High Court of Australia|1993-06-03|Before: Gaudron J, Brennan J, Dawson J, Toohey J

Re Printing & Kindred Industries Union Ex Parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 113 ALR 421; (1993) 67 ALJR 604 (3 June 1993)

[1993] HCA 81; (1993) 113 ALR 421, (1993) 67 ALJR 604

Brennan(1), Dawson(2), Toohey(3), Gaudron(4) and McHugh(5) JJ

TOOHEY J I agree with Gaudron J that this application should be dismissed and I agree generally with her Honour's reasons for reaching that conclusion.

2. There is one matter touched on by her Honour in regard to which I am not in complete agreement. It concerns the use of the term "sham" where the existence of an industrial dispute is in issue. In Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia ((1) Unreported, 3 June 1993, at p 27.) I expressed reservations about the use of that term in relation to a demand made in a log of claims, preferring, for the reasons advanced there, to focus on the question whether the demand is genuine. I shall not repeat what is said in that judgment. Those reservations operate whether the existence of an industrial dispute is a question before the Australian Industrial Relations Commission or before the Court in prerogative proceedings.

3. Any difference between my approach and that of Gaudron J on this aspect is not critical to her Honour's conclusion that there was an industrial dispute of an interstate character constituted by the dismissals at the Vista mill on 4 March 1991.

GAUDRON J The wages and conditions of production workers in the pulp and paper industry are governed by The Pulp and Paper Industry (Production) Award 1973 ("the Award") made under the Industrial Relations Act 1988 (Cth) ("the Act") or its predecessor, the Conciliation and Arbitration Act 1904 (Cth) ("the Arbitration Act"). Vista Paper Products Pty. Limited ("Vista") is a respondent to that Award, as is Associated Pulp and Paper Mills Ltd. ("APPM"). At least one other employer is bound by the Award but that is not presently relevant.

2. Vista has a mill at Emu Plains in New South Wales, that being the only place where it carries on business. APPM has mills at Wesley Vale and Burnie in Tasmania and employs members of the Printing and Kindred Industries Union ("the PKIU") at those mills. Vista also employed members of the PKIU until 4 March 1991 when it dismissed a number of its employees in circumstances giving rise to the present proceedings. It is not known whether any PKIU members then remained in Vista's employment or whether any have since been employed.

3. In August 1989 the Australian Industrial Relations Commission ("the Commission") ruled, in its National Wage Case Decision ((2) National Wage Case, August 1989 (1989) 31 AILR 281, at p 287.), that award wages could be increased pursuant to a "structural efficiency principle", the purpose of which was to "increase flexibility by changing employment conditions, work patterns, employer mobility, education and training". In general terms, the principle allowed for employees to obtain wage increases in return for giving up conditions affecting efficiency in the workplace. As appears from its later April 1991 National Wage Case Decision ((3) (1991) 4 CAR 204; National Wage Case - April 1991 (1991) 36 IR 120.), it was anticipated by the Commission that changes would come about as a result of negotiations in the workplace as well as at an industry level. And the changes might involve award or over-award conditions, subject to the requirement that they not affect national standards.

4. In early 1991, negotiations were taking place in relation to structural efficiency with members of the PKIU at APPM's Wesley Vale mill and at the Vista mill in New South Wales. They may also have been taking place at other mills, with other employers and with other unions, there being several unions that are parties to the Award and to an agreement governing the wages and conditions of maintenance and service employees, namely, the Pulp and Paper (Maintenance and Services) Agreement 1973 ("the Agreement"). In any event, there were proceedings in the Commission during the course of which it was discovered that not all matters involved in the restructuring negotiations were covered by the logs of claim on which the Award and the Agreement were based. And on 14 March 1991, some ten days after the events which lie at the heart of this matter, Commissioners Donaldson and Merriman invited the unions that are parties to the Award and the Agreement to serve new logs.

5. From evidence given in the Commission by the President of the Tasmanian branch of the PKIU, Mr Spinks, it seems that, in early 1991, restructuring negotiations were proceeding on "fairly good ground" at Wesley Vale, although APPM had introduced changes to career paths "without any sort of consultation". However, there was some apprehension on the part of employees who were members of the PKIU because APPM had announced that "savings in the vicinity of 16 million" had to be effected and, as well, had unilaterally required staff employees to work longer hours.

6. Negotiations at the Vista mill were proceeding in a somewhat different manner. They broke down entirely when it was announced that, from 4 March 1991, working hours were to be increased to 37 1/2 per week spread over 5 days on a 3 shift roster, each shift being of 8 hours. This was to be effected by eliminating or reducing work breaks so that only 30 minutes would be allowed for meal or other breaks on any shift. Additionally, rostered days off were to be abolished.

7. The announced changes to the hours of work led to a stoppage at the Vista mill on 1 March 1991. On that or the following day, Vista sent letters to its employees requiring written acceptance of the new conditions. Those who refused to sign were dismissed when they presented for work on 4 March.

8. Attempts to negotiate with Vista having failed, the PKIU notified the Commission of a dispute on 14 March 1991. Reference was made in that notification to the 1989 National Wage Case principles and it was said that Vista had "locked-out (its) employees for their refusal to sign an agreement to accept measures arbitrarily designed ... to change working arrangements". There was a subsequent notification of dispute on 22 March 1991. The matters were joined and Vista asserted that the Commission lacked jurisdiction because there was no interstate industrial dispute, the issue relating to the dismissals being an intrastate matter only.

9. Three days after the dismissals at the Vista mill and seven days before notifying the Commission of a dispute about those dismissals, namely, on 7 March, the PKIU served a log of claims on employers in the pulp and paper industry including Vista and APPM, and on employers in the printing industry. The log of claims was served on employers in different States. None of them acceded to the demands and it is not in issue that, if and to the extent that the demands were genuine, the log of claims gave rise to an interstate industrial dispute. It was the service and rejection of the demands contained in the log of claims that was the subject of the dispute notification of 22 March.

