Re Australian Education Union; Ex parte Victoria [1995] HCA 71

On 25 November 1992, the Commission made a finding of dispute. However, Printing and Publishing Services Victoria (previously known as the Victorian Government Printer) was excepted from the finding. On 11 February 1993, the exception was amended so as to substitute the Crown in right of the State of Victoria. On 18 May 1993, Commissioner Merriman found that the State Government of Victoria was a party to the dispute.

Re Australian Federal Police Association and Another (M30 of 1994)

The respondent union made an application pursuant to s 204 of the Act for consent to alterations to its industry and eligibility rules which are presently expressed so as to confine the relevant industry to the Australian Federal Police and confine membership to the members of that body. The alteration sought would extend the industry to the police force or service of any State or Territory or the Commonwealth of Australia and extend membership to the members of any such force or service and certain other classes of person. On 15 November 1993, Deputy President Williams consented to the alteration sought.

The Implied Limitation on the Exercise of the Legislative Powers of the Commonwealth

(a) The meaning of the expression "industrial dispute" in s 51(xxxv) and its application to disputes between a State and its employees engaged in administrative services

The unanimous decision of the Court in R v Coldham; Ex parte Australian Social Welfare Union (the Social Welfare Union Case) [7] established that the expression "industrial dispute" in s 51(xxxv) of the Constitution bears its popular meaning rather than the narrow meaning "dispute in an industry". The adoption of the popular meaning meant that disputes between a State or a State agency and its employees were capable of falling within s 51(xxxv) except perhaps disputes between a State or State agency and employees engaged in the administrative services of the State [8] . That class of public servant had been thought to stand outside the conception of industry in the context of the narrow meaning of "industrial dispute" [9] . In the Social Welfare Union Case, the Court did not consider whether employees engaged in the administrative services of a State stood outside the reach of s 51(xxxv), though the chain of reasoning in the case eroded the basis on which the administrative services exception had been maintained. However, the Court specifically reserved the question whether the exception could be supported by reference to the implied limitations on the exercise of Commonwealth legislative power [10] . Referring to earlier cases, the Court observed [11] :

If at least some of the views expressed in those cases are accepted, a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could not be sustained as valid. 1. (1983) 153 CLR 297 at 312. 2. R v Coldham (1983) 153 CLR 297 at 313 3. See R v Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers', Australia (1959) 107 CLR 208 at 233 R v Holmes; Ex parte Public Service Association (NSW) (1977) 140 CLR 63 at 75-76 4. R v Coldham (1983) 153 CLR 297 at 313 5. R v Coldham (1983) 153 CLR 297 at 313

[T]here is an argument, to say the least, that an award or awards of the Commission made with the purpose of covering all the public servants of a State would so hamper the State in the exercise of its constitutional functions that it would be beyond the power of the Commonwealth Parliament to authorise or to give legislative force to such an award or awards. No government can function effectively otherwise than through its public servants and if another agency can impose upon a State government the terms and conditions of employment of its public servants including restrictions upon engagement and dismissal, that government's capacity to exercise for itself its constitutional functions may be impaired. (Emphasis in original.) 1. (1993) 178 CLR 249 at 279.

On the other hand, in Re Lee; Ex parte Harper [13] , Mason, Brennan and Deane JJ considered that there is:

much to be said for the proposition that, assuming that there is no discrimination against a State or singling out, such as occurred in Queensland Electricity Commission v The Commonwealth , the exercise of the arbitration power in the ordinary course of events will not transgress the implied limitations on Commonwealth legislative power. The exercise by the Commission of its authority with respect to the employment relationship between a State and its employees in the course of settling an interstate industrial dispute appears to fall within s 51(xxxv). Their Honours went on to express a view about the relationship between the implied limitations and the specific legislative powers, which has been the subject of further elucidation and to which reference will be made shortly. Their Honours then said [14] : On the view which we are presently inclined to take of the implied limitations, they do not protect the States from the consequences of the exercise by the Commonwealth of the powers granted to it by the Constitution which contemplate their application to the States. 1. (1986) 160 CLR 430 at 453. 2. Re Lee (1986) 160 CLR 430 at 453

Underlying the statements quoted above is an acceptance of the basic proposition that s 51(xxxv) empowers the Parliament to make laws which apply to the States [15] . So much had been accepted in the Engineers' Case [16] , where it was held that the arbitration power extended to a dispute between an organisation of employees and employers who included the Minister for Trading Concerns (WA), the State Implement and Engineering Works, and the State Sawmills. Likewise, in the Professional Engineers' Case [17] , this Court held that there was an interstate industrial dispute between the Association of Professional Engineers on the one hand and, on the other hand, the State of New South Wales, its agencies (including the Public Service Board, the Department of Public Works and the Department of Main Roads) as well as other parties. And, in Re Lee; Ex parte Harper , the Court held that the power conferred by s 51(xxxv) could extend to an industrial dispute to which an organisation representative of State school teachers was a party.

1. Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 391, per Dixon J. 2. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 3. (1959) 107 CLR 208.

These authorities did not contradict the administrative services exception or the possibility that it could be supported by the implied limitation on the exercise of Commonwealth legislative power. Nor do these authorities refute the principal submission put forward by the prosecutor, namely, that the implied limitation protects from an exercise of the arbitration power a State's "operations of government". The prosecutor argued that this expression included the administration of the affairs of the State, the provision of services internally in order to enable the government to function and the provision of services for the public.

(b) The relationship between the limitation and the specific legislative powers of the Commonwealth

It is convenient to examine first the relationship between the limitation and the power conferred by s 51(xxxv) of the Constitution, leaving the scope and content of the limitation for later consideration. In Re Lee; Ex parte Harper , Mason, Brennan and Deane JJ stated [18] :

Although the purpose of the implied limitations is to impose some limit on the exercise of Commonwealth power in the interest of preserving the existence of the States as constituent elements in the federation, the implied limitations must be read subject to the express provisions of the Constitution. Where a head of Commonwealth power, on its true construction, authorises legislation the effect of which is to interfere with the exercise by the States of their powers to regulate a particular subject matter, there can be no room for the application of the implied limitations. 1. Re Lee (1986) 160 CLR 430 at 453

In the SPSF Case, the relationship between the implied limitation and the power was expressed in slightly different terms. Mason CJ, Deane and Gaudron JJ said [19] :

[W]e should point out that the statement made in Re Lee; Ex parte Harper [20] , that the implied limitations must be read subject to the express provisions of the Constitution, should not be understood as excluding consideration of implications derived from the Constitution until the scope of s 51(xxxv) is ascertained by reference to its terms alone. Rather, the scope of that provision must be ascertained by reference not only to its text but also to its subject matter and the entire context of the Constitution, including any implications to be derived from its general structure. Brennan J said [21] : The passage [in Re Lee; Ex parte Harper ] should not be read as suggesting that the scope of a State immunity implied by the general provisions of the Constitution can be ascertained by considering the overriding effect of a valid Commonwealth law on an inconsistent exercise of State power. The tentative view was expressed in that case that the implied limitations "do not protect the States from the consequences of the exercise by the Commonwealth of the powers granted to it by the Constitution which contemplate their application to the States" [22] . So much must be accepted. But the critical question is the scope of the relevant Commonwealth power. The true construction of s 51(xxxv) would have to be ascertained before the effect of that provision on any countervailing implication could be determined. His Honour continued [23] : It is clear that implications derived from the general structure of the Constitution may qualify express provisions conferring legislative power [24] . Thus in Queensland Electricity Commission v The Commonwealth , it was held that a law enacted under the power conferred by s 51(xxxv) was invalid for conflict with an implied limitation. The proposition that "implied limitations must be read subject to the express provisions of the Constitution" does not in terms acknowledge that the construction of a head of legislative power is itself ascertained by reference to the entire context of the Constitution and that its scope may be limited by implication The construction of s 51(xxxv) or, for that matter, the construction of any other legislative power in s 51, calls for a consideration of the text of the power, its subject matter and the general constitutional context. None of these factors can be considered in isolation, nor is there a sequence to be followed in considering one factor before another. 1. SPSF Case (1993) 178 CLR 249 at 271-272. 2. (1986) 160 CLR 430 at 453, per Mason, Brennan and Deane JJ. 3. SPSF Case (1993) 178 CLR 249 at 274-275. 4. Re Lee (1986) 160 CLR 430 at 453 5. SPSF Case (1993) 178 CLR 249 at 275. 6. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 44-45 Australian Capital Television Pty Ltd v The Commonwealth [No 2] (1992) 177 CLR 106 at 134, 168, 184, 215, 242.

The correct approach to the question is that stated in the passages just quoted.

(c) The scope and content of the implied limitation

The implied limitation on the exercise of Commonwealth legislative powers has been expressed in various ways. It is convenient to begin discussion of the implied limitation with the statement of principle, based on the rule of interpretation adopted in the Engineers' Case, by Dixon J (with whom Rich J agreed) in Australian Railways Union v Victorian Railways Commissioners [25] :

[E]very grant of legislative power to the Commonwealth should be interpreted as authorising the Parliament to make laws affecting the operations of the States and their agencies, at any rate if the State is not acting in the exercise of the Crown's prerogative and if the Parliament confines itself to laws which do not discriminate against the States or their agencies. After expressing the view that the arbitration power authorises the making of laws which apply to the States and to the State Commissioners for Railways, his Honour cautioned that the Engineers' Case should not be understood as saying that [26] "over a State the power of the Parliament is as full and ample as over the subject and allows the same choice of remedies, measures and expedients to secure fulfilment of the legislative will". His Honour suggested that s 106 of the Constitution might provide the restraint upon the legislative power over States and might have the effect "that no law of the Commonwealth can impair or affect the Constitution of a State" [27] . 1. (1930) 44 CLR 319 at 390. 2. Australian Railways Union (1930) 44 CLR 319 at 391. 3. Australian Railways Union (1930) 44 CLR 319 at 391-392.

