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High Court of Australia |
RE AUSTRALIAN EDUCATION UNION AND AUSTRALIAN NURSING FEDERATION AND OTHERS
(Nos. M8, M10 and M12 of 1993), HEALTH SERVICES UNION
OF AUSTRALIA AND OTHERS
(Nos. M11 M156, M15 and M17 of 1993), RE AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION AND
OTHERS (Nos. M20, M21, M22 and M23 of 1993),
RE STATE PUBLIC SERVICES FEDERATION AND ANOTHER (Nos. M24 and M25 of 1993), RE
PRINTING
AND KINDRED INDUSTRIES UNION OF AUSTRALIA AND ANOTHER (M26 of 1993)
and AUSTRALIAN FEDERAL POLICE ASSOCIATION AND ANOTHER (No. M30
of 1994) EX
PARTE THE STATE OF VICTORIA AND OTHERS
F.C. No. 95/015
Number of pages - 53
[1995] HCA 71; (1995) 128 ALR 610
(1995) 69 ALJR 451
(1995) 184 CLR 188
HIGH COURT OF AUSTRALIA
MASON CJ(1), BRENNAN(1), DEANE(1), DAWSON(2), TOOHEY(1), GAUDRON(1) AND
McHUGH(1) JJ
CATCHWORDS
HEARING
CANBERRA, 7-9 June 1994ORDER
Matter No. M8 of 1993
Matter No. M10 of 1993
Order nisi discharged.
Matter No. M11 of 1993
Order nisi for prohibition directed to the respondents made absolute in so
far as it relates to cl.3(ii) of the Victorian Public
Service Health Workers
Redundancy Interim Award 1992, cl.4 of the Victorian Public Service Health
Workers Voluntary Departure Package
Interim Award 1993.
Order nisi for certiorari discharged.
Matter No. M156 of 1993
Order nisi for prohibition directed to the respondents made
Health Workers Redundancy Interim Award 1992, cl.4 of the Victorian Public
Service Health Workers Voluntary Departure Package Interim
Award 1993.
Order nisi for certiorari discharged.
Matter No. M12 of 1993
Order nisi discharged.
Matter No. M15 of 1993
Order nisi discharged.
Matter No. M17 of 1993
Order nisi discharged.
Matter No. M20 of 1993
Application for prohibition and certiorari refused.
Matter No. M21 of 1993
Application for prohibition and certiorari refused.
Matter No. M22 of 1993
Application for prohibition and certiorari refused.
Matter No. M23 of 1993
Application for prohibition and certiorari refused.
Matter No. M24 of 1993
Application for prohibition and certiorari refused.
Matter No. M25 of 1993
Application for prohibition and certiorari refused.
Matter No. M26 of 1993
Application for prohibition and certiorari refused.
Matter No. M30 of 1993
Order nisi discharged.
DECISION
MASON CJ, BRENNAN, DEANE, TOOHEY, GAUDRON AND McHUGH JJ These fifteen matters initiated by the prosecutor, the State of Victoria, were heard together. They arise indirectly out of budgetary policies pursued by the State of Victoria which entail a considerable reduction in the size of its public sector and the number of its public sector employees, and the introduction of the Employee Relations Act 1992 (Vict.) ("the ER Act") and the Public Sector Management Act 1992 (Vict.) ("the PSM Act"). A major purpose of the ER Act was to make fresh provision with respect to the law relating to employee relations in Victoria (1). And one of the expressed objects of the ER Act was to establish an employee relations system which facilitates the freedom of employers and employees to choose how they regulate their own affairs (2). Section 179 of the ER Act, which came into operation on 1 March 199 (3) subject to certain exceptions not presently material, repealed the Industrial Relations Act 1979 (Vict.). That Act had established a system of compulsory arbitration by which terms and conditions of employment could be determined by an arbitral body by compulsory arbitration or ascertained by an employment agreement. By virtue of the operation of s.172(6) of the ER Act, all awards in force under the 1979 Victorian Act expired on 1 March 1993 and, from that day, unless a new award was made or the employee and the employer made an employment agreement, employers and employees who had been bound by awards became bound by individual employment agreements incorporating the same terms and conditions as those contained in the relevant expired awards3. By virtue of the ER Act, the system established by the 1979 Victorian Act, to which we have referred, no longer exists.
2. Regulations under the Public Service Act 1974 (Vict.) ("the Victorian PS
Act") had also established a similar system (4). By
s.109 of the PSM Act,
which came into operation on 24 November 1992, the Victorian PS Act was
repealed. By the operation of s.83(1)
of the PSM Act, which came into
operation on 27 November 1992, the ER Act applies to officers and temporary
employees in the Victorian
Public Service. The effect of certain provisions
of the PSM Act was to bring about the expiration on 1 March 1993 of awards
made
under the Victorian PS Act and to replace them with individual employment
agreements incorporating the terms and conditions of relevant
provisions of
regulations made under the Victorian PS Act (5).
3. Following the enactment of the PSM Act, voluntary separation packages were
offered to government school teachers in Victoria
on 23 November 1992. These
packages offered ordinary severance conditions relating to accumulated leave
entitlements and an additional
sum of money as an inducement to acceptance of
the offer. The purpose of making the offer was to reduce the number of
teachers.
It seems that the offer was accepted by some thousands of teachers.
A similar offer of voluntary separation was made to public service
health
workers in Victoria.
4. One consequence of these developments was that unions whose members' terms
and conditions of employment were previously governed
by State industrial
awards decided to seek for their members the coverage and protection of
federal awards. The fifteen matters now
before the Court are the outcome of
decisions of that kind. These matters raise important constitutional
questions not previously
determined by this Court because, for the most part,
the terms and conditions of employees of State governments have been regulated
by State industrial awards.
5. Apart from Matter M30 of 1994, to which reference will be made shortly,
each matter in this Court relates to a proceeding in
the Australian Industrial
Relations Commission ("the Commission"). In each proceeding, a federal union
of employees registered under
the Industrial Relations Act 1988 (Cth) ("the
Act"), having served a demand on States and Territories relating to the terms
and conditions
of employment of employees
of government
and government
agencies, applied to the Commission for the making of a finding of dispute
and
of a federal industrial
award. In
all those proceedings, the Commission made
a finding of dispute under s.101 of the Act. In
nine of the proceedings (6),
the Commission went on to make an award under s.111 of the Act.
6. Matter M30 of 1994 stands apart from the other matters in that it relates
to an application to the Commission, pursuant to s.204
of the Act, by the
Australian Federal Police Association for alteration of its rules relating to
eligibility for membership to enable
members
of police forces of the States to
become members of the organization.
7. Orders nisi for prohibition and certiorari have been made in eight matters
(7). In the remaining seven matters, McHugh J directed
that the applications
for orders nisi be argued before a Full Court and, in conformity with those
directions, notices of motion were
filed.
8. The prosecutor's case is that the Commission has no power to make any of
the findings of dispute or awards or to grant the application
for alteration
to the rules of the Australian Federal Police Association. According to the
prosecutor, the disputes are between
on the one hand the State of Victoria and
its agencies in the exercise of their governmental functions and on the other
hand their
respective employees, and s.51(xxxv) of the Constitution does not
authorize the exercise of power by the Commission in respect of such matters.
That submission, which relates to all matters
before the Court, was put
forward on two grounds:
(1) the exercise of power by the Commission is precluded by the implied
limitation on the exercise of Commonwealth legislative powers
which prohibits
interference with or curtailment of the governmental functions of the State,
or with its capacity to function as
a government; and
(2) the industrial disputes in question are not disputes extending beyond the
boundaries of any one State.
9. The prosecutor further submitted in Matter M21 of 1993 that it is entitled
to rely on s.111(1)(g)(iii) of the Act and that s.111(1A)
of the Act, which
would (if valid) prevent the prosecutor from so relying, is not authorized by
the Constitution because it discriminates against the State of Victoria and
its agencies and employers in Victoria. The prosecutor also submitted
in
Matters M8 and M11 that the awards made in those matters discriminate against
the State of Victoria and its relevant agencies
and are therefore ultra vires
s.51(xxxv) of the Constitution.
10. In support of its first submission, the prosecutor contended that, if
awards were to be made by the Commission in conformity
with the logs of
claims, non-acceptance of which has given rise to the findings of dispute, the
whole or substantially the whole
of the State's workforce would be subject to
federal awards. Further, the prosecutor's capacity to determine the terms and
conditions
of its workforce would be transferred to the Commission as the logs
of claims are comprehensive in their terms. The outline of the
various
proceedings in the Commission which follows vindicates those contentions on
the part of the prosecutor. There is before
the Court a volume of material
which serves to indicate that, in various ways, the awards sought, if made,
would have a marked impact
on the financial management of the State and
restrict in various respects options that otherwise would be available to it
in relation
to the engagement of staff, termination of employment and the
manner in which services are to be provided both to the government
and to the
public. According to the prosecutor, the conclusion to be drawn from all this
is that the exercise by the Commission
of the powers sought to be exercised
will impair the governmental functions of the State and its capacity to
function as a government.
Whether the making of findings of dispute, as
distinct from the making of the awards sought, has such an effect is a
substantial
question for decision.
OUTLINE OF THE VARIOUS MATTERS
11. It is unnecessary to set out in detail the history and the evidence that
has been adduced in relation to the various matters
before the Court. A brief
sketch will suffice, except in relation to Matters M8 and M24 of 1993 where a
little more detail is required.
In M8 (and M11) an interim award was made
preventing the State from giving effect to its offer to teachers (and nurses)
of a voluntary
redundancy or departure package. The interim award in M8 has
been replaced by a final award. In M24 the log of claims seeks a
comprehensive
award in relation to virtually all persons employed by the State
and its agencies.
Re Australian Education Union and Ors (M8 of 1993)
12. The union served a demand that:
"(n)o teacher employed by you shall be terminated from his or her
employment, whether by way of voluntary redundancy or otherwise
except with
the consent of the Australian (Education) Union".
The demand was served on the Minister for Education for Victoria and the
responsible Minister in Tasmania. The demand was not accepted.
The demand, in
its application to Victoria, related to persons providing educational services
employed by the Directorate of School
Education in that State. After finding
that there was a dispute between the union and the Ministers in the two States
"in respect
of teachers, their security of employment and rights of
termination of such employment", Senior Deputy President Riordan made an
interim award requiring the Victorian employer of teachers to take no further
steps to process voluntary separation packages offered
to government school
teachers on 23 November 1992, not to dismiss any teacher otherwise than in
accordance with certain provisions
of the Teaching Service Act 1981 (Vict.)
and to comply with certain conditions. The award was expressed to come into
operation on
30 November 1992 and to remain
in force until 22 December 1992.
13. On 24 December 1992, the Full Bench of the Commission found that there
was an industrial dispute extending beyond the limits
of one State. On the
same day, the Full Bench made an interim award entitling an employee who had
accepted a voluntary separation
package to withdraw his or her acceptance and
requiring the employer not to terminate the employment of a government teacher
otherwise
than in accordance with the provisions of the Act referred to in the
earlier interim award. However, on 27 October 1994, the Full
Bench of the
Commission set aside that interim award and made a final award, the Victorian
Teachers Redundancy Award 1994. The award
is subject to proceedings
instituted by the prosecutors in Matter M100 of 1994, which is not presently
before the Court.
14. On 20 April 1993 and 22 June 1993, comprehensive logs of claims were
served in all States and Territories on authorities responsible
for the
employment of school teachers. The terms and conditions sought in the logs
relate to all aspects of employment. On 26 October
1993, the Commission found
that an interstate industrial dispute existed arising from non-acceptance of
the log of claims served
on 22 June 1993. On 16 December 1993, an interim
award was made. The Full Bench dismissed an appeal against the finding of
dispute
and made an interim award in substitution for that made by Senior
Deputy President Riordan. The main effect of the new interim award
was
substantially to preserve the terms and conditions of employment which
prevailed at 20 October 1993. The interim award continues
in operation by
reason of s.148 of the Act.
Re Australian Nursing Federation and Ors (M10 of 1993)
15. The respondent union served a comprehensive log of claims on the relevant
employer authorities in Victoria, Queensland and Tasmania.
The log was not
accepted. In relation to Victoria, the log of claims relates to nurses who
are employed full-time in more than 100
community health centres. The
prosecutor is the major source of income of the Victorian community health
centres. On 3 June 1991,
Commissioner Turbet made a finding of dispute. The
prosecutor and the Victorian community health centres have sought a revocation
of that finding. Deputy President MacBean rejected the application so far as
it related to the Victorian community health centres.
The union has served a
new log of claims and has sought a variation of the finding of dispute or,
alternatively, a new finding.
The applications are part heard. The
application for an award has been heard by the Full Bench but no decision has
been given.
Re Health Services Union of Australia and Ors (M11 and M156 of 1993)
16. The respondent union served a comprehensive log of claims on the Crown in
right of the States of Victoria, Western Australia
and Tasmania, as well as
other employers. The log was not accepted. The log of claims related to the
terms and conditions of employment
of persons engaged in the provision of
nursing and other services to those who are mentally ill or intellectually
disabled. On 14
December 1992, Deputy President MacBean made a dispute
finding and an interim award similar to that first made in Matter M8 of 1993
requiring the employer to take no further step to process the voluntary
departure package. On 23 December 1993, Deputy President
MacBean made an
interim order, the effect of which was to freeze the terms and conditions of
employment of relevant employees as
they stood at 2 December 1993, and to
require that all persons employed after 23 December 1993 be employed on the
terms and conditions
of employment in force on 17 November 1992. On 22
January 1993, the 1992 interim award was varied by consent to become the
Victorian
Public Service Health Workers Voluntary Departure Package Interim
Award 1993. The varied award enabled the Victorian Government
to process
voluntary departure packages in accordance with certain agreed procedures.
Re Australian Nursing Federation and Ors (M12 of 1993)
17. The respondents, the Australian Nursing Federation ("the ANF") and the
Health Services Union of Australia ("the HSUA"), each
served a comprehensive
log of claims on the Crown in right of the States of Victoria and Queensland
and on employers of nurses and
other persons working in private and public
hospitals, nursing homes, community health centres, and in psychiatric, mental
health
and similar public institutions. The second respondent served a log in
similar terms on the Commonwealth. The logs were not accepted.