10. The log of claims of 7 March was in the form of a draft award and contained demands with respect to wages and conditions generally. By cl.74, which is headed "DISMISSAL AND REINSTATEMENT", it demanded:

"(a) that the employer not dismiss any employee (whether or

not such dismissal takes place before the making of any

award or industrial agreement made in settlement of the

(b) that the employer shall reinstate forthwith all

takes place before the making of any award or agreement

11. Either when the log was served or some little time later, the PKIU informed Vista that it would seek an award for the reinstatement of members dismissed on 4 March. An account of the events at the Vista mill was given when proceedings based on the log of claims were called on in the Commission before Deputy President Riordan. It was then argued on behalf of Vista that the dispute was "not genuine, does not have the necessary interstate character ... and that the PKIU ... served its log of claims with the intention of attempting to create jurisdiction for the Commission to deal with a pre-existing intra State dispute". The intrastate dispute, according to the argument, was the dispute at the Vista mill in New South Wales.

12. As already mentioned, the proceedings based on the dispute notification of 22 March were joined with those initiated by the dispute notification of 14 March. And on 2 May 1991, the jurisdictional arguments advanced on behalf of Vista were rejected. A dispute finding was then recorded, the subject-matter being identified as "wages and other conditions of employment" and not, as is usually the case, in terms of the demands in the log of claims.

13. An appeal was lodged with respect to the dispute finding of 2 May but was later withdrawn. The matter then came back before Riordan D.P., seemingly on the basis of an application by the PKIU for the making of an award creating a duty to reinstate the PKIU members dismissed on 4 March and a counter-application by Vista under s.111(1)(g)(iii) of the Act that the Commission refrain from further hearing the matter. Certainly there was an application under s.111(1)(g)(iii) and, as part of that application, Vista again challenged the Commission's jurisdiction on much the same grounds as had been advanced during the earlier hearing which led to the dispute finding of 2 May. The proceedings were protracted, being interrupted by an application for leave to appeal from a decision refusing to rule on the s.111(1)(g)(iii) application without hearing further evidence. Eventually, on 13 December 1991, Riordan D.P. rejected Vista's jurisdictional arguments and indicated that he would make a reinstatement award. And on 18 December, the Vista Paper Products Pty. Limited Reinstatement Award 1991 ("the Reinstatement Award") was handed down. It was expressed to "operate on and from 16 December 1991" and imposed a duty on Vista to reinstate persons named in a schedule to that Award in their former positions "on and from 10 July 1991."

14. An appeal from the decision of 13 December and the subsequent Reinstatement Award was unsuccessful, save that that Award was referred back to Riordan D.P. for clarification of its intended operation between 10 July and 18 December. That aspect remains in abeyance pending the outcome of these proceedings in which Vista seeks prohibition to prevent the Commission from proceeding further with the matters constituted by the dispute notifications of 14 March and 22 March and to prevent the PKIU from taking action to enforce the Reinstatement Award. Vista also seeks certiorari for the removal and quashing of the Reinstatement Award, the decision of Riordan D.P. of 13 December and the decision of the Full Bench dismissing its appeal and mandamus directing the Full Bench to hear and determine that appeal in accordance with law.

15. As already indicated, on 2 May, Riordan D.P. found that there was a dispute the subject-matter of which was "wages and other conditions of employment". In his decision of 13 December, he referred to the terms of that finding and made it clear that the finding went beyond the situation brought about by the service and rejection of the log of claims of 7 March. In explaining his earlier finding and in rejecting the jurisdictional arguments advanced in support of the application under s.111(1)(g)(iii) of the Act, he noted that there was evidence to the effect that the events at the Vista mill were "regarded as being potentially a harbinger of events in (Tasmania)". He noted also, that "(t)he negotiations which preceded the events of 4 March, 1991 at Vista were related directly to the implementation of the structural efficiency principle of the Commission's current wage fixation principles" and that Vista's actions were in breach of "an agreed industry procedure on a national basis" with respect to the implementation of that principle in the Award.

16. On the basis of the considerations which have been outlined, Riordan D.P. found that there was "a situation ... likely to give rise to an industrial dispute of serious proportions" which was "being contained by the ... proceedings (in the Commission)". Later and referring specifically to the events at the Vista mill, he expressed the view that "in addition to ... the 'paper dispute' there is good reason to believe that there could be further industrial disputation in New South Wales and Tasmania over the immediate matter and, particularly, the issues incidental thereto". "(T)he immediate matter", it seems, was the implementation of the structural efficiency principle and the "issues incidental thereto" were Vista's actions in relation to its implementation, including the dismissal of its employees. He concluded that "(i)t (was) beyond reason ... to suggest that the dismissals did not represent a situation which was likely to cause an industrial dispute".

17. In concluding that the dismissals at the Vista mill "represented a situation ... likely to cause an industrial dispute", Riordan D.P. presumably had in mind the terms of s.4(1) of the Act by which "industrial dispute" is defined to mean:

"(a) an industrial dispute (including a threatened,

impending or probable industrial dispute):

(i) extending beyond the limits of any one State; and

(ii) that is about matters pertaining to the

relationship between employers and employees; or

(b) a situation that is likely to give rise to an

industrial dispute of the kind referred to in

paragraph (a)".

18. The first argument made on behalf of Vista in this Court was made by reference to what was referred to in the course of argument and may conveniently be identified as "the Tasmanian evidence". That was the evidence of Mr Spinks to which some reference has already been made. He also gave evidence to the effect that the members of the PKIU at Wesley Vale were concerned that "the dispute ... started at Vista" would "follow through to APPM at Wesley Vale", in circumstances where "all of a sudden we're told all these different changes are going to happen". According to his evidence, that concern was related to the structural efficiency negotiations with APPM at Wesley Vale, the actions of APPM in relation to its staff employees and, perhaps, other disputes involving unilateral changes to working conditions in other industries at other times.

19. It was on the basis of the Tasmanian evidence that Riordan D.P. said that the events at the Vista mill were regarded as potentially "a harbinger of events in (Tasmania)". In this Court it was argued for Vista that that evidence was insufficient to support any finding of interstateness in relation to the events in New South Wales. At its highest, it was said, it merely indicated sympathy with the cause of the dismissed New South Wales employees and, on the authority of Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.1) ("Caledonian Collieries (No.1)") ((4) [1930] HCA 1; (1930) 42 CLR 527.), that could not transform a purely intrastate matter into an interstate dispute.

