Re Finance Sector Union of Australia; Ex Parte Illaton Pty Ltd; Ex Parte Swartz [1993] HCA 7; (1993) 113 ALR 448; (1993) 67 ALJR 619 (3 June 1993)

HIGH COURT OF AUSTRALIA

RE FINANCE SECTOR UNION OF AUSTRALIA
EX PARTE ILLATON PTY. LTD.(No. M47 of 1992)
EX PARTE SWARTZ AND ORS (No. M48 of 1992) F.C. 93/028
Number of pages - 13
[1993] HCA 7; (1993) 113 ALR 448, (1993) 67 ALJR 619

High Court of Australia
Brennan(1), Deane(2), Toohey(2), Gaudron(2) and McHugh(2) JJ

CATCHWORDS

HEARING

Canberra, 3 March 1993
3:6:1993, Sydney

ORDER

Matter No. M47 of 1992
Application for a writ of prohibition and a writ of certiorari dismissed.

Matter No. M48 of 1992
Application for a writ of prohibition dismissed.

DECISION

BRENNAN J It is of the nature of an industrial dispute that there be disagreement as to the terms and conditions of the relationship of employer and employee. Such a disagreement may be created by a demand for new terms and conditions made by an organization representative of employees and non-acceptance of the demand by the employers on whom the demand is made. When a dispute is generated in this way, the arbitral jurisdiction of the Australian Industrial Relations Commission to make an award in settlement or partial settlement of the dispute is confined by the terms of the demand. The demand sets the margins of the dispute and a paper log which contains the demand is evidence of the ambit of the dispute at the time when the dispute is generated. The paper dispute doctrine has been expounded by this Court in a number of decisions, the present statement of the doctrine appearing in Reg. v. Ludeke; Ex parte Queensland Electricity Commission ((1) [1985] HCA 55; (1985) 159 CLR 178, at pp 181-184.) and in Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia ((2) unreported, 3 June 1993.).

2. As Mason CJ, Deane and Gaudron JJ observe in the latter case, the Commission is not a general regulatory body. The existence of a dispute is basic to its jurisdiction. It follows that, when a dispute is generated by non-acceptance of a demand made on behalf of employees as to the terms and conditions of the relationship of employer and employee and that dispute ceases, whether by agreement of the parties to the dispute or by withdrawal or abandonment of the demand, there is no longer any issue to be settled by arbitration. And there is no longer jurisdiction to make an award in exercise of arbitral power. The creation of a paper dispute does not vest in the Commission irrevocable jurisdiction to make an award at any time up to the time when the demands in the paper log are satisfied. Arbitral power exists only so long as the dispute which calls it forth continues to exist. That is not to say that parties who reach agreement on the terms and conditions of employment may not seek to have a consent award made and the Commission may not make an award accordingly, but such an award is made in exercise of, and as incidental to, the Commission's power to conciliate, not the power to arbitrate ((3) Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. (1984) 159 CLR 163, at p 176.).

3. In the present case, I respectfully agree with the majority that there was a dispute generated by Illaton's non-acceptance of the 1989 log of claims served by the Australian Bank Employees Union (the "ABEU"). But the evidence appears to me to establish that the ABEU had no intention of insisting on the relevant terms of the demand - that is to say, the terms and conditions of the relationship of employer and employee - once a State award was made.