The logs
cover registered nurses (ANF) and enrolled nurses (HSUA), in total the
equivalent of 18,000 full-time employees. The Commission
made an award and
the Full Bench dismissed an appeal against the making of the award.
Re Health Services Union of Australia and Ors (M15 of 1993)
18. The respondent union served a comprehensive log of claims on employers in
3,630 public and private hospitals, nursing homes
and health care facilities
in Victoria and Tasmania. The log was not accepted. The log covers persons
employed in administrative
and professional (non-nursing) classifications.
The log of claims and that served by the HSUA in M17 of 1993 together cover
19,000
equivalent full-time employees. The latter log of claims relates to
different classifications in what are essentially the same institutions.
On
10 January 1992, Commissioner Turbet made a finding of dispute. On 23
December 1993, Senior Deputy President Riordan made the
Health Services Union
of Australia (Victoria - Public Sector) Interim Award 1993 which requires that
Victorian employers afford their
employees the terms and conditions of
employment prescribed by earlier awards of the Victorian Industrial Relations
Commission.
Re Health Services Union of Australia and Anor (M17 of 1993)
19. The log of claims, which was served by the respondent union on employers
in 3,191 hospitals, community health centres and other
institutions in
Victoria, Tasmania, Western Australia and the Australian Capital Territory, is
that referred to in the preceding
paragraph relating to Matter M15 of 1993.
It covers employees being food and domestic service workers, cleaners,
laboratory assistants,
gardeners and others. On 11 December 1992, Senior
Deputy President Riordan made a finding of dispute. An appeal to the Full
Bench
of the Commission was heard but not determined before McHugh J made an
order nisi in relation to further proceedings on the finding
of dispute. On
23 December 1993, Senior Deputy President Riordan made an interim award in
terms relevantly identical to the award
made in Matter M15 of 1993.
Re Australian Liquor, Hospitality and Miscellaneous Workers Union and Ors (M20
of 1993) 20. The respondent union served a comprehensive
log of claims on
relevant government employers in Victoria, Western Australia and Queensland.
The log was not accepted. The log
of claims relates to cleaners. Three
hundred cleaners approximately are employed by the Victorian Government in the
domestic arts
field. On 18 December 1992, Deputy President Hall found the
existence of an industrial dispute, but on 21 December the Deputy President
declined to hear the matter further and refused an application for an interim
award. As the Victorian Department of School Education
no longer employs
cleaners, the proceeding in the Commission has not been taken further.
Re Australian Liquor, Hospitality and Miscellaneous Workers Union and Anor
(M21 of 1993)
21. The log of claims referred to in the preceding paragraph was also served
on five State schools in Victoria, other Victorian
Government agencies, and
kindergartens and child care centres in Victoria, the Australian Capital
Territory and the Northern Territory.
The relevant part of the log of claims
covers employees in the child care industry. The employers proposed to make
an application
that the Commission refrain from dealing with the matter but
Vice-President Moore found that s.111(1A) of the Act precluded the making
of
an application under s.111(1)(g)(iii) and, on 13 May 1993, found the existence
of an industrial dispute arising from non-acceptance
of the log of claims. On
24 November 1993, the Kindergarten and Play Centre Assistants (Victoria)
Interim Award was made. It reintroduced
17.5 per cent annual leave loading
and obliged employers to afford to their employees terms and conditions
existing as at the date
of the making of the award.
Re Australian Liquor, Hospitality and Miscellaneous Workers Union and Ors (M22
of 1993)
22. Again, this matter concerns the log of claims referred to in the last two
preceding paragraphs. The relevant part of the log
relates to approximately
3,500 teacher aides in Victoria, Western Australia and Queensland, that is,
persons who assist teachers
in State primary and secondary schools. On 6
November 1992, Commissioner Frawley found the existence of a dispute between
the union
and the Western Australian and Queensland employers and, on 13
January 1993, the Commissioner varied this finding of dispute to include
the
Victorian employers. On 12 April 1994, Commissioner Frawley decided to make
an interim award and on 5 May 1994 the Teacher Aides
(Victorian Government
Schools) Interim Award 1994 was made.
Re Australian Liquor, Hospitality and Miscellaneous Workers Union and Ors (M23
of 1993)
23. Again, the log of claims served in this matter was that referred to in
the preceding three paragraphs. The relevant part of
the log relates to
approximately 50 persons employed in cleaning and security duties in Victorian
Government departments, statutory
authorities and schools. The log was also
served on the South Australian Department of Housing and Construction, the
Minister for
Defence and the Commonwealth Treasurer. A finding of dispute was
made. The Full Bench dismissed an appeal and recorded a finding
itself. On
11 August 1993, Deputy President Acton refused an application for an interim
award.
Re State Public Services Federation and Anor (M24 of 1993)
24. In late 1991, the respondent union ("the SPSF") served a comprehensive
log of claims on public sector bodies in all States ("the
1991 log"). The
1991 log relates to the employment of approximately 33,000 public sector
employees and office holders. The persons
covered perform a wide range of
clerical, administrative and professional duties. There is nothing in the
1991 log to suggest that
employees at the highest levels of government service
are excluded from the ambit of the claims. Further, the provisions in the
1991 log relating to terms and conditions of employment and termination of
employment draw no distinction, except as to financial
remuneration and
allowances, between ordinary employees and those serving at the highest level
of government and office holders.
25. Altogether, 191 Victorian ministries and departments, tribunals,
authorities, commissions and other agencies of the State of
Victoria are
affected as employers to be bound by any award made. The employers who would
be so affected include 20 ministries and
departments, 40 courts, tribunals,
commissions and boards having disciplinary or regulatory functions and 36
statutory and other
offices. Among the employers named are "Parliament House"
(and parliamentary officers, including the Chief Hansard Reporter and
the
Chief Parliamentary Counsel's office), the County Court (but not the Supreme
Court), the office of Governor, the office of Solicitor-General
and the Queen
in right of the State of Victoria.
26. On 8 April 1992, the Commission made a finding of dispute and an interim
award entitled the State Government Schools Professional,
Administrative,
Clerical, Computing and Technical (P.A.C.C.T.) Vic. (Interim) Award 1992 (8)
This Court subsequently handed down
its decision in Re State Public Services
Federation; Ex parte Attorney-General (W.A.) ("the SPSF Case") (9), as a
result of which
the SPSF served another log of claims on the public sector
bodies ("the 1993 log"). The terms of the 1993 log differed in a number
of
respects from those in the 1991 log, but they were similarly comprehensive.
The 1993 log was not acceded to and the Commission
found the existence of an
industrial dispute. On 18 February 1994, the SPSF sent a letter of demand
entitled "The Amended Demands"
to the public sector bodies ("the 1994
claims"). The terms of these claims differed in a number of respects from
those in the 1993
log, but they were similarly comprehensive.
27. On 9 May 1994, Commissioner Bacon made an interim order "in respect of
all employees of the Crown in right of the State of Victoria
eligible to be
members of the (SPSF) who are employed at Her Majesty's prisons". The order
prevents the operation of s.29 of the
Public Sector Management (Amendment) Act
1993 (Vict.). That section allows for the transfer of designated employees to
designated
employers, or the termination of their employment if they refuse a
transfer in certain circumstances.
28. On 12 September 1994, some months after argument was heard in this Court,
a Full Bench of the Commission found that the claims
in the 1991 log were
abandoned by the service of the 1993 log and, accordingly, revoked the 1992
dispute finding from the date of
the 1993 log. The P.A.C.C.T. interim award
seems to have remained untouched by the decision. The Commission also found
that the
1993 log was abandoned by the making of the 1994 claims but did not
revoke the dispute finding because the relevant matter was not
before it.
Re State Public Services Federation and Ors (M25 of 1993)
29. This matter concerns the dispute arising from the non-acceptance of the
SPSF log of claims referred to in M24 of 1993 and the
log of claims served by
the respondent union ("the ASU") on the Metropolitan Fire Brigades Board and
the South Australian Metropolitan
Fire Services. The ASU log, and the SPSF
log so far as it is relevant, concern approximately 172 professional, clerical
and administrative
employees of the Metropolitan Fire Brigades Board and the
Country Fire Authority. As noted in the previous matter, Deputy President
MacBean found the existence of an industrial dispute in relation to the SPSF
log on 8 April 1992. This finding, however, was subsequently
revoked from the
date of the SPSF's 1993 log. The Commission did not make any relevant awards
or orders based upon this dispute
finding before that revocation took place.
On 26 June 1992, Deputy President Polites found the existence of such a
dispute in relation
to the ASU log. The ASU dispute finding remains
unaffected by the revocation of the SPSF dispute finding.
Re Printing and Kindred Industries Union of Australia and Anor (M26 of 1993)
30. The respondent union served a comprehensive log of claims on the
prosecutor and a number of employers in the printing industry.
The log of
claims relates to the employment of persons engaged in printing and publishing
of whom 80 are employed by the prosecutor,
49 being eligible to be members of
the respondent union.
31. On 25 November 1992, the Commission made a finding of dispute. However,
Printing and Publishing Services Victoria (previously
known as the Victorian
Government Printer) was excepted from the finding. On 11 February 1993, the
exception was amended so as to
substitute the Crown in right of the State of
Victoria. On 18 May 1993, Commissioner Merriman found that the State
Government of
Victoria was a party to the dispute.
Re Australian Federal Police Association and Anor (M30 of 1994)
32. The respondent union made an application pursuant to s.204 of the Act for
consent to alterations to its industry and eligibility
rules which are
presently expressed so as to confine the relevant industry to the Australian
Federal Police and confine membership
to the members of that body. The
alteration sought would extend the industry to the police force or service of
any State or Territory
or the Commonwealth of Australia and extend membership
to the members of any such force or service and certain other classes of
person.
On 15 November 1993, Deputy President Williams consented to the
alteration sought.
THE IMPLIED LIMITATION ON THE EXERCISE OF THE LEGISLATIVE POWERS OF THE
COMMONWEALTH
(a) The meaning of the expression "industrial dispute" in s.51(xxxv)
and its application to disputes between a State and its employees33. The unanimous decision of the Court in Reg. v. Coldham; Ex parte Australian Social Welfare Union ("the Social Welfare Union Case") (10) established that the expression "industrial dispute" in s.51(xxxv) of the Constitution bears its popular meaning rather than the narrow meaning "dispute in an industry". The adoption of the popular meaning meant that disputes between a State or a State agency and its employees were capable of falling within s.51(xxxv) except perhaps disputes between a State or State agency and employees engaged in the administrative services of the State (11). That class of public servant had been thought to stand outside the conception of industry in the context of the narrow meaning of "industrial dispute" (12). In the Social Welfare Union Case, the Court did not consider whether employees engaged in the administrative services of a State stood outside the reach of s.51(xxxv), though the chain of reasoning in the case eroded the basis on which the administrative services exception had been maintained. However, the Court specifically reserved the question whether the exception could be supported by reference to the implied limitations on the exercise of Commonwealth legislative power (13). Referring to earlier cases, the Court observed (14):
engaged in administrative services
34. In the SPSF Case (15), Dawson J observed:
"(T)here is an argument, to say the least, that an award or awards of the
Commission made with the purpose of covering all the
public servants of a
State would so hamper the State in the exercise of its constitutional
functions that it would be beyond the
power of the Commonwealth Parliament to
authorize or to give legislative force to such an award or awards. No
government can function
effectively otherwise than through its public servants
and if another agency can impose upon a State government the terms and
conditions
of employment of its public servants ... including restrictions
upon engagement and dismissal, that government's capacity to exercise
for
itself its constitutional functions may be impaired." (emphasis in original)
35. On the other hand, in Re Lee; Ex parte Harper (16), Mason, Brennan and
Deane JJ considered that there is:
"much to be said for the proposition that, assuming that there is no
discrimination against a State or singling out, such as occurred
in Queensland
Electricity Commission v. The Commonwealth, 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)."
Their Honours went on to express a view about the relationship between the
implied limitations and the specific legislative powers,
which has been the
subject of further elucidation and to which reference will be made shortly.
Their Honours then said (17):
"On the view which we are presently inclined to take of the implied
limitations, they do not protect the States from the consequences
of the
exercise by the Commonwealth of the powers granted to it by the Constitution
which contemplate their application to the States."
36. Underlying the statements quoted above is an acceptance of the basic
proposition that s.51(xxxv) empowers the Parliament to make laws which apply
to the States (18). So much had been accepted in the Engineers' Case (19),
where
it was held that the arbitration power extended to a dispute between an
organization of employees and employers who included the
Minister for Trading
Concerns (W.A.), the State Implement and Engineering Works, and the State
Sawmills. Likewise, in Ex parte Professional
Engineers' Association (20), this
Court held that there was an interstate industrial dispute between the
Association of Professional
Engineers on the one hand and, on the other hand,
the State of New South Wales, its agencies (including the Public Service
Board,
the Department of Public Works and the Department of Main Roads) as
well as other parties. And, in Re Lee; Ex parte Harper, the
Court held that
the power conferred by s.51(xxxv) could extend to an industrial dispute to
which an organization representative of State school teachers was a party.
37. These authorities did not contradict the administrative services
exception or the possibility that it could be supported by
the implied
limitation on the exercise of Commonwealth legislative power. Nor do these
authorities refute the principal submission
put forward by the prosecutor,
namely, that the implied limitation protects from an exercise of the
arbitration power a State's "operations
of government". The prosecutor argued
that this expression included the administration of the affairs of the State,
the provision
of services internally in order to enable the government to
function and the provision of services for the public.
(b) The relationship between the limitation and the specific
legislative powers of the Commonwealth38. It is convenient to examine first the relationship between the limitation and the power conferred by s.51(xxxv) of the Constitution, leaving the scope and content of the limitation for later consideration. In Re Lee; Ex parte Harper, Mason, Brennan and Deane JJ stated (21):
39. In the SPSF Case, the relationship between the implied limitation and the
power was expressed in slightly different terms.