The first reservation mentioned in the first passage quoted above relating to the exercise of the prerogative has been displaced by judicial decisions [28] . The second reservation relating to discrimination was much discussed inMelbourne Corporation v The Commonwealth [29] and Victoria v The Commonwealth (the Pay-roll Tax Case) [30] . The underlying basis for that reservation, or implication as it is now described, was stated by Dixon J in Melbourne Corporation in these terms [31] :

The foundation of the Constitution is the conception of a central government and a number of State governments separately organised. The Constitution predicates their continued existence as independent entities. His Honour went on to say [32] : [T]he efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorising the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority. His Honour described s 48 of the Banking Act 1945 Cth as a "law directly operating to deny to the States banking facilities open to others, and so to discriminate against the States or to impose a disability upon them" [33] . In so describing s 48, Dixon J [34] found it to infringe the prohibition to be implied from the Constitution against "a law which discriminates against States, or a law which places a particular disability or burden upon an operation or activity of a State, and more especially upon the execution of its constitutional powers". 1. See the cases referred to in Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 213 2. (1947) 74 CLR 31. 3. (1971) 122 CLR 353. 4. Melbourne Corporation (1947) 74 CLR 31 at 82. 5. Melbourne Corporation (1947) 74 CLR 31 at 83. 6. Melbourne Corporation (1947) 74 CLR 31 at 84. 7. Melbourne Corporation (1947) 74 CLR 31 at 79.

Although the comments of Dixon J were couched principally in terms of discrimination against States and the imposition of a particular disability or burden upon an operation or activity of a State or the execution of its constitutional powers, his Honour clearly had in mind, as did Latham CJ, Rich and Starke JJ, that the legislative powers of the Commonwealth cannot be exercised to destroy or curtail the existence of the States or their continuing to function as such [35] . Whether this means that there are two implied limitations, two elements or branches of one limitation, or simply one limitation is a question which does not need to be decided in this case. However, for convenience, we shall proceed on the footing that the limitation has two elements, the non-discriminatory element having a particular relevance to the argument now being considered.

1. Melbourne Corporation (1947) 74 CLR 31 at 56, 60, per Latham CJ; at 66, per Rich J; at 74, per Starke J; at 82, per Dixon J; see also Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 337-338, per Dixon J.

In the Pay-roll Tax Case [36] , Walsh J and Gibbs J agreed with Dixon J's view in Melbourne Corporation and Menzies J appears to have been of a similar opinion [37] . Although it has been suggested that a Commonwealth law cannot curtail or interfere in a substantial manner with the exercise of constitutional power by the States, it is not easy to give any precise meaning to that proposition. The decision in the Pay-roll Tax Case is inconsistent with the notion that any interference with a State or any impairment of the exercise of its functions is a violation of the implied limitation. Subsequently, in The Commonwealth v Tasmania (the Tasmanian Dam Case) [38] , Mason J, Brennan J and Deane J considered that the prohibition, in its relevant aspect, was directed against the exercise of Commonwealth legislative powers in a manner which would be inconsistent with the continued existence of the States or their capacity to function [39] . Mason J and Brennan J considered that this aspect of the limitation is directed against the impairment of the capacity of a State to function as a government, rather than against interference with or impairment of any function which a State government undertakes [40] .

1. (1971) 122 CLR 353 at 410-411, 424. 2. Pay-roll Tax Case (1971) 122 CLR 353 at 390-391. 3. (1983) 158 CLR 1. 4. Tasmanian Dam Case (1983) 158 CLR 1 at 139-140, 213-215, 280-281. 5. Tasmanian Dam Case (1983) 158 CLR 1 at 139-140, 213-215; see also Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 93, per Mason J; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216, where Stephen J referred to implied limitations "which will serve to protect the structural integrity of the State components of the federal framework, State legislatures and State executives".

The foregoing discussion, brief though it is, conveys some impression of the difficulty which the Court has experienced in formulating with a sufficient degree of precision the implied limitation on the exercise of Commonwealth powers. That is not the only difficulty. The decided cases in which the implication has been invoked offer little guidance, except in cases of discrimination or singling out, as to its application, in particular what it is that constitutes an impairment or curtailment of the capacity of a State to function as a government.

(d) The prosecutor's argument that the limitation protects government functions

The prosecutor submitted that the statements in the Tasmanian Dam Case, when they refer to impairment of a State's capacity "to function as a government", extend to any impairment of capacity to exercise government functions. The prosecutor's submission is not in accordance with the natural meaning of the words used. Nor does it accord with the substance of the views expressed in a number of judgments in which the implied limitation has been discussed. Thus, inMelbourne Corporation [41] , Latham CJ, with reference to functions or activities essential to the existence of government, said that "the raising of money by taxation [and] provision for the custody, management and disposition of public revenue moneys are activities which are essential to the very existence of a Government". His Honour referred also to the power of borrowing money, of providing for the custody and expenditure of loan moneys and making provision for the custody and expenditure of public moneys by using a bank. All these activities were, in his Honour's view, essential to the existence of a State government [42] or, as we would put it, to its capacity to function as a government.

1. (1947) 74 CLR 31 at 52-53. 2. Melbourne Corporation (1947) 74 CLR 31 at 52-53.

It was also recognised in Re Tracey; Ex parte Ryan [43] that State courts are an essential branch of the government of a State and that their continuance by s 106 of the Constitution precludes an exercise of Commonwealth legislative power prohibiting them from exercising their functions.

1. (1989) 166 CLR 518 at 547, per Mason CJ, Wilson and Dawson JJ; at 575, per Brennan and Toohey JJ.

In the Pay-roll Tax Case [44] , Menzies J referred to the implied limitation in the context of interference with a State carrying out "its constitutional functions of government", a narrower expression than "governmental functions". Gibbs J referred to a law which curtailed or interfered with "the exercise of constitutional power by the States", but left open the question of what is the constitutional power that is protected [45] . Windeyer J was not prepared to accept that there was a satisfactory distinction between essential functions of government and other functions undertaken by government [46] , a view which was shared in that case by Barwick CJ, Walsh J and Gibbs J [47] and which has been reflected in other judgments of this Court [48] .

1. (1971) 122 CLR 353 at 392. 2. Pay-roll Tax Case (1971) 122 CLR 353 at 424. 3. Pay-roll Tax Case (1971) 122 CLR 353 at 398. 4. Pay-roll Tax Case (1971) 122 CLR 353 at 382-383, 410-411, 424. 5. Melbourne Corporation (1947) 74 CLR 31 at 74, per Starke J; the Professional Engineers' Case (1959) 107 CLR 208 at 235, per Dixon CJ; at 274-276, per Windeyer J; Queensland Electricity Commission (1985) 159 CLR 192 at 214, per Mason J.

In our view, the prosecutor's submission on this point is against the weight of modern authority and draws a distinction which is unsatisfactory. To say that the limitation protects the existence of the States and their capacity to function as a government is to give effect more accurately to the constitutional foundation for the implied limitation identified by Dixon J in the passages earlier quoted from Australian Railways Union , including s 106 of the Constitution. To press the limitation as far as the prosecutor seeks to take it would travel beyond the language of s 106 and would confer protection on the exercise of powers by the States to an extent which is inconsistent with the subordination of those powers to the powers of the Commonwealth through the operation of s 109 of the Constitution. And the argument, if successful, would protect a substantial part of a State's workforce from the impact of federal awards, notwithstanding that the operation of those awards in relation to school teachers, health workers and other categories of employees would not destroy or curtail the existence of the State or its capacity to function as a government.

The fact is that the existence of the States and their Constitutions and their capacity to function as governments would not be impaired by the operation of federal awards made in respect of the vast majority of the employees sought to be covered by the logs of claims, at any rate if the award provisions were confined to minimum wages and working conditions which take appropriate account of any special functions or responsibilities which attach to them. The freedom of State governments to determine terms and conditions of employment of employees would be restricted but that is a consequence of the application of the arbitration power to States. Whether the making of a comprehensive award would result in a relevant impairment is another question which we leave for later discussion.

We are unable to accept the distinction which the prosecutor drew between "governmental functions" and trading functions. The argument was that States function as a government when carrying out public functions for a public purpose. On this view, health, education and police functions are governmental functions. Indeed, it is difficult to see why, on this view, trading functions are not governmental, if they are undertaken by government in the public interest. The distinction is unsatisfactory for that reason.

(e) The argument that the implied limitation protects the administrative services exception

A long-standing problem with the administrative services exception is that it has always been difficult to define or describe what is meant by the expression "the administrative services of a State" and it cannot mean all employees of the State who do some administrative work [49] . The Solicitor-General for New South Wales, who argued that the exception was supported by the implied limitation, suggested that some guidance as to the meaning of the expression may be provided by the distinction between "policy" and "operational" decisions sometimes discussed in the law of torts in the context of government liability. The guidance, if it can be so called, is obscure. The Solicitor-General was on stronger ground in contending that the exercise of legislative, administrative and judicial power is, and has always been, regarded as governmental. But the correlation between the exercise of these powers and the exception is by no means apparent. What is more, the exception is not related in any way to the implied limitation or to the purpose which it serves. That purpose protects the State and its capacity to function as a government. The exception consists of a category of employees and is not directed to functions of government and even less to capacity to function as a government.

1. Re Lee; Ex parte Harper (1986) 160 CLR 430 at 443, per Gibbs CJ.

(f) The argument that the implied limitation protects the integrity or autonomy of a State

The Solicitor-General for South Australia contended that the implied limitation protects the integrity or autonomy of a State. In this respect he drew a distinction between external services (not protected) and internal services (protected). Internal services were said to include policy formulation, reporting to Parliament, the collection and administration of government revenue and the provision of services to Parliament and the judiciary. It was claimed that the protection would embrace, among others, the Treasury, the Attorney-General's Department, court staff and the police. It was conceded that the content of an award was a relevant consideration. Thus the Commission could regulate remuneration and disputes about remuneration and other payments to employees but it could not prescribe employment qualifications, eligibility and termination procedures. The latter, so the argument runs, would impair the integrity or autonomy of the State. It will be convenient to deal a little later with this argument which, in our view, has some force.

(g) Conclusion with respect to the scope and content of the implied limitation

Our rejection of the particular submissions made by the prosecutor and supporting interveners other than that advanced by South Australia as to the scope and content of the implied limitation leads us, subject to consideration of one gloss put forward by the prosecutor, to express the scope and content of the limitation in this way. The limitation consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities ("the limitation against discrimination") and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments [50] .

