Her Majesty's Attorney-General for Queensland v National Tertiary Education Industry Union & Ors [1998] FCA 979 (19 August 1998)

Last Updated: 21 August 1998

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - motion in the High Court for order nisi remitted to Federal Court - whether the Australian Industrial Relations Commission exceeded its jurisdiction in making a finding as to the existence of an industrial dispute - letter of demand and log of claims served on four employers in Queensland - Queensland employers were agricultural colleges - whether agricultural colleges are Technical and Further Education Colleges within the meaning of the Union's eligibility rules.

Agricultural Colleges Act 1994 (Qld)

Vocational Education, Training and Employment Act 1991 (Qld)

Rural Training Schools Act 1965 (Qld)

R v Holmes; Ex parte Public Service Association of New South Wales [1977] HCA 70; (1977) 140 CLR 63- cited

R v Neil; Ex parte Cinema International Corporation Pty Ltd [1976] HCA 11; (1976) 134 CLR 27 - cited

R v Cohen; Ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577 - cited

Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [1997] HCA 40; (1997) 146 ALR 569 - cited

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v NATIONAL TERTIARY EDUCATION INDUSTRY UNION & ORS

QI 1012 of 1997

BLACK CJ, SACKVILLE & GOLDBERG JJ

MELBOURNE (HEARD IN BRISBANE)

19 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QI 1012 of 1997

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Applicant
AND:	NATIONAL TERTIARY EDUCATION INDUSTRY UNION First Respondent THE HONOURABLE JUSTICE MUNRO OF THE AuSTRALIAN INDUSTRIAL RELATIONS COMMISSION And THE HONOURABLE DEPUTY PRESIDENT BRYANT of THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION And COMMISSIONER DEEGAN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION And COMMISSIONER SMITH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Second Respondents
JUDGES:	BLACK CJ, SACKVILLE & GOLDBERG JJ
DATE OF ORDER:	19 AUGUST 1998
WHERE MADE:	MELBOURNE (HEARD IN Brisbane)

THE COURT ORDERS THAT:

1. The application that writs of prohibition and certiorari be issued against the second respondents be dismissed.

2. The applicant pay the first respondent's costs of the application including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QI 1012 of 1997

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Applicant
AND:	NATIONAL TERTIARY EDUCATION INDUSTRY UNION First Respondent THE HONOURABLE JUSTICE MUNRO OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION And THE HONOURABLE DEPUTY PRESIDENT BRYANT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION And COMMISSIONER DEEGAN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION And commissioner smith of the australian industrial relations commission Second Respondents

JUDGES:	black cj, sackville & GOLDBERG JJ
DATE:	19 AUGUST 1998
PLACE:	MELBOURNE (HEARD IN brisbanE)

REASONS FOR JUDGMENT

THE COURT:

The proceeding

On 23 September 1996, the prosecutor/applicant filed a motion in the High Court for an order nisi calling upon the respondents to show cause why writs of prohibition and certiorari should not issue out of the High Court directed to the respondents on the grounds that they had exceeded their jurisdiction in making a finding of the existence of an industrial dispute. On 5 February 1997, Toohey J ordered, by consent, that the proceeding be remitted to the Industrial Relations Court of Australia. On 23 July 1997 pursuant to paragraph 65 of schedule 16 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Toohey J directed that the proceeding be remitted to the Federal Court of Australia instead of the Industrial Relations Court of Australia.

The circumstances leading up to the motion can be shortly stated. On 9 June 1995, the first respondent ("the Union") served a letter of demand and log of claims on one employer in Victoria and four employers in Queensland. The employer in Victoria was the Marcus Oldham Farm Management College and the four employers in Queensland were Emerald Agricultural College, Longreach Pastoral College, Dalby Agricultural College and Burdekin Agricultural College. The letter of demand to each employer was in the following terms:

"The National Tertiary Education Industry Union (NTEU) hereby demands that you grant, to each employee eligible for membership of the NTEU, the salaries and terms and conditions of employment detailed in the attached log of claims.

If you do not grant the demands detailed in the log within seven days of the date of this letter, NTEU will regard the subject matter of the log as being in dispute and will take the appropriate steps to notify the Australian Industrial Relations Commission."

By notification dated 28 June 1995, the Union, pursuant to s 99 of the Industrial Relations Act 1988 (Cth), alleged the existence of an industrial dispute between it and the four employers.