Mason CJ, Deane and Gaudron
JJ said (22):
"(W)e should point out that the statement made in Re Lee; Ex parte Harper
(23), that the implied limitations must be read subject
to the express
provisions of the Constitution, should not be understood as excluding
consideration of implications derived from the Constitution until the scope of
s.51(xxxv) is ascertained by reference to its terms alone. Rather, the scope
of that provision must be ascertained by reference not only to
its text but
also to its subject matter and the entire context of the Constitution,
including any implications to be derived from its general structure."
Brennan J said (24):
"The passage (in Re Lee; Ex parte Harper) should not be read as suggesting
that the scope of a State immunity implied by the general
provisions of the
Constitution can be ascertained by considering the overriding effect of a
valid Commonwealth law on an inconsistent exercise of State power.
The
tentative view was expressed in that case that the implied limitations 'do not
protect the States from the consequences of the
exercise by the Commonwealth
of the powers granted to it by the Constitution which contemplate their
application to the States' (25). So much must be accepted. But the critical
question is the scope of the
relevant Commonwealth power. The true
construction of s.51(xxxv) would have to be ascertained before the effect of
that provision on any countervailing implication could be determined."
His Honour continued (26):
"It is clear that implications derived from the general structure of the
Constitution may qualify express provisions conferring legislative power (27).
Thus in Queensland Electricity Commission v. The Commonwealth,
it was held
that a law enacted under the power conferred by s.51(xxxv) was invalid for
conflict with an implied limitation. The proposition that 'implied
limitations must be read subject to the express
provisions of the
Constitution' does not in terms acknowledge that the construction of a head of
legislative power is itself ascertained by reference to the entire
context of
the Constitution and that its scope may be limited by implication. ... The
construction of s.51(xxxv) or, for that matter, the construction of any other
legislative power in s.51, calls for a consideration of the text of the power,
its subject matter and the general constitutional context. None of these
factors
can be considered in isolation, nor is there a sequence to be followed
in considering one factor before another."
40. The correct approach to the question is that stated in the passages just
quoted.
(c) The scope and content of the implied limitation
41. The implied limitation on the exercise of Commonwealth legislative powers
has been expressed in various ways. It is convenient
to begin discussion of
the implied limitation with the statement of principle, based on the rule of
interpretation adopted in the
Engineers' Case, by Dixon J (with whom Rich J
agreed) in Australian Railways Union v. Victorian Railways Commissioners
(28):
"(E)very grant of legislative power to the Commonwealth should be
interpreted as authorizing the Parliament to make laws affecting
the
operations of the States and their agencies, at any rate if the State is not
acting in the exercise of the Crown's prerogative
and if the Parliament
confines itself to laws which do not discriminate against the States or their
agencies".
After expressing the view that the arbitration power authorizes the making of
laws which apply to the States and to the State Commissioners
for Railways,
his Honour cautioned that the Engineers' Case should not be understood as
saying that (29):
"over a State the power of the Parliament is as full and ample as over the
subject and allows the same choice of remedies, measures
and expedients to
secure fulfilment of the legislative will".
His Honour suggested that s.106 of the Constitution might provide the
restraint upon the legislative power over States and might have the effect
"that no law of the Commonwealth can
impair or affect the Constitution of a
State" (30).
42. The first reservation mentioned in the first passage quoted above
relating to the exercise of the prerogative has been displaced
by judicial
decisions (31). The second reservation relating to discrimination was much
discussed in Melbourne Corporation v. The
Commonwealth (32) and Victoria v.
The Commonwealth ("the Payroll Tax Case") (33). The underlying basis for that
reservation, or
implication as it is now described, was stated by Dixon J in
Melbourne Corporation in these terms (34):
"The foundation of the Constitution is the conception of a central
government and a number of State governments separately organized. The
Constitution predicates their continued existence as independent entities."
His Honour went on to say (35):
"(T)he efficacy of the system logically demands that, unless a given
legislative power appears from its content, context or subject
matter so to
intend, it should not be understood as authorizing the Commonwealth to make a
law aimed at the restriction or control
of a State in the exercise of its
executive authority". His Honour described s.48 of the Banking Act 1945 (Cth)
as a "law directly
operating to deny to the States banking facilities open to
others, and so to discriminate against the States or to impose a disability
upon them" (36). In so describing s.48, Dixon J (37) found it to infringe the
prohibition to be implied from the Constitution against:
"a law which discriminates against States, or a law which places a
particular disability or burden upon an operation or activity
of a State, and
more especially upon the execution of its constitutional powers".
43. Although the comments of Dixon J were couched principally in terms of
discrimination against States and the imposition of a
particular disability or
burden upon an operation or activity of a State or the execution of its
constitutional powers, his Honour
clearly had in mind, as did Latham CJ, Rich
and Starke JJ, that the legislative powers of the Commonwealth cannot be
exercised to
destroy or curtail the existence of the States or their
continuing to function as such (38). Whether this means that there are two
implied limitations, two elements or branches of one limitation, or simply one
limitation is a question which does not need to be
decided in this case.
However, for convenience, we shall proceed on the footing that the limitation
has two elements, the non-discriminatory
element having a particular relevance
to the argument now being considered.
44. In the Payroll Tax Case (39), Walsh J and Gibbs J agreed with Dixon J's
view in Melbourne Corporation and Menzies J appears
to have been of a similar
opinion (40). Although it has been suggested that a Commonwealth law cannot
curtail or interfere in a
substantial manner with the exercise of
constitutional power by the States, it is not easy to give any precise meaning
to that proposition.
The decision in the Payroll Tax Case is inconsistent
with the notion that any interference with a State or any impairment of the
exercise of its functions is a violation of the implied limitation.
Subsequently, in The Commonwealth v. Tasmania ("the Tasmanian
Dam Case") (41),
Mason J, Brennan J and Deane J considered that the prohibition, in its
relevant aspect, was directed against the
exercise of Commonwealth legislative
powers in a manner which would be inconsistent with the continued existence of
the States or
their capacity to function (42). Mason J and Brennan J
considered that this aspect of the limitation is directed against the
impairment
of the capacity of a State to function as a government, rather than
against interference with or impairment of any function which
a State
government undertakes (43).
45. The foregoing discussion, brief though it is, conveys some impression of
the difficulty which the Court has experienced in formulating
with a
sufficient degree of precision the implied limitation on the exercise of
Commonwealth powers. That is not the only difficulty.
The decided cases in
which the implication has been invoked offer little guidance, except in cases
of discrimination or singling
out, as to its application, in particular what
it is that constitutes an impairment or curtailment of the capacity of a State
to
function as a government.
(d) The prosecutor's argument that the limitation protects government
functions
46. The prosecutor submitted that the statements in the Tasmanian Dam Case,
when they refer to impairment of a State's capacity
"to function as a
government", extend to any impairment of capacity to exercise government
functions. The prosecutor's submission
is not in accordance with the natural
meaning of the words used. Nor does it accord with the substance of the views
expressed in
a number of judgments in which the implied limitation has been
discussed. Thus, in Melbourne Corporation (44), Latham CJ, with reference
to
functions or activities essential to the existence of government, said that:
"the raising of money by taxation (and) provision for the custody,
management and disposition of public revenue moneys are activities
which are
essential to the very existence of a Government".
His Honour referred also to the power of borrowing money, of providing for the
custody and expenditure of loan moneys and making
provision for the custody
and expenditure of public moneys by using a bank. All these activities were,
in his Honour's view, essential
to the existence of a State government (45)
or, as we would put it, to its capacity to function as a government.
47. It was also recognized in Re Tracey; Ex parte Ryan (46) that State courts
are an essential branch of the government of a State
and that their
continuance by s.106 of the Constitution precludes an exercise of Commonwealth
legislative power prohibiting them from exercising their functions.
48. In the Payroll Tax Case (47), Menzies J referred to the implied
limitation in the context of interference with a State carrying
out "its
constitutional functions of government", a narrower expression than
"governmental functions". Gibbs J referred to a law
which curtailed or
interfered with "the exercise of constitutional power by the States", but left
open the question of what is the
constitutional power that is protected (48).
Windeyer J was not prepared to accept that there was a satisfactory
distinction between
essential functions of government and other functions
undertaken by government (49), a view which was shared in that case by Barwick
CJ, Walsh J and Gibbs J(50) and which has been reflected in other judgments of
this Court (51).
49. In our view, the prosecutor's submission on this point is against the
weight of modern authority and draws a distinction which
is unsatisfactory.
To say that the limitation protects the existence of the States and their
capacity to function as a government
is to give effect more accurately to the
constitutional foundation for the implied limitation identified by Dixon J in
the passages
earlier quoted from Australian Railways Union, including s.106 of
the Constitution. To press the limitation as far as the prosecutor seeks to
take it would travel beyond the language of s.106 and would confer protection
on the exercise of powers by the States to an extent which is inconsistent
with the subordination of
those powers to the powers of the Commonwealth
through the operation of s.109 of the Constitution. And the argument, if
successful, would protect a substantial part of a State's workforce from the
impact of federal awards, notwithstanding
that the operation of those awards
in relation to school teachers, health workers and other categories of
employees would not destroy
or curtail the existence of the State or its
capacity to function as a government.
50. The fact is that the existence of the States and their Constitutions and
their capacity to function as governments would not
be impaired by the
operation of federal awards made in respect of the vast majority of the
employees sought to be covered by the
logs of claims, at any rate if the award
provisions were confined to minimum wages and working conditions which take
appropriate
account of any special functions or responsibilities which attach
to them. The freedom of State governments to determine terms and
conditions
of employment of employees would be restricted but that is a consequence of
the application of the arbitration power to
States. Whether the making of a
comprehensive award would result in a relevant impairment is another question
which we leave for
later discussion.
51. We are unable to accept the distinction which the prosecutor drew between
"governmental functions" and trading functions. The
argument was that States
function as a government when carrying out public functions for a public
purpose. On this view, health,
education and police functions are
governmental functions. Indeed, it is difficult to see why, on this view,
trading functions are
not governmental, if they are undertaken by government
in the public interest. The distinction is unsatisfactory for that reason.
(e) The argument that the implied limitation protects the administrative
services exception
52. A long-standing problem with the administrative services exception is
that it has always been difficult to define or describe
what is meant by the
expression "the administrative services of a State" and it cannot mean all
employees of the State who do some
administrative work (52). The
Solicitor-General for New South Wales, who argued that the exception was
supported by the implied
limitation, suggested that some guidance as to the
meaning of the expression may be provided by the distinction between "policy"
and "operational" decisions sometimes discussed in the law of torts in the
context of government liability. The guidance, if it
can be so called, is
obscure. The Solicitor-General was on stronger ground in contending that the
exercise of legislative, administrative
and judicial power is, and has always
been, regarded as governmental. But the correlation between the exercise of
these powers and
the exception is by no means apparent. What is more, the
exception is not related in any way to the implied limitation or to the
purpose which it serves. That purpose protects the State and its capacity to
function as a government. The exception consists of
a category of employees
and is not directed to functions of government and even less to capacity to
function as a government.
(f) The argument that the implied limitation protects the integrity or
autonomy of a State
53. The Solicitor-General for South Australia contended that the implied
limitation protects the integrity or autonomy of a State.
In this respect he
drew a distinction between external services (not protected) and internal
services (protected). Internal services
were said to include policy
formulation, reporting to Parliament, the collection and administration of
government revenue and the
provision of services to Parliament and the
judiciary. It was claimed that the protection would embrace, among others,
the Treasury,
the Attorney-General's Department, court staff and the police.
It was conceded that the content of an award was a relevant consideration.
Thus the Commission could regulate remuneration and disputes about
remuneration and other payments to employees but it could not
prescribe
employment qualifications, eligibility and termination procedures. The
latter, so the argument runs, would impair the
integrity or autonomy of the
State. It will be convenient to deal a little later with this argument which,
in our view, has some
force.
(g) Conclusion with respect to the scope and content of the implied
limitation
54. Our rejection of the particular submissions made by the prosecutor and
supporting interveners other than that advanced by South
Australia as to the
scope and content of the implied limitation leads us, subject to consideration
of one gloss put forward by the
prosecutor, to express the scope and content
of the limitation in this way. The limitation consists of two elements: (1)
the prohibition
against discrimination which involves the placing on the
States of special burdens or disabilities ("the limitation against
discrimination")
and (2) the prohibition against laws of general application
which operate to destroy or curtail the continued existence of the States
or
their capacity to function as governments (53).
55. The prosecutor relied, in particular, on the formulation of the second
element in the limitation which is to be found in the
reasons for judgment of
Deane J in Queensland Electricity Commission (54) where his Honour stated that
its central operation is to
preclude the exercise of Commonwealth powers "to
control the States" or in a manner which would be inconsistent with the
continued
existence of the States as independent entities and their capacity
to function as such. The exercise of Commonwealth power "to control
the
States" would be an exercise of power inconsistent with the continued
existence of the States as independent entities and their
capacity to function
as such. So the correctness of the major proposition asserted by the
prosecutor may be accepted.
56. In elaborating the concept of "control" for the purposes of the argument,
the prosecutor drew attention to observations of Dixon
J in Melbourne
Corporation (55) where his Honour, in the context of a law aimed at
controlling some particular exercise of a State's
exercise of its executive
power, said:
"Such a law wears two aspects. In one aspect the matter with respect to
which it is enacted is the restriction of State action,
the prescribing of the
course which the Executive Government of the State must take or the limiting
of the courses available to it.
As the operation of such a law is to place a
particular burden or disability upon the State in that aspect it may correctly
be described
as a law for the restriction of State action in the field chosen.
That is a direct operation of the law."
But it is important to appreciate that, in his Honour's view, the implied
limitation precluded the exercise of Commonwealth legislative
power "for a
purpose of restricting or burdening the State in the exercise of its
constitutional powers" (56). To do so "brings
into question the independence
from federal control of the State in the discharge of its functions" (57).
57. At this point it is convenient to consider South Australia's argument
based on impairment of a State's "integrity" or "autonomy".