4. Illaton's employees had been covered by a voluntary employment agreement ("VEA") before the Queensland Industrial Relations Act 1990 came into force. Two applications were then made, one by Illaton and one by the State registered branch of the ABEU, for a State award corresponding with the terms of the VEA. The Federal Secretary of the ABEU, Mr Hingley, gave evidence before the Commission on 14 September 1990 to explain the reason why the ABEU was opposing the making of a State award in the terms advanced by Illaton but agreeing to the making of a State award in the same terms (except for the inclusion of the ABEU as a party) advanced by the ABEU:
"Now, is it the case that the ABEU's opposition to the
employer application arises from the fact that the ABEU is
not written in to the application ...?---Yes.
Does that mean that, if the ABEU was to be written into
clause 2 of the employer's application ... that the ABEU's
opposition would be removed?---Yes.
You agree with me, then, that ABEU's opposition to the
existing rates and conditions under the VEA, going into a
state award, is not related to the wishes of the employees,
but in fact is related to the desires of the ABEU?---It
is related to the desires of our ABEU members working in
Metway.
And the desires of the ABEU members working in Metway,
where are those desires expressed?---In discussions with
them.
...
Accepting that (i.e., the reason for the ABEU's opposition
to the making of a State award on Illaton's application),
it brings with it the conclusion, does it not, that the
actual rates and conditions are acceptable to the ABEU
as the rates and conditions that would take over as from
30 September this year from the VEA?---I accept that.
To sum up in relation to that state award series of
questions, it is true to say that what emerges from a
comparison of the two documents is that the ABEU is not
taking issue with the existing rates and conditions as
being appropriate rates and conditions to apply as from
when the VEA ceases on 30 September this year?---That is
right.
And the issue gets down to the fact that the ABEU want
to be respondent to any award that is made in the state
commission to put those existing conditions into a state
award framework?---That is right.
And likewise in relation to the proceedings that are before
this Commission, what is in issue is the question as
to whether the coverage of the staff of the Metway
organization is to be under an award in which there is ABEU
respondency?---That is right.
To round it off, then, it is clear from what you have said
that the federal organization does not have an agenda for
variation to the existing rates and conditions of Metway?
---That is right."
made by consent of Illaton and the ABEU State branch on 28 September 1990.

5. In re-examination, Mr Hingley made it clear that, so far as the ABEU had an agenda to improve the conditions of employment of its members, it was seeking to bring the awards governing employees in the traditional banking area up to the standard of the awards governing employees in the new banking area. He testified as follows in his re-examination:

"Now, Mr Hingley, you were asked about the ABEU having or
not having an agenda for change in the state commission,
and then you were asked about the ABEU having an agenda for
change generally in relation to Metway, if a federal award
were made or indeed in the present circumstances. Can you
tell the Commission what, if any, general view the ABEU
has about the terms and conditions of employment of
employees in what are called new banks by comparison with
those of employees in the bank officials federal award
banks?---Well, our views on that are well-known to the
Commission, and a matter of quite detailed report, and
that is that we regard these awards as amongst the most
contemporary in Australia; that they are modern awards
and have all the flexibility requirements sought under
the national wage decision and structural efficiency.
Does the ABEU have any view about any improvements
generally which you want in relation to new banks awards
by comparison with bank officials federal awards?---No.
The weight of variation is really in the traditional area
rather than in the new banking areas.
Comparing the two, though, the present conditions in the
federal award banks and the provisions in the new banks,
and amongst them I include Challenge, Advance, and Metway,
does the ABEU have any general view about the relationship
between those two groups and what changes it might make
- might want to make in the new banks, including the old
building society banks?---I am not aware of any major
change we want to make in the new bank area."

It is not surprising that Mr Hingley acknowledged that the federal organization did not have "an agenda for variation to the existing rates and conditions of Metway". The terms which had been agreed on for the State award contained more favourable pay rates for some of the grades of full-time support staff than the pay rates claimed in the 1989 log, at least if each of the log's optimistic claims of $5,000 per annum for an "industry allowance" and $5,000 per annum "in addition to all other payments" is left out of account. The terms of the 1989 log, the history of the claims and the evidence of Mr Hingley as to the absence of any agenda for the improvement of Metway employee conditions combine, in my opinion, to deny the existence of any dispute with Illaton as to the terms and conditions of employment of Illaton's employees once the State award conditions were agreed to be translated into the State award.

6. It can be accepted that the ABEU initially desired to obtain a federal award for two purposes: to obtain improved terms and conditions of employment within the framework of the 1989 log and to secure effective ABEU coverage of Illaton employees. The presence of the latter purpose is quite consistent with the existence of a genuine dispute as to the terms and conditions of employment ((4) see per Evatt J in Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [1938] HCA 1; (1938) 58 CLR 436, at pp 440-441; Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957) 97 CLR 71, at p 81.) , but the absence of the former purpose is not ((5) see the proviso as to the existence of a genuine dispute stated by Gibbs CJ in Reg. v. Cohen; Ex parte Attorney-General (Q.) [1981] HCA 66; (1981) 157 CLR 331, at p 339.). If, after the terms of the State award were agreed or at least after the State award was made, the ABEU was no longer seeking a federal award in order to obtain improved terms and conditions for employees within the framework of the claims made in the 1989 log ((6) see Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR, at p 183.) , the dispute created by the rejection of that log ceased to exist. As Gibbs CJ said in Reg. v. Cohen; Ex parte Attorney-General (Q.) ((7) (1981) 157 CLR, at p 337.) :

"Although a dispute may be contrived, it must be real and
not a mere fiction. The demands made must be genuine, in
the sense that the organization making them really wants
what it demands ... If the log is not sincerely propounded
as a demand on which the union is resolved to insist, and
is nothing more than a step towards enabling the Commission
to exercise jurisdiction, it will not create a real
dispute".