20. Caledonian Collieries (No.1) concerned a protracted dispute which led to the closure of the northern collieries of New South Wales. At that time, wages and conditions in collieries in New South Wales, Queensland and Victoria were governed by federal awards made by the Coal Tribunal under the Industrial Peace Act 1920 (Cth) ((5) See, ibid, at pp 541-542, 553.). By means that do not appear from the judgments ((6) It may be that the awards had not been kept up to date: see, ibid, at p 553.), it was arranged that the New South Wales collieries would reopen with reduced rates of pay. The Coal and Shale Employees' Federation, a federally registered union whose members were employed in each of the three States concerned, opposed the reopening and, when the mines did reopen, they did so in circumstances involving the tragic Rothbury shootings ((7) ibid, at p 554.) - an event that has become part of Australian trade union history. Strikes followed in Queensland and Victoria, the miners in those States fearing that if wages were reduced in New South Wales reductions would inevitably follow in the other States. It was held, by majority, that "to constitute an industrial dispute there must be disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship" ((8) ibid, at p 552.). It was further held that there was no threatened, pending or probable interstate dispute because "(n)o desire or attempt to reduce wages and no question about wages would arise ... in Queensland or Victoria ... unless and until the mines resumed in New South Wales at a reduced cost of production." ((9) ibid, at p 556.)

21. The statement of principle in the majority judgment in Caledonian Collieries (No.1) is unexceptional. But as the dissenting judgment of Isaacs J shows, the factual finding is not one with which all would agree. Even so, the finding was made in a context in which the closure and reopening of the mines and the attempt to impose lower rates of pay were confined to New South Wales. The events with which this case is concerned are not confined in that way.

22. The industrial situation with which this case is concerned is one in which negotiations were taking place in the pulp and paper industry in Tasmania, between APPM and its employees, and in New South Wales, between Vista and its employees. In both cases, the employees were members of the PKIU, a federally registered union, and the negotiations concerned wages and conditions governed by the Award, albeit that the negotiations may also have involved over-award matters. And even if the negotiations were about different conditions, they were directed, in both instances, to securing award wage increases in return for changes negotiated pursuant to a principle adopted by the Commission in relation to federal awards generally and in respect of which agreement had been reached "on a national basis" as to the procedures to be followed for its implementation in the Award. It was in that context - a context which itself is interstate in character - that the dismissals occurred on 4 March.

23. Even if the matters involved in the 1991 negotiations were outside the ambit of an earlier log of claims, there may then have been an actual interstate dispute as to the matters with which those negotiations were concerned, being a dispute between Vista and APPM, on the one hand, and the PKIU and its members employed at Wesley Vale and at the Vista mill in New South Wales, on the other. In any event, it seems unlikely that negotiations would be taking place if there were not some underlying difference as to wages or employment conditions. And as already indicated, the circumstances in which the negotiations were being conducted were themselves interstate in character.

24. Leaving the question whether there was an actual interstate dispute aside, the negotiations in early 1991 provide the context in which the Tasmanian evidence is to be understood and, in my view, those negotiations and that evidence provide ample foundation for the finding by Riordan D.P. that the dismissals, when they occurred, constituted a situation likely to give rise to an industrial dispute of the kind referred to in s.4(1) of the Act. What is more to the point, Vista has not made out a case for prohibition in relation to that finding.

25. Prohibition is granted only if the prosecutor makes "a clear case" ((10) Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.2) [1930] HCA 2; (1930) 42 CLR 558, per Isaacs J at p 568. See also R. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte the Brisbane Tramways Company Limited (No.2) (The Tramways Case (No.2)) [1914] HCA 58; (1914) 19 CLR 43, per Isaacs J at pp 84-85; R. v. President of Commonwealth Court of Conciliation and Arbitration; Ex parte Australian Agricultural Co. Ltd. [1916] HCA 56; (1916) 22 CLR 261, per Isaacs J at p 266, per Rich J at p 267.) that the tribunal or authority concerned lacks jurisdiction. So far as Vista asserted a want of jurisdiction on the basis that the Tasmanian evidence was not sufficient to give an interstate aspect to the dismissals in New South Wales, it has failed to make a case of that kind. On the contrary, in my view, the industrial situation in which the dismissals occurred on 4 March, involving, as it did, negotiations in two States with respect to the implementation of the Commission's wage fixing principles in the Award which governed Vista and its employees as well as APPM and its employees, tends overwhelmingly in favour of the finding made by Riordan D.P. To the extent that Vista seeks prohibition in relation to that finding, its application must fail. And to the extent that its consequential claims for mandamus and certiorari relate to that finding, they too must fail.

26. The second argument advanced on behalf of Vista concerns the log of claims served on 7 March 1991. It was argued that the log did not give rise to "a real and genuine interstate industrial dispute" because it was served for the purpose of "(getting) Vista into the Commission". The argument was advanced with respect to the entire log of claims and all employers served with it, and not merely the reinstatement claim in cl.74 or, even, the more limited claim for reinstatement of Vista's dismissed employees.

27. The expression "genuine dispute" is tautologous: either there is a dispute as defined in s.4(1) of the Act or there is not ((11) See Caledonian Collieries Ltd. (No.2) (1930) 42 CLR, per Isaacs J at p 570; The Builders' Labourers' Case (1914) 18 CLR 224, per Isaacs J at p 244.). A question of "genuineness" arises if it is argued that the log of claims concerned, some demand in it or, even, some aspect of a demand is a sham. And when it is claimed in this Court in proceedings for prerogative relief that a dispute is not genuine, the question is, in effect, always one of sham rather than genuineness ((12) See Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) ("the Australian Tramways Case") [1938] HCA 1; [1938] HCA 1; (1938) 58 CLR 436, per Evatt J at p 442 where it was said:

"In truth, the question of the existence of an

industrial dispute extending beyond the limits of one

State should be determined by one positive rather than

by many negative principles. Was the demand upon the

respondents in two or more States genuine, or was it a

sham or pretended demand?"),

because the service of a log of claims is "viewed prima facie as real and genuine" with the onus "of clearly establishing the contrary" ((13) Reg. v. Ludeke; Ex parte Queensland Electricity Commission [1985] HCA 55; (1985) 159 CLR 178, at p 181. See also R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow and Co. [1910] HCA 33; (1910) 11 CLR 1, at p 57; Reg. v. Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd. [1952] HCA 10; (1952) 85 CLR 138, at p 153; Reg. v. Cohen; Ex parte Attorney-General(Q.) [1981] HCA 66; (1981) 157 CLR 331, at p 338.) being on the party who claims to that effect.

