Re State Public Services Federation; Ex parte Attorney-General (WA) [1993] HCA 30

1. Caledonian Collieries Ltd. v Australasian Coal and Shale Employees Federation [No. 1] (1930), 42 C.L.R. 527, at p. 552; Reg. v Ludeke; Ex parte Queensland Electricity Commission (1985), 159 C.L.R. 178, at p. 181. 2. Ludeke (1985), 159 C.L.R., at p. 181; Metal Trades Employers Association v Amalgamated Engineering Union (1935), 54 C.L.R. 387, at p. 415; Melbourne and Metropolitan Tramways Board v Horan (1967), 117 C.L.R. 78, at p. 84. 3. Ludeke (1985), 159 C.L.R., at p. 181 and the cases there cited.

However, the prosecutors assert that while the rejection of a log may raise a prima facie case of dispute, no onus lies on the respondents to the log to prove the contrary. In R. v Commonwealth Court of Conciliation and Arbitration; Ex parte G. P. Jones (the Builders' Labourers' Case) [53] , Isaacs J. said:

For it must never be supposed that this is a decision which asserts that a mere demand and refusal in all cases constitutes an industrial dispute, which is very different from saying that a regular and formal demand for altered conditions and a distinct refusal is prima facie evidence of such a dispute; or that a mere claim by plaint to regulate an industry is sufficient to give jurisdiction to the Commonwealth Court

In all cases the Court is bound to be satisfied of the existence and reality of the dispute, and if the circumstances show that the prima facie appearance of the industrial relations of the parties is incorrect, it will say so, and refuse to proceed. Further, if, on prohibition, that appears to this Court, the Arbitration Court may be restrained.

This statement supports the contention of the prosecutors. But statements in other cases give greater weight to the service and refusal of a log of claims. Thus, in Federated Felt Hatting Employees Union of Australasia v Denton Hat Mills Ltd (the Felt Hatters Case) [54] , Higgins J. said: Prima facie, the request made with the log sent on 2nd August is to be treated as real, genuine, and intended to be pressed by any appropriate means. But it was open to the respondents to prove the contrary. In R. v Blakeley; Ex parte Association of Architects &c. of Australia [55] , Williams J. stated the law in identical terms. In Reg. v Cohen; Ex parte Attorney-General Q [56] , Gibbs C.J., with whose judgment Aickin and Brennan JJ. agreed, said: The question whether a dispute is real and genuine is a question of fact, and when prohibition is sought it is for this Court to determine whether or not the fact on which the jurisdiction of the Commission depends exists The burden of showing that the Commission lacks jurisdiction rests on the prosecutor A formal demand will prima facie be regarded as real and genuine, unless the contrary is established. In Reg. v Ludeke; Ex parte Queensland Electricity Commission [57] , the Court said: Because disagreement rather than disturbance or dislocation of industrial relations is the essential characteristic of an industrial dispute, a "paper dispute" evidenced by delivery and non-acceptance of a log of claims is sufficient to create such a dispute. But from the beginning it has been recognised that the dispute must be real and genuine, the formal demand being viewed prima facie as real and genuine, the prosecutor bearing the onus of clearly establishing the contrary. 1. (1914) 18 C.L.R. 224, at p. 246. 2. (1914) 18 C.L.R. 88, at p. 109. 3. (1950) 82 C.L.R. 54, at p. 83. 4. (1981) 157 C.L.R. 331, at p. 338. 5. (1985) 159 C.L.R. 178, at p. 181.

When prohibition is sought, the onus of proving that the Commission had no jurisdiction lies upon the prosecutor. In the four cases to which I have referred, the prosecutors were seeking prohibition in this Court. Nevertheless, the statements to which I have referred appear to be addressed to proof of a dispute generally, and not merely to an application for a writ of prohibition.

In principle, it is difficult to see why the raising of a prima facie case should transfer the burden of proof to the party asserting that there was no dispute. In other branches of the law, the raising of a prima facie case means that, in the absence of further evidence, there is evidence upon which the tribunal of fact can, but not must, find for the party raising the prima facie case [58] . In these branches of the law, the legal onus of proof does not shift to the defendant. In federal industrial relations cases, however, the contrary rule seems firmly established and has been stated and applied in a recent and unanimous judgment of this Court [59] . Consequently, it should now be taken as settled that a "paper dispute" constitutes prima facie evidence of a dispute and that the onus of proving lack of genuineness falls upon the party who denies the genuineness of the dispute.