Mr Hingley's evidence shows that the ABEU was not "resolved to insist" on the log once the terms and conditions of employment of Illaton employees had been agreed or at least after the State award embodying those terms and conditions was made.

7. Although considerable weight must be given to the view of the Commission that the dispute finding should not have been revoked ((8) Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR, at p 184; Reg. v. Cohen; Ex parte Attorney-General (Q.) (1981) 157 CLR, at p 346.) , there are two steps in the reasoning of the Full Bench which appear open to question. The first relates to the evidence of Mr Hingley that "(a)s far as he was concerned the existing salaries and conditions would prevail" ((9) the paraphrase of Mr Hingley's evidence by the Full Bench.). The Full Bench referred to "the Commission's first award principles" to show that, consistently with what this Court said in Reg. v. Ludeke; Ex parte Queensland Electricity Commission ((10) (1985) 159 CLR, at p 183.), a first award may simply maintain existing terms and conditions within the framework of a log of claims having a wider ambit. So much may be conceded, but the question is whether the ABEU was "resolved to insist" on the 1989 log. Mr Hingley's evidence showed that there was no present intention to do so. The second step relates to the claim in the log for a fixed amount of $20,000 per annum for all employees which may have been less than that paid to some of the more senior support staff of Metway. The Full Bench said:

"It does not matter, for present purposes, whether or not
regard may be had to clauses 5 and 6 in determining the
remuneration claimed. If the lower amount or both amounts
are less than that presently paid to any employees as
a matter of fact, the claims earlier made have been
satisfied. It does not follow that the claim earlier made
was not genuinely made and pressed, at least until it was
satisfied, as it turns out, by the provision of salaries by
the employer for reasons unrelated to the claim."

The Full Bench perceived that, if the claims earlier made were satisfied in some respects, there could be no continuing dispute as to the claims satisfied. But, more importantly, if the log had already lost some of its utility as an ambit claim, the existence of the log loses some of its probative force to show that a dispute as to the terms and conditions claimed in the log continues to exist.

8. In my opinion, the evidence showed that the dispute generated by non-acceptance of the 1989 log had ceased. The dispute finding ought to have been revoked. I would therefore grant prohibition against the Commission proceeding further to arbitrate any issues in matter C No.30101.

DEANE, TOOHEY, GAUDRON AND McHUGH JJ These two applications for prerogative relief arise out of proceedings in the Australian Industrial Relations Commission ("the Commission") between the Finance Sector Union of Australia ("the Union") and Illaton Pty. Limited ("Illaton"). The applications were heard together in this Court and can conveniently be dealt with in the one judgment.

2. Illaton, a wholly-owned subsidiary of the Metway Bank Limited ("Metway"), employs approximately 1500 people whose labour is contracted to Metway. Metway became a bank on 1 July 1988, having previously been the Metropolitan Permanent Building Society ("the Building Society"). Metway's banking activities are centred in Queensland but extend interstate.

3. The Union is an organization of employees registered under the Industrial Relations Act 1988 (Cth) ("the Act") and created by the merger of five former organizations of employees, including the Australian Bank Employees Union ("the ABEU"). Employees of Illaton are or are eligible to be members of the Union and, previously, were or were eligible to be members of the ABEU. Approximately 1200 of its employees are now members of the Metway Group Industrial Organization of Employees ("the Metway Staff Association"), an unregistered and unincorporated trade union.

4. The history of the proceedings in the Commission goes back to 1987, before Metway was granted authority under the Banking Act 1959 (Cth) to carry on banking business. At that stage, Austman Pty. Limited ("Austman") employed the various people who made up the staff of the Building Society. They were or were eligible to be members of another organization of employees registered under the Act, the Federated Clerks' Union ("the Clerks' Union"), but their employment was governed by a State award.

