Re Australian Nursing Federation; Ex Parte Victoria [1993] HCA 8; (1993) 112 ALR 177; (1993) 67 ALJR 377 (8 March 1993)

HIGH COURT OF AUSTRALIA

RE AUSTRALIAN NURSING FEDERATION (Matter Nos. M10 and 12 of 1993), HEALTH SERVICES UNION OF AUSTRALIA (Matter No. M11 of 1993) and STATE PUBLIC SERVICES FEDERATION OF AUSTRALIA (Matter No. M13 of 1993)
EX PARTE THE STATE OF VICTORIA AND ANOR
S. 93/001
[1993] HCA 8; (1993) 112 ALR 177
(1993) 67 ALJR 377

High Court of Australia
McHugh J.(1)

CATCHWORDS

HEARING

Hobart
8:3:1993

DECISION

McHUGH J. These are four applications by the State of Victoria and the Minister for Health for that State seeking the issue of orders nisi for writs of prohibition and certiorari directed to members of the Australian Industrial Relations Commission ("the Commission") and certain organisations registered under the Industrial Relations Act 1988 (Cth) ("the Act"). The applicants seek writs of certiorari to quash findings that certain agencies of the State of Victoria are parties to industrial disputes within the meaning of s.4 of the Act and to quash awards made in respect of two of the disputes. The applicants seek writs of prohibition to prohibit the members of the Commission and the organisations from proceeding further upon the findings of the dispute and, in two cases, from proceeding further on awards which have been made by the Commission. The applicants also seek orders that the orders nisi should operate as a stay of the awards and of any further proceedings in the Commission arising out of the finding of the disputes.

2. The applicants contended that the Commission was not entitled to find that the agencies were parties to the alleged industrial disputes. The principal ground relied upon in support of this contention was that the Commission was not empowered to find a dispute in respect of the State agencies because the finding of the dispute and the making of an award against them are beyond the constitutional power of the Commonwealth of Australia and the power of the Commission. At back of this contention of the applicants is the proposition that the powers conferred by the Constitution on the Commonwealth to make laws with respect to particular subject-matters do not extend to the passing of laws which would unduly inhibit or impair the capacity of a State to function as a government or to exercise its constitutional and governmental functions or which would unduly inhibit or impair the continued existence of a State as an independent entity or which would single out and impose special burdens or disabilities on a State. On more than one occasion, this Court has relied on one or more of these propositions to invalidate Commonwealth legislation ((1) See Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31; Queensland Electricity Commission v. The Commonwealth [1985] HCA 56; (1985) 159 CLR 192.). Most recently in Australian Capital Television Pty. Ltd. v. The Commonwealth (No.2) ("the Political Advertising Case") ((2) [1992] HCA 45; (1992) 66 ALJR 695; 108 ALR 577.), Brennan J. and myself applied one of those propositions to hold that certain parts of the legislation involved in that case were beyond the power of the Commonwealth.

3. The State of Victoria provides health and associated community services by means of funds derived from public revenues. The applicants point out that, in exercising its functions with respect to these health and community services as well as other public services, the State of Victoria takes into account other expenditure from consolidated revenue, budgetary considerations, the efficient and appropriate deployment of its financial, human and organisational resources, relevant government policy, the raising of money by State taxation, and the like. The applicants contend that the making of awards in these proceedings would necessarily impinge "to a significant degree upon those matters and would thus inhibit or impair the capacity of the State of Victoria to function, or to function as an independent body politic within its own constitution".