1. May v O'Sullivan (1955), 92 C.L.R. 654; Mummery v Irvings Pty. Ltd. (1956), 96 C.L.R. 99. 2. Ludeke (1985), 159 C.L.R., at p. 181. See also Re Australasian Meat Industry Employees' Union; Ex parte Aberdeen Beef Co. Pty. Ltd. (1993), 176 C.L.R. 154, at pp. 161-175.

The prosecutors contend that the Commission erred because it prefaced its conclusions as to genuineness by citing the statement of Gibbs C.J. in Cohen to which I have referred. In view of the authorities in this Court, however, the Commission did not err in using that statement as the basis upon which it dealt with the issue of the genuineness of the dispute. After citing Cohen , the Commission then considered the various pieces of evidence relating to the issue before concluding that on balance the dispute was real and genuine. There was no error in the manner in which the Commission approached its task as to genuineness.

Nevertheless, the question remains whether the dispute is real and genuine. This is a question of fact. But, as it is a question going to the jurisdiction of the Commission, it is a question for this Court to decide.

A dispute is genuine if the demands made in the log of claims are genuinely advanced in the sense that the organization "really wants what it demands" [60] . A dispute is not genuine if the sole, principal or immediate purpose in serving the log is to attract the jurisdiction of the Commission and not to pursue the demands contained in the log [61] .

1. Cohen (1981), 157 C.L.R., at p. 337. 2. Caledonian Collieries Ltd. v Australasian Coal and Shale Employees' Federation [No. 2] (1930), 42 C.L.R. 558; Ludeke (1985), 159 C.L.R. 178.

In this case, the prosecutors contend that the nature of the demands in the log of claims discloses that there was and is no genuine dispute. The demands are for a $5,000 minimum wage to be paid to all employees, together with a minimum allowance of $2,500 per week for all employees. Not only are the amounts demanded exorbitant, but the prosecutors point out that they apply to all employees regardless of their function or current remuneration.

The insertion of inflated demands into logs of claims has become commonplace, largely as a result of the ambit doctrine, a doctrine which can be traced to R. v Commonwealth Court of Conciliation and Arbitration and Boot Trade Employees Federation; Ex parte Whybrow & Co. ("the Whybrow's Case ") [62] where Isaacs J. said:

[I]n my opinion the Court had no greater jurisdiction to award a higher wage than was asked, than it had to reduce wages below what were actually in dispute. It is the dispute that has to be regarded and adjudicated upon There is nothing in the world to prevent employers or employees from making their respective demands as wide as they please; but when they choose to select one particular limited demand as the subject or point of dispute, and refer that to the Court, then that is what the Court has to decide. It may give anything between the maximum and the minimum limits of the dispute, but it can pass neither further forward than the maximum, nor further back than the minimum. To some extent, the rigour of the ambit doctrine has been softened by the principle that matters not strictly within the ambit of the original dispute may be the subject of an award as long as those matters are "relevant", "reasonably incidental" or "appropriate" to the settlement of the dispute or have a "natural or rational tendency to settle the particular question in dispute" [63] . However, matters not within the ambit of the dispute and not reasonably incidental to the settlement of the dispute cannot be provided for in settlement of the dispute. Given that the ambit doctrine applies not just to the initial making of an award, but also to the variation of an award [64] , the tendency toward extravagant claims in logs of claims is probably inevitable. 1. (1910) 11 C.L.R. 1, at p. 61. 2. Reg. v Galvin; Ex parte Amalgamated Engineering Union, Australian Section (1952), 86 C.L.R. 34, at p. 40; R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch (1938), 60 C.L.R. 507, at p. 538; Reg. v Holmes; Ex parte Victorian Employers' Federation (1980), 145 C.L.R. 68, at p. 76; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vict.) Ltd. (1989), 166 C.L.R. 311, at pp. 317-318, 334. 3. Reg. v Kelly; Ex parte Australian Railways Union (1953), 89 C.L.R. 461, at p. 474.

