Re Griffin; Ex Parte Professional Radio & Electronics Institute of Australasia [1988] HCA 72; (1988) 167 CLR 37; (1988) 84 ALR 385 (24 February 1988)

HIGH COURT OF AUSTRALIA

RE PAULINE MARCUS GRIFFIN, A COMMISSIONER OF THE AUSTRALIAN CONCILIATION AND ARBITRATION COMMISSION, OVERSEAS TELECOMMUNICATIONS COMMISSION AND THE MINISTER FOR TRANSPORT AND COMMUNICATIONS EX PARTE PROFESSIONAL RADIO AND ELECTRONICS INSTITUTE OF AUSTRALASIA
S.89/001

High Court of Australia
Brennan J.(1)

CATCHWORDS

HEARING

Canberra
24:2:1989

DECISION

BRENNAN J. This is an application by the Professional Radio and Electronics Institute of Australasia ("the PREIA"), an organization of employees registered under the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). The application arises out of proceedings before the Conciliation and Arbitration Commission identified as C No. 22326 of 1988. By an application dated 25 August 1988, the PREIA sought a variation of the Professional Radio and Electronics Institute of Australasia, Overseas Telecommunications Commission (Australia) Award 1987 ("the Award") in accordance with the decision of the Commission in the National Wage Case in August 1988. That Award is expressed to be binding on the Minister.

2. The application for variation came on before Commissioner Griffin on 21 September 1988 and in the course of those proceedings a commitment was made by the PREIA in order to satisfy a requirement of the National Wage decision. The commitment related to the pursuit of extra wage claims, award or over-award, which were not consistent with the National Wage Case principles.

3. Commissioner Griffin decided to vary the Award by increasing the rates of pay and wage-related allowances by 3 per cent and by $10 per week, the variations coming into effect from the first pay periods commencing on or after 26 September 1988 and on or after 26 March 1989 respectively. The Commissioner directed that the Unions - the application was heard concurrently with a number of similar applications - provide draft orders. It appears that no order was signed pursuant to reg.8 of the Regulations made under the Act. No formal order varying the Award was made.

4. On 15 February 1989 the Commissioner called the parties to the Award before her and, in the light of certain alleged facts relating to rates actually being paid by the Overseas Telecommunications Commission to employee members of the PREIA, decided to change her decision of 26 September 1988 by omitting from the order the increase in pay of $10 per week which would otherwise have applied from the first pay period commencing on or after 26 March 1989. An affidavit filed in support of the application states the industrial officer of the PREIA (who represented it before Commissioner Griffin) was given no opportunity to prepare any case he might wish to bring in relation to the Commissioner's decision, to lead any evidence or to make any submission.

5. The PREIA seeks an order nisi returnable before a Full Court of this Court for a writ of prohibition directed to the Commissioner, the Overseas Telecommunications Commission and the Minister for Transport and Communications prohibiting them from proceeding further on the decision of 15 February 1989 and a writ of certiorari to remove that decision to be quashed on the ground that the PREIA was denied natural justice in that the Commissioner failed to provide it with an opportunity to be heard and to present evidence prior to reaching her decision of 15 February 1989. The supporting affidavit shows an arguable case for prohibition. Whether the decision made by Commissioner Griffin is amenable to certiorari may be open to argument.

6. The purpose of applying to this Court for prohibition and certiorari is to secure to employees under the relevant award the benefit of the $10 per week increase which, if Commissioner Griffin's earlier decision had not been changed, would be effective from the first pay period after 26 March 1989.

7. An application for the purpose of securing or preventing the payment of an increment to weekly wages is always attended with some urgency. The dynamics of industrial relations and the exigencies of household budgeting require early solutions to wage disputes. It is regrettable that this Court, the ultimate appellate court for Australia and the ultimate interpreter of the Constitution, is the only court with jurisdiction to supervise the exercise by the Conciliation and Arbitration Commission of its important powers under the Conciliation and Arbitration Act.

8. The speedy resolution of the legal aspects of industrial disputes is a desirable, if not essential, element of an effective conciliation and arbitration system. Characteristically, the legal questions which arise are of a familiar kind: construction of rules, alleged denials of natural justice and factual enquiries into the existence of interstate industrial disputes. The present case is no exception. Yet the Parliament has excluded decisions made by the Commission under the Conciliation and Arbitration Act and decisions to be made under the Industrial Relations Act 1988 (Cth) from the jurisdiction of the Federal Court which, as a court regularly exercising original jurisdiction, is equipped to deal speedily with applications to supervise the exercise of non-judicial powers. The lists of this Court, on the other hand, cannot easily be adjusted to make room for cases of urgency competing for priority with other cases of general public importance. It is not practicable for the present case to be heard by a Full Court of this Court until the sittings appointed to commence on 2 May. And thereafter the formulation of reasons could further delay the final disposition of the case. The importance of this case to the parties to the Award and its significance for the procedures of the Commission are undoubted. But the resolution of this case will be delayed inevitably to the possible detriment of industrial peace.

