High court discourages objections to dispute finding power

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High court discourages objections to dispute finding power

The High Court has this week taken the opportunity to strongly discourage technical challenges to the Federal Commission’s dispute finding powers.

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The High Court has this week taken the opportunity to strongly discourage technical challenges to the Federal Commission’s dispute finding powers.

The High Court, while observing that it held the power to make a final determination of whether an interstate industrial dispute existed, indicated that it would put heavy emphasis on the Commission’s findings (especially when they have been subject to the Commission’s appeal process) because as a specialist tribunal it has the knowledge to understand what is behind the ‘claim’ and so determine whether there is a dispute.

Common themes

A number of other common themes run through the various judgments of the Court (Att-Gen for Queensland v Riordan & Ors B2/1996 (5 February 1997)).

Practice of ‘paper disputes’ supported

The judgments support the practice of ‘paper disputes’ (which usually involves a union serving on a number of employers, and/or or employer organisations, a ‘log of claims’ which seeks to increase or establish award entitlements).

Where the log of claims is not acceded to, it consititutes prima facie evidence of a dispute. Once a dispute finding is made, the Commission then has jurisdiction to make or vary an award provided the Commission acts within the boundaries established by the claims - this is referred to as the doctrine of ‘ambit’. For these reasons, ‘ambit’ encourages extravagant claims.

On the other hand, the Court has previously ruled that a log of claims will not satisfy the requirements of a dispute finding if the claims are not real or are incapable of being agreed to.

The appellant Government sought to rely on the Court’s decision in Re State Public Services Federation; ex parte Attorney-General (WA) (1993) 178 CLR 249wherein the Court had rejected the relevant logs of claim on the basis that they were fanciful.

The High Court distinguished the SPSFdecision on the ground that the log in the matter presently before the Court was only ‘extravagant’. Whereas in the SPSFcase, the log contained a ‘bare claim’ for undifferentiated rates of pay regardless of employee skill. Hence, the basis of that claim was ‘fanciful’.

The Court also upheld its decision in R v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178which held that demands in a log do not need to be capable of immediate satisfaction for them to be genuine (in this way the Court rejected the request that it restrict the decision in Ludekein light of the SPSF  decision). Justice Kirby stated:

"I depart the appeal by saying as clearly as I can that the requirements of ‘reality’ and ‘genuineness’ in industrial disputes have not been established by the Court as a means of punishing unions which make demands that are considered excessive or unrealistic.

"Various methods would be open to the Parliament to encourage realism and penalise excess in demands if that were an object to be desired.

"Still less are the requirements of ‘reality’ and ‘genuineness’ expressed as an excuse to test the honesty of union officials or their subjective motives and beliefs.

"Least of all should they become a device to delay for years the processes of conciliation and arbitration, once properly set in train."

Court draws attention to other powers available to the Federal Parliament

In the context of the current Workplace Relations Act 1996, which places restrictions on the Commission’s powers of arbitration (ie limited to making awards which cover the twenty allowable matters), it is interesting to note that two of the judgments again drew attention to the Federal Parliament’s capacity to legislate more creatively through the use of its Constitutional power of ‘prevention’, as well as through the use of other available constitutional heads of power.

Such a use would, in the Court’s opinion, assist in avoiding the need for paper disputes with their attendant extravagant ambit. Justices Gaudron and Gummow JJ stated:

"...there seems no reason why the Commission’s award making powers should not extend to the making of an award the terms of which are reasonably capable of being viewed as appropriate and adapted to the prevention and settlement of interstate disputes between those parties whose industrial interests are at stake.

"Similarly, there seems no reason why the Commission’s powers should not extend to the variation of an award by provisions which are reasonably capable of being viewed as appropriate and adapted to preserving or maintaining the settlement effected by the award when first made... it is uncontroversial that a general power which is to be exercised for a purpose extends to whatever is reasonably capable of being viewed as appropriate and adapted to that purpose."

 
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