5. In late 1987, apparently when it was known that the Building Society would soon obtain a banking licence, the ABEU and the Clerks' Union each served a log of claims on various employers in different States, including on Austman. The Commission was notified of separate disputes based on those logs of claims. It is clear that a significant factor in the ABEU's decision to make its claims on Austman was its view, as revealed by the evidence of its Federal Secretary, Mr Hingley, in proceedings based on the log of the Clerks' Union, that it would be "grossly disadvantaged" if it had to wait until "a (banking) licence issued, while in the meantime the employers and another union encouraged each other", presumably, to obtain a federal award.

6. There were various proceedings in the Commission arising out of the separate logs of claims served by the Clerks' Union and the ABEU in 1987. So far as concerns Metway and the companies involved in the supply of its staff, the Commission found that separate disputes existed as a result of the separate logs of claims. The dispute finding with respect to the ABEU log was made on 21 October 1988 and was to the effect that a dispute had existed since 1 July 1988 when Metway began banking activities and its staff became eligible to be members of the ABEU.

7. The various proceedings arising out of the separate logs of claims served in 1987 resulted in the bringing of various appeals to a Full Bench of the Commission, including an appeal against the finding of dispute based on the log of claims served by the ABEU.

8. In June 1988, Metway and Austman entered into negotiations with the ABEU with a view to reaching agreement on terms and conditions to be embodied in a consent award. The negotiations came to nothing. Thereafter, Illaton gradually took over from Austman and became the employer of Metway's staff. Metway and Illaton then took steps, in conjunction with members of Metway's staff, to form the Staff Association and to enter into a voluntary employment agreement with its employees, with the intention that the agreement be registered under the Industrial Conciliation and Arbitration Act 1961 (Q.) ("the 1961 Queensland Act"). An agreement was, in fact, registered in April 1989 ("the Voluntary Employment Agreement").

9. In January 1989 and before the date set for the hearing of the appeal against the dispute finding based on the ABEU log of claims of 1987, the ABEU served a new log of claims on Metway, Austman, Illaton and two other companies operating in New South Wales and associated with another new bank. It is clear that the reason for serving the new log on Metway, Austman and Illaton was to avoid an argument to be made in the appeal that there was no dispute involving Metway or its associated companies by reason that Metway had not commenced banking activities and the ABEU did not have coverage of the persons employed as the staff of the Building Society when the 1987 log of claims was served. In February, the Clerks' Union also served another log of claims. Apparently, it was concerned to ensure that there was a dispute between it and Illaton, the new employer of Metway's staff.

10. The Commission was again notified of separate disputes based on the new logs of claims served by the Clerks' Union and the ABEU in 1989. So far as is presently relevant, it was again found that each new log of claims gave rise to a dispute involving Illaton. Again, there were appeals to a Full Bench. Various arguments were advanced on the hearing of the appeals, including an argument that neither log of claims gave rise to a genuine dispute with Illaton, Metway or Austman. That argument was rejected and, so far as those companies are concerned, the appeals were dismissed.

11. The next step in the proceedings in the Commission between Illaton and the ABEU was an application by Illaton under s.111(1)(g) of the Act that the Commission refrain from the further hearing and determination of the dispute as it affected Illaton. The application was initially based on the fact that the Voluntary Employment Agreement had been registered under the 1961 Queensland Act. Later, the argument was made by reference to the existence of a State award, the Metway Bank Support Staff (Interim) Award ("the State Award"), which reproduced the terms of the Voluntary Employment Agreement and was made when it was brought to an end by the provisions of the Industrial Relations Act 1990 (Q.) ((11) cl.1.5(6)).

12. During the course of the proceedings under s.111(1)(g) of the Act, Illaton applied under s.101(1) for the revocation of the dispute finding based on the ABEU's 1989 log of claims. That application was made on the basis that, to the extent that the dispute concerned Illaton, there was no longer a genuine dispute. It was argued, largely by reference to evidence given in relation to the provisions of the State Award, that the ABEU was no longer concerned to obtain the wages and conditions claimed in that log.

13. The application to revoke the dispute finding was refused, as was the application under s.111(1)(g) of the Act. In refusing the applications, Deputy President MacBean noted that the Clerks' Union had withdrawn from the proceedings and revoked the dispute finding based on the log that it served in 1989.