Although these
concepts as applied to a State are by no means precise, they direct attention
to aspects of a State's functions which
are critical to its capacity to
function as a government. It seems to us that critical to that capacity of a
State is the government's
right to determine the number and identity of the
persons whom it wishes to employ, the term of appointment of such persons and,
as well, the number and identity of the persons whom it wishes to dismiss with
or without notice from its employment on redundancy
grounds. An impairment of
a State's rights in these respects would, in our view, constitute an
infringement of the implied limitation.
On this view, the prescription by a
federal award of minimum wages and working conditions would not infringe the
implied limitation,
at least if it takes appropriate account of any special
functions or responsibilities which attach to the employees in question.
There may be a question, in some areas of employment, whether an award
regulating promotion and transfer would amount to an infringement.
That is a
question which need not be considered. As with other provisions in a
comprehensive award, the answer would turn on matters
of degree, including the
character and responsibilities of the employee.
58. In our view, also critical to a State's capacity to function as a
government is its ability, not only to determine the number
and identity of
those whom it wishes to engage at the higher levels of government, but also to
determine the terms and conditions
on which those persons shall be engaged.
Hence, Ministers, ministerial assistants and advisers, heads of departments
and high level
statutory office holders, parliamentary officers and judges
would clearly fall within this group. The implied limitation would protect
the States from the exercise by the Commission of power to fix minimum wages
and working conditions in respect of such persons and
possibly others as well
(58). And, in any event, Ministers and judges are not employees of a State.
THE APPLICATION OF THE IMPLIED LIMITATION TO THE FACTS
59. The prosecutor relied on the argument based on the implied limitation for
two reasons. The first was to challenge the findings
of dispute made by the
Commission, and the second was to challenge the interim awards that had been
made. In relation to the challenge
to the findings of dispute, the prosecutor
sought to show that the Commission is precluded from exercising its
award-making powers
at all so as to bind the States in respect of their
employees or at least a significant part of the workforce represented by the
SPSF. If the prosecutor had been able to demonstrate - and this it has
demonstrably failed to do - that the Commission lacks power
to make any award
binding the States in respect of the employment of any of their employees or
any of the employees represented by
the SPSF, then the prosecutor might have
had a powerful case for holding that the Commission had no power to make the
relevant dispute
findings.
60. However, the rejection of the arguments put forward by the prosecutor and
the intervening States - arguments which would have
given the implied
limitation a wide-ranging operation - means that the Commission has power to
make awards binding the States and
their agencies in relation to minimum wages
and working conditions which take account of the special functions and
responsibilities,
if any, of a broad range of public servants and employees,
including many members of the SPSF. On the other hand, as we have indicated,
the operation of the implied limitation would preclude the Commission from
making an award binding the States in relation to qualifications
and
eligibility for employment, term of appointment and termination of employment,
at least on the ground of redundancy. It would
also preclude the Commission
from making an award binding the States in relation to the terms and
conditions of employment or engagement
of persons such as Ministers,
ministerial assistants and advisers, heads of department and senior office
holders - as well as parliamentary
officers and judges (59). What impact the
implied limitation would have on the power of the Commission to make an award
prescribing
particular minimum terms and conditions of employment for
particular classes of employees, e.g., term of appointment, procedures
and
criteria for promotion and transfer, and termination on grounds other than
redundancy, was a question which was not explored
in detail in the arguments
presented to this Court. Obviously these are matters to be considered in the
Commission if the proceedings
are taken further in that tribunal.
61. For present purposes the important point which emerges is that the
prosecutor has failed to demonstrate that the Commission
is precluded from
making awards of the kind sought, even though the Commission may not be able
to make the awards sought in relation
to all public servants and employees
sought to be covered. But that does not mean that the Commission lacked power
to make dispute
findings. It is no objection to the validity of a finding of
dispute that the Commission lacks power to make an award binding all
the
parties to a dispute. That point was clearly demonstrated by Dixon CJ in Ex
parte Professional Engineers' Association (60).
Likewise, it is no objection
to the validity of a finding of dispute that the Commission lacks power to
make an award containing
all the provisions sought in a log of claims, so long
at least as it has the power to make part of what is sought.
62. Accordingly, the prosecutor's challenge to the findings of dispute made
by the Commission, at least in so far as it was based
on the suggested
operation of the implied limitation, is premature. The "interstateness" limb
of the challenge will be dealt with
shortly.
63. The prosecutor also sought to challenge the interim awards made by the
Commission. In this way, the prosecutor attempted to
distinguish this case
from the SPSF Case (61) in this Court in which Toohey J said:
"It would be premature for the Court to intervene at this stage of the
proceedings in the Commission unless it were quite clear
that the Commission
lacked jurisdiction to make an award based on the log of claims. That is by
no means clear."
In that case, proceedings in the Commission had not advanced beyond a finding
of dispute.
64. The mere making of interim awards as such does not bring the cases within
the operation of the implied limitation. But, in
the light of the operation
of the implied limitation as we have explained it, the making of interim
awards regulating or restricting
the offer of voluntary departure packages to
employees of the State and its agencies cannot be supported. Those interim
awards purported
to restrict the prosecutor's or its agencies' right to
terminate the services of the employees on redundancy grounds. Accordingly,
the interim awards made in Matters M11 and M156 cannot remain on foot.
ARE THE INDUSTRIAL DISPUTES INTERSTATE DISPUTES?
65. It is convenient to deal now with the prosecutor's submission, supported
by the intervening States, that the disputes arising
from the non-acceptance
of the logs of claims are not interstate disputes. In essence, the argument is
that an industrial dispute
between a State and its employees engaged in the
performance of the State's governmental functions cannot form part of an
industrial
dispute extending beyond the limits of one State within the meaning
of s.51(xxxv) of the Constitution.
66. Some of the considerations urged in support of the prosecutor's argument
seemed to go to a different question, namely, whether
the disputes were
properly characterized as industrial disputes but, as already mentioned, that
question was not raised by the prosecutor.
The matters on which the prosecutor
relied were the limitation of a State's jurisdiction and activities within its
own boundaries,
the lack of a common interest as between States in the
business of "State government", and the traditional autonomy that State
governments
and their colonial predecessors have enjoyed with respect to the
engagement and termination of the services of public servants. Inevitably
the
argument rests rather heavily on the difference between private and public
service employment. When all these matters are taken
into account, it is
suggested that two conclusions should be drawn: (1) that disputes of the kind
in question necessarily remain
at the level of intra-State disputes between a
State and its public servants and do not merge into or become part of a wider
interstate
dispute; and (2) that disputes do not have an interstate quality as
that requirement must be understood in the context of s.51(xxxv). The second
suggested conclusion rests on the notion that it could not have been
contemplated when the Constitution was adopted and enacted that s.51(xxxv)
would apply to disputes between States and their employees.
67. The prosecutor's submission is inconsistent with the course of decisions
in this Court. Ever since the decision in the Engineers'
Case it has been
consistently recognized that a dispute between an organization of employees
and a Minister of the Crown for a State
acting under the authority of a
statute of that State as an employer can amount to an interstate industrial
dispute within the meaning
of s.51(xxxv). In that case, the Court held that
the dispute between the claimant Society on the one hand and, on the other
hand, a large number
of employers throughout Australia, including the Minister
for Trading Concerns (Western Australia), the State Implement and Engineering
Works and the State Sawmills, both of that State, was a dispute extending
beyond the limits of one State. In Ex parte Professional
Engineers'
Association, to which we have previously referred, the Court held that there
was an interstate industrial dispute between
the State of New South Wales and
various Government departments on the one hand and employed engineers on the
other hand. Subsequently,
in the Social Welfare Union Case, where the narrow
conception of "industrial dispute" was rejected and the popular meaning of the
term adopted, the correctness of the decisions in the Engineers' Case and in
the Professional Engineers' Case was accepted. And,
in Re Lee; Ex parte
Harper, the Court held that the power conferred by s.51(xxxv) would extend to
an interstate dispute to which an organization representative of State school
teachers was a party.
68. In the cases referred to in the preceding paragraph, the primary question
for consideration by the Court was not whether a relevant
dispute had, or
would have, the requisite interstate quality but, in the Engineers' Case,
whether the doctrine of implied intergovernmental
immunity was to be accepted
so as to impose limits on the power conferred by s.51(xxxv) and, in the other
cases, whether the dispute was, or a relevant dispute would be, "industrial".
However, in each of the cases, the
Court proceeded on the footing that a
dispute between a State (or its agency) and its employees could give rise to
an interstate
industrial dispute. The acceptance by a unanimous Court in the
Social Welfare Union Case of the popular meaning of the expression
"industrial
dispute" in s.51(xxxv) and the rejection of the narrow meaning based on the
concept of a dispute in an industry does not affect the conclusion on
"interstateness"
reached in the cases. The reasoning to that conclusion is
unaffected by that change.
69. The notion that interstate employers must have a common business or
operate in a particular industry as a pre-condition of the
existence of
interstate industrial dispute has never been accepted. Although statements
have been made which assert that the nexus
or unifying factor which combines
in a single industrial dispute a number of demands made on behalf of a number
of employees is "the
industry" itself (62), the nexus may also be found in the
calling or vocation in which the participants are engaged. Very recently,
in
Re Australasian Meat Industry Employees' Union; Ex parte Aberdeen Beef Co.
Pty. Ltd. (63) reference was made to the statement
of Starke J in Burwood
Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association
(64):
"An industrial dispute is constituted, both historically and in point of
fact, where a difference exists between workmen themselves,
or perhaps between
employers themselves, or between employers or classes of employers, and
workmen engaged in some common industry
or calling, concerning industrial
conditions affecting a class so engaged and not merely affecting individual
and definite members
thereof. An industrial relationship, and not a
contractual relationship, is all that is necessary to constitute an industrial
dispute.
The nexus is to be found in the industry or in the calling or
avocation in which the participators are engaged."
And, in the final analysis, the adoption of the popular meaning of "industrial
dispute" and the rejection of the view that there
must be a dispute in an
industry, is fatal to the contention that the necessary nexus or unifying
factor must be found in the industry.
70. In Aberdeen, the joint judgment stated (65):
"It is not of great significance that there was no exact coincidence between
the activities carried on in the respective States
in respect of which demands
were made. It is of greater significance that those upon whom or in respect
of whom the demands were
made had a community of interest. That factor may
exist because of the employers' or employees' participation in a single
industry
and is present here. A dispute involving parties having a community
of interest is likely to be a single industrial dispute despite
differences
between the activities of those parties."
Whether such a community of interest exists in a particular case may depend
upon a combination of industrial, economic and financial
considerations (66).
71. True it is that the functions and operations of the States and their
agencies are confined very substantially, if not wholly,
within the boundaries
of the particular State and therefore the demand upon a particular State and
its agencies is to observe the
terms and conditions demanded within the State
or very substantially so. As against that consideration is to be set the
common interest
which the State employees have in seeking and obtaining
uniform terms and conditions across State boundaries as well as the common
interest which the employers as public sector employers have in resisting the
demands.
72. The same question arose in the SPSF Case (67), where a log of claims was
served on three States and a wide range of public sector
employers relating to
the rates of pay and allowances of public servants generally. The Court held
that the log was not such as
to be capable of giving rise to an industrial
dispute. Consequently, it did not become necessary to resolve the question
whether,
assuming an industrial dispute to have come into existence, it was
interstate in character. Nevertheless, Toohey J considered the
question and
said (68):
"Once it is accepted, as it must now be, that many, if not all, of the
employees sought to be covered by the proposed award are
engaged in an
industry (69), it is hard to resist the conclusion that there is 'common
cause' (70) made between S.P.S.F. and the
three States in question. It is
true that the log of claims cannot be treated as a demand for a national
public service award as
S.P.S.F. would have it, primarily because only three
States are involved. But the relationship between the employers in those
States
and the various categories of employees employed by the States and
their instrumentalities and the constitutional coverage of S.P.S.F.
establish
a sufficient degree of interstateness to satisfy that element of an industrial
dispute within the meaning of the Act."
73. The submission that the disputes found by the Commission are not
interstate disputes must be rejected.
DISCRIMINATION - s.111(1A) OF THE ACT
74. Section 111(1) of the Act has provided for some time past and still
provides:
"Subject to this Act, the Commission may, in relation to an industrial
dispute: ...
(g) dismiss a matter or part of a matter, or refrain from further hearing or
from determining the industrial dispute or part of
the industrial dispute, if
it appears:
...
(iii) that further proceedings are not necessary or desirablein the public interest".
75. The Industrial Relations Legislation Amendment Act (No.2) 1992 (Cth),
which commenced on 21 January 1993, by s.5(b) inserted
s.111(1A) in the Act.
It provides:
"Subparagraph (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, award,
decision or determination
of a State industrial authority (whether made before, on or after that date);
and
(b) terms and conditions of that kind and application:arbitration (but not merely because an order, award, decision or determination of a State arbitrator cannot be changed during a particular period); and
(i) cannot be dealt with by a State arbitrator by compulsory
(ii) are not regulated by an employment agreement; and
(iii) are not regulated by an award under this Act."The sub-section defines the expression "employment agreement" in general terms but not so as to pick up employment agreements as provided for in the ER Act. The effect of s.111(1A) is to preclude the Commission from exercising the powers in s.111(1)(g) in relation to Victorian matters.
76. Section 111(1A) was introduced after the ER Act was enacted. By s.179,
the ER Act repealed the Industrial Relations Act 1979
(Vict.) which provided
for compulsory arbitration. As stated at the commencement of these reasons, a
system of individual employment
agreements replaced the old system of
compulsory arbitration in Victoria. Sections 109 and 113 and cl.22 of Sched.6
to the PSM Act
achieved the same result in the public sector.
77. The prosecutor submitted that s.111(1A) discriminates against Victoria
and employers and employees in that State by denying
them recourse to
s.111(1)(g). The new provision is said to discriminate against Victoria and
any other State that enacts similar
legislation; alternatively, it is said
that the legislation is aimed at Victoria.