Matter M10
4. The first matter in which an order nisi is sought concerns proceedings instituted by the Australian Nursing Federation ("the Federation") for an award to be known as the Australian Nursing Federation Award. On 4 March 1991, the Federation served a log of claims on 103 ((3) Affidavit of Mr H.D. McArdle, p 2, par.4.) community health centres in the State of Victoria and on other persons in Queensland and Tasmania. On 3 June 1991, Mr Commissioner Turbet found that an industrial dispute existed in the States of Queensland, Victoria and Tasmania involving the Federation, the community health centres and numerous other employers. During 1991 and 1992, the Commission held hearings in Brisbane involving respondents to the dispute in the State of Queensland. An award has been made with respect to those Queensland respondents. On 24 December 1992, the Federation wrote to the Department of Health and Community Services seeking a conference with respect to the making of an award in relation to Victoria. The matter was brought before the Commission on 29 January 1993 when counsel for those Victorian community health centres, which were parties to the dispute, indicated that a revocation of the finding of a dispute would be sought. On 19 February 1993, Deputy President MacBean gave leave to the State of Victoria to intervene in the proceedings. Applications to revoke the finding of a dispute in so far as it involved community health centres in Victoria were made by counsel who appeared for the State of Victoria and 46 of the community health centres and a person who appeared for 8 community health centres. Deputy President MacBean rejected the application. He said that he would sit on 1 March 1993 for the purpose of making an award in the proceedings unless the applicants proposed to argue that he should not do so on the grounds specified in s.111(1)(g)(iii) of the Act. However, no award has yet been made. The proceedings have been adjourned while the President of the Commission considers whether the matter will be referred to a Full Bench under s.107 of the Act.

Matter M11
5. The second matter arises out of proceedings brought by the Health Services Union of Australia ("the HSUA.") as the result of the rejection of a letter of demand and log of claims which it served on a number of employers, including the State of Victoria. The log of claims seeks to bind the State of Victoria in respect of the terms and conditions of employment of its employees, including nurses and non-direct care staff, engaged in psychiatric and intellectual disability services facilities. At a hearing in the Commission on 27 August 1992, counsel for the State of Victoria informed Deputy President MacBean that the State of Victoria would accede to a finding of a dispute between the State of Victoria and the HSUA. At a resumed hearing on 19 October 1992, however, counsel for the State informed the Commission that the State intended to oppose the finding of an industrial dispute between it and the HSUA. At a hearing on 12 November 1992, counsel for Victoria submitted that the Commission had no jurisdiction to make a finding of industrial dispute. The argument relied upon the alleged lack of constitutional power to which I have referred. Counsel also submitted that there was no genuine industrial dispute because the claims were so far removed from reality as to be fanciful. The matter was adjourned to a date to be fixed.

6. On 20 November 1992, the State of Victoria announced that, in order to reduce the number of public sector employees in Victoria, a "voluntary departure package" ("V.D.P.") would be offered to enable public sector employees to voluntarily leave their employment and receive certain payments. It called for expressions of interest from its employees. One reason given for the offer was that, in order to effect necessary reductions to the excessive public debt of the State of Victoria, recurrent expenditure had to be reduced.

7. On 10 December 1992, at the instigation of the HSUA., the proceedings were listed for hearing before Deputy President MacBean. Counsel for the HSUA. sought a finding of a dispute within the meaning of the Act and the making of an interim award to prevent further processing of V.D.P.s and to prevent the termination of the employment of any employee affected by a V.D.P. except for misconduct or incapacity. In hearings before the Deputy President, Victoria opposed a finding of dispute on several grounds including the constitutional grounds to which I have referred. On 14 December 1992, the Deputy President handed down his reasons for decision. He found that an industrial dispute existed as alleged by the HSUA. and made the Victorian Public Services Health Workers Redundancy Interim Award 1992. Victoria lodged an appeal against the finding of an industrial dispute and the making of the interim award. Neither the appeal nor the application for a stay of the proceedings has been heard. However, since the making of the award, the award has been varied by consent so as to enable Victoria to process the V.D.P.s in accordance with certain agreed procedures but reserving to the State the right to challenge the finding of a dispute.