14. The decision dismissing Illaton's applications under ss.101(1) and 111(1)(g) of the Act was the subject of yet another appeal to a Full Bench of the Commission. The appeal was dismissed and, in the course of dismissing the appeal, the Full Bench rejected Illaton's contention that there had ceased to be a genuine dispute between it and the ABEU.

15. In the first matter before this Court, Illaton seeks prohibition directed to various members of the Commission prohibiting them from acting on the dispute finding based on the 1989 ABEU log of claims and certiorari for the removal of the proceedings in which it was made and the quashing of the finding. In the second matter, individual members of the Staff Association, being members of its Committee, seek prohibition in substantially the same terms as sought by Illaton. The applications are each made on the basis that that log of claims did not give rise to a genuine dispute, alternatively that there is no longer a dispute between Illaton and the ABEU.

16. The primary argument for the prosecutors was that the 1989 log of claims was not advanced for the purpose of obtaining the wages or conditions demanded, but for the purpose of enrolling the staff of Metway in the ABEU to the exclusion of other unions. In this context, it was put that there was, indeed, a dispute, but it was between the ABEU and the Clerks' Union and, perhaps, the Staff Association as to which of those unions should represent the industrial interests of the staff of Metway, not a dispute with Illaton as to the terms and conditions of their employment.

17. It is well settled that a dispute is genuine if the demands on which it is based are genuine demands, in the sense that they are seriously advanced ((12) Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No.2) [1930] HCA 2; (1930) 42 CLR 558, per Isaacs J at pp 570-571; R. v. Blakeley; Ex parte Association of Architects etc. of Australia [1950] HCA 40; (1950) 82 CLR 54, per Fullagar J at p 94; Reg. v Ludeke; Ex parte Queensland Electricity Commission [1985] HCA 55; (1985) 159 CLR 178, at p 181; Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty. Limited, ("Vista") High Court of Australia, unreported, 3 June 1993, per Gaudron J at pp 9-10.) with a view, in the case of demands by a union, to "obtaining improved terms and conditions of employment within the framework of the claims made" ((13) Ludeke (1985) 159 CLR, at p 183. See also Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) ("the Australian Tramways Case") [1938] HCA 1; (1938) 58 CLR 436, per Evatt J at pp 440-441.). It is equally well settled that, in proceedings for prerogative relief in this Court, it is for the prosecutor to establish that the demands were not genuinely made ((14) Ludeke (1985) 159 CLR, at p 181; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow and Co. [1910] HCA 33; (1910) 11 CLR 1, at p 57; Reg. v. Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd. [1952] HCA 10; (1952) 85 CLR 138, at p 153; Reg. v. Cohen; Ex parte Attorney-General (Q.) [1981] HCA 66; (1981) 157 CLR 331, at p 338. See also per Gaudron J in Vista, unreported, 3 June 1993, at p 9 and per Toohey J in Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia, unreported, 3 June 1993, at p 26.). And that is not done merely by showing that the demands were motivated by some perceived collateral advantage ((15) See the Australian Tramways Case (1938) 58 CLR, per Evatt J at p 440; Cohen (1981) 157 CLR, per Gibbs CJ at p 338-339.) , including that of increasing or retaining union membership ((16) The Australian Tramways Case (1938) 58 CLR, per Evatt J at p 440; Cohen (1981) 157 CLR, per Gibbs CJ at pp 338, 341.) or of attracting the jurisdiction of the Commission ((17) Ludeke (1985) 159 CLR, at p 182; Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957) 97 CLR 71, at p 81.).

18. The argument that the demands in the ABEU log of 1989 were not genuine demands was made by reference to three broad considerations. The first was that its 1987 log was served because of the activities of the Clerks' Union, with the intention of grounding an argument that no award should be made which would advantage that union over the ABEU. In this regard, reliance was placed on evidence of Mr Hingley to the effect that, if the Clerks' Union had not served its log of claims, the ABEU would not, at that stage, have sought a federal award. The second broad consideration was that, according to the ABEU, the 1989 log of claims was served to avoid an argument that might be made by reference to the 1987 log having been served before Metway became a bank. The third was that the 1989 log did not replicate the 1987 log but was in some respects, including wages, less advantageous to Metway staff than the earlier log.

