FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – application for writs of prohibition, mandamus and certiorari directed to members of the Australian Industrial Relations Commission – whether benefits should be paid to certain casual employees in relation to overtime – whether application called upon the Commission to exercise the judicial power of the Commonwealth – relevance of motives of union in prosecuting action.

R v Lydon; Ex parte Cessnock Collieries Limited (1960) 103 CLR 15

R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) ALJR 40

R v Austin; Ex parte Farmers and Graziers Co-operative Co Ltd (1964) 112 CLR 619

R v Portus; Ex parte Theiss Bros Pty Ltd (1969) 121 CLR 406

Re Cram; Ex parte Newcastle Wallsend Coal Company Pty Ltd (1987) 163 CLR 140

THE TRANSPORT WORKERS' UNION v MAYNE NICKLESS LIMITED

QG 175 of 1997

OLNEY, DRUMMOND AND MOORE JJ

21 AUGUST 1998

BRISBANE

THE COURT ORDERS THAT:

1.      A writ of certiorari issue to Commissioner David Hoffman of the Australian Industrial Relations Commission removing the decision of the Commissioner of 4 March 1997 in proceedings C No 40153 of 1996 dismissing the application by the Transport Workers’ Union of Australia into this Court and quashing that decision.

2.      A writ of mandamus issue to Commissioner David Hoffman directing him to hear, in accordance with law, the application of the Transport Workers’ Union of Australia in proceedings C No 40153 of 1996.

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

THE COURT

REASONS FOR JUDGMENT

These proceedings involve an application by the Transport Workers’ Union of Australia (“the Union”) for writs of prohibition, mandamus and certiorari directed to members of the Australian Industrial Relations Commission (“the Commission”) which has been remitted to this Court by order of the High Court made on 7 October 1997. 

The application arose from proceedings in the Commission initially heard by Commissioner Hoffman which concerned an application for orders requiring Mayne Nickless Limited (“Mayne Nickless”) to provide benefits to certain casual employees in relation to overtime.  The proper characterisation of the claim is central to this appeal and is a matter we return to shortly.  The Commissioner published a decision on 4 March 1998 dealing with a preliminary issue raised by Mayne Nickless.  He concluded he did not have jurisdiction to entertain the application.  The application involved, in his opinion, a request to exercise the judicial power of the Commonwealth.  The Union appealed against this decision.  On 23 May 1997 a Full Bench published reasons for decision in which it gave the Union leave to appeal but dismissed the appeal. 

That decision led to these proceedings in which the Union contended the Commission did have jurisdiction to deal with the matter.  The Union submitted the Commission was not being called on to exercise the judicial power of the Commonwealth.  Rather the matter involved the Commission exercising arbitral powers conferred on it by the Workplace Relations Act 1996 (“the Act”).  The issue in these proceedings is therefore narrow in compass. 

In order to understand how the issue arose it is necessary to recount in some detail the history of the matter.  The employment of casual employees of Mayne Nickless who worked in the Armaguard division of that company was regulated by the Transport Workers’ (Armoured Vehicles) Award 1978 (“the Award”).  In March 1991 a 38 hour week was introduced and, it appears, was reflected in variations made to the Award.  It also appears that the introduction of the 38 hour week may have had an effect on the manner in which casual employees should have been paid overtime.  That is, they arguably should have been paid overtime after working 7.6 hours.  Mayne Nickless adopted the position that its casual employees in Queensland should be paid overtime after 8 hours while the Union maintained the position that overtime should be paid after 7.6 hours.  Mayne Nickless gave effect to its view of the Award by paying overtime to its casual employees in its Armaguard division after they had worked 8 hours.

This difference in opinion appears to have led to the imposition of bans by members of the Union in 1996 which in turn led to Mayne Nickless notifying the Commission of the existence of an industrial dispute pursuant to s 99 of the Act.  The notification was in the following terms:

Pursuant to Section 99 of the Industrial Relations Act 1988, I advise of the existence of an industrial dispute between the Transport Workers’ Union of Australia Queensland Branch (TWU) and Armaguard Queensland (Armaguard), as well as a further threatened and pending dispute.