Matter M12
8. On 16 May 1983, the Royal Australian Nursing Federation, now the Australian Nursing Federation, served a letter of demand and a log of claims on the Private Hospitals and Nursing Homes Association of Australia and a number of private hospitals and nursing homes throughout Australia. On 9 September 1983, the Federation served a letter of demand and a log of claims in identical terms on the State of Queensland and other employers of nurses in public hospitals, nursing homes, psychiatric and mental health hospitals and institutions providing similar services. On 21 July 1983, the Hospital Employees Federation of Australia, now the HSUA., served a letter of demand and a log of claims on certain private hospitals, nursing homes and institutions providing similar services. On 31 July 1987, the HSUA. served a letter of demand and a log of claims in identical terms on the Attorney-General of the Commonwealth of Australia and other employers who employ persons working in public hospitals, nursing homes, psychiatric and mental health institutions and similar public institutions. On 6 July 1984, the Commission found a dispute between the Federation and the recipients of the log of claims in the private sector. On the same date, the Commission found a dispute between the Federation and the recipients of the log of claims in the public sector. On 22 January 1987, a dispute was found between the HSUA. and the recipients of its log in the private sector. On 15 December 1987, the Commission found a dispute between the HSUA. and the recipients of the log in the public sector. Protracted proceedings have taken place in the Commission since the finding of the dispute. Awards in part settlement of the disputes have been made in relation to employers in several States and Territories.

9. On 8 December 1992, in proceedings before Senior Deputy President Riordan, the Federation and the HSUA. sought the making of an award to regulate the terms and conditions of the employment of nurses employed in Victoria. In those proceedings, the State of Victoria contended that the Commission lacked jurisdiction to make an award which bound the State of Victoria or its agencies who employed nurses. The ground of the contention was the constitutional argument to which I have referred.

10. On 23 December 1992, Senior Deputy President Riordan handed down a decision in which he said that he would make an award in terms of a draft which had been tendered by counsel for the organisations. On the following day, the State of Victoria filed an appeal against the decision of Senior Deputy President Riordan. On 18 February 1993, the Senior Deputy President made an award in terms similar, but not identical, to those which were contained in the draft award that is sought by the Unions. The operative date of effect of his Honour's award was 23 December 1992. The State of Victoria and others filed an appeal against the making of the award on 22 February 1993.

11. On 26 February 1993, an application for a stay of the award came before the President of the Commission. The learned President indicated that he would not determine the question of the application for a stay until he was informed of the result of the application for an order nisi and a stay in this Court.

Matter M13
12. On 21 October 1992, the State Public Services Federation ("the S.P.S.F.") served a letter of demand and a log of claims on 191 public hospitals, community health centres and other public health facilities in Victoria and 44 nursing homes and like entities and employer associations in New South Wales. When the demands in the log of claims were not acceded to, the S.P.S.F. notified the Commission of the existence of an industrial dispute. On 19 February 1993, the State of Victoria was granted leave to intervene in the proceedings. On that day counsel appearing for the Victorian recipients in the letter of demand and the State of Victoria made an application pursuant to s.111(1)(g)(iii) of the Act that the Commission dismiss the matter or refrain from further hearing or determining the industrial dispute upon the ground that an order nisi of this Court had been granted in respect of a log of claims which was in identical terms to that which was involved in the proceedings before the Senior Deputy President. It was further argued that, as Justice Dawson had granted a stay of part of those proceedings (in relation to the certification of an agreement), it was in the public interest that the Commission refrain from proceeding with the matter until this Court had delivered judgment in relation to the matters arising out of that order nisi. However, counsel for the S.P.S.F. submitted that, having regard to the provisions of s.111(1A) of the Act, it was not possible to make an application under s.111(1)(g)(iii).

13. On 26 February 1993, Senior Deputy President Riordan held that s.111(1A) precluded any application being made under s.111(1)(g)(iii) of the Act. On 2 March 1993, the Senior Deputy President adjourned further proceedings on being informed of an application for an order nisi to be made in this Court on 4 March 1993.