1. Queensland Electricity Commission (1985) 159 CLR 192 at 217, per Mason J.

The prosecutor relied, in particular, on the formulation of the second element in the limitation which is to be found in the reasons for judgment of Deane J in Queensland Electricity Commission [51] where his Honour stated that its central operation is to preclude the exercise of Commonwealth powers "to control the States" or in a manner which would be inconsistent with the continued existence of the States as independent entities and their capacity to function as such. The exercise of Commonwealth power "to control the States" would be an exercise of power inconsistent with the continued existence of the States as independent entities and their capacity to function as such. So the correctness of the major proposition asserted by the prosecutor may be accepted.

In elaborating the concept of "control" for the purposes of the argument, the prosecutor drew attention to observations of Dixon J in Melbourne Corporation [52] where his Honour, in the context of a law aimed at controlling some particular exercise of a State's exercise of its executive power, said:

Such a law wears two aspects. In one aspect the matter with respect to which it is enacted is the restriction of State action, the prescribing of the course which the Executive Government of the State must take or the limiting of the courses available to it. As the operation of such a law is to place a particular burden or disability upon the State in that aspect it may correctly be described as a law for the restriction of State action in the field chosen. That is a direct operation of the law. But it is important to appreciate that, in his Honour's view, the implied limitation precluded the exercise of Commonwealth legislative power "for a purpose of restricting or burdening the State in the exercise of its constitutional powers" [53] . To do so "brings into question the independence from federal control of the State in the discharge of its functions" [54] . 1. (1947) 74 CLR 31 at 79. 2. Melbourne Corporation (1947) 74 CLR 31 at 80. 3. Melbourne Corporation (1947) 74 CLR 31 at 80.

At this point it is convenient to consider South Australia's argument based on impairment of a State's "integrity" or "autonomy". Although these concepts as applied to a State are by no means precise, they direct attention to aspects of a State's functions which are critical to its capacity to function as a government. It seems to us that critical to that capacity of a State is the government's right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds. An impairment of a State's rights in these respects would, in our view, constitute an infringement of the implied limitation. On this view, the prescription by a federal award of minimum wages and working conditions would not infringe the implied limitation, at least if it takes appropriate account of any special functions or responsibilities which attach to the employees in question. There may be a question, in some areas of employment, whether an award regulating promotion and transfer would amount to an infringement. That is a question which need not be considered. As with other provisions in a comprehensive award, the answer would turn on matters of degree, including the character and responsibilities of the employee.

In our view, also critical to a State's capacity to function as a government is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of government, but also to determine the terms and conditions on which those persons shall be engaged. Hence, Ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges would clearly fall within this group. The implied limitation would protect the States from the exercise by the Commission of power to fix minimum wages and working conditions in respect of such persons and possibly others as well [55] . And, in any event, Ministers and judges are not employees of a State.

1. Once the regulation of the relationship between these persons and their State Government is determined to be outside federal arbitral power by reason of the implied limitation, it is unnecessary to consider whether, construing s 51(xxxv) without reference to the implied limitation, these persons might have been capable of becoming parties to an industrial dispute extending beyond the boundaries of their State.

The Application of the Implied Limitation to the Facts

The prosecutor relied on the argument based on the implied limitation for two reasons. The first was to challenge the findings of dispute made by the Commission, and the second was to challenge the interim awards that had been made. In relation to the challenge to the findings of dispute, the prosecutor sought to show that the Commission is precluded from exercising its award-making powers at all so as to bind the States in respect of their employees or at least a significant part of the workforce represented by the SPSF. If the prosecutor had been able to demonstrate - and this it has demonstrably failed to do - that the Commission lacks power to make any award binding the States in respect of the employment of any of their employees or any of the employees represented by the SPSF, then the prosecutor might have had a powerful case for holding that the Commission had no power to make the relevant dispute findings.

However, the rejection of the arguments put forward by the prosecutor and the intervening States - arguments which would have given the implied limitation a wide-ranging operation - means that the Commission has power to make awards binding the States and their agencies in relation to minimum wages and working conditions which take account of the special functions and responsibilities, if any, of a broad range of public servants and employees, including many members of the SPSF. On the other hand, as we have indicated, the operation of the implied limitation would preclude the Commission from making an award binding the States in relation to qualifications and eligibility for employment, term of appointment and termination of employment, at least on the ground of redundancy. It would also preclude the Commission from making an award binding the States in relation to the terms and conditions of employment or engagement of persons such as Ministers, ministerial assistants and advisers, heads of department and senior office holders - as well as parliamentary officers and judges [56] . What impact the implied limitation would have on the power of the Commission to make an award prescribing particular minimum terms and conditions of employment for particular classes of employees, eg, term of appointment, procedures and criteria for promotion and transfer, and termination on grounds other than redundancy, was a question which was not explored in detail in the arguments presented to this Court. Obviously these are matters to be considered in the Commission if the proceedings are taken further in that tribunal.

1. As already stated, Ministers and judges are not employees of a State.

For present purposes the important point which emerges is that the prosecutor has failed to demonstrate that the Commission is precluded from making awards of the kind sought, even though the Commission may not be able to make the awards sought in relation to all public servants and employees sought to be covered. But that does not mean that the Commission lacked power to make dispute findings. It is no objection to the validity of a finding of dispute that the Commission lacks power to make an award binding all the parties to a dispute. That point was clearly demonstrated by Dixon CJ in the Professional Engineers' Case [57] . Likewise, it is no objection to the validity of a finding of dispute that the Commission lacks power to make an award containing all the provisions sought in a log of claims, so long at least as it has the power to make part of what is sought.

Accordingly, the prosecutor's challenge to the findings of dispute made by the Commission, at least in so far as it was based on the suggested operation of the implied limitation, is premature. The "interstateness" limb of the challenge will be dealt with shortly.

The prosecutor also sought to challenge the interim awards made by the Commission. In this way, the prosecutor attempted to distinguish this case from the SPSF Case [58] in this Court in which Toohey J said:

It would be premature for the Court to intervene at this stage of the proceedings in the Commission unless it were quite clear that the Commission lacked jurisdiction to make an award based on the log of claims. That is by no means clear. In that case, proceedings in the Commission had not advanced beyond a finding of dispute. 1. (1993) 178 CLR 249 at 300.

The mere making of interim awards as such does not bring the cases within the operation of the implied limitation. But, in the light of the operation of the implied limitation as we have explained it, the making of interim awards regulating or restricting the offer of voluntary departure packages to employees of the State and its agencies cannot be supported. Those interim awards purported to restrict the prosecutor's or its agencies' right to terminate the services of the employees on redundancy grounds. Accordingly, the interim awards made in Matters M11 and M156 cannot remain on foot.

It is convenient to deal now with the prosecutor's submission, supported by the intervening States, that the disputes arising from the non-acceptance of the logs of claims are not interstate disputes. In essence, the argument is that an industrial dispute between a State and its employees engaged in the performance of the State's governmental functions cannot form part of an industrial dispute extending beyond the limits of one State within the meaning of s 51(xxxv) of the Constitution.

Some of the considerations urged in support of the prosecutor's argument seemed to go to a different question, namely, whether the disputes were properly characterised as industrial disputes but, as already mentioned, that question was not raised by the prosecutor. The matters on which the prosecutor relied were the limitation of a State's jurisdiction and activities within its own boundaries, the lack of a common interest as between States in the business of "State government", and the traditional autonomy that State governments and their colonial predecessors have enjoyed with respect to the engagement and termination of the services of public servants. Inevitably the argument rests rather heavily on the difference between private and public service employment. When all these matters are taken into account, it is suggested that two conclusions should be drawn: (1) that disputes of the kind in question necessarily remain at the level of intrastate disputes between a State and its public servants and do not merge into or become part of a wider interstate dispute; and (2) that disputes do not have an interstate quality as that requirement must be understood in the context of s 51(xxxv). The second suggested conclusion rests on the notion that it could not have been contemplated when the Constitution was adopted and enacted that s 51(xxxv) would apply to disputes between States and their employees.

The prosecutor's submission is inconsistent with the course of decisions in this Court. Ever since the decision in the Engineers' Case it has been consistently recognised that a dispute between an organisation of employees and a Minister of the Crown for a State acting under the authority of a statute of that State as an employer can amount to an interstate industrial dispute within the meaning of s 51(xxxv). In that case, the Court held that the dispute between the claimant Society on the one hand and, on the other hand, a large number of employers throughout Australia, including the Minister for Trading Concerns (WA), the State Implement and Engineering Works and the State Sawmills, both of that State, was a dispute extending beyond the limits of one State. In the Professional Engineers' Case, to which we have previously referred, the Court held that there was an interstate industrial dispute between the State of New South Wales and various Government departments on the one hand and employed engineers on the other hand. Subsequently, in the Social Welfare Union Case, where the narrow conception of "industrial dispute" was rejected and the popular meaning of the term adopted, the correctness of the decisions in the Engineers' Case and in the Professional Engineers' Case was accepted. And, in Re Lee; Ex parte Harper , the Court held that the power conferred by s 51(xxxv) would extend to an interstate dispute to which an organisation representative of State school teachers was a party.

In the cases referred to in the preceding paragraph, the primary question for consideration by the Court was not whether a relevant dispute had, or would have, the requisite interstate quality but, in the Engineers' Case, whether the doctrine of implied intergovernmental immunity was to be accepted so as to impose limits on the power conferred by s 51(xxxv) and, in the other cases, whether the dispute was, or a relevant dispute would be, "industrial". However, in each of the cases, the Court proceeded on the footing that a dispute between a State (or its agency) and its employees could give rise to an interstate industrial dispute. The acceptance by a unanimous Court in the Social Welfare Union Case of the popular meaning of the expression "industrial dispute" in s 51(xxxv) and the rejection of the narrow meaning based on the concept of a dispute in an industry does not affect the conclusion on "interstateness" reached in the cases. The reasoning to that conclusion is unaffected by that change.