The threatened and pending dispute involves an opinion held by the TWU, that Armaguard is in breach of the Transport Workers’ (Armoured Vehicles) Award 1978, with respect to the way the Company pays overtime to casual employees (see attached documentation).  It is the Company’s respectful position that there are legitimate ways of dealing with such a difference of opinion and that industrial action is not one of them.

The actual dispute concerns the refusal of Road Crew employees at the Company’s West End Branch to service certain ATM machines, unless an armed guard is present and to reconcile a number of Suncorp ATM machines in remote locations.  Accordingly, the Company respectfully requests that a conference be convened so that the Commission’s assistance in this matter can be sought.

That led to a hearing before Commissioner Hoffman on 26 March 1996.  Earlier, on 24 January 1996, the Secretary of the Queensland branch of the Union had written to Mayne Nickless asserting that the practice of the company in paying its casual employees was contrary to the provisions of the Award and in breach of the Award.  The letter outlined the Union’s view of how the Award was intended to operate and concluded with the following;

We should be please if within 7 days of the date hereof you would confirm that;

(a)           Armaguard will in future comply with the Award provisions regarding hours of work and overtime for employees who do not receive a rostered day off;

and

(b)           immediate steps will be take to appropriately recompense casual employees for overtime worked but not paid for by the company.

On 29 March 1996 employees in the Armaguard division of Mayne Nickless stopped work. On 15 May 1996 the branch secretary of the Queensland branch of the Union again wrote to Mayne Nickless concerning the payment of overtime to casuals.  The letter recounted that there may have been a meeting of union delegates who had discussed the overtime issue.  The meeting had been told that in other states, overtime after 7 hours and 36 minutes was paid to casual employees in the Armaguard division.  The meeting was also told that casuals of another employer bound by the same award were also paid that way.  The letter went on to say that Union members had expressed their concerns at what appeared to be an attack by Mayne Nickless on award conditions.  The letter recorded that the meeting of delegates had authorised:

the union to take whatever action was necessary to ensure that Armaguard pay the Award in the correct manner in respect of overtime to casual employees …

The letter concluded:

The union is now considering what action is now necessary and I urgently request that the company ensures their compliance with the Award in respect of overtime to casuals. …

On 17 May 1996 employees of Mayne Nickless in its Armaguard division again stopped work.  This led to a further notification of dispute by Mayne Nickless in a letter dated 17 May 1996.  It was in the following terms:

This matter was last before the Commission (Hoffman C) on 26 March last and arises from a disagreement between the company and the union over the payment of overtime to casual employees.

The company stands by its interpretation of the relevant Award provisions.  The union has several options open to it to test the validity of the company’s interpretation, including seeking an interpretation from the Court or prosecuting for a breach of the Award.  It has chosen to ignore these avenues and today its members at a number of branches of the company have engaged in strike action, apparently in an attempt to force the company to accept the union’s view.  This action is in direct breach of the Settlement of Disputes procedure under the Certified Agreement applying to their employment.

Accordingly we request the Commission to reconvene the conference to assist in ensuring future compliance with the terms of the Agreement.

Proceedings in the Commission also resumed on 17 May 1996 though before a different Commissioner.  Mr Bryce appeared for Mayne Nickless and characterised the issue before the Commission in the following way:

Commissioner, this matter has been on before this Tribunal before, in fact, before Commissioner Hoffman on 26 March last.  Without traversing all the ground, the issue arises over a disagreement between the company and the union concerning the interpretation of the hours clause and the point at which casuals should receive overtime.  The company takes the view that they pay their casuals overtime if they work in excess of 8 hours in any one day or if it is after the 38^th hours in any one week or if it is after the 152^nd hours in any four weekly cycle.

The solicitor appearing for the union did not put in issue this characterisation of this particular aspect of the dispute though indicated the dispute involved other matters including the attitude of the company to enterprise bargaining negotiations.