9. These considerations led me to consider whether the applicant ought not be required to seek relief by appeal to the Full Bench of the Commission pursuant to s.35(2)(a) of the Act before being granted an order nisi. The respondents, the Overseas Telecommunications Commission and the Minister, submit that an appeal lies to the Full Bench of the Commission under s.35(2)(a) and that it is premature to grant an order nisi before the applicant seeks relief at the hands of the Commission. The jurisdiction of this Court under s.75(v) of the Constitution is, at least in cases where prohibition to a federal court is sought, discretionary: Re Wilkie; Ex parte Johnston (1980) 55 ALJR 191; 33 ALR 660; Reg. v. Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185. And in Reg. v. Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 147 CLR 471, at p 484, Mason J. observed:
"by reason of their very nature and their capacity
to create unemployment, to dislocate industry and
to disturb the life of the community including
the essential services on which the community
depends, industrial disputes call for speedy and
final determination, an object which is best
achieved by recognizing that the remedy of a
party complaining that he has been denied natural
justice at first instance is to exercise his
right of appeal under s.35 to the exclusion of
pursuing relief by way of prerogative writ."
industrial disputes by conciliation or arbitration is placed by s.18 of the Act on the Commission as a whole.

10. Although this Court is bound to exercise the jurisdiction invested in it, it may be premature to grant an order nisi to an applicant who has abstained from applying to the Commission for relief which is available at its hands.

11. However, in this case there is an argument, supported by reference to an earlier Commission decision (Ship Painters and Dockers and Ironworkers (1962) 99 CAR 585), that the decision which the applicant seeks to challenge does not found an appeal pursuant to s.35(2)(a) of the Act. (The decisions in Vehicle Builders (1957) 88 CAR 407, at p 408, and Postal Workers (1971) 137 CAR 746, at p 752, appear distinguishable.) As it would not be appropriate to adjourn the application for relief in this Court when the availability of alternative relief before the Commission is doubtful, I shall make an order on the PREIA's application returnable before a Full Court in the sittings appointed to commence on 2 May 1989.

12. The applicant seeks a stay of the decision of Commissioner Griffin of 15 February 1989. The stay is sought on the assumption that it would lead to the payment of the $10 increase from the first pay period after 26 March. If that assumption be right, Commissioner Griffin's decision must have had some legal effect and, if it did, an appeal might lie to the Full Bench of the Commission under s.35(2)(a), for the Commission in Stockland Press (1971) 141 CAR 1071, at p 1072, adopted the test of legal effect to determine whether an appeal might lie.

13. However that may be, there are more substantial reasons for refusing a stay. A stay of a Commissioner's decision is exceptional. This was pointed out in Re Federated Ironworkers' Association of Australia; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 55 ALJR 395, at pp 396-397; 34 ALR 208, at p 211, in Re Merriman; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1984) 53 ALR 440, at p 443, and in Re McKenzie; Ex parte Federated Liquor and Allied Industries Employees Union (1985) 11 IR 297, at p 298. There are sound reasons for this rule. Decisions of the Commission are made in a climate of industrial relations and of economic conditions which presents a multitude of considerations which the Commission must evaluate in deciding where the merits lie. This Court is concerned solely with the legality of the exercise or purported exercise of the Commission's powers and not with the merits of the decision whose legality is challenged. Exceptional circumstances need to be shown to warrant the making of an order by this Court, before it determines the legality of an impugned decision, which affects the merits of a problem in industrial relations. In this case, it would be inappropriate for this Court to attempt to determine where the merits lie. Yet that is the result which the applicant seeks by an exercise of this Court's discretion to stay the Commissioner's decision until the case is disposed of. A stay must be refused and the position must be left unaltered by this Court until the Full Court decides whether the Commissioner has validly exercised her powers. If, in the meantime, the parties wish to invoke the Commission's jurisdiction to alter that position, whether under s.35(2)(a) or otherwise, there is no order of this Court which inhibits their freedom to do so or which restricts the Commission in the exercise of its powers.

14. To emphasize that the challenge to the legality of Commissioner Griffin's decision does not affect the present powers of the Commission I propose, instead of granting an order nisi, to direct pursuant to O.55 r.2 that the PREIA apply by notice of motion to a Full Court for the issue of writs of prohibition and certiorari and to adjourn the present application so that notice of the application may be given accordingly.

ORDER

Directed that the Professional Radio and Electronics Institute of Australasia apply by notice of motion to a Full Court at the sittings appointed to commence on 2 May 1989 for the issue of a writ of prohibition directed to Pauline Marcus Griffin, a Commissioner of the Australian Conciliation and Arbitration Commission, the Overseas Telecommunications Commission and the Minister for Transport and Communications, the Honourable Ralph Willis, prohibiting them and each of them from further proceeding on a decision by the said Pauline Marcus Griffin in matter C No. 22326 of 1988 made on 15 February 1989, and a writ of certiorari to remove the said decision of 15 February 1989 for the purpose of it being quashed upon the ground that the respondent Pauline Marcus Griffin had no jurisdiction to make the said decision in that she denied the applicant natural justice in that she did fail to provide it with an opportunity to be heard and to present evidence prior to reaching her said decision.

And ordered that:
(a) the applicant be at liberty to file such further
affidavits as it may be advised within 14 days;
(b) copies of this order and of the notice of motion
and of the applicant's affidavits be served upon
the respondent, Commissioner Pauline Marcus Griffin,
by leaving true copies thereof for her with the
Industrial Registrar at 80 William Street, Sydney
New South Wales;
(c) copies of this order and the notice of motion and
the said affidavits be served upon the respondents,
Overseas Telecommunications Commission at its
registered office and the Minister for Transport
and Communications;
(d) the respondents should be at liberty to file
affidavits as they may be advised within 14 days
after the service of affidavits upon them;
(e) there by liberty to all parties to apply generally
on 72 hours notice.

And certified that this was a matter proper for the attendance of counsel at Chambers.