Because the ambit doctrine is the explanation of the extravagant demands so often seen in logs of claims, this Court has had no difficulty in accepting the proposition that extravagant demands do not of themselves mean that a log containing such demands is not genuine [65] . In Ludeke , the Court recognized that the requirements of the ambit doctrine "not only promote, but necessitate, the making of inflated demands" [66] . The Court said [66] :

These demands, known as "ambit claims", are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seem to be extravagant when made, appear, in the light of inflation, to be reasonable some years later. Furthermore, the rule that extravagant demands do not necessarily mean that a dispute is not genuine has been reinforced by another rule. That rule provides that a log can give rise to a genuine demand even though the organization or the employees concerned do not wish to have the conditions demanded in the log of claims implemented immediately [67] . Although claims may be extravagant in the light of the current terms and conditions of employment, they may nevertheless be perceived as genuine because they seek to settle the terms and conditions of employment for the foreseeable future. Consequently, by itself, the extravagant nature of demands in a log of claims has not resulted in such a log being found to lack genuineness. 1. See Ludeke (1985), 159 C.L.R., at pp. 182-183; Reg. v Heagney; Ex parte A.C.T. Employers Federation (1976), 137 C.L.R. 86. 2. (1985) 159 C.L.R., at p. 183. 3. (1985) 159 C.L.R., at p. 183. 4. (1985) 159 C.L.R., at pp. 182-183; Melbourne and Metropolitan Tramways Board (1967), 117 C.L.R., at pp. 83-84.

The prosecutors contend that the ambit doctrine and the acceptance of extravagant demands, manifested in cases such as Ludeke , lead to constitutional error. They contend that such acceptance leads to a presumption that a log of claims, when rejected, gives rise to a genuine dispute and that a genuine dispute can be found in circumstances where there is in reality nothing over which the parties to the log of claims are presently in dispute. The prosecutors contend that the ambit doctrine - a tool for ensuring that the Commission remains within its jurisdiction - has created a fiction for evading those jurisdictional limits.

No doubt, the prosecutors are correct in pointing to the ambit doctrine as a significant (but not the only) factor in the making of extravagant demands. But the difficulties and artificialities pointed to by the prosecutors are not reasons for the rejection of the extravagant claims doctrine or, for that matter, the ambit doctrine. The ambit doctrine is concerned only with the relationship between an award and the dispute from which the award emanates. It has nothing to say about the dispute itself. Furthermore, if a claim for changed conditions, although extravagant by current standards, can reasonably be seen as intending to cover potential disagreements in the foreseeable future, it will and ought to be regarded as genuine. Extravagance by itself does not destroy the genuineness of a demand.

The prosecutors' attack on the ambit doctrine and the acceptance of extravagant claims must fail. The use of the ambit concept does not preclude inquiry into genuineness. And provided that the demands are a reflection of a genuine desire to provide for changes either now or in the foreseeable future, a genuine dispute may be found notwithstanding the extravagant nature of the claims when evaluated in the light of current conditions.

Nevertheless, if the demand is so extravagant that it cannot reasonably be understood as intended to provide for changes in the terms and conditions of employment, either now or in the foreseeable future, ordinarily the proper inference to be drawn is that the organization making the demand does not really want what it demands. If other circumstances indicate that the organization serving the log is nonetheless seeking to improve the terms and conditions of employment of its members, the proper conclusion may be that the real purpose sought to be achieved by serving the log is to create a "paper dispute" so that the Commission can make, and from time to time vary, an award in respect of those terms and conditions. That seems to me to be the situation in the present case.

The terms of the demands in this case can hardly be said to reflect an intention that either now or in the foreseeable future the employers should pay a salary and allowances with a present day value of $7,500 per week to each employee. For most, if not all, State public servants, a wage of $5,000 per week plus $2,500 per week in allowances would constitute an extraordinary, even fantastic, increase in their current wages and allowances. Moreover, the log contains a further claim that the wage and allowances be adjusted quarterly in accordance with the All Groups Consumer Price Index. Even allowing the ambit doctrine full operation so as to facilitate variations of the award in the future, it is impossible to accept that the organization really intended to demand such dramatic changes in the level of wages and allowances. The amounts involved are too fantastic to accept that the organization really wanted what it demanded either at the time of service or at any time in the foreseeable future. And it is not merely the amount of the claimed salary and allowances which suggests that the organization did not really want what it demanded. There is no differentiation in the log of claims between the amounts payable to the respective employees. The same "claim" was made regardless of the seniority, experience, function or responsibility of the employees concerned.

In this case, the conclusion is inescapable that the claims were formulated for the purpose of creating a "paper dispute" so as to obtain an award in respect of such wages and allowances as the Commission thinks is reasonable for employees covered by the proposed award. For the reasons given by Mason C.J., Deane and Gaudron JJ., however, I do not think that the rejection of such a demand can create a dispute for the purpose of the Act. It follows that the Commission was in error in finding that a dispute existed.