The matter next came before the Commission, constituted by Commissioner Hoffman, on 15 October 1996.  The issues were identified by Mr Watson, appearing for the Union, in the following passage:

MR WATSON: Commissioner, we have asked that this matter be listed today because the situation is that discussions between the parties have effectively reached an impasse in relation to where the issue of the payment of overtime and the number of hours after which casuals should be paid overtime should go.  The Commission might recall from earlier occasions on which the matter has been before the Commission that essentially the dispute between the parties revolves around whether, under the provisions of the award, the appropriate payment of overtime for casuals should come after 7.6 hours or after eight hours.

Now, I will not trouble the Commission with the backwards and forwards of discussions between the parties, but I think it is fair to say that they have reached a state where they are not going to progress further, and essentially, Commissioner, our view is that one way or another the matter now has to progress in a more formal setting.  We have asked for the Commission to list the matter with a view to having it arbitrated, and I want to make quite clear what it is that we would seek to have arbitrated so that if there is any disagreement from Armaguard, that can be put up front and the matter can be dealt with.

We would seek to have both the issue of the future, that is what should pertain in relation to payment of overtime in prospect for casuals dealt with by reference to the award clause.  We would also seek to have arbitrated the issue of any compensation which is payable to employees for what we say is a failure to adhere to the award in the past.  Now, if there is to be any suggestion that those matters cannot be both dealt with here for whatever reasons and that the matter needs to proceed in another forum, well, of course, we will take that step if necessary, but it is our initial intention that this matter might be most efficiently progressed under the auspices of the Commission if both parties are prepared to consent to an arbitration on those issues, and certainly, Commissioner, I can indicate that the Union is prepared to participate in a consent arbitration in relation to that matter.

The offer of the Union to submit to consent arbitration was not taken up by the representative of Mayne Nickless.  He indicated, shortly after Mr Watson’s comments, that the company’s view was that the matter involved the interpretation of the award which was a matter appropriate to be considered by the Industrial Relations Court of Australia.  The representative went on to indicate that Mayne Nickless believed the Commission did not have jurisdiction to deal with the matter.  The hearing concluded with the Commissioner indicating that he wished to give the Union an opportunity to put submissions on the Commission’s jurisdiction and for Mayne Nickless to respond to them.  He indicated he would list the matter some time in the week commencing 25 November 1996.

On 29 November 1996 a further hearing took place in which submissions were made by the parties on the question of jurisdiction.  The Union had prepared written submissions dated 25 November 1996 which were handed up at that hearing.  Those submissions commenced by identifying the relief sought in the following terms:

In this matter the Transport Workers Union of Australia seeks the following relief:

A         An order that Mayne Nickless Limited trading as Armaguard (“Armaguard”) pay casual employees employed in Queensland under the Transport Workers (Armoured Vehicles) Award (“the Award”) overtime rates after such employees have worked 7.6 hours on any day.

B          Armaguard pay to each casual employee in Queensland employed under the Award as at the date of this order (“the relevant employees”) the sum of $2.78 for each day on which such employee worked for eight hours or more at any time on or after 25 March 1991.

            This order shall only operate in respect of a relevant employee if such employee signs a release in favour of Armaguard to the effect that the relevant employee will not initiate proceedings for breach of Award in respect of Armaguard’s failure to pay overtime to casual employees in Queensland after such employees have worked 7.6 hours on any day.

The written submissions then identified the grounds upon which that relief was sought.  The grounds were, to an extent, repetitive.  They were that the proposed orders would resolve a dispute that had arisen between the parties and would ensure that all casual employees employed in the Armaguard division would be remunerated in the same way and also in the same way as employees of Brambles Limited.  Brambles Limited was said to be the Armaguard division’s main competitor and the only other significant employer of labour in the armoured vehicle industry.  The submissions also identified as a ground that the casual employees would be remunerated in the same way as casual employees in the general road transport industry.  A further ground was that the orders would compensate the relevant employees for Mayne Nickless’s failure to remunerate their casual employees in the same way it remunerated employees in other states and employees were remunerated by Brambles and operators in the general road transport industry.  A further ground was that the orders would provide the employees with conditions which the union said were already to be required under the award. 