78. No doubt the events which had recently taken place in Victoria,
particularly the enactment of the Victorian legislation, were
the occasion for
the introduction of s.111(1A) but that is not enough to justify
characterization of the provision as one which is
aimed at Victoria. The
provision is framed in general terms and is capable of applying to any State
which introduces a system similar
to the Victorian system. The fact that
Victoria is the only State presently affected by s.111(1A) is not a compelling
consideration,
though it could conceivably be so in the absence of a rational
and relevant connection between the basis on which that provision
denies
access, the application of s.111(1)(g) and the exercise of the powers
conferred by the last-mentioned provision.
79. Whether s.111(1A) discriminates against Victoria, its employers and
employees in the sense of being aimed at them is not a question
to be
determined by reference to the subjective motives of the legislators; rather,
it is a question of determining what was the
purpose of the enactment, a
matter which is to be ascertained by reference to the substance and actual
operation of the law in the
circumstances to which it applies (71). That was
the approach which the Court adopted in Queensland Electricity Commission
where
the members of the Court, as we understand the judgments, examined the
substance and operation of the statutory provisions in reaching
their
conclusions with respect to the validity of the impugned provisions.
80. The prosecutor contended that there is no logical connection between
refusing to make an award in the public interest pursuant
to s.111(1)(g) and
the absence of a system of compulsory arbitration in a State. That argument
cannot be accepted. If the view
be taken, as it has been taken by the
Commonwealth Parliament that, in the public interest, industrial disputes
should be resolved
by means of compulsory arbitration, it is logical for the
Parliament to conclude that a power given to the Commission to refrain
from
proceeding where it is in the public interest to do so should only be
exercisable when an alternative system of compulsory arbitration
is available.
Further, the introduction of s.111(1A) can be supported on the ground that it
eliminated or alleviated problems that
would arise once State compulsory
arbitration was no longer available. Applications under s.111(1)(g) would
involve delay, even
if the Commission decided to proceed due to the absence of
compulsory arbitration. And, if the Commission were to decline to proceed
and
leave the dispute to voluntary arbitration, interstate industrial disputes
might not be resolved satisfactorily.
81. The prosecutor advanced a further argument that s.111(1A) discriminated
against Victorian employers as compared with employers
in other States. This
argument was based on the implication of equal treatment discussed in the
judgments in Leeth v. The Commonwealth
(72). This argument must also be
rejected for the reasons given for the conclusion that the provision does not
discriminate against
the prosecutor. The existence of a rational and relevant
connection between the two provisions, ss.111(1)(g) and 111(1A), is in
itself
an answer to the argument.
DISCRIMINATION - INTERIM VOLUNTARY DEPARTURE AWARDS
82. The prosecutor's argument is that the interim awards in matters M8 and
M11 of 1993 discriminate against it by depriving it of
its rights to negotiate
redundancy agreements and to terminate employment, rights which are enjoyed by
all other employers. As we
have already concluded that these awards infringe
the implied limitation, this argument does not require consideration.
AUSTRALIAN FEDERAL POLICE ASSOCIATION - AMENDMENT OF RULES
83. The prosecutor argued that the implied limitation precludes the exercise
of the Commission's powers with respect to a dispute
between a State and its
police officers and that such a dispute cannot amount to an industrial dispute
within the meaning of s.51(xxxv).
The prosecutor's argument was an extension
of its principal contention relating to governmental functions on the footing
that the
police discharge a primary and inalienable governmental function.
84. The short answer is that the granting of consent by the Commission to an
alteration of the eligibility rules of the Australian
Federal Police
Association would not in itself work any impairment of the capacity of the
prosecutor to function as a government.
Further, having regard to conclusions
earlier stated in these reasons, there is no basis for holding that the
Commission is precluded
from exercising some powers in relation to the fixing
by award of minimum wages for State police officers. The fact that a log of
claims seeks more than the Commission has power to award is not a ground for
holding that there is no industrial dispute so long
as the Commission has
power to make an award in relation to something that is sought in the log.
The application for relief, as with
the prosecutor's challenge to the findings
of dispute in the other cases, is premature.
CONCLUSION
85. The orders to be made will give effect to the conclusions we have reached
on the arguments presented to us with respect to the
jurisdiction of the
Commission to make findings of dispute and to make the interim awards and
orders in Matters M11 of 1993 and M156
of 1993 restricting the employer's
right to terminate the employment of employees on the ground of redundancy.
Those arguments extended
to the validity of the interim award made by the Full
Bench of the Commission in Matter M8 of 1993. However, that award was set
aside by the Full Bench on 27 October 1994 when it made a final award, the
Victorian Teachers Redundancy Award 1994, which is not
presently before the
Court. In the absence of argument, we express no opinion about the validity
of other awards and orders. If
any question or questions arise with respect
to such awards and orders, that question or questions can be raised in
separate proceedings
in the light of these reasons for judgment. In other
words, the refusal of prerogative relief is without prejudice to the
prosecutor's
right to raise any such question or questions in separate
proceedings.
ORDERS
86. In the result, we would make the following orders.
Matter M8 of 1993
Order nisi discharged.Matter M10 of 1993
Order nisi discharged.Matter M11 of 1993
Order nisi discharged.M15 of 1993
Order nisi discharged.Matter M17 of 1993
Order nisi discharged.Matter M20 of 1993
Application for prohibition and certiorari refused.Matter M21 of 1993
Application for prohibition and certiorari refused.Matter M22 of 1993
Application for prohibition and certiorari refused.Matter M23 of 1993
Application for prohibition and certiorari refused.Matter M24 of 1993
Application for prohibition and certiorari refused.Matter M25 of 1993
Application for prohibition and certiorari refused.Matter M26 of 1993
Application for prohibition and certiorari refused.Matter M30 of 1994
DAWSON J In these matters various unions have sought to invoke the jurisdiction of the Australian Industrial Relations Commission ("the Commission"). That jurisdiction is conferred by the Industrial Relations Act 1988 (Cth) pursuant to s.51(xxxv) of the Constitution which gives the Commonwealth Parliament power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. Save for one matter, the industrial disputes which are relied upon in these cases as the foundation of the Commission's jurisdiction are said to have arisen between the State of Victoria and its employees or those of its agencies. Speaking in general terms, the categories of employees involved embrace virtually the whole of the public service of the State and extend beyond it to other employees who, if not strictly public servants, are employed by the State or its agencies in the public sector. The disputes are said to extend beyond the limits of Victoria because demands, which have not been met, have been made in other States in respect of employees in categories which correspond to those involved in Victoria.
2. The State of Victoria and its agencies, who are the prosecutors in the
various matters, contest the jurisdiction of the Commission
and seek to
prohibit the Commission from purporting to exercise it. They do so upon the
basis that there is no genuine interstate
dispute in any of the matters and
that, in any event, the Industrial Relations Act does not validly empower the
Commission to make
the awards sought which, having regard to the nature and
extent of the demands, would
have the effect of curtailing the State's
capacity
to exercise for itself its constitutional functions. In this
respect, the respondents
rely upon the implication to be drawn from
the
federal structure of the Constitution that the power of the Commonwealth
Parliament does not extend to the impairment of a State's capacity to function
effectively as
an independent unit (73).
3. The power of the Commonwealth under s.51(xxxv) to affect the States or
their instrumentalities was originally thought to be circumscribed by the
doctrine of intergovernmental immunities.
With the abandonment of that
doctrine in the Engineers' Case (74), it was established that the power of the
Commonwealth Parliament
under s.51(xxxv) extends to the making of laws binding
on the States and their instrumentalities with respect to conciliation and
arbitration for
the prevention and settlement of interstate industrial
disputes. Nevertheless, the question remained whether a dispute between a
State and its employees might be described as industrial so as to fall within
the reach of s.51(xxxv). Clearly enough, in the face of the Engineers' Case it
could not be said that the governmental nature of the employment necessarily
denied to it any industrial character; that would have been to reintroduce in
another guise the doctrine of intergovernmental immunities.
Rather, the
conception was that the nature of the employment of some government employees
meant that any dispute between them and
their employer concerning their
employment could not be described as industrial because it stood outside the
whole world of productive
industry and organized business carried on for the
purpose of profit (75). Thus in the Schoolteachers' Case (76) it was held
that
the educational activities of the States did not constitute an industry
so that a dispute between the States and their teachers did
not constitute an
industrial dispute within the meaning of s.51(xxxv). The perceived
inapplicability of s.51(xxxv) to disputes between those involved in the
non-industrial services of the States and their employers meant that little
attention was
given to other aspects of the problem which arises from an
exercise of the power under s.51(xxxv) affecting the States and their
agencies. The occasion did not arise to consider whether the nature of the
relationship between the
Crown in right of a State and its employees was of an
inherently intrastate character such that any dispute between them could not
ordinarily form part of a dispute extending beyond the limits of the State.
Nor did the occasion arise to consider the extent to
which the power under
s.51(xxxv) is confined by limits which the federal structure by implication
imposes upon Commonwealth legislative power to affect the States.
4. In Reg. v. Coldham; Ex parte Australian Social Welfare Union ("the Social
Welfare Union Case") (77) the Court swept aside the
notion that industrial
disputes within the meaning of s.51(xxxv) are confined to disputes in
productive industry and organized business carried on for the purpose of
profit and held that they include
all disputes between employers and employees
about terms and conditions of work. The Court did not abandon the idea that
there were
some services of a State which could only be described as
administrative and which, for that reason, were beyond the reach of
s.51(xxxv). However, in Re Lee; Ex parte Harper (78) the Court held that State
school teachers stood outside the administrative services of the
State and so
could be involved in an industrial dispute with the State.
5. The decision in the Social Welfare Union Case exposed, but did not answer,
those problems arising from the application of s.51(xxxv) to the States and
their agencies which had hitherto not claimed the attention of the Court.
This was recognized. In the Social Welfare
Union Case (79) the Court said:
"It is also unnecessary to consider whether or not disputes between a State
or a State authority and employees engaged in the administrative
services of
the State are capable of falling within the constitutional conception. It has
been generally accepted, notwithstanding
the Engineers' Case, that the power
conferred by s.51(xxxv) is inapplicable to the administrative services of the
States ... If the reasons hitherto given for reaching that conclusion are
no
longer fully acceptable, it may be that the conclusion itself finds support in
the prefatory words of s.51 where the power is made 'subject to this
Constitution' ... The implications which are necessarily drawn from the
federal structure of the Constitution itself impose certain limitations on the
legislative power of the Commonwealth to enact laws which affect the States
(and vice versa).
The nature of those limitations was discussed in Melbourne
Corporation v. The Commonwealth (80), Victoria v. The Commonwealth ("the
Pay-roll Tax Case") (81), and the other cases there cited. If at least some
of the views expressed in those cases are accepted,
a Commonwealth law which
permitted an instrumentality of the Commonwealth to control the pay, hours of
work and conditions of employment
of all State public servants could not be
sustained as valid, but as Walsh J pointed out in the Pay-roll Tax Case (82),
the limitations
have not been completely and precisely formulated and for
present purposes the question need not be further examined."
And in Re Lee; Ex parte Harper (83) Gibbs CJ said:
"From the earliest times this Court has experienced a difficulty in
reconciling the effect which the exercise of the power given
by s.51(xxxv),
construed without limitation, might have on the States with the position
intended to be secured to the States by the Constitution. There have been a
number of shifts of opinion, and the matter has never been fully explored. In
particular, the questions whether
it is possible to have a genuine interstate
dispute involving the officials of one State who are doing no more than
carrying out
the administrative services of that State, and whether the
artificial doctrine concerning paper disputes needs modification in the
light
of the illumination thrown on s.51(xxxv) by Reg. v. Coldham; Ex parte
Australian Social Welfare Union, remain open for definitive discussion."
6. The artificial doctrine of paper disputes to which Gibbs CJ refers in that
passage depends upon the theory that a dispute within
the meaning of
s.51(xxxv) can be created by formal demand and refusal and that such formal
demand and refusal are sufficient to attract the jurisdiction of
the
Commission (84). The more important thing for present purposes is not so much
the creation of a dispute on paper as the creation
of an interstate element by
that means. A dispute on paper is only evidence of the existence of an actual
dispute and in the end
this Court, in proceedings of the present kind, must
determine for itself whether an alleged dispute is real and genuine (85). The
observation made by this Court in Reg. v. The Commonwealth Conciliation and
Arbitration Commission; Ex parte Australian Workers'
Union (86) is apposite:
"It is true that when a writ of prohibition is sought the burden of showing
that there is an excess of jurisdiction rests on those
seeking the writ. But
once the basis on which jurisdiction is asserted is disclosed the issue is
defined and the existence or want
of jurisdiction must depend on the facts
affecting the question thus ascertained and their legal complexion."
And the genuineness must extend not only to the existence of a dispute but
also to its interstate character in order to establish
the Commission's
jurisdiction.
7. In some, perhaps most, cases, the interstate element of a dispute may be
established by the mere refusal of employers in more
than one State to accede
to the same demands, but that cannot always be so. As this Court recently
pointed out in Re Australasian
Meat Industry Employees' Union; Ex parte
Aberdeen Beef Co. Pty. Ltd. (87) even the same demands made upon and refused
by different
employers will not give rise to a single dispute unless there is
a nexus between the parties which makes it so. And for a dispute
to
constitute an interstate dispute that nexus must extend beyond the limits of
one State.
8. A sufficient community of interest amongst those by whom or upon whom the
demands are made may suffice to provide the necessary
nexus and that community
of interest may arise from participation in a single industry. But the
predominant aspect of employment
by government in a State, particularly in the
public service, is not the existence of an industry, assuming one to be
identifiable,
or a particular profession, trade or calling. Rather it is the
governmental nature of the employment. It is the provision of particular
services in the interest of the particular State - in the public interest -
which provides the real community of interest. Community
of interest of that
kind is necessarily confined to the State whose interest is to be served. Put
shortly, a dispute between one
State and its employees is not, having regard
to the relationship between them, likely to be the same dispute as that
between another
State and its employees even if the demands made upon each
State are the same (88).
