Australian Education Union And Others; Ex Parte State Of Victoria And Another
(Judgment by: Dawson J)
Australian Education Union And Others
v Ex Parte State Of Victoria And Another
Judges:
Mason CJ
Brennan J
Deane J
Dawson JToohey J
Gaudron J
McHugh J
Judgment date: 7 April 1995
Canberra
Judgment by:
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.
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]
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 organised 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.
In R 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 organised 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.
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 recognised. 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 th eEngineers' 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 Corp v Commonwealth [80] , Victoria v 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 R v Coldham;Ex parte Australian Social Welfare Union, remain open for definitive discussion.
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 R v 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.
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.
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]
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 summarised by Kitto J in Attorney-General (NSW) v Perpetual Trustee Co Ltd : [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 emphasise 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 R [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.
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 organisation of the public service and State agencies and the allocation of resources.
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.
The government established a new regime in the regulation of industrial relations by the Employee Relations Act 1992 (Vic). 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 (Vic) 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.
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.
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 organised. 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]
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.
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.
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.
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.
Whilst this court would seem to have had an almost instinctive realisation 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 th eSocial 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.
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 Others (M8 of 1993)
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.
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 4000 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".
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.
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.
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.
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 Others (M10 of 1993)
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.
Community health centres are bodies whose purposes and functions are governed by the Health Services Act 1988 (Vic). 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.
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.
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 Others (M11 and M156 of 1993)
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".
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 (Vic) 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.
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.
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.
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 Others (M12 of 1993)
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.
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 (Vic) which prompted the unions to bring the matters on.
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.
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 Others (M15 of 1993)
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. 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 Another (M17 of 1993)
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.
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 (Vic). 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.
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 Others (M20 of 1993, M21 of 1993, M22 of 1993, M23 of 1993)
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.
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 Another (M24 of 1993)
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.
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.
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.
On 9 May 1994, Commissioner Bacon made an interim order preventing the application of the Public Sector Management (Amendment) Act 1993 (Vic) to employees of the Crown who are employed as prison staff, and requiring the observance of various public holidays in the industry.
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 Others (M25 of 1993)
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.
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.
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.
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 Another (M26 of 1993)
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.
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 Another (M30 of 1994)
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 organisation 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.
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.
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.
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.
For these reasons I would discharge the orders nisi in this matter.
Discrimination -- Section 111(1A) of the Industrial Relations Act
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
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.