14. Section 111(1A) relevantly provides that s.111(1)(g)(iii) does not apply to proceedings so far as they may affect terms and conditions of employment of a particular kind that are applicable to a particular class of employees if: (a) at any time after 7 December 1992, terms and conditions of that kind and application have been regulated by an order etc. of a State industrial authority; and (b) terms and conditions of that kind and application cannot be dealt with by a State arbitrator by compulsory arbitration and are not regulated by an employment agreement and are not regulated by an award under the federal Act. The State of Victoria contends that s.111(1A) was enacted by the Parliament of the Commonwealth at a time when the Parliament of the State of Victoria had already enacted legislation which, when it came into operation, would bring into operation the state of affairs to which s.111(1A) applies. Further, counsel for the State of Victoria contends that that state of affairs does not exist in any other State or Territory of the Commonwealth. Consequently, the applicants contend that s.111(1A) is invalid as being beyond the constitutional power of the Parliament of the Commonwealth of Australia in that it discriminates against the State of Victoria.

Relevant legislation
15. The applicants contend, not without justification, that the present flurry of activity by the organisations in these four proceedings has been generated by the passing of the Public Sector Management Act 1992 (Vic.) and the Employee Relations Act 1992 (Vic.).

Employee Relations Act 1992 (Vic.)
16. Section 172(1)(a) of the Employee Relations Act provides that, on the appointed day "any award or order of the former Commission ... then in force continues in force and is to be treated as if it were an award or order of the Commission under that Act". However, s.172(6) provides that "(a)ll awards in force on 1 March 1993 expire on that day" and that "(s)ection 24(3) applies to an award that expires because of this sub-section". Section 24(3) provides that "(i)f an award expires, each employee who continues to be employed by the employer and the employer are, unless a new award is made or the employee and the employer make an employment agreement, bound by an individual employment agreement with the same terms and conditions as those that applied to the employee and the employer under the expired award". Section 8(1) provides that "(a)n employer may enter into a collective employment agreement with any or all of the employees employed by the employer". Section 9 provides that "(a)n employee who is not covered by a collective employment agreement and his or her employer may enter into any individual employment agreement that they think fit". Any term or agreement that modifies a collective employment agreement must be in writing: s.9(2). Section 10 provides that every collective employment must be in writing. Section 14 provides that employment agreements cannot alter certain minimum terms and conditions.

Public Sector Management Act 1992 (Vic.)
17. Clause 22(1), Sched.6 of the Public Sector Management Act provides that any provisions of regulations or determinations made under the Public Service Act 1974 (Vic.) that are of a kind that could, after the commencement of the clause, be included in an award or employment agreement under the Employee Relations Act shall continue in operation and have force and effect in relation to an officer or temporary employee after that commencement up until 1 March 1993. Clause 22(1) does not apply to a chief executive officer or a senior executive officer. Clause 22(4) provides that, on the expiry of the provisions referred to in cl.22(1), each officer or temporary employee to whom the expired provisions applied immediately before then and his or her employer for the purposes of the Employee Relations Act are, until the making of a relevant award or employment agreement under that Act, bound by an individual employment agreement. That agreement is to have the same terms and conditions as those that applied to the officer or temporary employee under the expired provisions and with the benefit of all rights accrued or accruing under those provisions.

18. The effect of this legislation is that after 1 March 1993, existing awards no longer apply to public health employees in the State of Victoria. They are employed under common law agreements which incorporate existing award terms and conditions unless the employer and employee or employees make an agreement to the contrary. Although the Employee Relations Act provides for the making of awards in the future, it is the object of the organisations involved in the present cases to obtain federal coverage which, if successful, would have the effect of displacing the operation of the Victorian legislation.

Orders nisi
19. The first question in the proceedings is whether I should make the orders nisi which the applicants seek. In my opinion, the applicants are entitled to orders nisi in these matters although, as was conceded by Mr Uren Q.C., in their present form the draft orders go beyond what they seek or, in my opinion, could obtain.