28. In practical terms, a demand will be a sham if it is not seriously advanced ((14) Caledonian Collieries Ltd. (No.2) (1930) 42 CLR, per Isaacs J at p 570; R. v. Blakeley; Ex parte Association of Architects etc. of Australia [1950] HCA 40; (1950) 82 CLR 54, per Fullagar J at p 94; Ludeke (1985) 159 CLR, at p 181.), if the party making the demand is indifferent to its outcome ((15) Reg. v. Gough; Ex parte BP Refinery (Westernport) Pty. Ltd. [1966] HCA 30; (1966) 114 CLR 384, at p 387; Melbourne and Metropolitan Tramways Board v. Horan [1967] HCA 1; (1967) 117 CLR 78, at pp 83-84.) or if there is no intention that it be pursued ((16) See The Builders' Labourers' Case (1914) 18 CLR, per Isaacs J at p 246, per Powers J at pp 260, 265; Cohen (1981) 157 CLR, at p 338.). In regard to this last matter, it is not necessary that the claimant "organization or its members ... be intent on obtaining forthwith every item ... in the log of claims or the particular terms and conditions ... in the form and in the amounts ... expressed in the log" ((17) Ludeke (1985) 159 CLR, at pp 182-183.). And, so long as the demand is seriously advanced, it does not matter that the demand is motivated by some other consideration or some perceived collateral advantage ((18) See Cohen (1981) 157 CLR, per Gibbs CJ at p 338. See also the Australian Tramways Case (1938) 58 CLR, per Evatt J at p 440; R. v. Blakeley; Ex parte Association of Architects etc. of Australia (1950) 82 CLR, at pp 69, 79.), including that of attracting the jurisdiction of the Commission ((19) Ludeke (1985) 159 CLR, at p 182. See also Reg v. Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957) 97 CLR 71, at p 81.).

29. It has been said that a demand that "is nothing more than a step towards enabling the Commission to exercise jurisdiction" does not give rise to a genuine dispute ((20) Cohen (1981) 157 CLR, per Gibbs CJ at p 337.). However, that statement requires analysis. It is clear that a demand made without any intention that it be pursued, but for the purposes of attracting jurisdiction with respect to a purely intrastate dispute ((21) As was held to be the case in Caledonian Collieries (No.2) and in Reg. v. Gough; Ex parte BP Refinery (Westernport) Pty. Ltd.), is a sham demand and, thus, does not give rise to a dispute or, in more usual terms, does not give rise to "a genuine dispute". However and assuming an interstate aspect, if a demand were made to the effect that the rights and obligations of particular employees be determined in the exercise of the Commission's jurisdiction, rather than in some other manner, the question would not be whether there is a dispute, but whether there is an industrial dispute. However, that issue does not arise in this case where the argument is that, save for the dispute at the Vista mill in New South Wales, there was no dispute at all.

30. As already indicated, the onus of establishing that a demand is a sham lies on the person or party who asserts it. Ordinarily, the argument that a demand is a sham is put forward in a context involving an antecedent intrastate dispute. In a case of that kind, the onus is not discharged by establishing the antecedent dispute, for interstate disputes "very often have their origin in a dispute in one State" ((22) Ludeke (1985) 159 CLR, at p 182, citing Evatt J in the Australian Tramways Case (1938) 58 CLR, at p 439.). What has to be shown is that the demand is not seriously advanced, but is put forward in an attempt to give an appearance of interstateness to what, in truth, is no more than an intrastate issue. As has already been pointed out, the antecedent dispute in this case was one that had an interstate character. But this may not have been appreciated by the PKIU and, thus, the question is whether the log was a sham put forward for the sole purpose of dressing up what was thought to be or what may have been thought to be a dispute confined to New South Wales.

31. The evidence in this case clearly supports a finding that the immediate purpose of the PKIU in serving the log of claims of 7 March was to obtain an arbitrated resolution of the matters in dispute with Vista, including the reinstatement of its dismissed members. But that does not mean that that was its sole purpose. The log contained demands as to wages and conditions generally, was served on employers who employ members of the PKIU in the pulp and paper industry and in the printing industry (industries which are covered by federal awards) in an industrial context allowing for wage increases in federal awards in return for changes in conditions affecting efficiency in the workplace. It was served when negotiations were taking place in Tasmania and in New South Wales with respect to wages and conditions in the pulp and paper industry and in circumstances in which it may have been thought, at least so far as the Award was concerned, that wage increases based on the Commission's structural efficiency principle could not be obtained unless a fresh dispute was generated by fresh demands. Certainly, Commissioners Donaldson and Merriman were of the view, expressed some few days later, that some fresh demands were necessary.

32. Leaving aside the reinstatement claim in cl.74 which will be the subject of separate consideration, the nature of the demands in the log of claims of 7 March, the identity of the employers on whom it was served and the general circumstances surrounding its service all point to the conclusion that the demands were real demands to be pursued in the ordinary course, either immediately, in the case of matters involved in the implementation in the Award of the Commission's structural efficiency principle, or, in the case of the other demands, as and when it suited the interests of the PKIU and its members. Thus, bearing in mind the onus on Vista to show otherwise and leaving aside cl.74, the log of claims must be taken to have been seriously advanced and to have given rise to an interstate industrial dispute as to the claims contained in it.

33. The demand in cl.74 is expressed to relate to dismissals, whether or not occurring "before the making of (an) award or industrial agreement ... in settlement of the log of claims". It is clear that cl.74 was understood to relate to dismissals that occurred before the log was served ("past dismissals") as well as those that might occur in the future ("future dismissals"). Accordingly, that is the meaning that it must be given ((23) Reg. v. The Association of Professional Engineers of Australia; Ex parte Victoria [1957] HCA 95; (1957) 100 CLR 155, at p 162; Reg. v. Heagney; Ex parte ACT. Employers Federation [1976] HCA 32; (1976) 137 CLR 86, per Mason J at pp 98-100, per Murphy J at pp 105-106; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. ("the Wooldumpers Case") [1989] HCA 10; (1989) 166 CLR 311, per Gaudron J at p 335.).