On 10 January 1996, Commissioner Smith of the Australian Industrial Relations Commission ("AIRC") found pursuant to s 101 of the Industrial Relations Act 1988 (Cth) that an industrial dispute existed between the Union and the five employers and that the subject-matter of the dispute was the log of claims attached to the letter of demand. Commissioner Smith found that the claim was genuine and that the service of the log of claims was authorised by the Union. He also concluded that the Union's eligibility rule covered the employees said to be the subject of the dispute. In particular he found that the exclusion in sub-rules 6.5(f) and (g) for "[p]ersons employed ... in any Technical and Further Education Colleges (howsoever called) in Queensland" did not apply to the four Queensland colleges, each of which was (and is) an "agricultural college" for the purposes of the Agricultural Colleges Act 1994 (Qld) ("Agricultural Colleges Act 1992 ").

On 31 January 1996, the four Queensland employers sought the leave of the Full Bench of the AIRC to appeal from Commissioner Smith's decision. On 22 March 1996 the Full Bench granted leave to appeal, but dismissed the appeal. The Full Bench found that at the relevant times the dispute had an interstate character and that the Union's demand was genuine and properly authorised. The Full Bench also upheld Commissioner Smith's finding that sub-rules 6.5(f) and (g) did not exclude persons employed by the four Queensland colleges, since none of the colleges could be described as a "Technical and Further Education College (howsoever called)".

In considering the construction of sub-rule 6.5, the Full Bench accepted that, following the enactment of the Agricultural Colleges Act, for most practical purposes, agricultural colleges in Queensland were subject to much the same regulatory scheme as other "State colleges", including "TAFE" colleges. However, the Full Bench noted that agricultural colleges had a different management structure to other colleges. Further, agricultural colleges were not funded through the Australian National Training Authority ("ANTA"), established by the Australian National Training Authority Act (Cth), in the same way as the State colleges which unequivocally were members of the "TAFE system". These factors were not, however, of themselves sufficient to

"... take the Agricultural Colleges outside the class of State colleges providing technical and further education within which TAFE colleges are also generally embraced."

The Full Bench considered that the critical issue was the ordinary meaning of the language used in sub-rule 6.5. In its view, sub-rule 6.5 was to be construed as referring to TAFE colleges, in the sense in which that description was generally understood in industrial usage. The Full Bench accepted that in Queensland

"... rule 6.5 refers to the colleges in the TAFE system as it was understood at the time the NTEU rule was framed, and as it exists for purposes of the current State award coverage at the behest of the Queensland Teachers Union and the State Public Services Federation (Queensland) or its State associated body. The TAFE Colleges are a distinct group of institutions. The Agricultural Colleges were not, and still are not, TAFE Colleges in the sense used in the NTEU rule."

The Eligibility Rules

In this Court, the applicant contends that the dispute finding made by Commissioner Smith was not reasonably open on the evidence before him because the eligibility rules of the Union excluded the Union from covering those employees said to be the subject of the industrial dispute. Alternatively, the applicant contends that the Commissioner erred in law in finding that the Union's eligibility rules permitted it to cover those employees said to be the subject of the industrial dispute. In substance, the only submission relied on by the applicant is that the Commission had no jurisdiction to entertain the claim because the eligibility rules of the Union excluded it from covering the employees said to be the subject of the industrial dispute. The applicant does not pursue the other submissions made to the Full Bench of the AIRC.

The rules came into existence on 1 October 1993, upon the amalgamation of three unions to form the present Union. Rule 6 governs eligibility for membership of the Union.

"6.1 Persons shall be eligible for membership who are employed as academic staff in the industry of persons employed in or in connexion with tertiary education in the Australian Capital Territory, the Northern Territory and the States of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia; or in the other occupations specified in this sub-rule who are employed in the industry of persons employed in or in connexion with higher education in the Australian Capital Territory, the Northern Territory and the States of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia;...in any one or more of the following positions or in any class of work which forms a substantial part of the duties of such positions...".

Paragraphs (a) to (l) of sub-rule 6.1 specify a variety of academic, professional and administrative positions.

Sub-rule 6.2 provides that, notwithstanding anything in sub-rule 6.1, membership of the Union is open to persons in a number of positions in specific institutions or associations identified in paragraphs (b) to (m). Sub-rules 6.3 and 6.4 are not material to the present case.

