding under s. 101(1) of that Act.

Citicorp now seeks to have made absolute an order nisi for mandamus and such other prerogative relief (either by way of certiorari or prohibition) as is necessary to compel the Industrial Relations Commission to consider whether it will hear its application as initially made under s. 41(1)(d)(iii) of the Conciliation and Arbitration Act.

Mandamus will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty. See, e.g., Randall v Northcote Corporation [1] ; R. v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [2] ; R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd . [3] ; Reg. v Bowen; Ex parte Federated Clerks Union [4] . In view of the changed legislative regime and the terms of s. 14(2) of the Industrial Relations (Consequential Provisions) Act, the question whether there is a present duty is to be answered by reference to the provisions of the Industrial Relations Act. The question whether there was a refusal or failure to perform a public duty is to be answered by reference to the provisions of the Conciliation and Arbitration Act.

1. (1910) 11 C.L.R. 100, at pp. 105, 114. 2. (1933) 50 C.L.R. 228, at p. 242. 3. (1949) 78 C.L.R. 389, at pp. 398-399. 4. (1984) 154 C.L.R. 207, at pp. 209-210.

By s. 24(1) of the Conciliation and Arbitration Act there was imposed on the Conciliation and Arbitration Commission a duty in the following terms:

Subject to this section, where proceedings in relation to an industrial dispute or alleged industrial dispute come before the Commission, however constituted, the Commission shall determine whether there is an industrial dispute and, if so, who are the parties and what are the matters in dispute, and record its findings, but the Commission may vary or revoke any of those findings.

Section 41 of the Conciliation and Arbitration Act conferred various powers, both substantive and procedural, upon the Commission. So far as is directly relevant to Citicorp's claim s. 41 provided:

(1) The Commission may, in relation to an industrial dispute -

(d) dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute or part of the dispute if it appears -

(ii) that the dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority; or

(iii) that further proceedings are not necessary or desirable in the public interest;

(2) A reference in sub-section 41(1) to an industrial dispute shall, unless the contrary intention appears, be read as including a reference to any other proceedings before the Commission.

Unless a contrary intention is to be discerned, the extended meaning of "industrial dispute" imported by s. 41(2) of the Conciliation and Arbitration Act would enable the power conferred by s. 41(1)(d) to be exercised in any proceedings before the Commission, including proceedings held to determine the existence of an industrial dispute. However, the issue raised in the present case is not so much one of the nature of the proceedings in which the power might be exercised as the time at which it might be exercised.

Section 24(1) of the Conciliation and Arbitration Act clearly imposed a duty on the Conciliation and Arbitration Commission to make a finding as to its jurisdiction, both as to parties and as to subject matter. However, neither s. 24(1) nor any other provision of the Act made express stipulation that that duty should be discharged prior to the Commission's undertaking any other function under the Act. Nor is that requirement to be discerned from constitutional or jurisdictional considerations, those considerations requiring only that a dispute (including "a threatened, impending or probable dispute": s. 4(1) of the Conciliation and Arbitration Act) exist, not that a finding be made as to its existence. Thus in Reg. v Alley; Ex parte N.S.W. Plumbers & Gasfitters Employees' Union [5] it was pointed out by Mason J. that, although s. 24(1) imposed a duty enforceable by mandamus, the making of correct findings under that sub-section was not a condition precedent to the further exercise by the Commission of its jurisdiction to make an award. However, s. 24(1) was clearly intended as a procedural bar to the exercise of powers capable of affecting substantive rights and liabilities in circumstances where no finding had been made as to jurisdiction. From this purpose there is to be discerned an intention that the substantive powers conferred by s. 41(1) (e.g., the power conferred by s. 41(1)(b) to make an award) should not be exercised prior to the making of a dispute finding.

The power conferred by s. 41(1)(d), if exercised, would defeat a prima facie right to have the jurisdiction conferred by the Conciliation and Arbitration Act exercised. It may therefore conveniently be described as a "power to refuse to exercise jurisdiction": Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [6] , per Deane J. However, the exercise of the power would not affect substantive rights and liabilities as would the exercise of the power in par. (b) to make an award. Accordingly, the purpose attending s. 24(1) would not serve to indicate an intention precluding the power from being exercised on the basis that, if jurisdiction were to exist, it should not be exercised. And, although it might be a rare case in which it would be appropriate to exercise the power on that basis, there are nonetheless good practical reasons in relation to that rare case for the power to be so construed.

1. (1987) 61 A.L.J.R. 393, at p. 399; 72 A.L.R. 1, at pp. 12-13.

Nor can it be argued that the power conferred by s. 41(1)(d) should be construed as exercisable only after the making of a dispute finding on the basis that the terms of s. 24(1) would require a dispute finding to be made even in a case in which the Commission had decided not to exercise its jurisdiction. The duty imposed by s. 24(1) is imposed in relation to proceedings. The power conferred by s. 41(1)(d) is a power to dismiss proceedings or to stay proceedings, albeit that the statutory expression is to "refrain from further hearing or from determining the dispute or part of the dispute". To the extent that proceedings were dismissed or stayed under s. 41(1)(d) there would be no proceedings before the Commission in which the Commission could proceed to a dispute finding.

Nothing in s. 24(1) or any other provision of the Conciliation and Arbitration Act, nothing in the nature of the power conferred by s. 41(1)(d) and no constitutional or jurisdictional consideration required the power conferred by s. 41(1)(d) to be treated as exercisable only after the making of a dispute finding under s. 24(1). The Conciliation and Arbitration Commission erred in treating the power as so confined.