9. There are a number of reasons why that is so. The employment relationship
between a State and its employees is not the same
as the relationship between
a private employer and its employees. The difference was summarized by Kitto
J in Attorney-General for
N.S.W. v. Perpetual Trustee Co. (89):
"It is true that the word 'servant' is commonly used in such expressions as
'public servant', 'civil servant' and 'servant of the
Crown'; but the very
qualifying words themselves point to the essential difference. They lift the
word 'servant' into a new and
very different context; they emphasize that the
services which flow from the relationship are of a public character, and are
not
owed to any individual for the advancement of his own concerns. In so far
as the Executive may be entitled to insist upon their
performance, it is for
the reason only that the Executive is the organ of the State invested with
that function. As Lord Esher MR
said in Dunn v. The Queen (90), 'All service
under the Crown itself is public service ... all public service under the
Crown is for
the public benefit'; and the Court of Appeal held in that case
that it was the public policy of the country - 'the public interest'
as Lord
Herschell said (91) - that made it necessary to import into contracts of
employment in the service of the Crown (in the absence
of statutory provision
to the contrary) a term entitling the Crown to determine the employment at its
pleasure. The service of the
Crown and private service, despite their points
of resemblance, belong, therefore, to different fields of law. The Crown has
its
own peculiar rights, powers and responsibilities in connection with the
conduct of the public affairs of the State; and it is, I
think, a mistake to
try to force the relationships into which the Crown enters with its subjects
for the conduct of those affairs
into categories established in the domain of
private law, which, by their nature and their history, are appropriate only to
relationships
between subjects."
10. No doubt, particularly in the light of the Social Welfare Union Case, it
is appropriate to speak of disputes between a State
and its employees as
industrial disputes simply because they are disputes between an employer and
its employees about the terms and
conditions of employment. But they are
disputes within a framework which is different not only from that within which
disputes between
private employers and their employees take place, but also
from that which exists in other States. Nowadays, when the common law
has
given way to statute in the regulation of the relationship between the State
and its employees, the terms and conditions of employment
result from the
expression of political will from time to time in relation to both the
organization of the public service and State
agencies and the allocation of
resources.
11. The background against which these matters are said to arise illustrates
the point. In 1992 there was a change of government
in Victoria. The new
government's policies included the reduction of the current account deficit in
the State, reform of the industrial
relations system and reform of the terms
and conditions of employment in the public sector. To these ends, the
government embarked
on a programme of financial reform which very much
depended upon a reduction in the cost of State public services. Such a
reduction
depended in turn upon a reduction in the total wages bill and,
accordingly, a reduction in the number of persons employed by the
State and
its agencies.
12. The government established a new regime in the regulation of industrial
relations by the Employee Relations Act 1992 (Vict.).
That Act abolished the
system of compulsory arbitration which had previously existed, and it promotes
the creation of collective
or individual employment agreements, rather than
awards, to govern relationships between employers and employees. In the
public
sector, reform was to be achieved primarily by the provisions of the
Public Sector Management Act 1992 (Vict.) which have the object
of enabling
public sector employees to be brought under the general industrial framework
established by the Employee Relations Act
upon a similar footing to employees
in the private sector.
13. The State as an employer stands in a unique position, not only in having
the aim of serving its public rather than of private
gain but also in having
the capacity within its own jurisdiction, and in the absence of prevailing
Commonwealth legislation, of prescribing
the conditions under which that aim
is to be achieved. The State, within constitutional constraints, exercises
sovereign power over
those whom it employs. It can for practical purposes act
only through those persons, and the relationship which exists between it
and
them is exclusive of the relationship which exists between another State and
its employees. The community of interest which
exists between the State and
its employees is dictated by the requirements of government within the State
and does not ordinarily
extend beyond the limits of the State as does the
community of interest which exists between employees in the private sector
engaged
in a single industry crossing State boundaries. As a general rule it
cannot, therefore, serve to generate a dispute extending beyond
the limits of
the State.
14. As I have said, the prosecutors, in addition to contesting the existence
of an interstate dispute, place reliance upon the implied
limitation upon
Commonwealth legislative power which arises because:
"The foundation of the Constitution is the conception of a central
government and a number of State governments separately organized. The
Constitution predicates their continued existence as independent entities."
(92)
Upon the basis of that implied limitation, a law under s.51(xxxv) will be
invalid "if it would prevent a State from continuing to exist and function as
such" (93).
15. Difficulty is inevitably encountered in attempting to identify the point
at which a law, particularly a law of general application,
may prevent a State
from functioning effectually as an independent unit. The difficulty may be
less in the case of a discriminatory
law (94). In the light of the Engineers'
Case, it is necessary to start with the proposition that a law under
s.51(xxxv) may bind a State and its instrumentalities, but having regard to
the nature and scope of State employment, there is no readily discernible
line
between those aspects of the relationship between a State and its employees
which may be externally regulated without interference
with the capacity of
the State to function independently and those which may not. If the
determination of the number and identity
of persons to be employed is critical
to the functioning of a State, then so too will be the wages and conditions of
employment,
for the former cannot be determined in isolation from the latter,
if only because of the budgetary considerations which constrain
any
government. It is obvious that if, for example, a State is required to pay a
substantial increase in wages to its teachers (who
are employed in
significantly large numbers), it may have as much impact on the State's budget
and the implementation of its policies
as an award prohibiting redundancies in
that workforce. It is similarly artificial to draw a line between those
employed at the
higher levels of government and those employed at the lower
levels. To do so is merely to revive the distinction between industrial
and
non-industrial functions which is of little relevance in the context of
industrial disputes as they are now viewed. A State
can function only through
those whom it employs, whatever the level of employment, and the external
regulation of the terms and conditions
of employment of those employed at the
lower levels may, if for no other reason than their numbers, be as destructive
of the capacity
of a State to function as an independent unit as the
regulation of the terms and conditions of those employed at the higher levels.
16. Nevertheless, the implied limitation upon legislative power arising from
the federal structure may shed light in a different
way upon the problems
arising from the application of s.51(xxxv) to the States. For the implication
protects, but does not create, the States as independent units within the
federation. It is the
Constitution itself which establishes the position of
the States and which necessarily gives rise to an implication preserving that
position by
imposing limits upon the exercise of Commonwealth legislative
power. And it is the position of the States as independent units of
government
with power to define their own relationship with their employees which results
in s.51(xxxv) having a limited application, not by reason of any implication,
but because the express terms of s.51(xxxv) reach only the prevention and
settlement of disputes extending beyond the limits of any one State. For the
reasons which I have
given, the radical differences between a State as an
employer and a private employer ordinarily confine a dispute between a State
and its employees within the boundaries of a State.
17. This, I think, is demonstrated by the fact that when in the past an
industrial dispute between more than one State and its employees
has been
found to exist - generally a paper dispute arising merely from the service and
refusal of a log of claims in more than one
State - the settlement of the
dispute has invariably been by awards made upon a State by State basis, at
least where no private employer
is involved (95). Whilst this Court has
upheld the practice of the partial settlement of a single dispute by separate
awards, the
need to deal with industrial disputes involving the public sector
upon a State by State basis points almost inexorably in my view
to the
conclusion that what is said to be a single dispute is in fact a series of
disputes, whether on paper or not, between each
State and its employees.
Indeed, in these very cases where awards have been made they have been
confined to the State of Victoria
and have been quite plainly tailored to fit
the situation arising from the current policies of the government of that
State.
18. The fact that the reach of s.51(xxxv) does not ordinarily extend to the
prevention and settlement of disputes involving a State and its employees is
consonant with the
purpose underlying that paragraph. That purpose is to
confer power to deal with industrial disputes which lie beyond the competence
of any one State government because they extend beyond that State's
boundaries. But having regard to the powers which a State has
over its own
employees it can hardly have been contemplated that, save perhaps for
extraordinary situations, a dispute between a
State and its employees would
extend to other States and so require any settlement to be made upon a federal
basis.
19. Whilst this Court would seem to have had an almost instinctive
realization that s.51(xxxv) must be of limited application in relation to the
States, in the past it has expressed itself by concentrating upon the supposed
distinction between industrial and non-industrial disputes and has paid little
or no attention to the questions raised in these cases.
It is only because
the Social Welfare Union Case, in deciding that any dispute between an
employer and its employees concerning
the terms or conditions of employment is
an industrial dispute, has shifted the focus that these questions now arise.
The older authorities
for that reason offer little assistance in answering
those questions.
20. It follows from what I have said that, in my view, a prima facie
interstate dispute does not arise from the mere making of demands
upon more
than one State or its agencies with respect to the terms and conditions of
employment of their employees. Industrial disputes
may occur as a result, but
ordinarily they will not be of an interstate character. If an interstate
element is to be established
it will require the demonstration of some nexus
between the parties other than that of employment by a State or its agencies
in a
particular capacity. In the light of the view which I have expressed it
is convenient now to turn to the individual matters.
RE AUSTRALIAN EDUCATION UNION and ORS (M8 OF 1993)
21. In this matter the prosecutors seek to prohibit further proceedings on a
finding of the existence of an interstate industrial
dispute made at first
instance by Senior Deputy President Riordan and confirmed by a Full Bench of
the Commission on 24 December
1992, and to quash the dispute finding and an
interim award made upon the basis of that finding. The dispute found by the
Commission
was said to arise from the failure of the States of Victoria and
Tasmania to comply with a single demand served upon them by the
Australian
Teachers' Union (now the Australian Education Union). That demand was:
"No teacher employed by you shall be terminated from his or her employment,
whether by way of voluntary redundancy or otherwise
except with the consent of
the Australian Teachers Union."
Upon the basis of that dispute finding the Commission proceeded to make an
interim award (96), confined to the State of Victoria,
purporting to restrict
the power of the State to terminate the employment of teachers employed by it
who were considered redundant
and modifying the effect of a scheme under which
the State offered voluntary separation packages to teachers in order to induce
them
to leave their employment voluntarily.
22. In making its dispute finding the Commission had before it evidence of
the intention of the State of Victoria to reduce the
expenditure of its
Department of Education by at least $86 million from the previous year's
budget of $2.6 billion. This was to
be achieved to a significant extent by a
reduction in teacher numbers, the eventual reduction involving the elimination
of some 4,000
positions from the current teaching service of about 42,000
positions. The principal means of achieving the reduction was the scheme
involving the voluntary separation packages. This scheme was found by the
Commission to be "driven by budget objectives".
23. There was also evidence, accepted by the Commission, that in Tasmania an
agreement between the teachers' union and a former
government concerning the
voluntary redundancy of teachers employed by it had lapsed and that attempts
to obtain a new agreement
had lapsed. A claim had been made before the
Industrial Relations Commission of Tasmania for increases in teachers'
salaries and
the government had indicated that, if increases were granted
which had an impact upon the budget, the State might be forced to legislate
to
override the decision or to reduce the number of teachers.
24. The Commission expressed the following view:
"We have no doubt that an intrastate dispute about abruptly introduced and
implemented changes to conditions of teachers in Victoria
was the primary
stimulus to the ATU decision to serve the demand and notify a dispute. Nor is
there any room for doubt that the
ATU's immediate priority is the achievement
of an award imposing restraint on the Victorian employer of its membership."
The Commission viewed the situation existing before the service and refusal of
the demand by the union as being that of two separate
intrastate disputes,
albeit about similar matters, but concluded "that the refusal by the
respective employers of the letter of demand
has given rise to a genuine
industrial dispute with the required interstate character". The Commission
reached that conclusion upon
the basis that the service and refusal of the
letter of demand was prima facie evidence of a genuine industrial dispute with
the
required interstate character and that there was no evidence to rebut that
prima facie position. The Commission made no finding independently
of the
service and refusal of the letter of demand of the existence of any dispute of
an interstate character.
25. In reaching its conclusion the Commission said that it did not "consider
that the character of each employer as a manifestation
of the State Government
as a factor which in the circumstances of this case points for, or against,
there being a real dispute in
existence". But, of course, the question was
not so much whether any dispute was real but whether it was a single dispute
extending
beyond one State or consisted of separate disputes confined to the
States concerned. For the reasons which I have endeavoured to
explain, it is
the very nature of the State as an employer, confined as it is in making its
decisions to considerations affecting
the State, which prevents the mere
refusal of the same demand made in more than one State being prima facie
evidence of a single
interstate dispute or, in the particular circumstances of
this case, of the conversion of two separate intrastate disputes into a
single
interstate dispute. There is no necessary nexus between one State or its
employees and another State or its employees which
will provide the required
community of interest as private employment in a single industry will
ordinarily do. The mere refusal
by more than one State of the same demand
does not constitute prima facie evidence of a single dispute of an interstate
character.
There was in this case no evidence other than the refusal of the
letter of demand which pointed to the existence of a single interstate
dispute
or to the conversion of the existing intrastate disputes into a single
interstate dispute. The finding made by the Commission
of the existence of an
industrial dispute extending beyond the limits of any one State was therefore
in error.
26. Various developments have taken place in other proceedings relating to
teachers employed in Victoria but the matters in relation
to which the
prosecutors were granted orders nisi for prerogative relief are confined to
those mentioned above. I would make the
orders nisi absolute.
RE AUSTRALIAN NURSING FEDERATION and ORS (M10 OF 1993)
27. This matter arises from the service by the Australian Nurses Federation
of a log of claims on more than 100 community health
centres in Victoria and
hospitals in Queensland and Tasmania. The log covers terms and conditions of
work for members or persons
eligible to be members of the union. A finding of
the existence of an industrial dispute in Victoria, Queensland and Tasmania
was
made on 3 June 1991. The finding was based entirely upon the service and
non-acceptance of the log of claims.
28. Community health centres are bodies whose purposes and functions are
governed by the Health Services Act 1988 (Vict.). They provide health and
associated community services to particular communities. The health services
are provided pursuant
to a Health Services Agreement made under s.26 of the
Health Services Act. Community health centres are funded mainly by the State
of Victoria and the allocation of funds is determined by the State having
regard to budgetary constraints and government policy.
29. Community health centres are agencies or instrumentalities of the State
of Victoria and, for the reasons which I have already
given, the mere service
of a log of claims upon hospitals in Queensland and Tasmania as well as upon
the community health centres
in Victoria and the non-acceptance of the log
cannot, even assuming the existence of a dispute between the State and the
union, constitute
prima facie evidence that the dispute extends beyond the
limits of the State. There is no other evidence of the existence of an
interstate
dispute.
