Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27 - HCA 1987 case summary — Zoe

[16]

the terms of the Causes Act constitute a formidable deterrent to the slightest form of industrial protest by the workers, and we are satisfied that the presence of the legislation is the dominant influence contributing to industrial peace. The conclusion is then expressed in the following terms: Whether statutory restraints of this magnitude continue to be necessary is debatable, although we are conscious of the grossness of the industrial situation which finally moved the Government of Queensland to take action. We have given serious consideration to the question whether the public interest is served by the intrusion of this new and forceful element into industrial relationships and whether fairness as between employer and employee demands some amelioration of the harsher aspects of the legislation, as the ETU argued, but having regard to the character of this industry, which is essential to the well-being of the people and industry of Queensland, and having regard to the state of affairs in the industry as shown by the evidence, we have decided that further proceedings in this application are not necessary or desirable in the public interest. The reference to "statutory restraints" clearly encompasses the restraints on the jurisdiction of the State tribunal. In our opinion, therefore, it cannot be said that the earlier passage in the reasons for judgment, upon which the ETU relies, establishes the contention that the majority failed to take this aspect into consideration in considering the application under s 41(1)(d)(iii). The submission with which the Commission found it unnecessary to deal was the submission based on par (ii) of s 41(1)(d), namely, whether the dispute was "proper to be dealt with by a State Industrial Authority". The decision does not mean that it could be against the public interest for the only tribunal with the appropriate jurisdiction to exercise it. It means simply that the majority, while recognising that there was a very powerful public interest in favour of settling the dispute, found an even greater public interest which required the exercise of their discretion to refrain from further hearing it.

[37]

Thus the Commission did not make the ultimate decision whether to make an overriding federal award. If, after hearing the application for an award, the Commission had determined that the Queensland laws should be left in full force and effect, it would have been open to the Commission to refuse to make an overriding federal award and to dismiss the prosecutor's claim accordingly. Section 41(1)(d) confers power to "dismiss a matter or part of a matter". But that is not the decision which the Commission made. The Commission merely gave "serious consideration to the question" whether the public interest was served by the Queensland laws and decided to "refrain from further hearing". In other words, the Commission, though alive to the subject of the dispute between the parties, to the effect of the Queensland laws and to the industrial significance of the claims for an overriding federal award, declined to arbitrate. That was a course which, in my opinion, the Commission was not entitled to take. If the Commission had determined to settle the dispute by making an overriding federal award, it would have discharged the duty imposed on it by s 30(1). Equally, if the Commission had determined that the public interest would be best served by refusing to make a federal award which would override the Queensland laws and had dismissed a part of the prosecutor's application accordingly, it would have discharged the duty imposed on it by s 30(1). But it did not so determine. The Commission was careful to avoid deciding that the Queensland laws contained appropriate or preferable provisions as to security of employment and prohibition on union preference. As the matter was not fully heard, the Commission was unable to say whether in all the relevant circumstances, the industrial problems in the Queensland power industry should be governed by the Queensland laws rather than by a federal award. Such a decision could be made only after all the relevant circumstances were examined. By refraining from further hearing the matter, the Commission avoided deciding whether an overriding federal award should be made. But the discretion to refrain from further hearing of an application is not conferred for the purpose of relieving the Commission from the necessity of making decisions on sensitive and important issues: those are the kinds of issues on which the Commission makes decisions almost every day.

[44]

The grounds upon which the prima facie right of a party to the exercise of the Commission's jurisdiction may be overridden pursuant to an application by another party to the dispute under s 41(1)(d) are identified by the clause. They include the particular grounds that the dispute or relevant part of it is trivial (s 41(1)(d)(i)) or has been, is being, or is proper to be, dealt with by a State industrial authority (s 41(1)(d)(ii)). Those grounds are designed to avoid oppressive use and unnecessary conflict of jurisdiction. They are of a different character to the other ground upon which the exercise of jurisdiction may be refused under the clause. That other ground is the broad general one that further proceedings are not necessary or desirable in the public interest (s 41(1)(d)(iii)). Upon an application under s 41(1)(d), the onus plainly lies on the applicant to persuade the Commission that it should, on one or other of the specified grounds, override the prima facie right of the party who has invoked its jurisdiction and refrain from a hearing or determination of the dispute. In the context of the general legislative policy that a party to an inter-State industrial dispute should ordinarily be entitled to invoke the jurisdiction of the Commission and of the general philosophy underlying the Act that the exercise of that jurisdiction to settle inter-State industrial disputes will be in the public interest, that onus is a particularly heavy one in a case where what is sought is a refusal to exercise jurisdiction on the general "public interest" ground (s 41(1)(d)(iii)) and it appears that there is no other tribunal which possesses jurisdiction fully to resolve the dispute. In such a case, the function of the Commission, viewed in the perspective of the rule of law and general legislative policy and philosophy, is the confined one of deciding whether the circumstances are so special or extraordinary that the public interest requires that it refrain from the ordinary exercise of its jurisdiction with the consequence that a party who has duly invoked that jurisdiction for the resolution of a non-trivial dispute is effectively denied access to it and left without effective recourse to any tribunal (cf the comments of Higgins J in Australian Builders' Labourers' Federation v Archer (1913) 7 CAR 210 at 217). That is not, of course, to say that an applicant who invokes the jurisdiction of the Commission has a prima facie entitlement to succeed in his claim. It is to say no more than that such an applicant has a prima facie entitlement to have his claim properly and fully heard and determined.

At a glance

Court

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Before

Source

Judgment (47 paragraphs)

Cases Cited (9)

Cited By (14)