34. It was not suggested that, so far as cl.74 relates to future dismissals, it should be treated differently from the other general demands in the log. And, in my view, there is no basis on which that suggestion could be made. Accordingly, so far as it relates to future dismissals, the demand in cl.74 is to be taken as having been seriously advanced and, thus, as having given rise to an interstate industrial dispute.

35. So far as cl.74 relates to past dismissals, it is known that there were no dismissals of that kind falling within cl.74 other than those that took place at the Vista mill on 4 March. Thus, the PKIU could not advance a claim with respect to past dismissals against anyone but Vista and, it must follow, did not seriously advance that aspect of the claim against the other employers served with the log. To that extent, the demand on those other employers was a sham demand and cl.74 could not and did not give rise to an interstate industrial dispute.

36. However, cl.74 does not stand alone. It must be understood in the context of the Vista dismissals which themselves constituted a situation likely to give rise to an interstate industrial dispute and, thus, constituted an industrial dispute as defined in s.4(1) of the Act. So far as it relates to past dismissals, cl.74 is properly to be seen as the written formulation of what the PKIU required for resolution of that dispute. Thus, in the circumstances of this case, that aspect of cl.74 must be taken to involve an interstate dispute, even though it could not and did not give rise to a dispute of that kind with respect to past dismissals, whether generally or those that occurred at the Vista mill on 4 March.

37. The third argument advanced on behalf of Vista relates to the Reinstatement Award. The argument is that "there is an incurable divergence between (cl.74 of) the log of claims and (the) application to reinstate particular employees". The argument is, in effect, that the Reinstatement Award was not made in settlement of the dispute involved in cl.74 because it is not within the ambit of that dispute and is not "relevant", "reasonably incidental" or "appropriate" to the matter claimed and has no "rational or natural tendency to dispose of the question at issue" ((24) R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [1938] HCA 41; (1938) 60 CLR 507, at p 538. See also Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [1952] HCA 29; (1952) 86 CLR 34, at p 40; Reg. v. Holmes; Ex parte Victorian Employers' Federation [1980] HCA 37; (1980) 145 CLR 68, at p 76; Ludeke (1985) 159 CLR, at p 183; The Wooldumpers Case (1989) 166 CLR, per Gaudron J at p 334; Re Boyne Smelters Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia, [1993] HCA 75; (1993) 67 ALJR 449, at p 451; [1993] HCA 75; 112 ALR 359, at p 362.).

38. The argument concerning the Reinstatement Award is based on the proposition that cl.74 of the log of claims is a claim for a regime governing dismissal and reinstatement and not a claim for the reinstatement of individual employees ((25) See the Wooldumpers Case (1989) 166 CLR, per Mason CJ at pp 314-315 where the claim there at issue was thus construed.). But that proposition assumes that cl.74 stands in isolation from the antecedent events which themselves constituted a dispute as defined in s.4(1) of the Act. It also assumes, contrary to the clear understanding of everyone concerned, that cl.74 did not involve a claim for the reinstatement of the PKIU members dismissed on 4 March.

39. Once it is accepted that there was an interstate dispute constituted by the dismissals at the Vista mill on 4 March, an award ordering the reinstatement of the dismissed employees is necessarily to be seen as one that bears directly on that dispute. And so far as cl.74 was accepted by all concerned as formulating what was required to resolve that dispute, the Reinstatement Award necessarily and directly disposes of the issue thus raised.

40. The fourth argument advanced on behalf of Vista was also directed to the Reinstatement Award. It was argued that the making of that Award involved the exercise of judicial power which is, of course, denied to the Commission by ChIII of the Constitution ((26) Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254.).

41. It was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. ((27) [1987] HCA 29; (1987) 163 CLR 140, per Mason CJ, Brennan, Deane, Dawson and Toohey JJ at p 154. See also Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656, at p 663.) that a claim based on the assertion of a "legal entitlement" is one which invites and involves the exercise of judicial power, whereas a claim that new rights should be created on the basis of what is "right and fair" does not. In this case there was no prior right to reinstatement and no assertion of a prior right. The claim was simply that, in the circumstances, it was neither right nor fair that the employees concerned should have been dismissed and, consequently, that it was right and fair that a right to be reinstated in their former positions be created. Accordingly, the argument that the making of the Reinstatement Award involved the exercise of judicial power must be rejected.

42. The final argument advanced on behalf of Vista was directed to asserting that something more than service and rejection of a log of claims is required before a "paper dispute" can be held to be a "genuine dispute". In this regard it was urged that, in the past, too much weight has been given to the fact that a demand is "inscribed on paper" ((28) The Builders' Labourers' Case (1914) 18 CLR, per Isaacs J at p 246.) and insufficient attention given to the PKIU's intention to pursue the claim.

43. As was pointed out by Mason CJ in the Wooldumpers Case ((29) (1989) 166 CLR, at p 321.), the legislative structure and the desire to ensure that the Commission has power to make comprehensive industry awards has led to "an over-emphasis on the paper dispute". No doubt, the concept of ambit has also had its part to play in that development.

44. Emphasis on the "paper dispute" has two unfortunate consequences. The first is the nature and extent of the claims sometimes made, particularly wage claims which are often for amounts intended to ensure that the Commission has power to vary rates so as to maintain their purchasing power in periods of inflation. The seeming extravagance of these claims sometimes invites speculation as to whether the claimant organizations could seriously entertain any intention of pursuing them. In my view and save in the case where the claim apparently allows for the effects of inflation, a wage claim should ordinarily be understood as including a claim for the maintenance of the purchasing power of the wages claimed. And, in my view, claims with respect to matters in which national standards have been set by the Commission, e.g. hours of work, annual leave and long service leave, should be understood as comprehending a claim for not less than the national standard as set from time to time. Were claims to be thus understood, there would be less scope for claims which have only a tenuous connection with the immediate industrial interests of the organization concerned and which, on that account, are sometimes thought to lack "genuineness".