The notion that interstate employers must have a common business or operate in a particular industry as a pre-condition of the existence of interstate industrial dispute has never been accepted. Although statements have been made which assert that the nexus or unifying factor which combines in a single industrial dispute a number of demands made on behalf of a number of employees is "the industry" itself [59] , the nexus may also be found in the calling or vocation in which the participants are engaged. Very recently, in Re Australasian Meat Industry Employees' Union; Ex parte Aberdeen Beef Co Pty Ltd [60] reference was made to the statement of Starke J in Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association [61] :

An industrial dispute is constituted, both historically and in point of fact, where a difference exists between workmen themselves, or perhaps between employers themselves, or between employers or classes of employers, and workmen engaged in some common industry or calling, concerning industrial conditions affecting a class so engaged and not merely affecting individual and definite members thereof. An industrial relationship, and not a contractual relationship, is all that is necessary to constitute an industrial dispute. The nexus is to be found in the industry or in the calling or avocation in which the participators are engaged. And, in the final analysis, the adoption of the popular meaning of "industrial dispute" and the rejection of the view that there must be a dispute in an industry, is fatal to the contention that the necessary nexus or unifying factor must be found in the industry. 1. Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 373, per Isaacs J; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Jones (the Builders' Labourers' Case) (1914) 18 CLR 224 at 242, per Isaacs J. 2. (1993) 176 CLR 154 at 159-160. 3. (1925) 35 CLR 528 at 548-549.

It is not of great significance that there was no exact coincidence between the activities carried on in the respective States in respect of which demands were made. It is of greater significance that those upon whom or in respect of whom the demands were made had a community of interest. That factor may exist because of the employers' or employees' participation in a single industry and is present here. A dispute involving parties having a community of interest is likely to be a single industrial dispute despite differences between the activities of those parties. Whether such a community of interest exists in a particular case may depend upon a combination of industrial, economic and financial considerations [63] . 1. Re Australasian Meat Industry (1993) 176 CLR 154 at 160, per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ. 2. Re Australasian Meat Industry (1993) 176 CLR 154 at 171, per McHugh J.

True it is that the functions and operations of the States and their agencies are confined very substantially, if not wholly, within the boundaries of the particular State and therefore the demand upon a particular State and its agencies is to observe the terms and conditions demanded within the State or very substantially so. As against that consideration is to be set the common interest which the State employees have in seeking and obtaining uniform terms and conditions across State boundaries as well as the common interest which the employers as public sector employers have in resisting the demands.

The same question arose in the SPSF Case [64] , where a log of claims was served on three States and a wide range of public sector employers relating to the rates of pay and allowances of public servants generally. The Court held that the log was not such as to be capable of giving rise to an industrial dispute. Consequently, it did not become necessary to resolve the question whether, assuming an industrial dispute to have come into existence, it was interstate in character. Nevertheless, Toohey J considered the question and said [65] :

Once it is accepted, as it must now be, that many, if not all, of the employees sought to be covered by the proposed award are engaged in an industry [66] , it is hard to resist the conclusion that there is "common cause" [67] made between SPSF and the three States in question. It is true that the log of claims cannot be treated as a demand for a national public service award as SPSF would have it, primarily because only three States are involved. But the relationship between the employers in those States and the various categories of employees employed by the States and their instrumentalities and the constitutional coverage of SPSF establish a sufficient degree of interstateness to satisfy that element of an industrial dispute within the meaning of the Act. 1. (1993) 178 CLR 249. 2. SPSF Case (1993) 178 CLR 249 at 295. 3. Social Welfare Union Case (1983) 153 CLR 297; Re Lee; Ex parte Harper (1986) 160 CLR 430 4. See Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 332, per Griffith CJ; at 342, per Barton J.

The submission that the disputes found by the Commission are not interstate disputes must be rejected.

Section 111(1) of the Act has provided for some time past and still provides:

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:

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

The Industrial Relations Legislation Amendment Act (No 2) 1992 Cth, which commenced on 21 January 1993, by s 5(b) inserted s 111(1A) in the Act. It provides:

Subparagraph (1)(g)(iii) does not apply to proceedings so far as they may affect terms and conditions of employment of a particular kind that are applicable to a particular class of employees, if:

(a) at any time after 7 December 1992, terms and conditions of that kind and application have been regulated by an order, award, decision or determination of a State industrial authority (whether made before, on or after that date); and

(b) terms and conditions of that kind and application:

(i) cannot be dealt with by a State arbitrator by compulsory arbitration (but not merely because an order, award, decision or determination of a State arbitrator cannot be changed during a particular period); and

(ii) are not regulated by an employment agreement; and

(iii) are not regulated by an award under this Act.

The subsection defines the expression "employment agreement" in general terms but not so as to pick up employment agreements as provided for in the ER Act. The effect of s 111(1A) is to preclude the Commission from exercising the powers in s 111(1)(g) in relation to Victorian matters.

Section 111(1A) was introduced after the ER Act was enacted. By s 179, the ER Act repealed the Industrial Relations Act 1979 Vic which provided for compulsory arbitration. As stated at the commencement of these reasons, a system of individual employment agreements replaced the old system of compulsory arbitration in Victoria. Sections 109 and 113 and cl 22 of Sch 6 to the PSM Act achieved the same result in the public sector.

The prosecutor submitted that s 111(1A) discriminates against Victoria and employers and employees in that State by denying them recourse to s 111(1)(g). The new provision is said to discriminate against Victoria and any other State that enacts similar legislation; alternatively, it is said that the legislation is aimed at Victoria.

No doubt the events which had recently taken place in Victoria, particularly the enactment of the Victorian legislation, were the occasion for the introduction of s 111(1A) but that is not enough to justify characterisation of the provision as one which is aimed at Victoria. The provision is framed in general terms and is capable of applying to any State which introduces a system similar to the Victorian system. The fact that Victoria is the only State presently affected by s 111(1A) is not a compelling consideration, though it could conceivably be so in the absence of a rational and relevant connection between the basis on which that provision denies access, the application of s 111(1)(g) and the exercise of the powers conferred by the last-mentioned provision.

Whether s 111(1A) discriminates against Victoria, its employers and employees in the sense of being aimed at them is not a question to be determined by reference to the subjective motives of the legislators; rather, it is a question of determining what was the purpose of the enactment, a matter which is to be ascertained by reference to the substance and actual operation of the law in the circumstances to which it applies [68] . That was the approach which the Court adopted in Queensland Electricity Commission where the members of the Court, as we understand the judgments, examined the substance and operation of the statutory provisions in reaching their conclusions with respect to the validity of the impugned provisions.

1. Queensland Electricity Commission (1985) 159 CLR 192 at 249-250, per Deane J.

The prosecutor contended that there is no logical connection between refusing to make an award in the public interest pursuant to s 111(1)(g) and the absence of a system of compulsory arbitration in a State. That argument cannot be accepted. If the view be taken, as it has been taken by the Commonwealth Parliament that, in the public interest, industrial disputes should be resolved by means of compulsory arbitration, it is logical for the Parliament to conclude that a power given to the Commission to refrain from proceeding where it is in the public interest to do so should only be exercisable when an alternative system of compulsory arbitration is available. Further, the introduction of s 111(1A) can be supported on the ground that it eliminated or alleviated problems that would arise once State compulsory arbitration was no longer available. Applications under s 111(1)(g) would involve delay, even if the Commission decided to proceed due to the absence of compulsory arbitration. And, if the Commission were to decline to proceed and leave the dispute to voluntary arbitration, interstate industrial disputes might not be resolved satisfactorily.

The prosecutor advanced a further argument that s 111(1A) discriminated against Victorian employers as compared with employers in other States. This argument was based on the implication of equal treatment discussed in the judgments in Leeth v The Commonwealth [69] . This argument must also be rejected for the reasons given for the conclusion that the provision does not discriminate against the prosecutor. The existence of a rational and relevant connection between the two provisions, ss 111(1)(g) and 111(1A), is in itself an answer to the argument.

Discrimination - Interim Voluntary Departure Awards

The prosecutor's argument is that the interim awards in Matters M8 and M11 of 1993 discriminate against it by depriving it of its rights to negotiate redundancy agreements and to terminate employment, rights which are enjoyed by all other employers. As we have already concluded that these awards infringe the implied limitation, this argument does not require consideration.

Australian Federal Police Association - Amendment of Rules

The prosecutor argued that the implied limitation precludes the exercise of the Commission's powers with respect to a dispute between a State and its police officers and that such a dispute cannot amount to an industrial dispute within the meaning of s 51(xxxv). The prosecutor's argument was an extension of its principal contention relating to governmental functions on the footing that the police discharge a primary and inalienable governmental function.

The short answer is that the granting of consent by the Commission to an alteration of the eligibility rules of the Australian Federal Police Association would not in itself work any impairment of the capacity of the prosecutor to function as a government. Further, having regard to conclusions earlier stated in these reasons, there is no basis for holding that the Commission is precluded from exercising some powers in relation to the fixing by award of minimum wages for State police officers. The fact that a log of claims seeks more than the Commission has power to award is not a ground for holding that there is no industrial dispute so long as the Commission has power to make an award in relation to something that is sought in the log. The application for relief, as with the prosecutor's challenge to the findings of dispute in the other cases, is premature.

The orders to be made will give effect to the conclusions we have reached on the arguments presented to us with respect to the jurisdiction of the Commission to make findings of dispute and to make the interim awards and orders in Matters M11 of 1993 and M156 of 1993 restricting the employer's right to terminate the employment of employees on the ground of redundancy. Those arguments extended to the validity of the interim award made by the Full Bench of the Commission in Matter M8 of 1993. However, that award was set aside by the Full Bench on 27 October 1994 when it made a final award, the Victorian Teachers Redundancy Award 1994, which is not presently before the Court. In the absence of argument, we express no opinion about the validity of other awards and orders. If any question or questions arise with respect to such awards and orders, that question or questions can be raised in separate proceedings in the light of these reasons for judgment. In other words, the refusal of prerogative relief is without prejudice to the prosecutor's right to raise any such question or questions in separate proceedings.

Order nisi for prohibition directed to the respondents made absolute in so far as it relates to cl 3(1) of the Victorian Public Service Health Workers Redundancy Interim Award 1992, cl 4 of the Victorian Public Service Health Workers Voluntary Departure Package Interim Award 1993.

Order nisi for prohibition directed to the respondents made absolute in so far as it relates to cl 3(1) of the Victorian Public Service Health Workers Redundancy Interim Award 1992, cl 4 of the Victorian Public Service Health Workers Voluntary Departure Package Interim Award 1993.

Application for prohibition and certiorari refused.

Application for prohibition and certiorari refused.

Application for prohibition and certiorari refused.