20. To obtain an order nisi for a writ of prohibition or certiorari, a party must show that he or she has an arguable case that the tribunal to whose proceedings the writ is directed has gone beyond its jurisdiction. The respondents concede that the applicants have an arguable case. However, they contend that the applications are premature and should be refused. As Brennan J. pointed out in Re Griffin; Ex parte Professional Radio and Electronics Institute (Aust.) ((4) [1988] HCA 72; (1988) 167 CLR 37, at p 41.), although this Court is bound to exercise the jurisdiction invested in it by s.75(v) of the Constitution, it may be premature to grant an order where the applicant has refrained from applying to the Commission for relief which is available at its hands. The respondents contend that there are matters other than the constitutional issues in dispute between the parties. They point out that the applicants have elected not to pursue appeals before the Full Bench of the Commission and in most of the matters not to seek a stay of the proceedings in the Commission. The respondents contend that the disputes can be determined in favour of the applicants without the constitutional issues being determined.

21. Although it is theoretically possible that these four proceedings could be decided in favour of the applicants without a determination by the Full Bench of the constitutional issues, they cannot be determined in favour of the respondents without those issues being determined by the Full Bench. However, in other proceedings, the Full Bench has already effectively rejected the proposition for which the applicants contend in the present proceedings. It would be futile and a waste of time and money and the resources of the Commission to require the applicants to litigate these issues once again before the Full Bench. Furthermore, if the jurisdictional issue is decided in favour of the applicants, the other issues are irrelevant. The first argument of the respondents in support of the proposition that the applications are premature must be rejected.

22. The respondents also contend that there are other matters before this Court in which the same constitutional issues as those involved in this case are raised and that the contentions of the applicants should await the decisions in those cases. It is true that there are other cases before this Court in which the points now being raised are to be or have already been argued. Ordinarily that would be a powerful reason for adjourning the present applications until delivery of judgment in those other cases. However, the principle for which the applicants contend is not really in dispute. It is its application to State public service employment which is in contention. As I understand the argument for the applicants, they do not claim that all State public servants are outside the jurisdiction of the Commission - rather they contend that absence of jurisdiction depends upon the nature of the activity in which the particular employees are engaged. If the applicants are correct in contending that lines can be drawn between public servants who are within and those who are outside the jurisdiction of the Commission, the principle must be applied on a case by case basis. Consequently, the existence of other cases in this Court where the principle is involved is not necessarily determinative of the present proceedings.

23. Orders nisi will be granted in a form which confines the issues as to whether there is a dispute within the meaning of the Act which involves the State of Victoria and the various respondents. Matter M13, however, also involves the validity of s.111(1A) of the Act.

Stay of proceedings
24. Order 55, r.10 of the High Court Rules provides that an order nisi shall operate as a stay of the proceedings in question if the Court or a justice so directs. However, not only do the applicants seek a stay of proceedings in the matters in respect of which disputes have been found, they also seek a stay of awards which have been made in two of the proceedings. Order 55, r.10 only applies to an order seeking to stay proceedings and not an order seeking to stay an order or award. "Speaking generally, the distinction is between a stay of further proceedings in litigation and a suspension of a judgment or order" ((5) Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1981) 34 ALR 208, at p 211.). An order for a stay of an order, award or judgment must be made under the inherent jurisdiction of the Court. It is only in exceptional circumstances that this Court will make an order sterilising the operation of an order or award of the Commission before the Court has determined the validity of an order or award made by the Commission ((6) ibid., at pp 211-212; Re Griffin (1988) 167 CLR, at p 42; Re McKenzie; Ex parte Federated Liquor and Allied Industries Employees Union (1985) 11 IR 297; Re Merriman; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1984) 53 ALR 440, at pp 442-443; Re Moore; Ex parte Pillar (1991) 65 ALJR 683, at p 685; 103 ALR 11, at p 14.). In Re Moore; Ex parte Pillar ((7) (1991) 65 ALJR, at p 685; 103 ALR, at p 14.), Dawson J. said:
"Ultimately the power to grant a stay is to be found only
where it is necessary to preserve the subject matter of the
litigation or, perhaps, where the refusal of the stay would
make it difficult in the determination of the proceedings in
this Court to grant the relief sought".
25. Although it may be easier to obtain a stay under O.55, r.10 than the inherent jurisdiction, the jurisdiction under O.55, r.10 is also one that is to be used sparingly and with caution ((8) Re the State Public Services Federation; Ex parte Kennett (unreported, 15 September 1992, Dawson J.).). Ordinarily a
strong case will need to be shown before a stay will be granted under that rule.