45. The second consequence of an over-emphasis on the "paper dispute" is a tendency to concentrate on the detail of the written demand at the expense of the actual industrial situation and at the expense of the award-making power of the Commission - a tendency that may explain some of the steps taken in the course of the dispute involved in this case. In this respect, it may be noted that an industrial dispute is not necessarily fixed and definite, either in terms of its subject-matter or in terms of the parties to it; a dispute "may be diminished or ended or enlarged or altered during ... proceedings in the Commission" ((30) Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. [1984] HCA 9; (1984) 159 CLR 163, per Murphy J at p 168.) or, for that matter, at any stage during the course of the dispute itself. And although the Commission's powers are confined by the matters in dispute, they are not limited to the precise claims made but, as already indicated, extend to the making of an award which is "relevant", "reasonably incidental" or "appropriate" to the matters in issue or which has a "rational or natural tendency to dispose of the (matters) at issue" ((31) See fn.(24).). Thus, as Mason CJ pointed out in the Wooldumpers Case ((32) (1989) 166 CLR, at p 318.), "the concept of ambit does not precisely or adequately express the scope of the Commission's award-making power". However and even acknowledging the shortcomings that may be involved in concentration on the detail of a written claim, there can be no doubt that the written formulation of a demand provides a measure of certainty and convenience for the parties and for the workings of the Commission.

46. The unfortunate consequences of over-emphasis on the "paper dispute" do not assist Vista's argument in this case. That argument accepts that a dispute may be generated by the service and rejection of a log of claims, so long as the claims are genuinely made. For the reasons already given and save for that aspect of cl.74 concerning past dismissals, there is no reason to doubt that the claims in the log were genuine. And, as already pointed out, nothing turns on that aspect of cl.74 for, to that extent, it formulated what was required to settle the antecedent interstate industrial dispute constituted by the dismissals at the Vista Mill on 4 March 1991.

McHUGH J The substantial question in this application for writs of prohibition and certiorari directed to the Full Bench of the Australian Industrial Relations Commission ("the Commission") and Deputy President Riordan is whether an award ordering the reinstatement of a number of persons formerly employed by Vista Paper Products Pty. Ltd. ("Vista") was within the jurisdiction of the Commission. Vista contends that the Commission had no jurisdiction in the matter because there was no dispute or threatened dispute extending beyond the limits of any one State, that if there was such a dispute, the award was not made in settlement of it, that the Commission in excess of its jurisdiction exercised judicial power, and that the award was given a retrospective operation which was beyond the power of the Commission to make.

On 4 March 1991, Vista dismissed a number of employees who had failed to sign an acknowledgment of changes to their working hours and pay rates. The conditions of employment of the employees at Vista were regulated by the Pulp and Paper Industry (Maintenance and Service) Agreement 1973 and the Pulp and Paper Industry (Production) Award 1973. On the same day the Printing and Kindred Industries Union ("the PKIU") notified the Commission "of the existence of an alleged industrial dispute between the said Union ... and ... Vista ... concerning the company dishonouring agreements reached between the Union its members, and the Company and previous owners". Members of the PKIU were among the employees which Vista had dismissed. The notification came on for hearing on 7 March 1991 before Commissioner Donaldson. It was adjourned indefinitely when Vista alleged that there was no interstate dispute. Between 7 March and 13 March 1991, the PKIU served a log of claims on 10 employers in New South Wales and Victoria giving them 14 days to comply with the log. One of the employers was Associated Pulp and Paper Mills Ltd. ("APPM") which has mills at Burnie and Wesley Vale in Tasmania. That company employs members of the PKIU at those mills.

3. The log consisted of 78 clauses. For present purposes the relevant clauses were:

"5. DISMISSAL AND REINSTATEMENT

An employer shall not dismiss any employee without the

agreement of the Union. Where there is a dismissal without

the Union's agreement the employer shall reinstate the

employee in his/her employment without loss of benefits or

privileges.

...

74. DISMISSAL AND REINSTATEMENT

(a) that the employer not dismiss any employee (whether or

not such dismissal takes place before the making of any

award or industrial agreement made in settlement of the

log of claims);

(b) that the employer shall reinstate forthwith all

employees dismissed (whether or not such dismissal

takes place before the making of any award or agreement

made in settlement of the log)."

4. On 14 March 1991, the PKIU notified the Commission of a dispute between Vista and the Union. The notification alleged that the dispute arose from the employer "seeking to implement measures which are inconsistent with the previous agreement between the parties" and that the measures sought to be implemented were not consistent with the principles of the National Wage Case August 1989. In the National Wage Case decision ((33) (1989) 31 AILR 281, at p 286.), the Commission had held that wages the subject of federal awards could be increased pursuant to a "structural efficiency principle". The basis of the principle was that employees would be allowed wage increases in exchange for changes in "employment conditions, work patterns, employer mobility, education and training".

5. The notification also informed the Commission that the "employer has locked-out his employees for their refusal to sign an agreement to accept measures arbitrarily designed by the employer to change working arrangements". On 9 April, the PKIU wrote to Vista advising of the hearing of the notification on 19 April and stating that, if there was no likelihood of agreement, the PKIU would seek to have the Commission "arbitrate and make an Award against you to settle those matters in dispute including reinstatement forthwith of all employees dismissed".

6. The hearing of the alleged dispute commenced before Riordan D.P. on 19 April 1991. On 2 May, pursuant to s.101 of the Industrial Relations Act 1988 (Cth), the Deputy President found that, within the meaning of the Act, an industrial dispute existed between the PKIU and the employers named in the Schedule attached to the Union's log of claims. The Deputy President held that the subject-matter of the dispute, was "wages and other conditions of employment". In his reasons for decision, the Deputy Commissioner said:

"There is some evidence that APPM has requested certain

of its administrative and office staff to consider an

increase in working hours from 35 hours per week to 37 1/2

hours per week. Employees who are members of several unions

in Tasmania have become concerned at this development.

This concern also involves the PKIU at its Tasmanian Branch.

The action is seen to be similar to that which formed

the genesis of the dispute with Vista and appropriate

resolutions have been adopted by the concerned employees

and bodies.

In these circumstances it would be impossible to hold that

there was no genuine inter-State dispute as defined about

this matter and related issues."

7. An appeal against the finding of dispute was lodged, but it was withdrawn on 5 June 1991. On 9 July 1991, the PKIU tendered a draft award to Riordan D.P. Clause 3 of the draft required Vista to reinstate 32 named persons "in their former positions on and from 10 July 1991".