Three additional grounds were identified.  The orders would avoid industrial disputation between the parties, would avoid the time expense and potential deterioration of relations between the parties if legal proceedings were commenced alleging a breach of the Award and the orders were industrially fair and desirable in the public interest.  This last matter was expanded upon in the written submissions in the following way:

The grounds upon which relief is sought are classically those of an industrial arbitral tribunal.  Relief is sought on the basis that it will settle a dispute between the Union, its members and the employer as the matters pertaining to the relationship between employers and employees.  The relief is sought on the basis of ensuring like conditions for like employees.  The relief is sought generally on the grounds of industrial fairness and asks the Commission to take account of the public interest.  None of these are things which a Court in determination of a breach of Award proceeding could pay regard to.  It is no part of the Court’s function to settle the dispute.  It is not part of a Court’s function in a breach of Award proceeding to take account of the way other employees are paid under the Award or under other Awards.  Indeed evidence of how other employees under the Award were paid or how employees under other Awards were paid would not be admissible in breach of Award proceedings.

Oral submissions to the same effect were made to the Commissioner in the hearing on 29 November 1996.

In his reasons for decision of 4 March 1997 the Commissioner recounted some of the history of the matter and referred to a number of authorities relied on by both the Union and Mayne Nickless.  He observed that:

Consenting to the union’s proposed order would be tantamount to agreeing that an offence had been committed by the employer – for example, an underpayment of wages.

The Commission concluded its decision in the following way:

The Commission will not and cannot perform a judicial function of interpreting the award for the purposes of this matter which are not just part of forming an opinion about legal rights in the course often administrative/arbitral process.  The application for an order is refused.

The issue came to be considered by the Full Bench.  In its reasons for decision of 23 May 1997 the Full Bench appears to have adopted the approach that the characterisation of the claims was one that was reasonably open to the Commissioner and was one with which they agreed.  The Full Bench said:

In addition paragraph (a) in the form of relief which we have set out above appears to us to be clearly capable of characterisation as a claim for an order for a payment made pursuant to an award.  Similarly paragraph (b) can be fairly characterised as an order seeking damages in accordance with a particular formula in respect of an alleged breach of an award. 

The reference to paragraphs (a) and (b) were a reference to paragraphs A and B in the written submissions which we set out earlier.

It is against this background that it is necessary to determine whether the application by the Union did call on the Commission to exercise the judicial power of the Commonwealth and not exercise powers conferred on it by the Act.  We should note at the outset that no attempt was made by either party to identify either the specific statutory power that might be exercised or whether any statutory limits are imposed on its exercise.  We have in mind the power of the Commission to make an award in exercise of arbitral powers in the manner contemplated by s 104 of the Act and the limits imposed on that power by s 89A.  Counsel for Mayne Nickless did, however, point to the fact that the Union was not asking the Commission to exercise the power conferred by s 113(2) to vary an award to remove ambiguity or uncertainty.  The sole issue litigated in these proceedings was whether the making of the proposed orders involved the exercise of judicial power.