30. The prosecutors seek to prohibit further proceedings on the finding of an
interstate dispute and to quash the finding in so
far as it relates to
community health centres in Victoria. I would make the orders nisi absolute.
RE HEALTH SERVICES UNION OF AUSTRALIA and ORS (M11 AND M156 OF 1993)
31. The entitlement of the prosecutors to relief in these matters is
ultimately dependent upon the finding of the existence of an
interstate
industrial dispute made in the Commission by Deputy President MacBean on 14
December 1992 and varied on 2 December 1993.
That finding was upheld by a Full
Bench on 20 May 1993. The dispute found to exist was a paper dispute arising
from the failure
by the employers upon whom a log of claims was served to
accede to its demands. The log related to the terms and conditions of
employment
of persons engaged in the provision of nursing and other services
to the mentally ill or intellectually disabled. The log was served
on the
States of Victoria, Western Australia and Tasmania as well as a number of
private employers. The log contained demands relating
to recruitment,
transfer, discipline, termination and redundancy procedures. In relation to
redundancy it claimed that "the employer
shall not make any employee redundant
without the explicit agreement of the Union".
32. Following the finding of a dispute by Deputy President MacBean, he made
an interim award (97), confined to Victoria, dealing
with the provision of
voluntary departure packages by the State in a situation where, as he found
it, substantial numbers of employees
were redundant and, because of severe
budgetary restraints, the government had adopted a policy of contracting out.
He observed that
the new Public Sector Management Act 1992 (Vict.) provided no
permanency in government employment. The interim award was in the
following
terms:
"(i) That the employer take no further step whatsoever to process the
Voluntary Departure Package in the terms of or to the effect
of the document
attached hereto ... and without limiting the generality of the foregoing the
employer shall not make any further
offer pursuant to the Voluntary Departure
Package.
(ii) No employee be dismissed except on the grounds set out in Section 57 or
Section 59(b), (c) and (d) of the Public Service Act
1974."
33. On 23 December 1993, an interim order was made by the Commission stating
that the terms and conditions of employment of the
relevant employees were to
be frozen as at 2 December 1993, and that persons employed after 23 December
1993 were to be employed
on the terms and conditions of employment in force on
17 November 1992.
34. In making his dispute finding the Deputy President dealt with a
submission made on behalf of Victoria that there was no genuine
interstate
industrial dispute. Deputy President MacBean said:
"Mr McDonald was unable to point to one piece of evidence which would
sustain such a statement. There is nothing before the Commission
which would
displace the prima facie right of the HSUA to have the Commission exercise its
jurisdiction. This was in circumstances
where the opportunity was available
to Mr McDonald to seek, produce or point to any evidence establishing a lack
of genuineness in
the service of the log."
The Commission therefore found that the State of Victoria was not only a party
to a dispute but was a party to a dispute of an interstate
character and it
did so upon the prima facie evidence provided by the mere service and
non-acceptance of a log of claims. As I have
said, where a State is alleged to
be a party to a paper dispute, its position as an employer is so radically
different from that
of a private employer that the paper dispute cannot
constitute prima facie evidence that the dispute, so far as the State's
involvement
is concerned, extends beyond the limits of the State. An
interstate element is something which may be established, but not upon
the
basis of a paper dispute. Indeed, the making of an interim award, confined to
Victoria, immediately after a dispute was found
to exist would rather suggest
that any dispute between the State and its employees was of an intrastate
character, particularly when
the interim award was prompted by a State policy
with respect to redundancy. The finding that there was a dispute between the
State
of Victoria and its employees extending beyond the limits of the State
was, in my view, made in error.
35. Based upon that finding various orders were made by the Commission
against which the prosecutors seek prerogative relief in
matters M11 and M156.
I would make the orders nisi as amended absolute.
RE AUSTRALIAN NURSING FEDERATION and ORS (M12 OF 1993)
36. Towards the end of 1992, various matters were brought on in the
Commission before Senior Deputy President Riordan in which findings
of dispute
had been made upon the basis of the failure of a number of employers,
including the State of Victoria, to accede to logs
of claims served upon them
in respect of the terms and conditions of employment of nurses and other
health services employees. The
logs were served by the Royal Australian
Nursing Federation (now the Australian Nursing Federation) and the Hospital
Employees' Federation
of Australia (now the Health Services Union of
Australia) between 1983 and 1987 and various dispute findings were made.
Subsequently,
awards were made in respect of nurses employed in Queensland,
Tasmania, South Australia and Western Australia.
37. The matters were brought on in 1992 by the two unions seeking an award
confined to Victoria covering nurses and other health
services employees
employed by public and private hospitals, nursing homes, psychiatric and
mental health hospitals and various institutions
of a similar kind. The
public hospitals concerned are, as are community health centres, a means by
which the State of Victoria provides
health services involving the use of
public funds. It would appear to be the new policy of the State government
resulting in the
passing of the Employee Relations Act 1992 (Vict.) which
prompted the unions to bring the matters on.
38. Despite the long time which had elapsed since the relevant findings of
dispute were made, Senior Deputy President Riordan relied
on them to make an
award (98) covering nurses and other health services employees who are
employed by public and private hospitals
and various institutions providing
similar services. Assuming there still to be a live dispute between the
unions and the State
arising from the State's failure to accede to the
relevant logs of claims, it was not, in my view, possible upon the material
before
the Commission to conclude that it extended beyond the limits of the
State. The disputes found to exist between the unions and the
State were
paper disputes which afforded no prima facie evidence of an interstate
element. And in the time which elapsed between
the findings and the date upon
which the award was made it is plain that the position of the State had
changed.
39. In those circumstances, the Commission was in error in proceeding upon
the basis that the relevant findings of dispute established
that the disputes,
in the case of Victoria, extended beyond the limits of the State. The
prosecutors seek to quash the various findings
of dispute and the award and to
prohibit further proceedings on the findings of dispute. I would make the
orders nisi absolute.
RE HEALTH SERVICES UNION OF AUSTRALIA and ORS (M15 OF 1993)
40. The union in this matter is the Health Services Union of Australia
(formerly the Hospital Employees' Federation). On 17 December
1990, it served
a log of claims relating to the terms and conditions of employment of its
members or persons eligible to be members
in administrative and professional
non-nursing positions in public and private hospitals, nursing homes and other
health care facilities.
The public hospitals and other health care facilities
in Victoria are, for the reasons already given, agencies of the State. The
log was served in Victoria and Tasmania. A subsequent log of claims was
served on employers in Tasmania and South Australia. Commissioner
Turbet
found a dispute in relation to those logs on 10 January 1992. The findings
were upon paper only and the interstate element
of the disputes which was
found to exist can only have been upon the basis that the service of the logs
and the failure of employers
to accede to them in more than one State
constituted prima facie evidence of that element. So far as the State is
concerned, that
is an insufficient basis upon which to find that the dispute
extended beyond the limits of the State.
41. Subsequently, relying upon the findings of dispute, an interim award (99)
was made. The orders nisi seek to quash the finding
of dispute made on 10
January 1992 in so far as the finding relates to public hospitals and other
public health care agencies of
the State of Victoria. The orders also seek to
quash the interim award and to prohibit further proceedings on those findings.
I
would make the orders nisi as amended absolute.
RE HEALTH SERVICES UNION OF AUSTRALIA and ANOR (M17 OF 1993)
42. In this matter the Health Services Union of Australia served a log of
claims relating to the terms and conditions of employment
of its members or
persons eligible to be members performing ancillary functions in the health
care area. Those functions include
the provision of food, domestic services,
cleaning and laboratory assistance. The log of claims was served in Victoria,
Tasmania,
Western Australia and the Australian Capital Territory upon
employers including public hospitals, community health centres and other
institutions. The employers upon whom the log of claims was served did not
accede to it.
43. A finding of the existence of a dispute was sought from Senior Deputy
President Riordan. No finding was, however, sought in
respect of persons
whose employment was regulated by the Public Service Act 1974 (Vict.) On 11
December 1992, Senior Deputy President
Riordan made a finding of the existence
of a dispute in relation to the remaining employers in Tasmania, Western
Australia and a
number of State agencies in Victoria such as public hospitals
and community health centres. The finding of an interstate element
in the
dispute with these bodies was made upon the basis of the service of the log of
claims upon employers outside Victoria and
their failure to accede to it.
That was regarded as evidence that the dispute extended beyond the limits of
the State of Victoria.
For the reasons which I have given, I do not consider
that the existence of a paper dispute in different States constitutes prima
facie evidence of the existence of an interstate element in a dispute with a
State or its agencies. The finding in relation to the
State of Victoria or its
agencies made by Deputy Senior President Riordan was, in my view, in error.
44. On 23 December 1993, Senior Deputy President Riordan made an interim
award (100) based on the finding of dispute made on 11
December 1992. The
prosecutors seek to quash the finding of dispute and the interim award so far
as they relate to public hospitals,
community health centres and other public
health care agencies of the State of Victoria and prohibit further proceedings
on the finding.
I would make the orders nisi as amended absolute.
RE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION and ORS (M20
OF 1993, M21 OF 1993, M22 OF 1993, M23 OF 1993)
45. These matters concern logs of claims which were served by the Australian
Liquor, Hospitality and Miscellaneous Workers Union
with respect to the terms
and conditions of its members or persons eligible to be members who are
engaged in cleaning and security
duties in schools and government departments,
workers providing before and after school child care and teachers' aides. The
logs
were served upon employers, including the State of Victoria, and in other
States or Territories. In each matter a finding of the
existence of a dispute
involving the State of Victoria or its agencies and extending beyond the
limits of the State was made. So
far as the findings that the disputes with
the State or its agencies extended beyond the limits of the State are
concerned, the only
evidence before the Commission was the service of the log
upon employers outside the State and the failure of the employers upon
whom
the log was served to accede to its claims. That, in my view, was
insufficient to establish that any dispute with the State
of Victoria and its
agencies extended beyond the limits of the State.
46. The prosecutors seek to quash the findings of dispute. In matters M21
and M22 interim awards (101) were made on the basis of
the relevant findings
of dispute. The prosecutors seek to quash those interim awards. They also
seek to prohibit further proceedings
on the findings of dispute. I would
grant the orders nisi as amended and make them absolute.
RE STATE PUBLIC SERVICES FEDERATION and ANOR (M24 OF 1993)
47. In November 1991, the State Public Services Federation served a
comprehensive log of claims upon several hundred bodies in the
public sector
in all States, including 191 ministries, departments, courts, tribunals,
authorities and other agencies in the State
of Victoria. The claims made in
the log were in respect of employees performing professional, administrative
and clerical duties.
On 8 April 1992, Deputy President MacBean made a finding
of the existence of a dispute based upon the failure of the employers served
with the log to accede to it. The dispute found was merely a paper dispute.
48. On 6 December 1992, an interim award (102) was made upon the basis of the
dispute finding covering administrative, library and
laboratory support staff
employed in Victorian government schools. On 17 March 1993, McHugh J ordered
that an application by the
State of Victoria for orders nisi for writs of
prohibition and certiorari in relation to the dispute finding and the interim
award
be made by motion upon notice before a Full Court (103). It is pursuant
to that order that this matter is now before us.
49. On 21 May 1993, Deputy President MacBean granted an application to vary
the dispute finding made on 8 April 1992 by adding 13
statutory authorities in
New South Wales as parties to the dispute. The application was opposed by the
State of New South Wales.
In granting the application Deputy President
MacBean rejected a submission that "there was not an interstate dispute
because of
the intrastate function and operation of the employers logged in
each State" and adopted a view previously expressed by the Commission
that
"the governmental character of the employment does not warrant a refusal by
the Commission to accept the evidence of the paper
dispute ... as sufficient
evidence of an industrial dispute". For the reasons I have given, to the
extent that it extends to the
existence of an interstate element in an
industrial dispute, I am unable to accept that view.
50. On 9 May 1994, Commissioner Bacon made an interim order preventing the
application of the Public Sector Management (Amendment)
Act 1993 (Vict.) to
employees of the Crown who are employed as prison staff, and requiring the
observance of various public holidays
in the industry.
51. For reasons which I need not examine in any detail, on 12 September 1994,
the Commission found that the dispute previously found
to exist on 8 April
1992 by Deputy President MacBean had ceased to exist on 28 July 1993.
Accordingly, the Commission revoked that
finding from 28 July 1993.
Nevertheless, any awards or orders made upon the basis of that finding before
28 July 1993 may, depending
upon the validity of the finding, remain on foot.
As I have indicated the dispute finding was made solely upon the basis of the
service
of a log of claims to which the employers served failed to accede.
Such a paper dispute could not, in the case of the State of Victoria,
constitute prima facie evidence of an interstate element and the finding was,
in relation to the State, in error. I would grant
the orders nisi and make
them absolute in relation to the dispute finding made by Deputy President
MacBean and in relation to any
award or order made upon the basis of that
finding which has been included by amendment of the application in relation to
which McHugh
J made his original order.
RE STATE PUBLIC SERVICES FEDERATION and ORS (M25 OF 1993)
52. This matter arises in part out of the dispute found to exist by Deputy
President MacBean on 8 April 1992, which is dealt with
in relation to the
previous matter (M24 of 1993). Included in the parties to that dispute were
the Metropolitan Fire Brigades Board
and the Country Fire Authority. They
would appear to be Victorian government agencies.
53. In June 1992, the Australian Services Union served a log of claims upon
the Victorian Metropolitan Fire Brigades Board and the
South Australian
Metropolitan Fire Service in respect of the terms and conditions of employment
of their employees. On 26 June 1992,
Deputy President Polites found the
existence of an interstate industrial dispute arising out of the service of
the log and the failure
of the employers upon whom it was served to accede to
it. Both it and the dispute found by Deputy President MacBean were paper
disputes
only.
54. On 8 July 1992, Deputy President Polites made an award (104) upon the
basis of the dispute found by him to exist. Subsequently
the award was varied
to add various parties to the dispute found to exist by Deputy President
MacBean.
55. On 17 March 1993, McHugh J directed that an application by the State of
Victoria for orders nisi for writs of prohibition and
certiorari in relation
to both findings of dispute be made by motion upon notice before a Full Court.