Application for prohibition and certiorari refused.

Application for prohibition and certiorari refused.

Application for prohibition and certiorari refused.

Application for prohibition and certiorari refused.

Application for prohibition and certiorari refused.

In these matters various unions have sought to invoke the jurisdiction of the Australian Industrial Relations Commission (the Commission). That jurisdiction is conferred by the Industrial Relations Act 1988 Cth pursuant to s 51(xxxv) of the Constitution which gives the Commonwealth Parliament 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. Save for one matter, the industrial disputes which are relied upon in these cases as the foundation of the Commission's jurisdiction are said to have arisen between the State of Victoria and its employees or those of its agencies. Speaking in general terms, the categories of employees involved embrace virtually the whole of the public service of the State and extend beyond it to other employees who, if not strictly public servants, are employed by the State or its agencies in the public sector. The disputes are said to extend beyond the limits of Victoria because demands, which have not been met, have been made in other States in respect of employees in categories which correspond to those involved in Victoria.

The State of Victoria and its agencies, who are the prosecutors in the various matters, contest the jurisdiction of the Commission and seek to prohibit the Commission from purporting to exercise it. They do so upon the basis that there is no genuine interstate dispute in any of the matters and that, in any event, the Industrial Relations Act does not validly empower the Commission to make the awards sought which, having regard to the nature and extent of the demands, would have the effect of curtailing the State's capacity to exercise for itself its constitutional functions. In this respect, the respondents rely upon the implication to be drawn from the federal structure of the Constitution that the power of the Commonwealth Parliament does not extend to the impairment of a State's capacity to function effectively as an independent unit [70] .

1. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192

The power of the Commonwealth under s 51(xxxv) to affect the States or their instrumentalities was originally thought to be circumscribed by the doctrine of intergovernmental immunities. With the abandonment of that doctrine in the Engineers' Case [71] , it was established that the power of the Commonwealth Parliament under s 51(xxxv) extends to the making of laws binding on the States and their instrumentalities with respect to conciliation and arbitration for the prevention and settlement of interstate industrial disputes. Nevertheless, the question remained whether a dispute between a State and its employees might be described as industrial so as to fall within the reach of s 51(xxxv). Clearly enough, in the face of the Engineers' Case it could not be said that the governmental nature of the employment necessarily denied to it any industrial character; that would have been to reintroduce in another guise the doctrine of intergovernmental immunities. Rather, the conception was that the nature of the employment of some government employees meant that any dispute between them and their employer concerning their employment could not be described as industrial because it stood outside the whole world of productive industry and organised business carried on for the purpose of profit [72] . Thus in the Schoolteachers' Case [73] it was held that the educational activities of the States did not constitute an industry so that a dispute between the States and their teachers did not constitute an industrial dispute within the meaning of s 51(xxxv). The perceived inapplicability of s 51(xxxv) to disputes between those involved in the non-industrial services of the States and their employers meant that little attention was given to other aspects of the problem which arises from an exercise of the power under s 51(xxxv) affecting the States and their agencies. The occasion did not arise to consider whether the nature of the relationship between the Crown in right of a State and its employees was of an inherently intrastate character such that any dispute between them could not ordinarily form part of a dispute extending beyond the limits of the State. Nor did the occasion arise to consider the extent to which the power under s 51(xxxv) is confined by limits which the federal structure by implication imposes upon Commonwealth legislative power to affect the States.

1. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 2. See R v Conciliation and Arbitration Commission; Ex parte Professional Engineers' Association (the Professional Engineers' Case) (1959) 107 CLR 208 at 234. 3. Federated State School Teachers' Association of Australia v Victoria (1929) 41 CLR 569

In R v Coldham; Ex parte Australian Social Welfare Union (the Social Welfare Union Case) [74] the Court swept aside the notion that industrial disputes within the meaning of s 51(xxxv) are confined to disputes in productive industry and organised business carried on for the purpose of profit and held that they include all disputes between employers and employees about terms and conditions of work. The Court did not abandon the idea that there were some services of a State which could only be described as administrative and which, for that reason, were beyond the reach of s 51(xxxv). However, in Re Lee; Ex parte Harper [75] the Court held that State school teachers stood outside the administrative services of the State and so could be involved in an industrial dispute with the State.

The decision in the Social Welfare Union Case exposed, but did not answer, those problems arising from the application of s 51(xxxv) to the States and their agencies which had hitherto not claimed the attention of the Court. This was recognised. In the Social Welfare Union Case [76] the Court said:

It is also unnecessary to consider whether or not disputes between a State or a State authority and employees engaged in the administrative services of the State are capable of falling within the constitutional conception. It has been generally accepted, notwithstanding the Engineers' Case, that the power conferred by s 51(xxxv) is inapplicable to the administrative services of the States If the reasons hitherto given for reaching that conclusion are no longer fully acceptable, it may be that the conclusion itself finds support in the prefatory words of s 51 where the power is made "subject to this Constitution" The implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa). The nature of those limitations was discussed in Melbourne Corporation v The Commonwealth [77] , Victoria v The Commonwealth (the Pay-roll Tax Case) [78] , and the other cases there cited. If at least some of the views expressed in those cases are accepted, a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could not be sustained as valid, but as Walsh J pointed out in the Pay-roll Tax Case [79] , the limitations have not been completely and precisely formulated and for present purposes the question need not be further examined. And in Re Lee; Ex parte Harper [80] Gibbs CJ said: From the earliest times this Court has experienced a difficulty in reconciling the effect which the exercise of the power given by s 51(xxxv), construed without limitation, might have on the States with the position intended to be secured to the States by the Constitution. There have been a number of shifts of opinion, and the matter has never been fully explored. In particular, the questions whether it is possible to have a genuine interstate dispute involving the officials of one State who are doing no more than carrying out the administrative services of that State, and whether the artificial doctrine concerning paper disputes needs modification in the light of the illumination thrown on s 51(xxxv) by R v Coldham; Ex parte Australian Social Welfare Union , remain open for definitive discussion. 1. (1983) 153 CLR 297 at 313. 2. (1947) 74 CLR 31 esp at 55-60, 66, 70-75, 82-83. 3. (1971) 122 CLR 353 esp at 386-393, 402-403, 406-411, 417-424. 4. (1971) 122 CLR 353 at 410. 5. (1986) 160 CLR 430 at 443-444.

The artificial doctrine of paper disputes to which Gibbs CJ refers in that passage depends upon the theory that a dispute within the meaning of s 51(xxxv) can be created by formal demand and refusal and that such formal demand and refusal are sufficient to attract the jurisdiction of the Commission [81] . The more important thing for present purposes is not so much the creation of a dispute on paper as the creation of an interstate element by that means. A dispute on paper is only evidence of the existence of an actual dispute and in the end this Court, in proceedings of the present kind, must determine for itself whether an alleged dispute is real and genuine [82] . The observation made by this Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers' Union [83] is apposite:

It is true that when a writ of prohibition is sought the burden of showing that there is an excess of jurisdiction rests on those seeking the writ. But once the basis on which jurisdiction is asserted is disclosed the issue is defined and the existence or want of jurisdiction must depend on the facts affecting the question thus ascertained and their legal complexion. And the genuineness must extend not only to the existence of a dispute but also to its interstate character in order to establish the Commission's jurisdiction. 1. See R v Graziers' Association of NSW; Ex parte Australian Workers' Union (1956) 96 CLR 317 at 333 R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 337, 346. 2. See Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558 at 577-578 R v Blakeley; Ex parte Association of Architects etc of Australia (1950) 82 CLR 54 at 69 3. (1957) 99 CLR 505 at 511.

In some, perhaps most, cases, the interstate element of a dispute may be established by the mere refusal of employers in more than one State to accede to the same demands, but that cannot always be so. As this Court recently pointed out in Re Australasian Meat Industry Employees' Union; Ex parte Aberdeen Beef Co Pty Ltd [84] , even the same demands made upon and refused by different employers will not give rise to a single dispute unless there is a nexus between the parties which makes it so. And for a dispute to constitute an interstate dispute that nexus must extend beyond the limits of one State.

A sufficient community of interest amongst those by whom or upon whom the demands are made may suffice to provide the necessary nexus and that community of interest may arise from participation in a single industry. But the predominant aspect of employment by government in a State, particularly in the public service, is not the existence of an industry, assuming one to be identifiable, or a particular profession, trade or calling. Rather it is the governmental nature of the employment. It is the provision of particular services in the interest of the particular State - in the public interest - which provides the real community of interest. Community of interest of that kind is necessarily confined to the State whose interest is to be served. Put shortly, a dispute between one State and its employees is not, having regard to the relationship between them, likely to be the same dispute as that between another State and its employees even if the demands made upon each State are the same [85] .

1. The majority did not decide this question in Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 267, 271, 272; but cf 294-295, per Toohey J.

There are a number of reasons why that is so. The employment relationship between a State and its employees is not the same as the relationship between a private employer and its employees. The difference was summarised by Kitto J in Attorney-General (NSW) v Perpetual Trustee Co [86] :

It is true that the word "servant" is commonly used in such expressions as "public servant", "civil servant" and "servant of the Crown"; but the very qualifying words themselves point to the essential difference. They lift the word "servant" into a new and very different context; they emphasise that the services which flow from the relationship are of a public character, and are not owed to any individual for the advancement of his own concerns. In so far as the Executive may be entitled to insist upon their performance, it is for the reason only that the Executive is the organ of the State invested with that function. As Lord Esher MR said in Dunn v The Queen [87] , "All service under the Crown itself is public service all public service under the Crown is for the public benefit"; and the Court of Appeal held in that case that it was the public policy of the country - "the public interest" as Lord Herschell said [88] - that made it necessary to import into contracts of employment in the service of the Crown (in the absence of statutory provision to the contrary) a term entitling the Crown to determine the employment at its pleasure. The service of the Crown and private service, despite their points of resemblance, belong, therefore, to different fields of law. The Crown has its own peculiar rights, powers and responsibilities in connection with the conduct of the public affairs of the State; and it is, I think, a mistake to try to force the relationships into which the Crown enters with its subjects for the conduct of those affairs into categories established in the domain of private law, which, by their nature and their history, are appropriate only to relationships between subjects. 1. (1952) 85 CLR 237 at 301-302. 2. [1896] 1 QB 116 at 118. 3. Dunn [1896] 1 QB 116 at 119

No doubt, particularly in the light of the Social Welfare Union Case, it is appropriate to speak of disputes between a State and its employees as industrial disputes simply because they are disputes between an employer and its employees about the terms and conditions of employment. But they are disputes within a framework which is different not only from that within which disputes between private employers and their employees take place, but also from that which exists in other States. Nowadays, when the common law has given way to statute in the regulation of the relationship between the State and its employees, the terms and conditions of employment result from the expression of political will from time to time in relation to both the organisation of the public service and State agencies and the allocation of resources.