19. It is to be remembered that this matter is concerned with the 1989 log of claims; the 1987 log is relevant only to the extent that it bears on that later log. Doubtless, the timing of the 1987 log was the result of the ABEU's desire to prevent the Clerks' Union from obtaining a federal award. And it may be taken that, by January 1989, the ABEU was concerned to ensure that neither the Clerks' Union nor the Staff Association was in a position to set the industrial agenda with respect to the wages and conditions of the staff of Metway. Moreover, it is true that the 1989 log was, in some respects, less advantageous than the 1987 log and, very likely, was served without particular regard to the demands contained in it.

20. However, it does not follow from the broad considerations on which the prosecutors rely that the ABEU was not seriously advancing the demands made in its 1989 log of claims. A conclusion to that effect would fly in the face of what was said to be the ABEU's purpose in serving the log, namely, to bring about a situation in which it, rather than the Clerks' Union or the Staff Association, represented the industrial interests of the staff of Metway. In practical terms, that could only be achieved by pressing the demands in its log of claims to the point where the Commission made an award in settlement of them. And its interest in pressing those demands is, to some extent, borne out by the fact that only six months earlier, it was negotiating with Austman as to the wages and conditions to be included in a consent award.

21. Quite apart from the difficulties inherent in the primary argument advanced with respect to the 1989 log of claims, there are other matters which tend against the conclusion that the demands in the log were not genuine demands. There is the position of the ABEU as a federally registered union servicing the industrial interests of the employees of other banks. And, as appears from the logs of claims and the evidence and decisions in the various proceedings based on them, there is the transformation of the Building Society into a bank at a time when other non-bank institutions were undergoing the same or a similar transformation with the ABEU making claims on those new banks, or on some of them, as to the wages and conditions of their employees. Moreover, it must be accepted that, quite apart from inter-union rivalry, the ABEU had a direct and immediate interest in ensuring that wages and conditions in the new banks were at least in keeping with those in the established banks. These matters, which are part of the general industrial background surrounding the ABEU's log of claims of 1989, were, presumably, present in the minds of those members of the Commission who decided that there was, in fact, an industrial dispute with Illaton.

22. Even if matters of general industrial background are not specifically adverted to in the Commission's dispute findings, they are matters which, ordinarily, inform those findings. And they are considerations which oblige this Court to respect them. Thus, it is only in clear cases that this Court will hold, contrary to a finding of the Commission, that the demands in a log of claims are not genuine demands.

23. The prosecutors have not made a clear case that the demands in the ABEU log of claims of 1989 were not genuine demands. To the extent that their applications are based on an argument to that effect, the applications must fail.

24. The alternative argument for the prosecutors was that there was no longer a dispute between Illaton and the Union. As already indicated, that argument was based, to a large extent, on evidence given with respect to the provisions of the State Award. It is necessary to consider that evidence.

25. In early 1989 and some little time after service by the ABEU of its 1989 log of claims, Illaton reached agreement with its employees on improved wages and conditions. Those improvements were reflected in the Voluntary Employment Agreement and, later, in the State Award. Mr Hingley was asked in the course of the proceedings under s.111(1)(g) of the Act whether the rates and conditions in the State Award were acceptable to the ABEU. He replied that they were and, in answer to further questions, indicated that he did not know what, if anything, the State registered ABEU intended, but that "the federal organization (did) not have an agenda for variation of the existing rates and conditions of Metway". It may be, as was suggested in the decision of the Full Bench that, in this last statement, Mr Hingley was speaking only of the State Award and of action that might or might not be taken to vary its terms.

26. However, there was other evidence from Mr Hingley which was not restricted to action with respect to the State Award. He was asked whether "the ABEU (had) any view about any improvements generally" which it wanted "in relation to new banks awards by comparison with bank officials federal awards". That question was answered as follows:

"No. The weight of variation is really in the traditional
area rather than in the new banking areas".

He was again asked whether "(c)omparing the two" and "includ(ing) Challenge, Advance, and Metway" in the new banking area, the ABEU had "any general view about the relationship between those two groups and what changes it might ... want to make in the new banks, including the old building society banks". The answer was:

"I am not aware of any major change we want to make in the
new bank area."

27. There was also evidence from Mr Petie, the then Secretary of the Queensland branch of the ABEU, to the effect that the ABEU would be consulting with the staff of Metway before taking any action to improve existing wages and conditions. It was said by reference to this evidence that, if the ABEU was at all concerned to secure improved wages and conditions, it was not to secure improvements within the framework of its demands, but according to the wishes of the staff.