The relevant provisions of sub-rule 6.5 are these:

"Notwithstanding sub-rules 6.1, 6.2, 6.3 and 6.4 of this rule, the following persons shall not be eligible for membership of the Union:

...

(f) Persons employed as teacher, principal teacher, tutor or Associate Director/Head of School (howsoever called) in Technical and Further Education Colleges (howsoever called) in Queensland.

(g) Persons employed in any non-academic capacity in Technical and Further Education Colleges (howsoever called) other than in Victoria."

In order to address the construction question it is necessary to consider the legislation governing State colleges in Queensland. The general structure is created by the Vocational Education, Training and Employment Act 1991 (Qld) ("Vocational Education Act 1965 "). The objects of the Vocational Education Act are as follows:

"(a) to establish effective and efficient mechanisms for the provision of vocational education, training and employment services responsive to the needs of industry and the community; and

(b) to provide mechanisms by which employers, unions and the community can advise government on vocational education and training needs and priorities to meet those needs; and

...

(d) to provide for a system of accreditation of vocational education and training courses to ensure the quality of those courses; and

...

(f) to promote cross-crediting and articulation of courses between providers of vocational education and training and other sectors of education so as to maximise progression of students; and

...

(i) to improve links between vocational education and training and secondary or higher education; and

(j) to promote the development of a national vocational education and training system in accordance with the National Statement".

The Vocational Education Act establishes a Vocational Education, Training and Employment Commission: s 6(1). This body is to be the State training agency for Queensland under the National Vocational Education and Training Statement ("National Statement"), the terms of which are set out in a Schedule to the Act. The Commission's functions are wide-ranging, but include advising ANTA about the vocational and educational needs of the State and ensuring that vocational education and training are managed and delivered in accordance with the "National Strategic Plan".

The National Statement provides for a national vocational education and training system, with agreed objectives and priorities and assured funding arrangements. The features of the National System include State training agencies with responsibility for vocational education and training within their own borders consistent with the National Strategic Plan. The Plan sets strategic directions for the vocational education and training system over a period of three to five years. The National Statement sets out the role and responsibilities of the key parties to the National Strategic Plan, including the Ministerial Council, ANTA, State training agencies and industry.

The Vocational Education Act also establishes the Vocational Education, Training and Employment Corporation ("the Corporation"), constituted by the chief executive of the relevant Department: s 31. The chief executive is subject to the direction of the Minister: s 32. The Corporation has power, under s 37, to:

"(a) continue and maintain all State colleges in existence at the commencement of this Act; and

(b) establish and maintain such State colleges as it considers necessary or desirable for the purposes of this Act."

Section 38 confers on the chief executive wide powers to "make provision for, or rules with respect to" a number of matters, including the management and conduct of State colleges, the courses to be offered in State colleges and use of the property and facilities of State colleges for vocational education and training.

Section 4 of the Vocational Education Act defines "State college" to mean:

"(a) any State college or other means of technical and further education; and

(b) any State senior college continued or established under this Act;"

The section defines "technical and further education" to mean:

"tertiary education other than advanced education or university education;"

"Tertiary education" is in turn defined to mean:

"education, other than primary or secondary education, offered wholly or primarily to students who have completed their primary and secondary education or who are above the age of compulsory attendance at school;"

The expression "advanced education" is not defined.

The Vocational Education Act provides for each State college to have a college council: s 52(2). At the college level, the functions of a college council include consulting with and advising "the director" (that is, the person in charge of the college) on all matters pertaining to the policy and direction of the State college: s 53(a). The Minister appoints the council members other than ex officio members: ss 52(3), 54.

The background to the Agricultural Colleges Act is provided by the second reading speech given by the Minister for Employment, Training and Industrial Relations (Hon M J Foley) (Parl Deb Qld, 30 August 1994, at 8967-8968) to which the Commissioner and the Full Bench were referred:

"This Agricultural Colleges Bill provides for the development and delivery of education and training for agriculture, pasturage and animal husbandry and replaces the Rural Training Schools Act 1965. Queensland has four rural training schools constituted under the Act. These are at Emerald, Longreach, Ayr and Dalby.

The original concept of the rural training schools was to give students the basic skills necessary to make them valuable members of the rural work force, generally as farmhands and pastoral workers. However, the rural sector is facing a significant number of challenges, including drought, distance and competition from overseas countries which are heavily subsidised. Therefore, there is a need for the Queensland rural economy to become more competitive... Within this context, education and training have a critical role to play in helping Queensland's rural industries gain the necessary competitive edge to compete in the world marketplace.