The background against which these matters are said to arise illustrates the point. In 1992 there was a change of government in Victoria. The new government's policies included the reduction of the current account deficit in the State, reform of the industrial relations system and reform of the terms and conditions of employment in the public sector. To these ends, the government embarked on a programme of financial reform which very much depended upon a reduction in the cost of State public services. Such a reduction depended in turn upon a reduction in the total wages bill and, accordingly, a reduction in the number of persons employed by the State and its agencies.

The government established a new regime in the regulation of industrial relations by the Employee Relations Act 1992 Vic. That Act abolished the system of compulsory arbitration which had previously existed, and it promotes the creation of collective or individual employment agreements, rather than awards, to govern relationships between employers and employees. In the public sector, reform was to be achieved primarily by the provisions of the Public Sector Management Act 1992 Vic which have the object of enabling public sector employees to be brought under the general industrial framework established by the Employee Relations Act upon a similar footing to employees in the private sector.

The State as an employer stands in a unique position, not only in having the aim of serving its public rather than of private gain but also in having the capacity within its own jurisdiction, and in the absence of prevailing Commonwealth legislation, of prescribing the conditions under which that aim is to be achieved. The State, within constitutional constraints, exercises sovereign power over those whom it employs. It can for practical purposes act only through those persons, and the relationship which exists between it and them is exclusive of the relationship which exists between another State and its employees. The community of interest which exists between the State and its employees is dictated by the requirements of government within the State and does not ordinarily extend beyond the limits of the State as does the community of interest which exists between employees in the private sector engaged in a single industry crossing State boundaries. As a general rule it cannot, therefore, serve to generate a dispute extending beyond the limits of the State.

As I have said, the prosecutors, in addition to contesting the existence of an interstate dispute, place reliance upon the implied limitation upon Commonwealth legislative power which arises because:

The foundation of the Constitution is the conception of a central government and a number of State governments separately organised. The Constitution predicates their continued existence as independent entities. [89] Upon the basis of that implied limitation, a law under s 51(xxxv) will be invalid "if it would prevent a State from continuing to exist and function as such" [90] . 1. Melbourne v The Commonwealth (1947) 74 CLR 31 at 82, per Dixon J. 2. Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 206, per Gibbs CJ.

Difficulty is inevitably encountered in attempting to identify the point at which a law, particularly a law of general application, may prevent a State from functioning effectually as an independent unit. The difficulty may be less in the case of a discriminatory law [91] . In the light of the Engineers' Case, it is necessary to start with the proposition that a law under s 51(xxxv) may bind a State and its instrumentalities, but having regard to the nature and scope of State employment, there is no readily discernible line between those aspects of the relationship between a State and its employees which may be externally regulated without interference with the capacity of the State to function independently and those which may not. If the determination of the number and identity of persons to be employed is critical to the functioning of a State, then so too will be the wages and conditions of employment, for the former cannot be determined in isolation from the latter, if only because of the budgetary considerations which constrain any government. It is obvious that if, for example, a State is required to pay a substantial increase in wages to its teachers (who are employed in significantly large numbers), it may have as much impact on the State's budget and the implementation of its policies as an award prohibiting redundancies in that workforce. It is similarly artificial to draw a line between those employed at the higher levels of government and those employed at the lower levels. To do so is merely to revive the distinction between industrial and non-industrial functions which is of little relevance in the context of industrial disputes as they are now viewed. A State can function only through those whom it employs, whatever the level of employment, and the external regulation of the terms and conditions of employment of those employed at the lower levels may, if for no other reason than their numbers, be as destructive of the capacity of a State to function as an independent unit as the regulation of the terms and conditions of those employed at the higher levels.

1. Queensland Electricity Commission (1985) 159 CLR 192 at 206-207, per Gibbs CJ; at 217, per Mason J.

Nevertheless, the implied limitation upon legislative power arising from the federal structure may shed light in a different way upon the problems arising from the application of s 51(xxxv) to the States. For the implication protects, but does not create, the States as independent units within the federation. It is the Constitution itself which establishes the position of the States and which necessarily gives rise to an implication preserving that position by imposing limits upon the exercise of Commonwealth legislative power. And it is the position of the States as independent units of government with power to define their own relationship with their employees which results in s 51(xxxv) having a limited application, not by reason of any implication, but because the express terms of s 51(xxxv) reach only the prevention and settlement of disputes extending beyond the limits of any one State. For the reasons which I have given, the radical differences between a State as an employer and a private employer ordinarily confine a dispute between a State and its employees within the boundaries of a State.

This, I think, is demonstrated by the fact that when in the past an industrial dispute between more than one State and its employees has been found to exist - generally a paper dispute arising merely from the service and refusal of a log of claims in more than one State - the settlement of the dispute has invariably been by awards made upon a State by State basis, at least where no private employer is involved [92] . Whilst this Court has upheld the practice of the partial settlement of a single dispute by separate awards, the need to deal with industrial disputes involving the public sector upon a State by State basis points almost inexorably in my view to the conclusion that what is said to be a single dispute is in fact a series of disputes, whether on paper or not, between each State and its employees. Indeed, in these very cases where awards have been made they have been confined to the State of Victoria and have been quite plainly tailored to fit the situation arising from the current policies of the government of that State.

1. See, eg, R v Isaac; Ex parte State Electricity Commission (Vic) (1978) 140 CLR 615

The fact that the reach of s 51(xxxv) does not ordinarily extend to the prevention and settlement of disputes involving a State and its employees is consonant with the purpose underlying that paragraph. That purpose is to confer power to deal with industrial disputes which lie beyond the competence of any one State government because they extend beyond that State's boundaries. But having regard to the powers which a State has over its own employees it can hardly have been contemplated that, save perhaps for extraordinary situations, a dispute between a State and its employees would extend to other States and so require any settlement to be made upon a federal basis.

Whilst this Court would seem to have had an almost instinctive realisation that s 51(xxxv) must be of limited application in relation to the States, in the past it has expressed itself by concentrating upon the supposed distinction between industrial and non-industrial disputes and has paid little or no attention to the questions raised in these cases. It is only because the Social Welfare Union Case, in deciding that any dispute between an employer and its employees concerning the terms or conditions of employment is an industrial dispute, has shifted the focus that these questions now arise. The older authorities for that reason offer little assistance in answering those questions.

It follows from what I have said that, in my view, a prima facie interstate dispute does not arise from the mere making of demands upon more than one State or its agencies with respect to the terms and conditions of employment of their employees. Industrial disputes may occur as a result, but ordinarily they will not be of an interstate character. If an interstate element is to be established it will require the demonstration of some nexus between the parties other than that of employment by a State or its agencies in a particular capacity. In the light of the view which I have expressed it is convenient now to turn to the individual matters.

Re Australian Education Union and Others (M8 of 1993)

In this matter the prosecutors seek to prohibit further proceedings on a finding of the existence of an interstate industrial dispute made at first instance by Senior Deputy President Riordan and confirmed by a Full Bench of the Commission on 24 December 1992, and to quash the dispute finding and an interim award made upon the basis of that finding. The dispute found by the Commission was said to arise from the failure of the States of Victoria and Tasmania to comply with a single demand served upon them by the Australian Teachers' Union (now the Australian Education Union). That demand was:

No teacher employed by you shall be terminated from his or her employment, whether by way of voluntary redundancy or otherwise except with the consent of the Australian Teachers Union. Upon the basis of that dispute finding the Commission proceeded to make an interim award [93] , confined to the State of Victoria, purporting to restrict the power of the State to terminate the employment of teachers employed by it who were considered redundant and modifying the effect of a scheme under which the State offered voluntary separation packages to teachers in order to induce them to leave their employment voluntarily. 1. The Victorian Teachers Redundancy Interim Award 1992 was made by Senior Deputy President Riordan on 1 December 1992 and varied by a Full Bench of the Commission on 24 December 1992.

In making its dispute finding the Commission had before it evidence of the intention of the State of Victoria to reduce the expenditure of its Department of Education by at least $86 million from the previous year's budget of $2.6 billion. This was to be achieved to a significant extent by a reduction in teacher numbers, the eventual reduction involving the elimination of some 4,000 positions from the current teaching service of about 42,000 positions. The principal means of achieving the reduction was the scheme involving the voluntary separation packages. This scheme was found by the Commission to be "driven by budget objectives".

There was also evidence, accepted by the Commission, that in Tasmania an agreement between the teachers' union and a former government concerning the voluntary redundancy of teachers employed by it had lapsed and that attempts to obtain a new agreement had lapsed. A claim had been made before the Industrial Relations Commission of Tasmania for increases in teachers' salaries and the government had indicated that, if increases were granted which had an impact upon the budget, the State might be forced to legislate to override the decision or to reduce the number of teachers.

We have no doubt that an intrastate dispute about abruptly introduced and implemented changes to conditions of teachers in Victoria was the primary stimulus to the ATU decision to serve the demand and notify a dispute. Nor is there any room for doubt that the ATU's immediate priority is the achievement of an award imposing restraint on the Victorian employer of its membership. The Commission viewed the situation existing before the service and refusal of the demand by the union as being that of two separate intrastate disputes, albeit about similar matters, but concluded "that the refusal by the respective employers of the letter of demand has given rise to a genuine industrial dispute with the required interstate character". The Commission reached that conclusion upon the basis that the service and refusal of the letter of demand was prima facie evidence of a genuine industrial dispute with the required interstate character and that there was no evidence to rebut that prima facie position. The Commission made no finding independently of the service and refusal of the letter of demand of the existence of any dispute of an interstate character.