There are several authorities dealing with broadly analogous situations.  The first is R v Lydon; Ex parte Cessnock Collieries Limited (1960) 103 CLR 15 (“Lydon’s Case”).  A local coal authority appointed under the Coal Industry Act (1946-1957) (Cth) and the Coal Industry Act (1946-1951) (NSW) had granted an application that all employees engaged on preparatory work at a certain colliery who had otherwise qualified for the payment of an attendance allowance, be paid the allowance for the pay period involved.  The order of the authority was challenged on grounds including that its making involved the exercise of judicial power.  An order had been made by the Coal Industry Tribunal on 14 December 1954 prescribing that an attendance allowance be paid to employees attending work if the colliery at which the employee worked had been in production for the ten days comprising an ordinary pay period.  An issue arose between the Australian Coal and Shale Employees Federation (“the Federation”) and Cessnock Collieries Limited concerning the entitlement of employees working at the colliery for the purpose of preparing it for mining using a continuous mining machine.  The employer resisted paying the allowance.  An application was made to the authority on 8 September 1959 and a decision made on 14 September 1959.  It appears that an order was made effectively requiring payment of the allowance to employees who had been engaged in the preparatory work at the colliery.  In a joint judgment the members of the High Court rejected the suggestion that the order of the authority involved the exercise of judicial power.  They observed (at 22) that was so even if the authority had taken into consideration or acted upon some construction of the earlier order of the Tribunal, though the members of the Court doubted as a matter of fact that the authority had done so.  They noted (at 23) that the order made by the authority was the means adopted by it to settle the industrial dispute it was seized of.  The Court concluded its consideration of the matter by saying (at 23):

A third way of putting the objection was that Mr Lydon was not really prescribing a term or condition of employment as in settlement of a dispute but determining what was due under an existing award.  In other words it was suggested that he did not deal with the controversy as an industrial matter.  What he did, so it was argued, was to consider and determine what were the rights which had accrued in consequence of the work done under the order of the tribunal providing for attendance allowance.  For the reasons already given the dispute was about the applicability to past and future work of the conception of attendance money.  It was an “industrial matter” and it was none the less so if it was based on a contention as to what the tribunal meant and what its award did in its application to the circumstances.  Mr Lydon’s “jurisdiction” or power depends on the existence of an industrial dispute, a dispute about a local industrial matter: not on the arguments used to support the claim, or the source from which the claim grew or upon the reasoning by which he reached or justified his conclusion.  But, as has already been shown, his reasoning in fact seems to have proceeded rather by analogy and perhaps extension and not by a strict legal ascertainment of past rights.

With two qualifications Lydon’s case supports the view that the Commission did, in these proceedings, have jurisdiction to deal with the matter.  The first qualification is that there appears to have been no real suggestion in Lydon’s case that the award that had been made on 14 December 1956 did, in terms, apply to the circumstances in which the payment of the allowance was sought by the Federation.  The second is that there was no uncertainty about the dispute which was being settled by the order made on 14 September 1959.  It was the dispute referred to in the application dated 8 September 1959.

The next authority referred to was The Queen v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40.  An employee working at a coal mine had been ordered by his employer, Aberdare Collieries Pty Ltd, to transfer to another of its mines.  His employment was regulated by the Coal Mining Industry (Miners) Award 1954, Queensland.  The employee refused to obey the direction, reported to work but was not dismissed.  He received no wages.  Ultimately the matter came before the Coal Industry Tribunal (“the Tribunal”) which decided that the direction was not reasonably open to the employer and “allowed” a claim for an award payment for wages.  The award had provided that an employee was bound to obey reasonable instructions of the management and rendered an employee liable to lose wages if he disobeyed such an instruction.  McTiernan J concluded (at 41) the Tribunal had exceeded its jurisdiction because the matter before the Tribunal was, in truth, a claim for wages said to be due and payable under the employee’s contract of employment.  The order made by the Tribunal was in his Honour’s view a declaration of the employee’s legal rights to receive payment and a determination that the relevant clause of the award did not entitle the employer to withhold payment.  Thus the Tribunal purported to exercise judicial power beyond its jurisdiction.  Kitto J reached a similar conclusion but additionally indicated (at 44) that there was no industrial dispute extending beyond the limits of any one state that might otherwise have given the Tribunal jurisdiction to deal with the matter generally.  Taylor J approached the matter on the same basis having regard (at 46) to what he viewed as the form and substance of the claim.  Both Windeyer and Owen JJ limited their consideration to the question of whether there had been a purported exercise of judicial power and concluded there had been.

