Slonim v Fellows

High Court of Australia|1983-04-26|Before: Deane JJ

For the reasons given by Wilson J. I would allow the appeal and would grant an order for mandamus directed to the respondent.

"Industrial dispute" in the Industrial Relations Act 1979 Vict., means (among other things) "a dispute between an association of employés and one or more employers" (s. 3(1)). No doubt the dispute must be a dispute concerned with or arising out of industrial relations, but there is no express or implied limitation which would exclude a dispute about termination or proposed termination of employment or reinstatement or refusal to reinstate an employee, or about engagement or proposed engagement or refusal to engage a person as an employee.

Industrial disputes frequently occur over dismissal or refusal to reinstate dismissed employees. In times of widespread retrenchments, disputes are often about the necessity for retrenchment or its mode (such as "last on, first off") or its terms (such as severance pay or allowances for retraining).

The termination of the relationship of employer and employee does not preclude the existence of industrial claims, matters, and disputes. Industrial history shows that many bitter, prolonged and costly industrial disputes have occurred when the employment has been terminated. Costly interstate disputes have occurred over the dismissal of one or a few workers in one State.

The dispute in this case between the employer and the Association of employees about the termination of the appellant's employment and a claim for her reinstatement is an industrial dispute within the meaning of the Act. The decision of the Supreme Court of Victoria, in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. [13] , which expressed a contrary view, should be overruled.

The appellant is a teacher. At all material times she has been a member of the Victorian Teachers' Union ("the Union"), an association of employees recognized pursuant to Pt V of the Industrial Relations Act 1979 Vict., as amended ("the Act"). For approximately fourteen years immediately prior to 15 April 1983 she was employed by the General Committee of the Victorian Autistic Children's Association - Southern Centre ("the Committee"). From 1972 until 15 April 1983 she was the Principal of an institution known as the Southern Centre caring for autistic children. On 9 March 1983 the appellant received a letter from the president of the Committee requesting her resignation. She did not resign. On 15 April 1983 she was informed that her employment was terminated with immediate effect and she was given four weeks' salary in lieu of notice. There is no suggestion that the Committee's action was not lawful. The complaint is that it was unfair.

The Union intervened on the appellant's behalf and, after some discussions with representatives of the Committee, it notified the Registrar of the Industrial Relations Commission, pursuant to s. 44(1) of the Act, that an industrial dispute had arisen between the Union and the Committee concerning the Committee's decision to terminate the services of the appellant. Thereafter, in accordance with the provisions of s. 44(2), several meetings of the Teachers (Day Training Centres) Conciliation and Arbitration Board ("the Board") were held in an effort to settle the matter of the dispute by conciliation. Those efforts were unsuccessful. On 27 June 1983 the respondent, in her capacity as Chairman of the Board, ruled that the Board lacked power to determine a dispute involving an employee whose services had already been terminated and who was seeking reinstatement. In making that ruling she acknowledged that the decision of the Supreme Court of Victoria in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. [13] compelled such a result. Thereafter application was made by the appellant to the Supreme Court for an order nisi for a writ of mandamus directed to the respondent requiring her to determine the matter of the dispute. The Chief Justice refused the application on the ground that the decision of the Full Court in Plumrose determined the issue against her. This Court subsequently granted special leave to appeal from the refusal.

The issue in this appeal turns on the jurisdiction of the Board to determine an industrial dispute in the circumstances which I have briefly outlined. In s. 3 of the Act, an industrial dispute is defined as follows:

"Industrial dispute" means a dispute arising between an employer and one or more of his employés, or between an association of employés and one or more employers or associations of employers, or between two or more associations of employers or two or more associations of employés, and includes a threatened or impending or probable dispute. In terms, the definition is extraordinarily wide. If it were read literally, it would mean any dispute about any subject at all that arises between the parties described. However, the definition must be read down by reference to the Act as a whole and so read must be confined to a dispute of an industrial nature. Having said that, however, it is unnecessary and unwise to attempt any more precise definition save what may be necessary for the determination of the case in hand. No doubt the resolution of any particular case requiring a consideration of the scope of the term "industrial dispute" will be greatly assisted by the legislative intent reflected in the enumeration of what may loosely be described as industrial matters contained in s. 34(1) of the Act. It will also be assisted by the recent observations of this Court on the correct approach to the construction of the expression "industrial disputes" in s. 51(xxxv) of the Constitution in Reg. v. Coldham; Ex parte Australian Social Welfare Union [15] ("the Social Welfare Union Case"). The Court said: The words are not a technical or legal expression. They have to be given their popular meaning - what they convey to the man in the street. And that is essentially a question of fact.

It is, we think, beyond question that the popular meaning of "industrial disputes" includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective "industrial" imports some restriction which confines the constitutional conception of "industrial disputes" to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern.

In considering the present problem, it may be important to remember that the dispute in question is a dispute between the Union and the Committee. It is not a dispute between the appellant and the Committee. The definition of industrial dispute contemplates that a dispute may arise between one employee and his employer but it may be doubted whether such a dispute could arise over the dismissal of the employee after the employment was terminated for the reason that the disputant would no longer be an employee - but cf. per King J. in Reg. v. Industrial Commission of South Australia; Ex parte Petersville Ltd. [16] . I should add that no question has been raised touching the standing of the appellant to bring the proceedings.

In Plumrose [17] the employer dismissed an employee for incompetence. The association of which the employee was a member notified the existence of an industrial dispute and the relevant Board, after a hearing, determined that the employee should be reinstated, but made no order. The dispute was then referred to the Commission and a commissioner commenced to hear the dispute, including an application for the employee's reinstatement. The employer sought and obtained a writ of prohibition from the Supreme Court. In a joint judgment, the Full Court (Young C.J., Starke and Fullagar JJ.) concluded a careful examination of earlier decisions of this Court with the following statement [18] :

Thus the essential element in an industrial dispute in the ordinary meaning of that expression is that it should be a dispute as to the terms and conditions of the employment of persons who are employees and are themselves disputants or are represented by one of the disputants. Thus a dispute as to whether a particular employer should employ a particular employee is not within the general concept of an industrial dispute even when the demand is made by an association of employees. The dispute does not touch the terms or conditions of employment of any employee. Their Honours also considered the question in the light of the powers conferred on a Board by s. 34(1). They said [19] : The opening words of sub-s. (1) are controlled by the words "relating to any industrial matter" and it will be apparent from what we have already said that the dispute between the parties here does not relate to an industrial matter. But the enumerated paragraphs of sub-s. (1) may extend the powers of the Board beyond those granted by the introductory words. All that it is necessary to say about those paragraphs, however, is that none of them suggests that Parliament intended to give a Board the power to direct that A employ B. It must be remembered that such a power is a very drastic one and the Court should not impute to Parliament an intention to confer such a power upon a statutory tribunal unless the Act contains the most express and compelling language to that effect. It must be borne in mind that their Honours, when ruling on this question, did not have the benefit of the reasons of this Court in the Social Welfare Union Case, to which I have referred. 1. [1983] 1 V.R. 469. 2. [1983] 1 V.R., at p. 476. 3. [1983] 1 V.R., at p. 477.

With all respect to their Honours in Plumrose , I would make three comments about that decision. First, a clear distinction should be drawn between employment of a person and reinstatement of a recently dismissed employee. As the court rightly observed, the power to direct that A employ B is a very drastic one. It is not lightly to be inferred in the absence of compelling language. But the difficulty of drawing such an inference is perhaps very much less in a case where, in the context of arbitrating a dispute concerning the fairness of a recent dismissal, a claim for reinstatement is made. The fact that industrial legislation in other places may expressly confer such a power does not necessarily deny its availability in the absence of such express mention; on the contrary it may serve to identify such a remedy as forming part of the recognized armoury of available remedies in the modern pursuit of harmonious industrial relations. However, it will always be a power to be exercised with caution having regard to the circumstances of the case. There will be many cases where the working relationship of employer and employee is so close that to impose such a relationship by an award would be quite destructive of industrial harmony.

Secondly, one must not overlook the concluding phrase of the definition of "industrial dispute", namely, "and includes a threatened or impending or probable dispute". In a case where an association of employees is aggrieved by what it conceives to be the unfair dismissal of one of its members, and its overtures to the employer are rejected, there could very readily be perceived, if not an actual dispute, a threatened or impending or probable dispute. Such a dispute, if not open to be dealt with promptly in accordance with the Act as a dispute involving the dismissal and reinstatement of a particular employee, could readily escalate into a major confrontation between the association and the employer. It is perhaps not without significance in the present case that the letter from the Union to the Registrar notifying the existence of the dispute foreshadowed the submission of a proposal with respect to dismissal and grievance procedures.

Thirdly, the description by their Honours of "the essential element" in an industrial dispute, namely, that it should be "a dispute as to the terms and conditions of the employment of persons who are employees and are themselves disputants or are represented by one of the disputants" overlooks the full significance of the definition of the term in s. 3. A dispute does not have to involve an employee or employees. It may arise between an employer and an association of employees. I understand their Honours to be saying that a union can never itself be a disputant in its own right. It can only represent employees who are disputants. It seems to me that the statutory definition envisages that an industrial dispute may arise between employers and unions without any necessity to identify a particular employee or group of employees as themselves disputants. If this be so, then does it not follow that a union can bring about an industrial dispute by taking up the cudgels for a dismissed employee? If it were thought to be necessary to identify any specific powers possessed by a Board to deal with such a dispute (that is, under s. 34(1)) reference could be made to the "rights and duties of employers and employés" (par. (c)); "the modes, terms and conditions of employment or non-employment" (par. (d)); "the relations of employers and employés" (par. (e)); and "questions of what is fair and right in relation to any industrial matter" (par. (k)). In my view, however, it would be sufficient merely to point to "industrial disputes" (par. (f)).

I have come to the conclusion that the decision in Plumrose [20] reflects too narrow an approach to the concept of "industrial dispute" in the Act. The present case seems clearly to fall within the jurisdiction of the Board. There was a prompt notification of a dispute between the Union and the Committee following the termination of the appellant's employment. When the Board was convened to conciliate the dispute issues were raised concerning the fairness of the dismissal and the Union sought the appellant's reinstatement. Applying the test laid down by this Court in the Social Welfare Union Case [21] there was, in my view, an industrial dispute. Conciliation having failed, the respondent was obliged to proceed to determine the matter by arbitration (s. 44(3)).

[1983] 1 V.R. 469. 2. (1983) 153 C.L.R. 297.

I would allow the appeal and would grant an order for mandamus directed to the respondent.

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson and Deane JJ. Slonim v Fellows [1984] HCA 51

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