In reaching its conclusion the Commission said that it did not "consider that the character of each employer as a manifestation of the State Government as a factor which in the circumstances of this case points for, or against, there being a real dispute in existence". But, of course, the question was not so much whether any dispute was real but whether it was a single dispute extending beyond one State or consisted of separate disputes confined to the States concerned. For the reasons which I have endeavoured to explain, it is the very nature of the State as an employer, confined as it is in making its decisions to considerations affecting the State, which prevents the mere refusal of the same demand made in more than one State being prima facie evidence of a single interstate dispute or, in the particular circumstances of this case, of the conversion of two separate intrastate disputes into a single interstate dispute. There is no necessary nexus between one State or its employees and another State or its employees which will provide the required community of interest as private employment in a single industry will ordinarily do. The mere refusal by more than one State of the same demand does not constitute prima facie evidence of a single dispute of an interstate character. There was in this case no evidence other than the refusal of the letter of demand which pointed to the existence of a single interstate dispute or to the conversion of the existing intrastate disputes into a single interstate dispute. The finding made by the Commission of the existence of an industrial dispute extending beyond the limits of any one State was therefore in error.

Various developments have taken place in other proceedings relating to teachers employed in Victoria but the matters in relation to which the prosecutors were granted orders nisi for prerogative relief are confined to those mentioned above. I would make the orders nisi absolute.

Re Australian Nursing Federation and Others (M10 of 1993)

This matter arises from the service by the Australian Nurses Federation of a log of claims on more than 100 community health centres in Victoria and hospitals in Queensland and Tasmania. The log covers terms and conditions of work for members or persons eligible to be members of the union. A finding of the existence of an industrial dispute in Victoria, Queensland and Tasmania was made on 3 June 1991. The finding was based entirely upon the service and non-acceptance of the log of claims.

Community health centres are bodies whose purposes and functions are governed by the Health Services Act 1988 Vic. They provide health and associated community services to particular communities. The health services are provided pursuant to a Health Services Agreement made under s 26 of the Health Services Act. Community health centres are funded mainly by the State of Victoria and the allocation of funds is determined by the State having regard to budgetary constraints and government policy.

Community health centres are agencies or instrumentalities of the State of Victoria and, for the reasons which I have already given, the mere service of a log of claims upon hospitals in Queensland and Tasmania as well as upon the community health centres in Victoria and the non-acceptance of the log cannot, even assuming the existence of a dispute between the State and the union, constitute prima facie evidence that the dispute extends beyond the limits of the State. There is no other evidence of the existence of an interstate dispute.

The prosecutors seek to prohibit further proceedings on the finding of an interstate dispute and to quash the finding in so far as it relates to community health centres in Victoria. I would make the orders nisi absolute.

Re Health Services Union of Australia and Others (M11 and M156 of 1993)

The entitlement of the prosecutors to relief in these matters is ultimately dependent upon the finding of the existence of an interstate industrial dispute made in the Commission by Deputy President MacBean on 14 December 1992 and varied on 2 December 1993. That finding was upheld by a Full Bench on 20 May 1993. The dispute found to exist was a paper dispute arising from the failure by the employers upon whom a log of claims was served to accede to its demands. The log related to the terms and conditions of employment of persons engaged in the provision of nursing and other services to the mentally ill or intellectually disabled. The log was served on the States of Victoria, Western Australia and Tasmania as well as a number of private employers. The log contained demands relating to recruitment, transfer, discipline, termination and redundancy procedures. In relation to redundancy it claimed that "the employer shall not make any employee redundant without the explicit agreement of the Union".

Following the finding of a dispute by Deputy President MacBean, he made an interim award [94] , confined to Victoria, dealing with the provision of voluntary departure packages by the State in a situation where, as he found it, substantial numbers of employees were redundant and, because of severe budgetary restraints, the government had adopted a policy of contracting out. He observed that the new Public Sector Management Act 1992 Vic provided no permanency in government employment. The interim award was in the following terms:

(i) That the employer take no further step whatsoever to process the Voluntary Departure Package in the terms of or to the effect of the document attached hereto and without limiting the generality of the foregoing the employer shall not make any further offer pursuant to the Voluntary Departure Package.

(ii) No employee be dismissed except on the grounds set out in Section 57 or Section 59(b), (c) and (d) of the Public Service Act 1974.

1. Victorian Public Service Health Workers Redundancy Interim Award 1992. The award was varied by consent on 22 January 1993 to enable the State government to process voluntary departure packages in accordance with certain agreed procedures. The award as varied became known as the Victorian Public Service Health Workers Voluntary Departure Package Interim Award 1993.

On 23 December 1993, an interim order was made by the Commission stating that the terms and conditions of employment of the relevant employees were to be frozen as at 2 December 1993, and that persons employed after 23 December 1993 were to be employed on the terms and conditions of employment in force on 17 November 1992.

In making his dispute finding the Deputy President dealt with a submission made on behalf of Victoria that there was no genuine interstate industrial dispute. Deputy President MacBean said:

Mr McDonald was unable to point to one piece of evidence which would sustain such a statement. There is nothing before the Commission which would displace the prima facie right of the HSUA to have the Commission exercise its jurisdiction. This was in circumstances where the opportunity was available to Mr McDonald to seek, produce or point to any evidence establishing a lack of genuineness in the service of the log. The Commission therefore found that the State of Victoria was not only a party to a dispute but was a party to a dispute of an interstate character and it did so upon the prima facie evidence provided by the mere service and non-acceptance of a log of claims. As I have said, where a State is alleged to be a party to a paper dispute, its position as an employer is so radically different from that of a private employer that the paper dispute cannot constitute prima facie evidence that the dispute, so far as the State's involvement is concerned, extends beyond the limits of the State. An interstate element is something which may be established, but not upon the basis of a paper dispute. Indeed, the making of an interim award, confined to Victoria, immediately after a dispute was found to exist would rather suggest that any dispute between the State and its employees was of an intrastate character, particularly when the interim award was prompted by a State policy with respect to redundancy. The finding that there was a dispute between the State of Victoria and its employees extending beyond the limits of the State was, in my view, made in error.

Based upon that finding various orders were made by the Commission against which the prosecutors seek prerogative relief in Matters M11 and M156. I would make the orders nisi as amended absolute.

Re Australian Nursing Federation and Others (M12 of 1993)

Towards the end of 1992, various matters were brought on in the Commission before Senior Deputy President Riordan in which findings of dispute had been made upon the basis of the failure of a number of employers, including the State of Victoria, to accede to logs of claims served upon them in respect of the terms and conditions of employment of nurses and other health services employees. The logs were served by the Royal Australian Nursing Federation (now the Australian Nursing Federation) and the Hospital Employees' Federation of Australia (now the Health Services Union of Australia) between 1983 and 1987 and various dispute findings were made. Subsequently, awards were made in respect of nurses employed in Queensland, Tasmania, South Australia and Western Australia.

The matters were brought on in 1992 by the two unions seeking an award confined to Victoria covering nurses and other health services employees employed by public and private hospitals, nursing homes, psychiatric and mental health hospitals and various institutions of a similar kind. The public hospitals concerned are, as are community health centres, a means by which the State of Victoria provides health services involving the use of public funds. It would appear to be the new policy of the State government resulting in the passing of the Employee Relations Act 1992 Vic which prompted the unions to bring the matters on.

Despite the long time which had elapsed since the relevant findings of dispute were made, Senior Deputy President Riordan relied on them to make an award [95] covering nurses and other health services employees who are employed by public and private hospitals and various institutions providing similar services. Assuming there still to be a live dispute between the unions and the State arising from the State's failure to accede to the relevant logs of claims, it was not, in my view, possible upon the material before the Commission to conclude that it extended beyond the limits of the State. The disputes found to exist between the unions and the State were paper disputes which afforded no prima facie evidence of an interstate element. And in the time which elapsed between the findings and the date upon which the award was made it is plain that the position of the State had changed.

In those circumstances, the Commission was in error in proceeding upon the basis that the relevant findings of dispute established that the disputes, in the case of Victoria, extended beyond the limits of the State. The prosecutors seek to quash the various findings of dispute and the award and to prohibit further proceedings on the findings of dispute. I would make the orders nisi absolute.

Re Health Services Union of Australia and Others (M15 of 1993)

The union in this matter is the Health Services Union of Australia (formerly the Hospital Employees' Federation). On 17 December 1990, it served a log of claims relating to the terms and conditions of employment of its members or persons eligible to be members in administrative and professional non-nursing positions in public and private hospitals, nursing homes and other health care facilities. The public hospitals and other health care facilities in Victoria are, for the reasons already given, agencies of the State. The log was served in Victoria and Tasmania. A subsequent log of claims was served on employers in Tasmania and South Australia. Commissioner Turbet found a dispute in relation to those logs on 10 January 1992. The findings were upon paper only and the interstate element of the disputes which was found to exist can only have been upon the basis that the service of the logs and the failure of employers to accede to them in more than one State constituted prima facie evidence of that element. So far as the State is concerned, that is an insufficient basis upon which to find that the dispute extended beyond the limits of the State.

Subsequently, relying upon the findings of dispute, an interim award [96] was made. The orders nisi seek to quash the finding of dispute made on 10 January 1992 in so far as the finding relates to public hospitals and other public health care agencies of the State of Victoria. The orders also seek to quash the interim award and to prohibit further proceedings on those findings. I would make the orders nisi as amended absolute.

1. Health Services Union of Australia (Victoria - Public Sector) Interim Award 1993.

Re Health Services Union of Australia and Another (M17 of 1993)

In this matter the Health Services Union of Australia served a log of claims relating to the terms and conditions of employment of its members or persons eligible to be members performing ancillary functions in the health care area. Those functions include the provision of food, domestic services, cleaning and laboratory assistance. The log of claims was served in Victoria, Tasmania, Western Australia and the Australian Capital Territory upon employers including public hospitals, community health centres and other institutions. The employers upon whom the log of claims was served did not accede to it.