The duty previously imposed on the Conciliation and Arbitration Commission to make a dispute finding is now imposed on the Industrial Relations Commission by s. 101(1) of the Industrial Relations Act in terms which, for present purposes, are not relevantly different from those of s. 24(1) of the Conciliation and Arbitration Act. The power previously conferred by s. 41(1)(d) of the Conciliation and Arbitration Act is conferred upon the Industrial Relations Commission by s. 111 of the Industrial Relations Act in these terms:

(1) Subject to this Act, the Commission may, in relation to an industrial dispute:

(g) dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears:

(i) that the industrial dispute or part is trivial;

(ii) that the industrial dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State industrial authority;

(iii) that further proceedings are not necessary or desirable in the public interest;

(iv) that a party to the industrial dispute is engaging in conduct that, in the Commission's opinion, is hindering the settlement of the industrial dispute or another industrial dispute; or

(A) has breached an award or order of the Commission; or

(B) has contravened a direction or recommendation of the Commission to stop industrial action;

(2) Unless the context otherwise requires, a reference in this section to an industrial dispute includes a reference to any other proceeding before the Commission.

The only feature attending s. 111(1) which might, for presently relevant purposes, distinguish the power conferred by par. (g) from that conferred by s. 41(1)(d) of the Conciliation and Arbitration Act is that s. 111(1) is expressed to be "[s]ubject to [the] Act". That subjection serves to indicate that the powers conferred by s. 111(1) may not be exercised contrary to any prohibition, limitation or qualification found in the Act. However, for the reasons given in relation to the Conciliation and Arbitration Act, neither s. 101(1) of the Industrial Relations Act nor any other provision or feature of that Act constitutes a prohibition, qualification or limitation upon the exercise of the power to dismiss or stay proceedings without a dispute finding being made. The Industrial Relations Commission erred in holding otherwise.

It is well settled that the Conciliation and Arbitration Commission was bound to act judicially. See, e.g., Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [7] ; Reg. v Moore; Ex parte Victoria [8] . The Industrial Relations Commission, as successor to, and as recipient of, the jurisdiction, functions, duties and powers of the same nature as those previously reposed in the Conciliation and Arbitration Commission, is also bound to act judicially.

1. (1969) 122 C.L.R. 546, at p. 552. 2. (1977) 140 C.L.R. 92, at pp. 101-102.

One aspect of the duty to act judicially is the duty to hear a party and allow him or her a reasonable opportunity to present his or her case. See Reg. v Moodie; Ex parte Mithen [9] ; Sullivan v Department of Transport [10] , per Deane J.; Russell v Duke of Norfolk [11] , per Tucker L.J. And, of course, coupled with that duty is the duty to consider the case put.

1. (1977) 17 A.L.R. 219, at p. 225. 2. (1978) 20 A.L.R. 323, at p. 342. 3. [1949] 1 All E.R. 109, at p. 118.

On a proper construction of s. 41(1)(d) of the Conciliation and Arbitration Act and s. 111(1)(g) of the Industrial Relations Act, Citicorp was entitled to put a case that it was convenient and appropriate for its application (as made under s. 41(1)(d)(iii) of the Conciliation and Arbitration Act) to be heard and determined without a dispute finding being made. It is not clear whether that case was put and not decided, or whether the decisions of Commissioner Laing and the Full Bench of the Industrial Relations Commission precluded Citicorp from putting that case. If the latter, there was a failure to afford a reasonable opportunity to allow the case to be put; if the former, there was a failure to decide the case put. In either event there was and is a duty capable of enforcement by mandamus.

It is necessary to note the privative clauses contained in s. 60(1)(c) of the Conciliation and Arbitration Act and in s. 150(1)(c) of the Industrial Relations Act providing that an award (defined to include an order) "is not subject to prohibition, mandamus or injunction in any court on any account". The effect of such a clause is that "no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body": R. v Hickman; Ex parte Fox and Clinton [12] , per Dixon J. See, in relation to s. 60 of the Conciliation and Arbitration Act, Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [13] ; Reg. v Coldham; Ex parte Australian Workers' Union [14] . Section 60(1)(c) of the Conciliation and Arbitration Act and s. 150(1)(c) of the Industrial Relations Act can have no effect, at least in a case where, as here, there is in effect no decision and the failure to give a decision constitutes a failure to perform a public duty. (See Constitution, s. 75(v).)

1. (1945) 70 C.L.R. 598, at p. 615. 2. (1967) 118 C.L.R. 219, at pp. 252-253. 3. (1983) 153 C.L.R. 415, at pp. 418, 422.

One final point should be noted. Section 107 of the Conciliation and Arbitration Act conferred and s. 46 of the Industrial Relations Act confers power to refer a question of law for the opinion of the Federal Court. It seems that this power is rarely invoked. As relief by way of mandamus is discretionary, a failure to request a reference to the Federal Court of questions of law not involving constitutional considerations might well constitute a basis for refusing relief. However, that issue was not fully explored in argument.

The order nisi for mandamus should be made absolute to the extent necessary to direct a hearing and determination of the issue whether it is convenient and appropriate to entertain Citicorp's application that the powers under s. 111(g)(iii) of the Industrial Relations Act be exercised in matter C. No. 2097 of 1987 (in so far as that matter affects Citicorp) without a dispute finding being made. By way of ancillary relief, certiorari should issue to quash the decisions of Commissioner Laing and the Industrial Relations Commission. Otherwise the order nisi should be discharged.