55 If, as the Company contends, it has the industrial and legal right to direct its employees to work afternoon shift, one might wonder why it has seen fit to pursue an award in settlement of this dispute. Nevertheless, I accept Mr Goot's explanation that the Company merely seeks to have its rights confirmed by the making of an award within what is obviously a narrow and discrete compass.
56 In any event, it seems to me that the tests to be applied in this case are correctly those which deal with management prerogative and specifically whether the Company has the right, either through direction or by the making of a new award, to insist that the relevant employees work afternoon shift. To this end it is necessary to review the principles distilled from the authorities which have considered the question of management prerogative.
57 It is trite to observe that the concept of management prerogative has undergone significant evolutionary development since the old days of the master/servant relationship. It is no longer the case that an employer can demand absolute obsequiousness from his/her employees. On the other hand, it has been well recognised that an industrial tribunal will not lightly interfere with the right of an employer to manage its business as it sees fit, according to its operational needs, unless the work asked to be performed by the employee(s) is unjust or unreasonable.
58 I refer to a number of authorities which serve to demonstrate this principle. In Re Cram; ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117, the High Court said at p136:
These considerations indicate that the objection voiced by O'Connor J. in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. The evident importance of arming such tribunals with power to settle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of "industrial matters" in the Commonwealth and State Acts by reference to any notion of managerial prerogatives as such.
59 In Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales [1984] CAR 188, the Full Bench of the then Australian Conciliation and Arbitration Commission observed at p191:
The principles which the Commission should apply in circumstances such as those before us have been the subject of a number of submissions to us and reference to a number of cases. The main case relied upon by the State Rail Authority is the decision of Coldham, J in the Airline Hostesses' Case . In that decision Coldham J applied the test whether or not the work asked to be done was "…unjust…unreasonable, harsh or oppressive". In adopting this test his Honour referred to a decision of Wright J in an appeal under the Public Service Arbitration Act. In that case Wright J said "…this Commission, and the Arbitration Court before it, have throughout their existence acknowledged the right of an employer to manage and regulate his own business subject to the protection of his employees from injustice or unreasonable demands". In that case not only did Wright J use that expression but Williams and Franki JJ in their separate decision referred to "…the right of an employer to manage and regulate his own business, unless in doing so he imposes unjust or unreasonable demands upon his employees" and said: "This approach has been accepted by the Commission and the Arbitration Court since the Conciliation and Arbitration Act became operative and has been reiterated from time to time since then." It is not clear why Coldham J added the words "harsh" and "oppressive". It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.
60 That same principle was neatly summed up by Hungerford J in BHP Steel AIS Pty Limited v Federated Ironworkers' Association of Australia, New South Wales Division (unreported, Hungerford J, IRC94/2208, 7 November 1994):
The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is a longstanding and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice.
61 Cahill VP put it in a slightly different way when he said in Department of Water Resources v Australian Workers' Union New South Wales Branch (1992) 43 IR 76 at p80:
In my opinion it is for the employer to determine what work is to be performed. That having been determined, it is then a case for the tribunal to decide, upon application being made on behalf of the employees performing the work, and having regard to the work required to be performed and the conditions applicable, whether any manning award at variance with the employer's desires is warranted.
62 In John Lysaght (Household) Limited - Port Kembla - Slit Recoil Line Award (unreported, Hungerford J, IRC94/2374, 21 March 1995), his Honour discussed the principle in this way:
A question of manning is, it seems to me, concerned necessarily with the management of an employer's business. The long settled approach to such matters by the Commission is for it not to intervene by assuming the role of the employer but rather to assess whether what the employer proposes would impose unfair or unreasonable demands on employees, including unsafe work practices. So much was acknowledged in Re John Lysaght (Household) Limited - Port Kembla - Slit Recoil Line - Rates of Pay Award when the present award was made. Specifically as to disputes about the level of manning, I refer to what was observed in the unanimous decision of the High Court in Re Cram; Ex parte NSW Colliery Proprietors' Association Limited (1987) 163 CLR 117 at 135-137:
Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial matter".
A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both of these matters.
…
These considerations indicate that the objection voiced by O'Connor J in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted.
63 In Steel Works Employees and Engine Drivers, &c (Australian Iron and Steel Limited - Port Kembla) Awards [1956] AR 855 at 859-860, Richards J observed:
The Company is entitled to decide upon and introduce its own system of working and only in very extreme circumstances would the Commission interfere with this right. In Re Iron and Steel Works Employees (Australia Iron and Steel Limited - Port Kembla) Award [1955] AR 663 at p665, when dealing with a question of manning at the soaking pits at the Company's works, the court ( Richards J) said;
Prima facie, the Company has the right to manage its business in its own way and is entitled to exercise its own discretion in the manning of its plant. In order to obtain an order against the Company in relation to the manning decided upon by it in a case of this kind, the Union carries the onus of establishing that the work which the employee is called upon to perform on his shift is more than a fair shift's work under the conditions in which the work is to be performed.
In Re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Proprietary Company Limited [1950] at 371 Cantor J at p372 said:
On the authorities, summarised the following is the legal position: