Re Australia and New Zealand Banking Group Ltd and Others v Australian Bank Employees Union [1988] FCA 10 (1 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD and OTHERS
And: AUSTRALIAN BANK EMPLOYEES UNION
No. V216 of 1987
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.(1)

CATCHWORDS

Industrial Law - Conciliation and Arbitration Act 1904 - application under s.110 for construction of an award - request under s.118C that the proceeding be heard and determined by a Full Court - matters taken into account in granting the request.

Conciliation and Arbitration Act 1904 ss.110,118B,118C,119

HEARING

MELBOURNE
1:2:1988

Counsel for Applicants: Mr. M. Dowling Q.C. with Mr J.F. Turner

Solicitors for Applicants: Messrs. Freehill, Hollingdale and Page

Counsel for Respondent: Mr. S. Howells

Solicitors for Respondent: Messrs. Maurice Blackburn and Co.

DECISION

This is a further directions hearing in this matter, which has been brought pursuant to s.110 of the Conciliation and Arbitration Act 1904, in which the applicants, being certain banks bound by an award, the Bank Officials (Federal) (1963) Award, are seeking a construction of certain provisions of that award. The respondent is the Australian Bank Employees' Union, which is a party to that award.

2. The construction sought by the banks is set out in paragraph 11 of the application. Pursuant to points of contention of fact and law, which have been filed on behalf of the respondent, it is apparent that the Union is maintaining its position that the construction sought by the banks, even if correct, will not have the effect of determining all the issues raised by the large number of applications brought by the Australian Bank Employees' Union against banks pursuant to s.119 of the Act in which the Union is seeking the imposition of penalties for breaches of the award. Those proceedings are continuing, but a discrete issue is raised by the proceedings currently before me, and it is possible that they could have an effect on a number of the s.119 proceedings. Under normal circumstances, the matter is ready for trial, there are no further affidavits to be filed, and the issues raised are capable of being determined by the construction of the award itself, having regard to the framing of the construction as set out in paragraph 11 of the application and amplified by the earlier paragraphs of that application.

3. Initially, the Court raised the issue of whether this was a matter that should be referred to a Full Court pursuant to the provisions of s.118C of the Act. Before me, counsel for the banks has argued that the Court should refer the matter for determination by a Full Court while counsel for the Union has contended that there should be no reference to a Full Court, but that the matter should proceed in the normal way, in which case the application would be heard and determined by a Court constituted by a single Judge, and thereafter the dissatisfied party would have a right to appeal to a Full Court. It is noted that under sub-section 118B(2) of the Act there can be no appeal from a judgment of a Full Court in a matter under s.110 of the Act, although, by way of aside, there can be an appeal from a decision of a Full Court on a matter under s.119 of the Act by leave of the High Court. It is also made clear by counsel for the banks that in this case it is not intended to challenge the earlier decision of a Full Court of the Federal Court of Australia in Gapes v. Commercial Bank of Australia Ltd. (1980) 41 FLR 27, although it will be sought to distinguish that authority from the construction sought in the present case.

4. In my opinion, this is an appropriate case to be referred to a Full Court under s.118C of the Act. The reasons why it is an appropriate case so to do, in my opinion, are as follows.

5. There appears to be no disputed question of fact arising as to the construction sought. It appears there will be no witnesses called, and there are no competing affidavits as to factual matters. What is being raised is the construction of a written document, namely the proper construction of an award of the Conciliation and Arbitration Commission. The jurisdiction conferred by s.110 of the Act is rather unique in that it gets very close to a position where the Court is empowered to give an advisory opinion for the guidance of parties, a course which normally the Court does not exercise under its normal jurisdiction and powers. Here the very wording of s.110 makes it clear that this is the purpose of the section. That section provides:-

"110. (1) The Court is empowered, subject to

this section, to give an interpretation of an
award. ...

(3) The decision of the Court upon the
application is final and conclusive and is binding
on all organizations and persons bound by the award
which or who have been given an opportunity of
being heard by the Court."

6. In my opinion, it is unwise for references to be made under s.118C in cases where disputed questions of fact arise. That is not the case here. There is this unique power, a power to give an interpretation or construction. In many respects it is similar to the power of a Supreme Court to give an interpretation of a will. It is a type of case which can be dealt with adequately and without undue difficulty as far as facts are concerned by a Full Court.

7. Secondly, in my opinion, this is a case where, on the probabilities, no matter which of the parties succeeds if the matter were to proceed before a single Judge, the other party would appeal to a Full Court. The matter is of vital importance to the parties, and it is desirable to avoid the unnecessary procedures and expense of having a hearing by a single Judge and then an appeal. This is not the type of case where a trial and reasons for judgment by a single Judge can be of assistance to a Full Court. It is well known that appellate courts derive enormous advantage from having the benefit of a trial Judge giving his reasons for decision, but in a case of this kind, the advantage to be achieved from a trial followed by an appeal is not so great as to deprive the Full Court of dealing effectively with the matter by way of reference under s.118C of the Act.

8. Thirdly, it is apparent that some of the current s.119 applications do depend upon the construction of the clauses of the award, the subject of the present application under s.110. Not all those s.119 proceedings so arise, apparently, but a substantial number of them do. In those circumstances, it seems desirable to have an authoritative opinion of the Full Court as to the proper construction of the award before any of those s.119 applications which depend upon the relevant clauses of the award, the subject of the present proceedings, come on for hearing. The guidance of a Full Court as to the proper construction of the relevant clauses would be of assistance to the Court in hearing those s.119 applications in which the clauses of the award, the subject of the s.110 application, are given.

9. Accordingly, for these reasons, it is my opinion that this is a matter which should be referred to a Full Court and I so order under s.118C of the Act.