Matter M12
26. It is convenient to begin by considering the application for a stay in matter M12 where the applicants seek to stay the operation of the Nurses (Victorian Health Services) Award 1992 made by Senior Deputy President Riordan as well as any further proceedings based on the finding of a dispute in those proceedings.

27. The effect of the Commission's award in this matter is effectively to continue award coverage for Victorian health employees who were covered by State awards prior to the operation of the award on 23 December 1992. Of course, it also applies to employees commencing employment after that date. On 23 December 1992, the Senior Deputy President said that he would make an award in the proceedings. An award was made on 18 February 1993. If a stay was granted, employees would be covered by the award from 23 December until today's date; thereafter they would be employed on common law contracts pending the hearing of the proceedings in this Court for writs of prohibition and certiorari. To stay the operation of the award would be to interfere with the status quo and the award coverage of some 40,000 employees ((9) Estimate by Mr L. Kaufman, counsel for the State of Victoria in the appeals against the decisions of Senior Deputy President Riordan to make awards in favour of the Federation and the HSUA. See transcript of proceedings C No.32611 of 1992 and C No.30277 of 1993, before Justice Maddern, President, Australian Industrial Relations Commission, 26 February 1993, at p 7 where Mr Kaufman stated "upwards of 40,000 people (are) covered by the awards".) which has hitherto existed. A strong case would be needed to stay the operation of a federal award in these circumstances.

28. I did not have the benefit of any analysis of the respective terms and conditions of employment under the federal award and the former State award. The argument of the parties assumed that they were similar. No doubt this assumption is well founded because the usual practice of the Commission, in making a "first award" in its jurisdiction, is to make no change on the existing terms and conditions. Upon the assumption that the terms and conditions of employment under the award made by Senior Deputy President Riordan and those under the common law contracts are basically similar, the effect of a stay would be to put employers in a position where they could seek changes in the present terms and conditions of the employees. It is not desirable that they should be permitted to be able to do that by staying a federal award which has been made, inter alia, for the purpose of preventing that being done.

29. Moreover, although the applicants have an arguable case in the sense that their contentions could succeed, there are obvious difficulties in the way of their succeeding in the challenge to the jurisdiction of the Commission. The power of the Commission to make awards binding State governments in respect of public servants engaged in industry or industrial occupations has been upheld for more than 70 years, notwithstanding that such awards impinge on State finances ((10) Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920) 28 CLR 129.). In Ex parte Professional Engineers' Association ((11) [1959] HCA 47; (1959) 107 CLR 208.), this Court held that the federal arbitration power extended to the making of awards binding State governments in respect of the employment of professional engineers employed by a State or departments or agencies of a State. The effect of the Court's decision in Re Lee; Ex parte Harper ((12) [1986] HCA 30; (1986) 160 CLR 430.) is that the federal arbitration power extends to making awards binding State governments in respect of the employment of school teachers. In Lee ((13) ibid., at p 453), the Court did not decide the question which the applicants now seek to determine, but Mason, Brennan and Deane JJ. said:

"There is accordingly much to be said for the
proposition that, assuming that there is no discrimination
against a State or singling out, ... the exercise of the
arbitration power in the ordinary course of events will
not transgress the implied limitations on Commonwealth
legislative power. The exercise by the Commission of its
authority with respect to the employment relationship
between a State and its employees in the course of settling
an interstate industrial dispute appears to fall within
s.51(xxxv). Although the purpose of the implied limitations
is to impose some limit on the exercise of Commonwealth
power in the interest of preserving the existence of the
States as constituent elements in the federation, the
implied limitations must be read subject to the express
provisions of the Constitution. Where a head of
Commonwealth power, on its true construction, authorizes
legislation the effect of which is to interfere with the
exercise by the States of their powers to regulate a
particular subject-matter, there can be no room for the
application of the implied limitations."

