Re Griffin; Ex parte Professional Radio and Electronics Institute (Aust.) [1988] HCA 72

The P.R.E.I.A. seeks an order nisi returnable before a Full Court of this Court for a writ of prohibition directed to the Commissioner, the Overseas Telecommunications Commission and the Minister for Transport and Communications prohibiting them from proceeding further on the decision of 15 February 1989 and a writ of certiorari to remove that decision to be quashed on the ground that the P.R.E.I.A. was denied natural justice in that the Commissioner failed to provide it with an opportunity to be heard and to present evidence prior to reaching her decision of 15 February 1989. The supporting affidavit shows an arguable case for prohibition. Whether the decision made by Commissioner Griffin is amenable to certiorari may be open to argument.

The purpose of applying to this Court for prohibition and certiorari is to secure to employees under the relevant award the benefit of the $10 per week increase which, if Commissioner Griffin's earlier decision had not been changed, would be effective from the first pay period after 26 March 1989.

An application for the purpose of securing or preventing the payment of an increment to weekly wages is always attended with some urgency. The dynamics of industrial relations and the exigencies of household budgeting require early solutions to wage disputes. It is regrettable that this Court, the ultimate appellate court for Australia and the ultimate interpreter of the Constitution, is the only court with jurisdiction to supervise the exercise by the Conciliation and Arbitration Commission of its important powers under the Conciliation and Arbitration Act.

The speedy resolution of the legal aspects of industrial disputes is a desirable, if not essential, element of an effective conciliation and arbitration system. Characteristically, the legal questions which arise are of a familiar kind: construction of rules, alleged denials of natural justice and factual inquiries into the existence of interstate industrial disputes. The present case is no exception. Yet the Parliament has excluded decisions made by the Commission under the Conciliation and Arbitration Act and decisions to be made under the Industrial Relations Act 1988 Cth from the jurisdiction of the Federal Court which, as a court regularly exercising original jurisdiction, is equipped to deal speedily with applications to supervise the exercise of non-judicial powers. The lists of this Court, on the other hand, cannot easily be adjusted to make room for cases of urgency competing for priority with other cases of general public importance. It is not practicable for the present case to be heard by a Full Court of this Court until the sittings appointed to commence on 2 May. And thereafter the formulation of reasons could further delay the final disposition of the case. The importance of this case to the parties to the Award and its significance for the procedures of the Commission are undoubted. But the resolution of this case will be delayed inevitably to the possible detriment of industrial peace.

These considerations led me to consider whether the applicant ought not be required to seek relief by appeal to the Full Bench of the Commission pursuant to s. 35(2)(a) of the Act before being granted an order nisi. The respondents, the Overseas Telecommunications Commission and the Minister, submit that an appeal lies to the Full Bench of the Commission under s. 35(2)(a) and that it is premature to grant an order nisi before the applicant seeks relief at the hands of the Commission. The jurisdiction of this Court under s. 75(v) of the Constitution is, at least in cases where prohibition to a federal court is sought, discretionary: Re Wilkie; Ex parte Johnston [1] ; Reg. v. Ross-Jones; Ex parte Green [2] . And in Reg. v. Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [3] , Mason J. observed:

by reason of their very nature and their capacity to create unemployment, to dislocate industry and to disturb the life of the community including the essential services on which the community depends, industrial disputes call for speedy and final determination, an object which is best achieved by recognizing that the remedy of a party complaining that he has been denied natural justice at first instance is to exercise his right of appeal under s. 35 to the exclusion of pursuing relief by way of prerogative writ. I would add that the responsibility for the prevention or settlement of industrial disputes by conciliation or arbitration is placed by s. 18 of the Act on the Commission as a whole. 1. (1980) 55 A.L.J.R. 191; 33 A.L.R. 660. 2. (1984) 156 C.L.R. 185. 3. (1981) 147 C.L.R. 471, at p. 484.

Although this Court is bound to exercise the jurisdiction invested in it, it may be premature to grant an order nisi to an applicant who has abstained from applying to the Commission for relief which is available at its hands.

However, in this case there is an argument, supported by reference to an earlier Commission decision (Ship Painters and Dockers and Ironworkers [4] ), that the decision which the applicant seeks to challenge does not found an appeal pursuant to s. 35(2)(a) of the Act. (The decisions in Vehicle Builders [5] and Postal Clerks [6] appear distinguishable.) As it would not be appropriate to adjourn the application for relief in this Court when the availability of alternative relief before the Commission is doubtful, I shall make an order on the P.R.E.I.A.'s application returnable before a Full Court in the sittings appointed to commence on 2 May 1989.

1. (1962) 99 C.A.R. 585. 2. (1957) 88 C.A.R. 407, at p. 408. 3. (1970) 137 C.A.R. 746, at p. 752.

The applicant seeks a stay of the decision of Commissioner Griffin of 15 February 1989. The stay is sought on the assumption that it would lead to the payment of the $10 increase from the first pay period after 26 March. If that assumption be right, Commissioner Griffin's decision must have had some legal effect and, if it did, an appeal might lie to the Full Bench of the Commission under s. 35(2)(a), for the Commission in Stockland Press [7] , adopted the test of legal effect to determine whether an appeal might lie.

However that may be, there are more substantial reasons for refusing a stay. A stay of a Commissioner's decision is exceptional. This was pointed out in Re Federated Ironworkers' Association of Australia; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [8] , in Re Merriman; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [9] , and in Re McKenzie; Ex parte Federated Liquor and Allied Industries Employees Union [10] . There are sound reasons for this rule. Decisions of the Commission are made in a climate of industrial relations and of economic conditions which presents a multitude of considerations which the Commission must evaluate in deciding where the merits lie. This Court is concerned solely with the legality of the exercise or purported exercise of the Commission's powers and not with the merits of the decision whose legality is challenged. Exceptional circumstances need to be shown to warrant the making of an order by this Court, before it determines the legality of an impugned decision, which affects the merits of a problem in industrial relations. In this case, it would be inappropriate for this Court to attempt to determine where the merits lie. Yet that is the result which the applicant seeks by an exercise of this Court's discretion to stay the Commissioner's decision until the case is disposed of. A stay must be refused and the position must be left unaltered by this Court until the Full Court decides whether the Commissioner has validly exercised her powers. If, in the meantime, the parties wish to invoke the Commission's jurisdiction to alter that position, whether under s. 35(2)(a) or otherwise, there is no order of this Court which inhibits their freedom to do so or which restricts the Commission in the exercise of its powers.

1. (1981) 55 A.L.J.R. 395, at pp. 396-397; 34 A.L.R. 208, at p. 211. 2. (1984) 53 A.L.R. 440, at p. 443. 3. (1985) 11 I.R. 297, at p. 298.

To emphasize that the challenge to the legality of Commissioner Griffin's decision does not affect the present powers of the Commission I propose, instead of granting an order nisi, to direct pursuant to O. 55, r. 2 that the P.R.E.I.A. apply by notice of motion to a Full Court for the issue of writs of prohibition and certiorari and to adjourn the present application so that notice of the application may be given accordingly.