The next authority referred to was The Queen v Austin; Ex parte Farmers and Graziers Co-Operative Co Ltd (1964) 112 CLR 619.  A number of woolselling brokers directed certain of their employees to undertake work at identified premises.  The employees refused to do so and were dismissed.  Their employment was regulated by the Storemen and Packers (Wool etc Stores) Award 1960, which entitled an employer to dismiss an employee without notice for misconduct.  Their employment was terminated on 19 November 1963 though they were reemployed on 23 November 1963.  The Commonwealth Conciliation and Arbitration Commission was notified on 18 November 1963 of the existence of a dispute and a notification to similar effect was made on 19 November 1963.  Both notifications were made by the Employers Federation of New South Wales.  A further notification was made on 11 December 1963 by the affected union.  In purported settlement of these various disputes the Commissioner ordered, inter alia, that the employers in question pay the employees dismissed on 19 November 1963 wages they would have received during the period prior to their reemployment.  That order was said to operate from 19 November 1963.  The leading judgment was that of Barwick CJ.  His Honour viewed (at 627) the notification by the union as, in reality, a claim for damages for wrongful dismissal because the dismissal had been in breach of the award.  His Honour indicated (at 627) that the Commissioner had no jurisdiction to determine the legal claim to wages or for wrongful dismissal or for breach of the award in whatever form the claim of legal right may have been cast.  His Honour went on to consider (at 627-628) whether a dispute existed which might have been settled by the order made.  His Honour concluded that any dispute arising at the time of the terminations did not have the requisite interstate character and in so far as an anterior dispute created by the service and rejection of a log of claims some years earlier was concerned, the award made did not alter the rights, that would have existed, of the employer to terminate the employees’ employment.  His Honour repeated the conclusion (at 629) that the order made was an attempt to determine the legal rights of the dismissed employees would flow from the retrospective variation.

Lydon’s Case was considered in R v Portus; Ex parte Theiss Bros Pty Ltd (1969) 121 CLR 406.  A member of the Commonwealth Conciliation and Arbitration Commission had cause to consider the operation of the Building Industry (Northern Territory) Award 1968.  That award made provision for accommodation and where accommodation was provided by the employer an amount, not exceeding a specified amount, could be deducted from the wages of the employees.  An issue arose as to whether accommodation provided to employees had been provided by their employer.  The Commissioner had given a decision concluding that the accommodation had been provided by the employer and accordingly would not deduct an amount for accommodation exceeding the amount specified in the award.  The High Court concluded that a writ of prohibition should issue and did so on the basis that the decision of the Commission involved the interpretation and enforcement of the award and a declaration of legal right.  It thus involved the assumption of judicial power.  One member of the Court, Menzies J, referred to Lydon’s Case and said (at 411) it was clearly distinguishable on the ground that the dispute in Lydon’s Case was not limited to the meaning and the application of the award.

The last authority which is broadly analogous to the present case is Re Cram; Ex parte The Newcastle Wallsend Coal Company Pty Ltd (1987) 163 CLR 140.  A local coal authority had embarked upon the hearing of several applications made by unions with members in the coal industry.  The applications were made against a background where there had been, in 1986, industrial disruption in the coal mining industry in support of a log of claims served upon employers in that industry.  Stoppages occurred and when members of the unions attempted to resume work they were informed they would receive no work until they signed an agreement which included a “no strike” provision.  A majority of the Court took the view that the applications to the authority were seeking the determination of the employees’ legal rights and, as such, did not involve the exercise of an arbitral function.  However in the course of reaching their conclusion, the majority stated (at 149) that arbitral proceedings may involve the formation of views and opinions about matters of interpretation, including the interpretation of laws, awards and other legal instruments, without the usurpation of judicial power.  Moreover the arbitral function can involve the determination of a dispute relating to past transactions, events and conduct.  The minority was constituted by Wilson and Gaudron JJ.  Wilson J approached the matter (at 156) on the footing that the prosecutor had failed to establish a clear case for prohibition and Gaudron J (at 158-161) on the footing that the matter had not involved the determination of existing legal rights under the award and the Commission had been addressing the industrial merits of the matter and what the rights of the employer and employees should be.