30. To succeed the applicants will have to persuade the Court that there is a relevant constitutional distinction between professional engineers, teachers and other public servants on the one hand and those engaged in the provision of health and similar services with the result that the latter employees are outside the federal arbitration power.

31. In my opinion, the applicants have failed to show the existence of exceptional circumstances entitling them to a stay of the award made by Senior Deputy President Riordan.

32. Nothing was drawn to my attention as to what matters on the original log of claims, if any, are still outstanding in so far as they affect the present applicants. But even if there are matters outstanding, the applicants have failed to make out a case for staying the proceedings generally. The applicants pointed out that Toohey and Gaudron JJ. have granted stays of proceedings in three other matters where the same constitutional point was involved ((14) See No.P43 of 1991 - Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia (11 December 1991); No.P15 of 1992 - Re Australian Teachers' Union; Ex parte Minister for Education for the State of Western Australia (20 July 1992); No.S97 of 1992 - Re Australian Teachers' Union; Ex parte Attorney-General for the State of New South Wales (19 August 1992).). However, the stays in those matters involved cases in New South Wales and Western Australia. The legislation in those States is not comparable to that applying in Victoria at the present time. Furthermore, although the same constitutional point has been taken in respect of the dispute which came before Dawson J. ((15) Re The State Public Services Federation; Ex parte Kennett (oral judgment of Dawson J., 15 September 1992).) to which I referred in discussing matter M13, no general stay was granted in that case. The stay which his Honour granted was confined to an industrial agreement.

33. Accordingly, I would refuse to make an order to stay the award or the proceedings in matter M12.

Matter M11
34. The other matter in which an Award has been made is matter M11 (concerning the HSUA.). The application for a stay of the award and the proceedings in that matter must also be rejected. Mr Uren conceded that it was the applicants' "weakest case". Not only has the Commission made an award but the award in its present form was the result of a variation made by consent so as to enable the State to process the V.D.P.s in accordance with agreed procedures. No application has been made to the Commission to stay the award as varied. A powerful case and a material change of circumstances would need to be proved before the Court would order the stay of an award made by consent less than two months ago. Moreover, the original award was made after the Commission took extensive evidence and made a number of specific findings as to why an award should be made and implemented.

35. In these circumstances, the applicants have failed to show that the award should be stayed.

36. Moreover, the applicants have failed to make a case for a stay of the proceedings generally. First, the applicants have not made any application to the Commission for a general stay of those proceedings. Ordinarily, a party seeking a stay of proceedings in the Commission should seek a stay from and exhaust its rights in that tribunal before approaching this Court for a stay of proceedings. The practice which operates in civil proceedings is equally applicable to proceedings in the Commission.

37. In Jennings Construction Ltd. v. Burgundy Royale Investments Pty. Ltd. (No.1) ((16) [1986] HCA 84; (1986) 161 CLR 681, at p 684) ("the Burgundy Royale Case"), Brennan J. said:

"When an application for special leave to appeal is made
to this Court, a jurisdiction to stay may be exercised by
the court below and it is to that court - the court in
which the matter is pending and which is familiar with the
matter - that an application to stay should first be made."

