Australian Education Union And Others; Ex Parte State Of Victoria And Another
Australian Education Union And Others
v Ex Parte State Of Victoria And Another
Judges:
Mason CJ
Brennan J
Deane J
Dawson J
Toohey J
Gaudron J
McHugh J
Judgment date: 7 April 1995
Canberra
ORDER
Order
Matter M8 of 1993
Order nisi discharged.
Matter M10 of 1993
Order nisi discharged.
Matter 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 M156 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 M12 of 1993
Order nisi discharged.
Matter 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
Order nisi discharged.
s 1(a).
s 3(b)
s 24(3)
Public Service (Conciliation and Arbitration Procedures) Regulations 1989 (Vic)
The PSM Act, s 113; Sch 6, cl 22
Matters M8, M11, M12, M15, M17, M21, M22, M24 and M156 of 1993
Matters M8, M10, M11, M12, M15, M17 and M156 of 1993 and M30 of 1994
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
(1993) 178 CLR 249; 113 ALR 385
(1983) 153 CLR 297 at 312; 47 ALR 225
ibid at CLR 313
See Ex parte Association of Professional Engineers', Australia (1959) 107 CLR 208 at 233; R v Holmes;Ex parte Public Service Association (NSW) (1977) 140 CLR 63 at 75-6 ; 18 ALR 159
(1983) 153 CLR at 313; 47 ALR at 236
ibid
(1993) 178 CLR at 279; 113 ALR at 397
(1986) 160 CLR 430 at 453; 65 ALR 577 at 592
ibid
Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 391 per Dixon J
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
(1959) 107 CLR 208
(1986) 160 CLR at 453; 65 ALR at 592-3
(1993) 178 CLR at 271-2; 113 ALR at 391
(1986) 160 CLR at 453 per Mason, Brennan and Deane JJ
(1993) 178 CLR at 274-5; 113 ALR at 393
(1986) 160 CLR at 453; 65 ALR at 593
(1993) 178 CLR at 275; 113 ALR at 394
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 44-5 ; 108 ALR 681; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 at 134, 168, 184, 215, 242 ; 108 ALR 577
(1930) 44 CLR 319 at 390
ibid at 391
ibid at 391-2
See the cases referred to in Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 213 ; 61 ALR 1
(1947) 74 CLR 31
(1971) 122 CLR 353
(1947) 74 CLR at 82
ibid at 83
ibid at 84
ibid at 79
ibid at 56, 60 per Latham CJ, 66 per Rich J, 74 per Starke J, 82 per Dixon J; see also Bank of NSW v Commonwealth (1948) 76 CLR 1 at 337-8 per Dixon J
(1971) 122 CLR at 410-11, 424
ibid at 390-1
(1983) 158 CLR 1; 46 ALR 625
ibid at CLR 139-40, 213-15, 280-1
ibid at CLR 139-40, 213-15; see also Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 41 ALR 71 ; 152 CLR 25 at 93 per Mason J; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216 ; 39 ALR 417 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"
(1947) 74 CLR at 52-3
ibid at 52-3
(1989) 84 ALR 1; 166 CLR 518 at 547 per Mason CJ, Wilson and Dawson JJ, 575 per Brennan and Toohey JJ
(1971) 122 CLR at 392
ibid at 424
ibid at 398
ibid at 382-3, 410-11, 424
Melbourne Corp (1947) 74 CLR at 74 per Starke J; Ex parte Association of Professional Engineers', Australia (1959) 107 CLR at 235 per Dixon CJ, 274-6 per Windeyer J; Queensland Electricity Commission (1985) 159 CLR at 214 per Mason J
Re Lee; Ex parte Harper (1986) 160 CLR at 443 per Gibbs CJ
Queensland Electricity Commission (1985) 159 CLR at 217 per Mason J
ibid at CLR 247
(1947) 74 CLR at 79
ibid at 80
ibid
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
As already stated, ministers and judges are not employees of a State
(1959) 107 CLR at 240
(1993) 178 CLR at 300
Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 373 per Isaacs J; R v Commonwealth Court of Conciliation and Arbitration;Ex parte GP.Jones (the Builders' Labourers' case) (1914) 18 CLR 224 at 242 per Isaacs J
(1993) 176 CLR 154 at 159-60; 112 ALR 35
(1925) 35 CLR 528 at 548-9
(1993) 176 CLR at 160; 112 ALR at 39 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ
ibid at CLR 171 per McHugh J
(1993) 178 CLR 249; 113 ALR 385
ibid at CLR 295; ALR 409
Social Welfare Union case (1983) 153 CLR 297 ; 47 ALR 225; Re Lee;Ex parte Harper (1986) 160 CLR 430 ; 65 ALR 577
See Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR at 332 per Griffith CJ, 342 per Barton J
Queensland Electricity Commission (1985) 159 CLR at 249-50 per Deane J
(1992) 174 CLR 455; 107 ALR 672
Melbourne Corp v Commonwealth (1947) 74 CLR 31; Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 ; 61 ALR 1
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
See Ex parte Association of Professional Engineers', Australia (the Professional Engineers' case) (1959) 107 CLR 208 at 234
Federated State School Teachers' Association of Australia v Victoria (1929) 41 CLR 569
(1983) 153 CLR 297; 47 ALR 225
(1986) 160 CLR 430; 65 ALR 577
(1983) 153 CLR at 313; 47 ALR at 236
(1947) 74 CLR esp at 55-60, 66, 70-5, 82-3
(1971) 122 CLR 353 esp at 386-93, 402-3, 406-11, 417-24
ibid at 410
(1986) 160 CLR at 443-4; 65 ALR at 585-6
See R v Graziers' Association of NSW;Ex parte Australian Workers' Union (1956) 96 CLR 317 at 333; R v Cohen;Ex parte Attorney-General (Qld) (1981) 157 CLR 331 at 337, 346 ; 38 ALR 129
See Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation (No 2) (1930) 42 CLR 558 at 577-8; R v Blakeley;Ex parte Association of Architects etc of Australia (1950) 82 CLR 54 at 69
(1957) 99 CLR 505 at 511
(1993) 176 CLR 154 at 159; 112 ALR 35
The majority did not decide this question in Re State Public Services Federation;Ex parte Attorney-General (WA) (1993) 113 ALR 385 ; 178 CLR 249 at 267, 271, 272 but cf 294-5 per Toohey J
(1952) 85 CLR 237 at 301-2
[1896] 1 QB 116 at 118
ibid at 119
Melbourne Corp v Commonwealth (1947) 74 CLR at 82 per Dixon J
Queensland Electricity Commission v Commonwealth (1985) 159 CLR at 206 per Gibbs CJ
ibid at CLR 206-7 per Gibbs CJ, 217 per Mason J
See, eg, R v Isaac; Ex parte State Electricity Commission (Vic) (1978) 140 CLR 615 ; 21 ALR 293
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
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.
Nurses (Victorian Health Services) Award 1992
Health Services Union of Australia (Victoria -- Public Sector) Interim Award 1993
Health Services Union of Australia (Victoria -- Public Sector) Interim Award 1993
Kindergarten and Play Centre Assistants (Victoria) Interim Award 1993; Teacher Aides (Victorian Government Schools) Interim Award 1994
State Government Schools Professional, Administrative, Clerical, Computing and Technical (PACCT) Vic (Interim) Award 1992
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
Metropolitan Fire Brigades (Enterprise Bargaining) Award 1992
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