In the present case no submissions were made on behalf of Mayne Nickless to the effect that the orders sought were not within the ambit of any industrial dispute that has been or might be found by the Commission to exist, nor was any submission made that any dispute that might otherwise found jurisdiction was not a dispute extending beyond the limits of any one State.  The sole issue raised in these proceedings is whether the making of the orders sought would involve the exercise of judicial rather than arbitral power. 

What emerges from the preceding authorities is that a court should review the entire factual background to properly characterize the claim and the power sought to be invoked.  It has long been accepted that no comprehensive definition can be framed defining judicial power: see Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 188-199.  Moreover a power exercised by a tribunal may take its character from the Tribunal in which it is reposed and the way in which it is to be exercised:  see Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360 per Gaudron J (Mason CJ and Deane J agreeing).

There is scope for the view that prior to the formulation of the orders in the written submissions of the Union handed up at the hearing on 29 November 1996, there were objective signs pointing to the issue being simply one of what the entitlements of casual employees were under the Award.  Approached in this way the nature of the proceedings could be viewed as having the appearance of proceedings designed to have the Commission declare what the existing rights of casual employees were under the Award.

However the proposed orders in the written submissions and the basis upon which they were sought gave the proceedings, in our view, a materially different complexion.  What the Union was asserting in the written submissions was that the treatment of casual employees by Mayne Nickless in the Armaguard division in Queensland was anomalous when compared to the way employees in the Armaguard division elsewhere in Australia were treated, employees of the other major employer in the industry were treated and employees in the general transport industry were treated.  It was not only anomalous but industrially unfair and warranted the Commission’s intervention.  The means identified to deal with that circumstance was an award intended to have prospective operation but which would be made by reference to, at least in part, past events and circumstances.  Moreover, the form of the order that concerned past employment (para B) involved a process of averaging.  The order did not purport to require payment in accordance with rights that might have been conferred by the Award by reference to the particular facts attending the working of overtime by any particular casual employee.

It cannot be said in our view, that the formulation of the orders and the grounds upon which they were sought in the written submissions was an entirely colourable attempt to fabricate jurisdiction where none existed.  It can be distinguished from the cases discussed in Lane’s Commentary on the Australian Constitution (1997) pp 515-517.  It is clear from the material earlier set out that the attitude of the Union was that the failure of Mayne Nickless to pay casuals in the way contended for by the Union was anomalous in the way just discussed.  It is true that part of the platform from which the union argued its position was its view of the relevant award provision and an interpretation of it which it contended would have led to payment.  However the difference between the Union and Mayne Nickless was not simply the bare question of existing legal rights and the obligation of Mayne Nickless under the Award.  It was broader in its scope and the characterisation of it in the written submissions was consistent with the events preceding the hearing on 29 November 1996 when those submissions were handed up. 

The motives of the Union in formulating the claim in the way it finally did may, in part, have been to ensure that the Commission had jurisdiction.  Indeed one can readily infer they were.  However even if the Union’s motives include that motive it does not have the result that a claim for orders of that type is a claim the Commission has no jurisdiction to determine.  A similar issue has been considered on a number of occasions concerning disputes which have been said to arise as a result of the service and rejection of a letter of demand and log of claims.  The matter has been repeatedly approached on the footing that a demand is not a sham because the making of the demand might be motivated by some other consideration or some perceived collateral advantage including that of attracting the jurisdiction of the Commission: see R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 182; R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71 at 81; and Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 605 at 610.

For these reasons the Union has demonstrated the Commission was not being called upon to exercise the judicial power of the Commonwealth.  Accordingly writs of certiorari and mandamus should issue.  It will be sufficient for certiorari to issue to Commissioner Hoffman: it is his decision to dismiss the Union’s application, not that of the Full Bench affirming it, that has the legal effect on rights which Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 shows is necessary to justify the issue of this particular writ.  And since the Full Bench decision was dependent upon the Commissioner’s order, it necessarily goes when that order is quashed: see R v Rogers (1869) 6 W W & A’B 138(L) at 141.

Associate:

Dated:              21 August 1998