HIGH COURT OF AUSTRALIA
TOOHEY J
RE NATIONAL TERTIARY EDUCATION
INDUSTRY UNION & ANOR RESPONDENTS
EX PARTE QUICKENDEN PROSECUTOR
ORDER
Application for writ of prohibition and writ of certiorari refused.
22 November 1996
Solicitors for the Second Respondent: Dwyer Durack
Solicitors for the Third Respondent: Mallesons Stephen Jaques
Solicitors for the Prosecutor: Patrick Gethin & Co
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
TOOHEY J. By this application the prosecutor seeks prerogative relief in respect of a decision of the Australian Industrial Relations Commission ("the Commission") certifying an agreement between the second and third respondents. The prosecutor also seeks an order that the application be remitted to the Industrial Relations Court for hearing. In the ordinary course a remitter would be ordered of the application since no constitutional issue is involved. However, the respondents oppose that course, principally on the footing that there is no substance in the prosecutor's complaint; they submit that the application for prerogative relief should simply be refused by this Court.
The prosecutor, Dr Quickenden, is a tenured member of the academic staff of the University of Western Australia, the third respondent. He is not and has not at any relevant time been a member of the National Tertiary Education Industry Union, an organisation of employees registered under the Industrial Relations Act 1988 (Cth) ("the Act"). The Union is the second respondent.
On or about 22 September 1995, the Union and the University entered into an agreement entitled "The University of Western Australia Academic, Academic Research and Related Staff Agreement 1995". By application No C39888 of 1995 the Union applied to the Commission for certification of the Agreement pursuant to s 170MC of the Act.
Section 170MC is in Div 2 of "Part VIB ‑ Promoting Bargaining and Facilitating Agreements"[1]. Section 170MA empowers the parties to an industrial dispute, who agree on terms for the settlement of all or any of the matters in dispute or the prevention of further industrial disputes between them, to make a memorandum of the terms agreed on. The Commission is obliged by s 170MC(1) to certify an agreement if, and must not certify an agreement unless, the conditions prescribed by the sub‑section are met. One of the conditions, prescribed by par (b), is that
"the agreement does not, in relation to their terms and conditions of employment, disadvantage the employees who are covered by the agreement".
There is a residual power in the Commission to refuse to certify an agreement if the Commission thinks that any of the terms is one it would not have power to include in an award[2].
Before the Agreement was certified by the Commission, Dr Quickenden was given leave to intervene in the proceedings. Earlier he had asked the Union and the University to amend the Agreement so that in express terms it could not apply to him as a non member of the Union. The request was refused but later the Agreement in amended form was presented to the Commission.In the course of his decision on 22 November 1995, Commissioner Smith said:
" However, the situation which confronts me in this case is that an employee of the university, Dr T. I. Quickenden, is not a member of the union, has not authorised the union (or for that matter anybody else) to act on his behalf and objects to having an agreement of others imposed upon him. It is argued that this would be a unilateral alteration to his contract of employment by his employer. The agreement would apply to him in two ways: firstly, as a member eligible to join the union and secondly, through his supervisors acting in accordance with the agreement. He particularly cited the situation relating to performance measurement. Any supervisor would be obliged, as a union member or otherwise bound by the agreement, to assess Dr Quickenden's work by reference to the terms of the agreement. It is argued that this does not comply with the no disadvantage test because he is a tenured academic and as such his independence is prejudiced by such performance assessment."
The Commissioner identified other matters that were of concern to him and then returned to the subject of Dr Quickenden:
" Therefore, I indicate that I am prepared to certify the agreement if it includes a term that it does not apply either directly or indirectly to Dr Quickenden. This will permit the argument in relation to no disadvantage to be fully ventilated while at the same time ensuring that those who agree with its terms are not inconvenienced by any further delay. The agreement should comprehend a subsequent variation if Dr Quickenden's argument is found to be without substance. This variation would delete the exemption."
Subsequently on 12 December 1995 Dr Quickenden filed in the Commission a statutory declaration, largely aimed at showing the disadvantages which it was said would accrue to him if he were bound by the terms of the Agreement. For the purposes of the proceedings in this Court, it is unnecessary to set out the alleged disadvantages; in the main Dr Quickenden's tenure was said to be affected adversely by provisions relating to "probation" and "performance review".
In a supplementary decision dated 20 March 1996, Commissioner Smith said:
" It should also be stated, lest there be any misunderstanding as to the matter which is now presented for determination, that it is common ground between all parties in these proceedings that the agreement can not 'bind' Dr Quickenden. That is, any aspect of the agreement which would purport to require action by him can not apply. There is little in the agreement which would, in any event, fall into this category."
The Commissioner went on to consider the Agreement to see whether anything in it offended par (1)(b) of s 170MC. His conclusion was that the Agreement did not offend the paragraph.
Subsequently Dr Quickenden launched the present proceedings, seeking writs of certiorari and prohibition on the footing that in certifying the Agreement the Commission had acted without or in excess of jurisdiction. It should be noted that in this respect the entire Agreement is the subject of challenge.