8. Further evidence, including evidence as to the genuineness of the service of the log, was taken by the Deputy President between 9 July 1991 and 5 November 1991. On 13 December 1991, the Deputy President handed down a lengthy judgment in which he held that there was a genuine interstate dispute and said that an award would be made "creating a duty for Vista to re-instate the employees in accordance with the PKIU proposal in these proceedings". He held that, although there was an obvious difference between the proposed award and the contents of the log of claims, the award was directly related to, and/or clearly incidental to, the claims contained in the log and was within jurisdiction.

9. The findings of dispute made on 2 May 1991 were varied by adding a finding:

"5. That there is in existence a threatened, pending or

probable industrial dispute and a situation likely to

give rise to an industrial dispute between the Printing

and Kindred Industries Union and Vista Paper Products

Pty Ltd, Australia Paper Manufacturers Ltd, Associated

Pulp and Paper Mills Ltd and perhaps other employers

not yet identified who are engaged or may become

engaged in the paper production and processing

industry. The subject matter of the said dispute and

situation is the wages, hours of work and other

conditions of employment. The dispute and situation

exist or are likely to exist in New South Wales,

Victoria and Tasmania."

An award was made on 18 December 1991 to "operate on and from 16 December 1991 and shall continue in force for a period of 6 months".

10. An appeal to the Full Bench of the Commission against the decision of Riordan D.P. was rejected. The Full Bench said that, while the evidence surrounding the service of the log might be capable of sustaining a conclusion that it was served only for the purpose of creating interstateness, they did not accept that there was anything inherently incredible about evidence concerning the genuineness of the claim which had been given by the chief witness for the PKIU. Consequently, the Full Bench was not satisfied that the log of claims was served on employers, other than Vista, for the sole purpose of creating an interstate dispute. It held that the award made by the Deputy President on 18 December 1991 was "relevant", "reasonably incidental" or "appropriate to the settlement of what is in dispute" ((34) Reg. v. Ludeke; Ex parte Queensland Electricity Commission [1985] HCA 55; (1985) 159 CLR 178, at p 183.).

11. The Full Bench also thought that Riordan D.P. had jurisdiction to make the Award because of "the pending dispute evident from the combined circumstances of Vista and APPM". The Commission said:

"In the present case both Vista and APPM were seeking

to alter the conditions under which work is performed under

the Production Award and were doing so against a background

where the wage fixing principles of this Commission promote

the consideration and implementation of change. Faced with

opposition to proposed change, Vista dismissed the employees

concerned. To the extent that differences will arise

between employers, PKIU and its members about the nature

and the extent of appropriate change, the resolution of

those differences is likely to be made more difficult if

an employer, faced with opposition from its workforce,

dismisses it. Curtailing the right of an employer to

dismiss in those circumstances by requiring the

reinstatement of dismissed employees is, in our view,

relevant to the settlement of the matters in dispute.

Further, if it is made apparent that employers may not

exercise an unconstrained right to dismiss, claims for

change which might be made by them that are likely to be

strenuously resisted may not be made or not made in a way

that promotes confrontation and precipitates industrial

action. In the present case each of those considerations

is relevant to the circumstances at Vista and APPM and,

in our view, the Reinstatement Award is sustainable, in a

jurisdictional sense, by reference to each of them."

Upon the concurrent findings of fact by Riordan D.P. and the Full Bench of the Commission, the prosecutor has failed to establish that there was no interstate dispute within the meaning of s.4 of the Industrial Relations Act.

13. Rejection of a log of claims concerning wages and conditions of employment which was served by an employees' organisation on employers in different States is prima facie sufficient to create an interstate industrial dispute ((35) Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. [1984] HCA 9; (1984) 159 CLR 163, at p 172; Reg. v. Cohen; Ex parte Attorney-General (Q.) [1981] HCA 66; (1981) 157 CLR 331, at p 348.). Moreover, the service of a log of claims may be genuine notwithstanding that it seeks to achieve some other purpose such as the settlement of an intrastate dispute ((36) Cohen (1981) 157 CLR, at pp 338-339.). The onus of displacing the prima facie inference to be drawn from the service and refusal of the demands in a log of claims served in more than one State lies on the party alleging that there was no dispute ((37) R. v. Blakeley; Ex parte Association of Architects etc. of Australia [1950] HCA 40; (1950) 82 CLR 54, at p 83; Cohen (1981) 157 CLR, at pp 338, 340; Ludeke (1985) 159 CLR, at p 181.).

14. Although this Court must decide whether the evidence establishes that there was a genuine interstate dispute, the Court will give considerable weight to the Commission's view of the evidence ((38) Ludeke (1985) 159 CLR, at p 184.). Rejection of the log of claims by employers in more than one State prima facie created an industrial dispute. Having regard to evidence concerning the genuineness of the claims in the log, evidence which the Deputy President accepted, there is no ground for holding that the prima facie conclusion should not be accepted as the fact.

15. The next question concerns the scope of the interstate dispute created by the log of claims so far as it affects the present case. In my opinion, the dispute between the parties for present purposes was whether the employers should have an obligation imposed upon them to act in accordance with cl.74 of the log of claims. That dispute included the question whether an employer was required to reinstate an employee dismissed before the making of an award or agreement made in settlement of the log. But it could not include the question whether Vista was bound to reinstate particular employees who had been dismissed before the service of the log. Employers who were served with the log had a common interest in resisting the demands contained in cl.74 so long as those demands operated prospectively. But they had no interest in resisting the demand that Vista reinstate the dismissed employees if that demand fell within the scope of cl.74. They were not in any position to give effect to the demand that the Vista employees be reinstated.

16. Nor am I able to see how the position in relation to the log of claims is altered because the Vista dismissals gave rise to an actual or threatened dispute extending beyond the limits of New South Wales. Whatever the nature of that dispute or impending dispute, no demands or threatened demands by the Union on employers outside New South Wales could change the dispute created by the log of claims into an interstate dispute concerning the dismissed Vista employees. The dismissal of the Vista employees occurred before the existence of the interstate dispute created by the logs; interstate employers were in no position to accede to the demands in the log that the Vista employees be reinstated if, properly construed, that is what cl.74 was intended to cover.