...

When the Rural Training Schools Act was enacted in 1965, it was expected that the student body would consist largely of students of an age consistent with Years 11 and 12 of secondary school. Since that time, the average age of the student body has increased and the majority of students are of a similar age to students at other tertiary institutions. There is also an increasingly larger proportion of women and mature-age students. It seems reasonable that the names of the rural training institutions and the governing legislation should recognise and reflect this fact and be comparable with other institutions such as TAFE colleges. Consequently, the new Act is now the Agricultural Colleges Act 1994, and the institutions are to be called "agricultural colleges" - or "pastoral college" in the case of Longreach.

The intentions of the changes to the Act are:

* to improve the accountability of agricultural colleges in relation to Government funding;

* to modernise the operations of the college boards in order to reflect the interests of key stakeholders in the colleges - including staff and students; and

* to improve the relationship between agricultural colleges and the vocational education and training sector - that is TAFE colleges and other training providers - by bringing them into mainstream focus.

...

The development of this Bill follows a review of rural training schools by the Vocational Education, Training and Employment Commission and the adoption of many of its recommendations. A wide and effective consultation process within the rural industry indicated that the amendments incorporated in this Bill would result in improved delivery of training to the rural sector.

..."

The Agricultural Colleges Act defines an "agricultural college" to mean:

"a State college that is declared to be an agricultural college" (s 3).

"State college" has the meaning given by the Vocational Education Act (s 3). The Minister is empowered to declare a State college to be an agricultural college if it offers courses about agriculture, pasturage or animal husbandry: s 4. Declarations have been made in relation to the four colleges involved in these proceedings.

The Agricultural Colleges Act does not expressly apply the Vocational Education Act to agricultural colleges. It appears to assume that such colleges fall within paragraph (a) of the definition of `State college" in s 4 of the Vocational Education Act. Section 5 of the Agricultural Colleges Act states that certain sections of the Vocational Training Act, including ss 38, 52, 53 and 54, do not apply to an agricultural college.

Part 2 of the Agricultural Colleges Act creates a board of trustees for each agricultural college: s 6. The board is the College's governing body (s 7) and it has all the powers necessary to manage the college, including appointment of staff and controlling the college's finances (s 8). The board also appoints the director of the college.

The submissions

Mr Douglas QC, who appeared with Mr Murdoch for the applicant, pointed out that the Vocational Education Act, which predated the Union's rules, defined "technical and further education" broadly, to mean "tertiary education other than advanced education or university education". He submitted that sub-rules 6.5(f) and (g) should be interpreted in the light of that definition and given broad scope. Moreover, the rules were to be construed in an ambulatory fashion, in order to take account of changes in the functions of institutions such as the agricultural colleges.

The applicant further submitted that the introduction of the Agricultural Colleges Act changed the nature and character of agricultural colleges in Queensland, so that they became colleges of technical and further education. According to Mr Douglas, the rules should be interpreted to reflect the industrial reality that agricultural colleges now provide what is recognised as technical and further education. Mr Douglas relied on the second reading speech relating to the Agricultural Colleges Bill (Qld) to support his argument.

The Union submitted that the language in sub-rules 6.5(f) and (g) should be given its ordinary or industrial meaning, and not the definition which appears in a statute. Mr Amerena, who appeared for the Union, contended that agricultural colleges are not "Technical and Further Education Colleges" within the meaning of the sub-rules because the former were recognised as having a different historical background and statutory framework to the latter. At the time the Union's rules came into existence, 1 October 1993, the expression "Technical and Further Education Colleges" had an accepted meaning, while agricultural colleges were recognised as separate institutions having their own distinct characteristics.

Reasoning

The task before the Court, in determining whether the Commission had jurisdiction to entertain the matter is to construe the Union's eligibility rules, rather than the statutes. Eligibility rules are not to be restrictively construed (R v Holmes; Ex parte Public Service Association of New South Wales [1977] HCA 70; (1977) 140 CLR 63, at 73, per Gibbs J), but should be given a liberal construction: R v Neil; Ex parte Cinema International Corporation Pty Ltd [1976] HCA 11; (1976) 134 CLR 27, 31 per Gibbs J; R v Cohen; Ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577, 581 per Gibbs J. Nonetheless, as both parties accepted, they must be construed against the background provided by the Queensland legislation.