28. The argument that the dispute raised by the 1989 log has ceased to exist involves two separate contentions. The first is that, to the extent that wages and conditions for the staff of Metway have improved, the dispute has resolved itself and, thus, no longer exists. The second is that the Union, as the ABEU has since become, is not concerned to maintain the demands insofar as they travel beyond those improvements.

29. As a matter of ordinary usage it is correct to speak of a dispute which has been resolved as a dispute that no longer exists. But that does not bear on the question whether a dispute finding should be varied or revoked under s.101(1) of the Act. Nor does it bear on the question of the Commission's jurisdiction with respect to a dispute that has once existed.

30. The Act operates upon a dispute when it happens or, perhaps, when it is found to exist. And it continues to operate notwithstanding that the dispute or some part of it is resolved. So much is clear from the provisions of the Act concerned with consent awards ((18) Section 111(1) provides:

"Subject to this Act, the Commission may, in relation
to an industrial dispute:
(b) make an award or order, including one by
consent of the parties, in relation to all
or any of the matters in dispute, including:
(i) a provisional award or order; or
(ii) an interim award or order".
See also s.114 which provides power for a further award to be
made when an award or order has already been made for the
settlement of an industrial dispute.)

and certified agreements ((19) Section 134E obliges the Commission to certify an agreement, but only if satisfied that prescribed conditions have been fulfilled. In spite of s.134E, the Commission has power under s.134F to refuse certification in certain circumstances. Moreover, under s.134M a Full Bench can always review a certified agreement while it is in force and, in certain circumstances, can terminate it.). In that context it is clear that the power to vary or revoke a dispute finding conferred by s.101(1) of the Act is confined to circumstances in which it is subsequently found that there was not, in fact, a dispute as initially found, or, it is found that the claims which gave rise to that dispute have been abandoned or are no longer seriously maintained so that, for practical purposes, it is as if they had never been made. Equally, it is clear that the Commission has and retains jurisdiction with respect to a dispute, once it has occurred, unless circumstances have altered in a manner indicating that the claims have been abandoned or are no longer seriously maintained, in the sense already discussed.

31. The evidence on which the prosecutors rely does not even suggest that so far as the 1989 claims of the ABEU have already been met by improved wages and conditions, they have been withdrawn or abandoned. Nor can it be said that, to that extent, the Union no longer seriously maintains those claims. In the circumstances of this case that could only be said if the Union no longer cared whether or not Illaton's employees received their improved wages and conditions. The evidence is entirely contrary to that, it being clear that the Union not only maintains its claim to the extent of the improvements made, but claims, at the very least, that an award should be made by the Commission giving effect to them.

32. The second aspect of the argument that there is no longer a dispute between Illaton and the ABEU proceeds on the basis that the ABEU has abandoned its claims to the extent that they travel beyond the improvements already effected, again in the sense that those claims are no longer pressed or are no longer seriously advanced.

33. It is well settled that a union demand may be genuine notwithstanding that neither it nor its members are "intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log" ((20) Ludeke (1985) 159 CLR, at pp 182-183. See also Vista, unreported, 3 June 1993, per Gaudron J at pp 9-10; Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia, unreported, 3 June 1993, per Toohey J at p 28.). That is a consequence of the ambit doctrine ((21) Ludeke (1985) 159 CLR, at p 183; Reg. v. Holmes; Ex parte Victorian Employers' Federation [1980] HCA 37; (1980) 145 CLR 68, per Mason J at p 76.). That doctrine also compels the conclusion that a dispute does not cease to be a dispute merely because, at some given time, no claim is being actively pursued. Particularly is that so in circumstances where, as here, improvements have come about since the demand was first made.

34. To the extent that the demands in the 1989 log of claims were not actively pursued in 1990 and, perhaps, are not now being actively pursued, that may be because of the various proceedings in which the ABEU and, later, the Union have been involved concerning Metway and its staff. But whatever the reason, the evidence on which the prosecutors rely, even if viewed in the light most favourable to their argument, stops a long way short of establishing that the Union does not intend to pursue the outstanding demands as and when it deems appropriate.

35. The arguments for the prosecutors that there is no longer a dispute between the Union and Illaton must be rejected along with their primary argument that there never was a dispute between them.

36. The applications must be dismissed.