It is as a result of that direction
that this matter is now before us. As I
have indicated in relation to the previous matter, the dispute finding made by
Deputy President
MacBean in relation to the log served by the State Public
Services Federation has been revoked from 28 July 1993 but the finding
made by
Deputy President Polites based on the log served by the Australian Services
Union is unaffected by that revocation. Since
the dispute found by Deputy
President Polites is merely upon paper, so far as the State of Victoria is
concerned it does not afford
prima facie evidence that the dispute extends
beyond the limits of the State. Accordingly, in relation to that finding of
dispute
I would grant the orders nisi and make them absolute.
RE PRINTING AND KINDRED INDUSTRIES UNION OF AUSTRALIA and ANOR (M26 OF 1993)
56. On 25 November 1992, the dispute in this matter was found to exist upon
the basis of the service of a comprehensive log of claims
on employers in New
South Wales, Western Australia and Victoria, including several offices of the
Printing and Publishing Services
Victoria. The employers did not accede to
the log. On 18 May 1993, the Commission made a formal finding of dispute
between the
union and the State of Victoria in relation to the government
printing office which is now known as Printing and Publishing Services
Victoria. The basis upon which the dispute involving the State of Victoria
was found to exceed the limits of the State was that
prima facie evidence was
afforded by the service of the log interstate. As I have said, in the case of
the State the service of
the log on employers outside Victoria does not amount
to prima facie evidence of an interstate element.
57. On 17 March 1993, McHugh J directed that an application by the State of
Victoria for orders nisi for writs of prohibition and
certiorari in relation
to the dispute finding be made by motion upon notice before a Full Court. I
would grant the orders nisi as
amended and make them absolute.
RE AUSTRALIAN FEDERAL POLICE ASSOCIATION and ANOR (M30 OF 1994)
58. This matter does not involve a finding of the existence of an industrial
dispute extending beyond the limits of any one State.
It arises from an
application made by the Australian Federal Police Association pursuant to
s.204 of the Industrial Relations Act
1988 (Cth). That section requires the
consent of a designated Presidential Member of the Commission to an alteration
to the eligibility
rules of an organization registered under the Act. The
union's application was for consent to the extension of its eligibility rules
to include members of the police forces of the States and Territories as well
as members of the Australian Federal Police. Consent
was given by Deputy
President Williams on 15 November 1993.
59. On 30 March 1994, I granted orders nisi for writs of prohibition and
certiorari to quash the decision of the Deputy President
and prohibit further
proceedings upon it.
60. The argument put by the prosecutors is that the police force carries out
an essential governmental function which is beyond
the reach of Commonwealth
legislative power because of the implied limitation which arises from the
federal structure. However,
the extension of eligibility for membership of
the union to include members of the State police force cannot, of itself,
affect the
continued existence of the State as an independent entity. Whether
the making of an award would do so would depend upon the nature
of the award,
but the making of an award, if it is to happen at all, is in the future and is
dependent upon the occurrence of a number
of contingencies.
61. Nor do I think that it is possible to say that there could never be a
dispute involving State police forces and extending beyond
the limits of any
one State. For the reasons I have given, it is unlikely that a sufficient
community of interest would exist between
the members of police forces in
different States such as to displace the intrastate character which employment
by a State imparts
to any dispute involving the State. A mere paper dispute
would not constitute prima facie evidence of an interstate element. But
a
genuine interstate dispute is not inconceivable and its unlikelihood can
constitute no ground for the refusal of consent to the
alteration of the
union's eligibility rules.
62. For these reasons I would discharge the orders nisi in this matter.
DISCRIMINATION - SECTION 111(1A) OF THE INDUSTRIAL RELATIONS ACT
63. In matter M21, the State of Victoria submits that s.111(1A) of the
Industrial Relations Act, which denies the application of
s.111(1)(g)(iii) in
circumstances which prevail in Victoria, is invalid because it discriminates
against the State. I would reject
that submission
for the reasons given by
the majority.
DISCRIMINATION - INTERIM VOLUNTARY DEPARTURE AWARDS
64. It is unnecessary to consider whether the awards in matters M8 and M11 of
1993 discriminate against the State of Victoria in
an unconstitutional manner
in view of my conclusion above concerning those awards.
Footnotes
1 s.1(a).
2 s.3(b).
3 s.24(3).
4 Public Service (Conciliation and Arbitration Procedures) Regulations 1989
(Vict.).
5 The PSM Act, s.113; Sched.6, cl.22.
6 Matters M8, M11, M12, M15, M17, M21, M22, M24 and M156 of 1993.
7 Matters M8, M10, M11, M12, M15, M17 and M156 of 1993 and M30 of 1994.
8 In this matter, the prosecutor's application for writs of prohibition and
certiorari was amended to include further awards and
an order which were all
made on the basis of the 8 April dispute finding. They are the Harness Racing
Board and Greyhound Racing
Control Board Employees (Interim) Award 1992, the
Victorian State Agencies (Roping-in No.1) Award 1992, the SPSF Zoological
Board
of Victoria, Salaried Staff Public Holidays (Interim) Award 1994, and
the interim order made by Commissioner Bacon on 9 May 1994.
9 [1993] HCA 30; (1993) 178 CLR 249.
10 [1983] HCA 19; (1983) 153 CLR 297 at 312.
11 ibid. at 313.
12 See Ex parte Professional Engineers' Association [1959] HCA 47; (1959) 107 CLR 208 at
233; Reg. v. Holmes; Ex parte Public
Service Association
(N.S.W.) [1977] HCA 70; (1977) 140
CLR 63 at 75-76.
13 (1983) 153 CLR at 313.
14 ibid.
15 (1993) 178 CLR at 279.
16 [1986] HCA 30; (1986) 160 CLR 430 at 453.
17 ibid.
18 Australian Railways Union v. Victorian Railways Commissioners [1930] HCA 52; (1930) 44
CLR 319 at 391 per Dixon J.
19 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28
CLR 129.
20 [1959] HCA 47; (1959) 107 CLR 208.
21 (1986) 160 CLR at 453.
22 (1993) 178 CLR at 271-272.
23 (1986) 160 CLR at 453 per Mason, Brennan and Deane JJ.
24 (1993) 178 CLR at 274-275.
25 (1986) 160 CLR at 453.
26 (1993) 178 CLR at 275.
27 Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR 1 at 44-45; Australian
Capital Television Pty. Ltd. v. The
Commonwealth
(No.2)
[1992] HCA 45; (1992) 177 CLR 106 at
134, 168, 184, 215, 242.
28 [1930] HCA 52; (1930) 44 CLR 319 at 390.
29 ibid. at 391.
30 ibid. at 391-392.
31 See the cases referred to in Queensland Electricity Commission v. The
Commonwealth [1985] HCA 56; (1985) 159 CLR 192 at 213.
32 (1947) 74 CLR 31.
33 [1971] HCA 16; (1971) 122 CLR 353.
34 (1947) 74 CLR at 82.
35 ibid. at 83.
36 ibid. at 84.
37 ibid. at 79.
38 ibid. at 56, 60 per Latham CJ, 66 per Rich J, 74 per Starke J, 82 per
Dixon J; see also Bank of N.S.W. v. The Commonwealth
[1948]
HCA 7; (1948)
76 CLR 1 at
337-338 per Dixon J.
39 (1971) 122 CLR at 410-411, 424.
40 ibid. at 390-391.
41 [1983] HCA 21; (1983) 158 CLR 1.
42 ibid. at 139-140, 213-215, 280-281.
43 ibid. at 139-140, 213-215; see also Victoria v. Australian Building
Construction Employees' and Builders Labourers' Federation
[1982] HCA 31; (1982) 152 CLR 25
at 93 per Mason J; Koowarta v. Bjelke-Petersen (1982) 153 CLR 168 at 216 where
Stephen J referred to implied
limitations
"which will serve to protect the
structural integrity of the State components of the federal
framework, State
legislatures
and State
executives".
44 (1947) 74 CLR at 52-53.
45 ibid. at 52-53.
46 [1989] HCA 12; (1989) 166 CLR 518 at 547 per Mason CJ, Wilson and Dawson JJ, 575 per
Brennan and Toohey JJ.
47 (1971) 122 CLR at 392.
48 ibid. at 424.
49 ibid. at 398.
50 ibid. at 382-383, 410-411, 424.
51 Melbourne Corporation (1947) 74 CLR at 74 per Starke J; Ex parte
Professional Engineers' Association (1959) 107 CLR at 235 per
Dixon CJ,
274-276 per Windeyer J; Queensland Electricity Commission (1985) 159 CLR at
214 per Mason J.
52 Re Lee; Ex parte Harper (1986) 160 CLR at 443 per Gibbs CJ.
53 Queensland Electricity Commission (1985) 159 CLR at 217 per Mason J.
54 ibid. at 247.
55 (1947) 74 CLR at 79.
56 ibid. at 80.
57 ibid.
58 Once the regulation of the relationship between these persons and their
State Government is determined to be outside federal
arbitral power by reason
of the implied limitation, it is unnecessary to consider whether, construing
s.51(xxxv) without reference
to the implied limitation, these persons might
have been capable of becoming parties to an industrial dispute extending
beyond the
boundaries of their State.
59 As already stated, Ministers and judges are not employees of a State.
60 (1959) 107 CLR at 240.
61 (1993) 178 CLR at 300.
62 Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6
CLR 309 at 373 per Isaacs J; R. v. Commonwealth
Court
of Conciliation and
Arbitration; Ex parte G.P. Jones ("the Builders' Labourers' Case") [1914] HCA 32; (1914) 18
CLR 224 at
242 per Isaacs J.
63 [1993] HCA 17; (1993) 176 CLR 154 at 159-160.
64 [1925] HCA 7; (1925) 35 CLR 528 at 548-549.
65 (1993) 176 CLR at 160 per Mason CJ, Brennan, Deane, Dawson, Toohey and
Gaudron JJ.
66 ibid. at 171 per McHugh J.
67 [1993] HCA 30; (1993) 178 CLR 249.
68 ibid. at 295.
69 Social Welfare Union Case (1983) 153 CLR 297; Re Lee; Ex parte Harper
[1986] HCA 30; (1986) 160 CLR 430.
70 See Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908)
6 CLR at 332 per Griffith CJ, 342 per Barton J.
71 Queensland Electricity Commission (1985) 159 CLR at 249-250 per Deane J.
72 [1992] HCA 29; (1992) 174 CLR 455.
73 Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31; Queensland
Electricity Commission v. The Commonwealth
[1985] HCA 56; (1985) 159
CLR 192.
74 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920) 28
CLR 129.
75 See Ex parte Professional Engineers' Association ("the Professional
Engineers' Case") [1959] HCA 47; (1959) 107 CLR 208 at
234.
76 Federated State School Teachers' Association of Australia v. State of
Victoria (1929) 41 CLR 569.
77 [1983] HCA 19; (1983) 153 CLR 297.
78 [1986] HCA 30; (1986) 160 CLR 430.
79 (1983) 153 CLR at 313.
80 (1947) 74 CLR esp. at 55-60, 66, 70-75, 82-83.
81 [1971] HCA 16; (1971) 122 CLR 353 esp. at 386-393, 402-403, 406-411, 417-424.
82 ibid. at 410.
83 (1986) 160 CLR at 443-444.
84 See Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers'
Union [1956] HCA 31; (1956) 96 CLR 317 at 333; Reg.
v. Cohen; Ex
parte Attorney-General (Q.)
[1981] HCA 66; (1981) 157 CLR 331 at 337, 346.
85 See Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees'
Federation (No.2) [1930] HCA 2; (1930) 42 CLR 558
at 577-578; R.
v. Blakeley; Ex parte
Association of Architects etc. of Australia (1950) 82 CLR 54 at 69.
86 [1957] HCA 97; (1957) 99 CLR 505 at 511.
87 [1993] HCA 17; (1993) 176 CLR 154 at 159.
88 The majority did not decide this question in Re State Public Services
Federation; Ex parte Attorney-General (W.A) [1993] HCA
30; (1993) 178
CLR 249 at 267, 271,
272; but cf. 294-295 per Toohey J.
89 [1952] HCA 2; (1952) 85 CLR 237 at 301-302.
90 (1896) 1 QB 116 at 118.
91 ibid. at 119.
92 Melbourne Corporation v. The Commonwealth (1947) 74 CLR at 82 per Dixon
J.
93 Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR at
206 per Gibbs CJ.
94 ibid. at 206-207 per Gibbs CJ, 217 per Mason J.
95 See, e.g., Reg. v. Isaac; Ex parte State Electricity Commission (Vict.)
(1978) 140 CLR 615.
96 The Victorian Teachers Redundancy Interim Award 1992 was made by Senior
Deputy President Riordan on 1 December 1992 and varied
by a Full Bench of the
Commission on 24 December 1992.
97 Victorian Public Service Health Workers Redundancy Interim Award 1992.
The award was varied by consent on 22 January 1993 to
enable the State
government to process voluntary departure packages in accordance with certain
agreed procedures. The award as varied
became known as the Victorian Public
Service Health Workers Voluntary Departure Package Interim Award 1993.
98 Nurses (Victorian Health Services) Award 1992.
99 Health Services Union of Australia (Victoria - Public Sector) Interim
Award 1993.
100 Health Services Union of Australia (Victoria - Public Sector) Interim
Award 1993.
101 Kindergarten and Play Centre Assistants (Victoria) Interim Award 1993;
Teacher Aides (Victorian Government Schools) Interim
Award 1994.
102 State Government Schools Professional, Administrative, Clerical,
Computing and Technical (P.A.C.C.T.) Vic. (Interim) Award
1992.
103 Subsequently the application was amended to include further awards and
an order made on the basis of the dispute finding of
8 April 1992. They are
the Harness Racing Board and Greyhound Racing Control Board Employees
(Interim) Award 1992; Victorian State
Agencies (Roping-in No.1) Award 1992;
SPSF Zoological Board of Victoria, Salaried Staff Public Holidays (Interim)
Award 1994, and
the interim order made on 9 May 1994 by Commissioner Bacon.
104 Metropolitan Fire Brigades (Enterprise Bargaining) Award 1992.
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