38. The principle expressed in the Burgundy Royale Case is equally applicable to an application for a stay of proceedings in the Commission. Indeed, the case for requiring an application for a stay to be first made to the Commission in industrial arbitration proceedings is stronger than the case for making an application to the Full Court or Court of Appeal of a State for a stay of proceedings in a civil case. As Brennan J. pointed out in Re Griffin ((17) (1988) 167 CLR, at p 40.):

"The speedy resolution of the legal aspects of industrial
disputes is a desirable, if not essential, element of an
effective conciliation and arbitration system."

39. Ordinarily, the Commission will have a far greater knowledge of the facts and circumstances affecting the dispute than a Justice of this Court can hope to gain in an application for a stay of proceedings pursuant to the inherent jurisdiction or O.55, r.10 of the High Court Rules. Furthermore, if the application is refused by the Commission before this Court is asked to grant a stay, the Court will have the benefit of the Commission's reasons for refusing the stay.

Matter M10
40. In this matter (involving the Federation), an application was made to Deputy President MacBean for an adjournment of the proceedings because of the applicants' intention to seek orders nisi in this Court. The Deputy President refused the order. In rejecting the application, the Deputy President relied on six matters ((18) See transcript of proceedings C No.30537 of 1991, Australian Nursing Federation v. The Queen in Right of the State of Queensland, 1 March 1993, at p 755.). The first two were that the jurisdictional issues raised had been considered and rejected by Full Bench decisions. The third matter was that the employees, the subject of the application, ceased to have any award coverage from 1 March 1993 and were to be bound by individual employee contracts. The fourth matter was:

"The cessation of the awards for nurses sought to be covered
by the award before the commission may result in the
detriment to existing conditions of employment for these
nurses in the absence of any award of this commission."

The fifth matter was that the applicants had not sought to appeal against or to stay an earlier decision in the proceedings. The final matter was that, unless there are special or extraordinary circumstances existing "which are not present here", the Commission does not adjourn proceedings on the basis that a party intends to make an application for an order nisi in the High Court. Having regard to the grounds relied on by the Deputy President for refusing the adjournment, particularly the third and fourth grounds, the applicants have not made out a case entitling them to obtain a stay of the proceedings from this Court.

41. Mr Uren contended that a stay would preserve the status quo because, unless and until a federal award is made, the relevant employees are now employed on individual contracts. If the position was that the employees had been employed on individual employment contracts for a long period of time, the threat of a proposed award interfering with that situation would be a powerful factor inclining this Court to grant a stay of proceedings. But in a real sense, it is the placing of employees on individual contracts from 1 March 1993 and not any proposed award which alters the status quo. Presumably, any award will restore the situation as it existed immediately prior to 1 March 1993. In the circumstances, this Court should not stay the proceedings in the Commission in this matter particularly since the Deputy President has expressed the conclusion that the cessation of the awards for nurses "may result in the detriment to existing conditions of employment for these nurses in the absence of any award of this Commission" ((19) ibid).

Matter M13
42. At this stage, I am not prepared to grant a stay of the proceedings in this matter (relating to the S.P.S.F.) because the sparsity of the material before me in relation to the history and present state of the proceedings does not enable me to determine whether there is any industrial situation which arguably calls for the making of an award on a final or interim basis. Without the benefit of more evidence than has been put before me, I am not prepared to find that circumstances exist which would justify the grant of a stay of proceedings.

Orders
43. I will grant orders nisi in these four matters. But I refuse the applications for a stay of the awards already made and the applications for a stay of further proceedings arising out of the findings of disputes in these matters.

ORDER

Matter No. M10 of 1993
Application for an order nisi for a writ of prohibition and a writ of certiorari granted.

Application for a stay of further proceedings refused.

Matter No. M11 of 1993
Application for an order nisi for a writ of prohibition and a writ of certiorari granted.

Application for a stay of the award and further proceedings refused.

Matter No. M12 of 1993
Application for an order nisi for a writ of prohibition and a writ of certiorari granted.

Application for a stay of the award and further proceedings refused.

Matter No. M13 of 1993
Application for an order nisi for a writ of prohibition granted.

Application for a stay of further proceedings refused.