A curious feature of this case is that there appears to have been little material before Commissioner Smith, or the Full Bench, that explained the emergence of the expression "Technical and Further Education Colleges" or its industrial meaning prior to the enactment of the Vocational Education Act in 1991. It was, however, common ground that there were well-recognised Technical and Further Education Colleges (usually known as "TAFE" colleges) and that they were different from agricultural colleges. The Minister's second reading speech in relation to the Agricultural Colleges Bill, upon which both parties relied, makes it clear that, prior to the enactment of the Agricultural Colleges Act, the institutions constituted under the Rural Training Schools Act (Qld) were seen as quite distinct from TAFE colleges. They were established under different legislation, had different objectives and were intended to serve the rural sector specifically.

The first step in the interpretation of sub-rules 6.5(f) and (g) is to note that they refer, not to "technical and further education colleges", but to "Technical and Further Education Colleges (howsoever called)". The use of capital letters is evidently deliberate and, in the present context, significant. The language is clearly intended to refer to a particular type of college, not merely to an institution that can be described as providing "technical and further education". Mr Douglas submitted that the words in parentheses expanded the scope of the expression "Technical and Further Colleges". On the contrary, we think that the reference to "(howsoever called)" reinforces the point that sub-rules 6.5(f) and (g) are concerned with colleges of a particular type, that is those recognised as part of the TAFE sector. The words in parentheses acknowledge that a college may be within that sector, yet bear a name other than "Technical and Further Education College".

The Vocational Education Act 1989 did not bring agricultural colleges within the "TAFE" sector. On the contrary, it established a structure for technical and further education in accordance with the National Statement. Clearly this structure, which was set up in the context of Commonwealth financial assistance for technical and further education under the State Grants (TAFE) Act (Cth), embraced TAFE colleges. Equally clearly, it did not convert agricultural colleges into TAFE colleges. Their character and functions remained unaltered. It may well be that the courses offered by them and the characteristics of their students were changing over time so that they provided courses that could be described as "technical and further education". But sub-rules 6.5(f) and (g) do not refer to colleges which provide some technical and further education courses, but to "Technical and Further Education Colleges".

The enactment of the Agricultural Colleges Act 1988 did not change this position. It is true that the Agricultural Colleges Act applied many of the provisions of the Vocational Education Act to agricultural colleges. In some respects, therefore, the position of agricultural colleges has been assimilated to that of TAFE colleges. But material differences remain. Colleges within each sector have quite different governing structures, even though the Minister has ultimate authority in all cases. An agricultural college is administered by a board of trustees with specified powers and functions; a TAFE college subject to the Vocational Education Act is under the control of the Corporation. Moreover, as the Full Bench recognised, funding arrangements for each class of college are different. While s 3 of the Agricultural Colleges defines "agricultural college" by reference to the meaning given to "State college" in the Vocational Education Act, agricultural colleges are not converted to or treated as having become TAFE colleges. For example s 5 of the Agricultural Colleges Act provides that numerous sections in the Vocational Education Act do not apply to agricultural colleges.

The second reading speech which introduced the Agricultural Colleges Bill in August 1994 makes it clear that, although agricultural colleges were to be upgraded they were not to be regarded as or treated the same as TAFE colleges. The line between agricultural colleges and TAFE colleges was to be maintained. This is evident, for example, from the Minister's observation that one objective of the legislation was:

"to improve the relationship between agricultural colleges and the vocational education and training sector - that is TAFE colleges and other training providers - by bringing them into mainstream focus.

Neither the Commissioner nor the Full Bench fell into any error of law which vitiated their jurisdiction and we are satisfied that both the Commissioner and the Full Bench had jurisdiction to entertain the matter. The application will be dismissed. As the application was not under the Industrial Relations Act (Cth), but rather for the issue of prerogative writs it is appropriate to order that the applicant pay the first respondent's costs of the application including reserved costs: Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [1997] HCA 40; (1997) 146 ALR 569, at 571.

I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of the Court.

Associate:

Dated: 19 August 1998

Counsel for the Applicant:	J S Douglas QC and C J Murdoch
Solicitor for the Applicant:	B T Dunphy, Crown Solicitor
Counsel for the Respondent:	M Amarena
Solicitor for the Respondent:	Ryan Carlisle Thomas
Date of Hearing:	14 July 1998
Date of Judgment:	19 August 1998