17. However, a further question arises: can the award of 18 December 1991 be supported as incidental to the settlement of the dispute arising from the employer's refusal to accede to the terms of cl.74, if that clause is construed so as to operate prospectively? For an award to be made in settlement of the dispute, it must be one which is reasonably appropriate to the settlement of the dispute ((39) Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [1952] HCA 29; (1952) 86 CLR 34, at p 40; Ludeke (1985) 159 CLR, at p 183.). In Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section ((40) (1952) 86 CLR, at p 40.), Dixon CJ and Webb, Fullagar and Kitto JJ said:

"An award cannot give a form of relief that is not

relevant to a matter in dispute, that is not reasonably

incidental or appropriate to the settlement of that part of

the dispute and that has no natural or rational tendency to

settle the particular question in dispute."

It is established that an award, though confined to a particular locality, may nevertheless be in settlement of an interstate industrial dispute ((41) Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [1920] HCA 18; (1920) 28 CLR 1, at pp 9, 13-14, 18, 21; Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia [1953] HCA 55; (1953) 88 CLR 125, at p 136; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR 615, at pp 619, 627, 631; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. [1989] HCA 10; (1989) 166 CLR 311, at pp 334-335.). Furthermore, there seems no reason why an award, binding only on one employer in a particular locality, could not be made in partial settlement of an interstate industrial dispute. Indeed, counsel for the PKIU alleged that Amalgamated Metal Workers' Union; Ex parte Horwood Bagshaw Ltd. ((42) (1987) 61 ALJR 536; 76 ALR 389.) was such a case. However, in that case, although a dispute concerning dismissal at a particular factory gave rise to an application for variation of an award, the variation seems to have applied generally and not merely in relation to the particular company.

18. To be appropriate as an award made in partial settlement of an interstate industrial dispute, the award must settle part of that dispute even though the award is confined to a locality or particular employer. When part of an interstate dispute is settled, the part which remains is "not a new dispute but the 'undetermined' residue of the original dispute" ((43) Blackburn (1953) 88 CLR, at p 136; Reg. v. Isaac (1978) 140 CLR, at p 627.). Thus, to settle part of a dispute, an award must concern the community of interest between the disputants even though its terms, area of operation or respondency can be different from those in other awards which settle parts of that dispute. It is not enough that there is a temporal or even causal connection between the "award" and an interstate dispute.

19. The reinstatement of the employees at Vista by itself could not be made the subject of an interstate industrial dispute because the interstate employers had no interest in resisting the demands of the Union that specific employees at Vista should be reinstated in employment. In that respect, the present case is similar to Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd. ((44) [1989] HCA 10; (1989) 166 CLR 311.) where this Court held the clause in a log of claims which provided that no notice of termination of employment should be given without the prior consent of the Union and that, except in cases of casual employment, "all employment shall be permanent" did not justify an award for the reinstatement of a particular employee. In his judgment, Deane J ((45) ibid, at p 333.) held:

"That paper dispute does not include within its broad range

or 'ambit' a dispute about an actual dismissal of a

particular employee in the absence of that claimed new

regime. The paper dispute is about whether certain rules

should govern dismissals generally; it simply does not

encompass a dispute about the justification or consequences

of a particular dismissal in the absence of such rules."

20. Accordingly, in my opinion, the award made on 18 December 1991, in so far as it depended on the log of claims, was beyond the jurisdiction of the Commission. But that is not the end of the matter.

21. As Riordan D.P. noted, the dismissal of the Vista employees took place at a time when negotiations concerning "the implementation of the structural efficiency principle of the Commission's wage fixation principles" were occurring in Tasmania and New South Wales. The negotiations between the PKIU and Vista and the PKIU and APPM were designed to obtain increased wages in exchange for changes in workplace practices and conditions of employment in accordance with the structural efficiency principle adopted by the Commission in respect of federal awards. The dismissal of the Vista employees before agreement concerning those changes had been reached was likely to interfere with the implementation of those principles in New South Wales and Tasmania. In these circumstances, the proper conclusion is that, quite apart from the dispute created by the rejection of the log, a separate industrial dispute extending beyond the limits of New South Wales either existed or was likely to exist - viz, a dispute about the implementation of the structural efficiency principle. Riordan D.P. found that there was "not the slightest doubt ... that there is in existence a situation which is likely to give rise to an industrial dispute of serious proportions and that the outbreak of that dispute is being contained by the existence of the current proceedings". It is clear that the Deputy President perceived the dismissal of the employees to have arisen out of attempts to implement the structural efficiency principle.

22. If the negotiations were part of a continuing interstate industrial dispute, as I think they were, the award which Riordan D.P. made was one which was reasonably incidental or appropriate to the settlement of that dispute. It was reasonably incidental or appropriate because the reinstatement of the employees would be conducive to implementing changes in work practices and conditions, in accordance with the structural efficiency principle, by demonstrating that the Commission would not tolerate unilateral action to achieve or resist necessary changes. That demonstration would encourage both employers and employees to achieve change by negotiation rather than by the use or threat of strikes or dismissals. As the Full Bench pointed out, resolution of the differences between the parties "is likely to be made more difficult if an employer, faced with opposition from its workforce, dismisses it" and, it might be added, if employees strike to demonstrate their support for the dismissed employees. If, on the other hand, there was no existing interstate industrial dispute relevant to these proceedings, an interstate dispute concerning the implementation of the structural efficiency principle was likely to exist in the very near future. On that hypothesis, the award reinstating the employees was one designed to prevent the likely occurrence of the interstate dispute. In either case, the award was made within jurisdiction and was reasonably incidental or appropriate to the prevention or settlement of an interstate industrial dispute.

23. Counsel for Vista also maintained that the making of an award reinstating the employees involved the exercise of judicial power, a power which is outside the jurisdiction of the Commission ((46) Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254.). However, the reinstatement of the 32 employees was not the enforcement or declaration of any right of theirs. They had no legal right to reinstatement. The award made by the Commission created new rights for those employees. Hence, it was an exercise of arbitral and not judicial power.

Conciliation and Arbitration Act 1904(Cth)

Industrial Peace Act 1920(Cth)

Re Printing & Kindred Industries Union Ex Parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 113 ALR 421; (1993) 67 ALJR 604 (3 June 1993)

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)

Re Printing & Kindred Industries Union Ex Parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 113 ALR 421; (1993) 67 ALJR 604 (3 June 1993)

Legislation Cited (3)

Cases Cited (32)