A finding of the existence of a dispute was sought from Senior Deputy President Riordan. No finding was, however, sought in respect of persons whose employment was regulated by the Public Service Act 1974 Vic. On 11 December 1992, Senior Deputy President Riordan made a finding of the existence of a dispute in relation to the remaining employers in Tasmania, Western Australia and a number of State agencies in Victoria such as public hospitals and community health centres. The finding of an interstate element in the dispute with these bodies was made upon the basis of the service of the log of claims upon employers outside Victoria and their failure to accede to it. That was regarded as evidence that the dispute extended beyond the limits of the State of Victoria. For the reasons which I have given, I do not consider that the existence of a paper dispute in different States constitutes prima facie evidence of the existence of an interstate element in a dispute with a State or its agencies. The finding in relation to the State of Victoria or its agencies made by Senior Deputy President Riordan was, in my view, in error.

On 23 December 1993, Senior Deputy President Riordan made an interim award [97] based on the finding of dispute made on 11 December 1992. The prosecutors seek to quash the finding of dispute and the interim award so far as they relate to public hospitals, community health centres and other public health care agencies of the State of Victoria and prohibit further proceedings on the finding. I would make the orders nisi as amended absolute.

1. Health Services Union of Australia (Victoria - Public Sector) Interim Award 1993.

Re Australian Liquor, Hospitality and Miscellaneous Workers Union and Others (M20 of 1993, M21 of 1993, M22 of 1993, M23 of 1993)

These matters concern logs of claims which were served by the Australian Liquor, Hospitality and Miscellaneous Workers Union with respect to the terms and conditions of its members or persons eligible to be members who are engaged in cleaning and security duties in schools and government departments, workers providing before and after school child care and teachers' aides. The logs were served upon employers, including the State of Victoria, and in other States or Territories. In each matter a finding of the existence of a dispute involving the State of Victoria or its agencies and extending beyond the limits of the State was made. So far as the findings that the disputes with the State or its agencies extended beyond the limits of the State are concerned, the only evidence before the Commission was the service of the log upon employers outside the State and the failure of the employers upon whom the log was served to accede to its claims. That, in my view, was insufficient to establish that any dispute with the State of Victoria and its agencies extended beyond the limits of the State.

The prosecutors seek to quash the findings of dispute. In Matters M21 and M22 interim awards [98] were made on the basis of the relevant findings of dispute. The prosecutors seek to quash those interim awards. They also seek to prohibit further proceedings on the findings of dispute. I would grant the orders nisi as amended and make them absolute.

1. Kindergarten and Play Centre Assistants (Victoria) Interim Award 1993; Teacher Aides (Victorian Government Schools) Interim Award 1994.

Re State Public Services Federation and Another (M24 of 1993)

In November 1991, the State Public Services Federation served a comprehensive log of claims upon several hundred bodies in the public sector in all States, including 191 ministries, departments, courts, tribunals, authorities and other agencies in the State of Victoria. The claims made in the log were in respect of employees performing professional, administrative and clerical duties. On 8 April 1992, Deputy President MacBean made a finding of the existence of a dispute based upon the failure of the employers served with the log to accede to it. The dispute found was merely a paper dispute.

On 6 December 1992, an interim award [99] was made upon the basis of the dispute finding covering administrative, library and laboratory support staff employed in Victorian government schools. On 17 March 1993, McHugh J ordered that an application by the State of Victoria for orders nisi for writs of prohibition and certiorari in relation to the dispute finding and the interim award be made by motion upon notice before a Full Court [100] . It is pursuant to that order that this matter is now before us.

1. State Government Schools Professional, Administrative, Clerical, Computing and Technical (PACCT) Vic (Interim) Award 1992. 2. Subsequently the application was amended to include further awards and an order made on the basis of the dispute finding of 8 April 1992. They are the Harness Racing Board and Greyhound Racing Control Board Employees (Interim) Award 1992, Victorian State Agencies (Roping-in No 1) Award 1992, SPSF Zoological Board of Victoria, Salaried Staff Public Holidays (Interim) Award 1994, and the interim order made on 9 May 1994 by Commissioner Bacon.

On 21 May 1993, Deputy President MacBean granted an application to vary the dispute finding made on 8 April 1992 by adding thirteen statutory authorities in New South Wales as parties to the dispute. The application was opposed by the State of New South Wales. In granting the application Deputy President MacBean rejected a submission that "there was not an interstate dispute because of the intrastate function and operation of the employers logged in each State" and adopted a view previously expressed by the Commission that "the governmental character of the employment does not warrant a refusal by the Commission to accept the evidence of the paper dispute as sufficient evidence of an industrial dispute". For the reasons I have given, to the extent that it extends to the existence of an interstate element in an industrial dispute, I am unable to accept that view.

On 9 May 1994, Commissioner Bacon made an interim order preventing the application of the Public Sector Management (Amendment) Act 1993 Vic to employees of the Crown who are employed as prison staff, and requiring the observance of various public holidays in the industry.

For reasons which I need not examine in any detail, on 12 September 1994, the Commission found that the dispute previously found to exist on 8 April 1992 by Deputy President MacBean had ceased to exist on 28 July 1993. Accordingly, the Commission revoked that finding from 28 July 1993. Nevertheless, any awards or orders made upon the basis of that finding before 28 July 1993 may, depending upon the validity of the finding, remain on foot. As I have indicated the dispute finding was made solely upon the basis of the service of a log of claims to which the employers served failed to accede. Such a paper dispute could not, in the case of the State of Victoria, constitute prima facie evidence of an interstate element and the finding was, in relation to the State, in error. I would grant the orders nisi and make them absolute in relation to the dispute finding made by Deputy President MacBean and in relation to any award or order made upon the basis of that finding which has been included by amendment of the application in relation to which McHugh J made his original order.

Re State Public Services Federation and Others (M25 of 1993)

This matter arises in part out of the dispute found to exist by Deputy President MacBean on 8 April 1992, which is dealt with in relation to the previous matter (M24 of 1993). Included in the parties to that dispute were the Metropolitan Fire Brigades Board and the Country Fire Authority. They would appear to be Victorian government agencies.

In June 1992, the Australian Services Union served a log of claims upon the Victorian Metropolitan Fire Brigades Board and the South Australian Metropolitan Fire Service in respect of the terms and conditions of employment of their employees. On 26 June 1992, Deputy President Polites found the existence of an interstate industrial dispute arising out of the service of the log and the failure of the employers upon whom it was served to accede to it. Both it and the dispute found by Deputy President MacBean were paper disputes only.

On 8 July 1992, Deputy President Polites made an award [101] upon the basis of the dispute found by him to exist. Subsequently the award was varied to add various parties to the dispute found to exist by Deputy President MacBean.

1. Metropolitan Fire Brigades (Enterprise Bargaining) Award 1992.

On 17 March 1993, McHugh J directed that an application by the State of Victoria for orders nisi for writs of prohibition and certiorari in relation to both findings of dispute be made by motion upon notice before a Full Court. It is as a result of that direction that this matter is now before us. As I have indicated in relation to the previous matter, the dispute finding made by Deputy President MacBean in relation to the log served by the State Public Services Federation has been revoked from 28 July 1993 but the finding made by Deputy President Polites based on the log served by the Australian Services Union is unaffected by that revocation. Since the dispute found by Deputy President Polites is merely upon paper, so far as the State of Victoria is concerned it does not afford prima facie evidence that the dispute extends beyond the limits of the State. Accordingly, in relation to that finding of dispute I would grant the orders nisi and make them absolute.

Re Printing and Kindred Industries Union of Australia and Another (M26 of 1993)

On 25 November 1992, the dispute in this matter was found to exist upon the basis of the service of a comprehensive log of claims on employers in New South Wales, Western Australia and Victoria, including several offices of the Printing and Publishing Services Victoria. The employers did not accede to the log. On 18 May 1993, the Commission made a formal finding of dispute between the union and the State of Victoria in relation to the government printing office which is now known as Printing and Publishing Services Victoria. The basis upon which the dispute involving the State of Victoria was found to exceed the limits of the State was that prima facie evidence was afforded by the service of the log interstate. As I have said, in the case of the State the service of the log on employers outside Victoria does not amount to prima facie evidence of an interstate element.

On 17 March 1993, McHugh J directed that an application by the State of Victoria for orders nisi for writs of prohibition and certiorari in relation to the dispute finding be made by motion upon notice before a Full Court. I would grant the orders nisi as amended and make them absolute.

Re Australian Federal Police Association and Another (M30 of 1994)

This matter does not involve a finding of the existence of an industrial dispute extending beyond the limits of any one State. It arises from an application made by the Australian Federal Police Association pursuant to s 204 of the Industrial Relations Act 1988 Cth. That section requires the consent of a designated Presidential Member of the Commission to an alteration to the eligibility rules of an organisation registered under the Act. The union's application was for consent to the extension of its eligibility rules to include members of the police forces of the States and Territories as well as members of the Australian Federal Police. Consent was given by Deputy President Williams on 15 November 1993.

On 30 March 1994, I granted orders nisi for writs of prohibition and certiorari to quash the decision of the Deputy President and prohibit further proceedings upon it.

The argument put by the prosecutors is that the police force carries out an essential governmental function which is beyond the reach of Commonwealth legislative power because of the implied limitation which arises from the federal structure. However, the extension of eligibility for membership of the union to include members of the State police force cannot, of itself, affect the continued existence of the State as an independent entity. Whether the making of an award would do so would depend upon the nature of the award, but the making of an award, if it is to happen at all, is in the future and is dependent upon the occurrence of a number of contingencies.

Nor do I think that it is possible to say that there could never be a dispute involving State police forces and extending beyond the limits of any one State. For the reasons I have given, it is unlikely that a sufficient community of interest would exist between the members of police forces in different States such as to displace the intrastate character which employment by a State imparts to any dispute involving the State. A mere paper dispute would not constitute prima facie evidence of an interstate element. But a genuine interstate dispute is not inconceivable and its unlikelihood can constitute no ground for the refusal of consent to the alteration of the union's eligibility rules.

For these reasons I would discharge the orders nisi in this matter.

Discrimination - s 111(1A) of the Industrial Relations Act

In Matter M21, the State of Victoria submits that s 111(1A) of the Industrial Relations Act, which denies the application of s 111(1)(g)(iii) in circumstances which prevail in Victoria, is invalid because it discriminates against the State. I would reject that submission for the reasons given by the majority.

Discrimination - Interim Voluntary Departure Awards

It is unnecessary to consider whether the awards in Matters M8 and M11 of 1993 discriminate against the State of Victoria in an unconstitutional manner in view of my conclusion above concerning those awards.