The focal point of the Agreement under challenge is cl 3 which it is necessary to set out, remembering the respondents' contention that the challenge so lacks substance that this Court should dismiss the application without proceeding to consider the question of remitter.
"3. Area, Incidence and Parties Bound
(a)This Agreement shall be binding upon the National Tertiary Education Industry Union and The University of Western Australia and applies to all persons employed on the academic staff of The University of Western Australia and who are members or eligible to be members of the National Tertiary Education Industry Union.
Provided that this Agreement in no way binds the University's general staff, persons employed in teaching the English language or persons involved in child care.
Provided also that this Agreement shall not apply to persons principally employed in:
(i)the operation of theatrical venues used predominantly for commercial purposes;
(ii)production companies engaged in the production of theatrical, musical or other entertainment on a commercial basis; or
(iii)the operation of child care facilities who are employed under the Western Australian Industrial Relations Commission Children's Services (Private) Award or Child Care (Out of School Care ‑ Playleaders) Award."
It will be seen that the clause uses the terminology of "binding" and "applies", with later variations. Its somewhat imprecise use of language or perhaps, more accurately, its attempt to deal with two different matters in the one provision has given rise to the problem. It is commonplace for awards to begin with a coverage provision whereby the reach of the award is identified, in particular those employees to whom it applies. Those persons are usually identified by reference to the nature of their employment and their membership of or eligibility for membership of a particular union. This approach can be seen in the statement in cl 3 that the Agreement "applies to all persons employed on the academic staff of The University of Western Australia and who are members or eligible to be members of the National Tertiary Education Industry Union". The same approach can be seen in the second proviso, "that this Agreement shall not apply to persons principally employed in" the categories mentioned, though counsel could not suggest how such persons would be caught by the earlier language of the clause.
But the clause unhappily begins by stating upon whom it shall be binding (which is not the same as its coverage) and then has a proviso relating to the University's general staff and certain other persons, but couched in terms of those whom the Agreement binds. Again some, if not all, of those persons do not seem to come within the opening provision in any event.
The definition section of the Act, s 4, defines "award" to include "a certified agreement"[3]. But such an agreement is made between persons and those upon whom it is binding must be determined from the agreement itself. While as a matter of language cl 3 distinguishes between those upon whom the Agreement is binding and those to whom it applies, it does not maintain the distinction with any consistency. Nevertheless I think the position is clear.
At least since Metal Trades Employers Association v Amalgamated Engineering Union[4], unions have made demands on employers with respect to the wages and conditions of members and non members and awards have been made in settlement of claims of that kind in terms which bind employers in respect of all employees, whether or not they are members of the union which is party to the award[5]. But where there is a dispute between an employer and a union, an award cannot impose obligations on employees who are not members of the union[6]. Furthermore, it is an agreement with which the Court is presently concerned, an agreement that spells out its coverage in the sense of identifying those whom it embraces but in terms expressed to be binding only upon the Union and, thereby, on the members whom the Union represents. The Agreement applies to Dr Quickenden in the sense that he falls within its general coverage. But it does not bind him by imposing obligations on him because he is not a member of the Union. His position vis‑a‑vis the University is governed by any contract he has made with the University, by University statutes and other legislation, if applicable, and by common law. Dr Quickenden may acquire rights by reason of the existence of the Agreement but those rights derive from the Act[7].
As to cl 10(f) of the Agreement, which provides for performance review and of which Dr Quickenden makes particular complaint, counsel for the University said:
"Now if the university were to seek to review him, or to supervise him in a way in which provided for by that clause in which he says he does not wish to occur, the university cannot rely upon the certified agreement as its authority to do that, because it confers no obligations upon the employee."
At the same time counsel made it plain that the University may assert such a right outside the Agreement. This I take to be a reference to the "contract" between Dr Quickenden and the University mentioned in the preceding paragraph of these reasons. That is beyond the scope of this application.
If I am right in the conclusion I have reached, there was no want or excess of jurisdiction on the part of the Commission in certifying the Agreement. Indeed, even if I am wrong, absence or excess of jurisdiction does not seem an appropriate way of describing the certification, if in some way the Union and the University could bind Dr Quickenden to its terms and conditions against his wishes. And if they could not do so, there is no reason to construe the Agreement as if it does, particularly in view of the statements made by Commissioner Smith.
While the conclusion I have reached is such that the prosecutor has not established a prima facie case for prerogative relief, there is another powerful consideration against entertaining the application, even for the purpose of considering whether a remitter to the Industrial Relations Court is appropriate.
Section 45 of the Act provides that, with the leave of the Full Bench of the Commission, an appeal lies to the Full Bench in the circumstances there identified. Section 45(1)(g) includes "a decision of a member of the Commission that the member has jurisdiction ... in a matter arising under this Act". By reason of s 45(3)(d), an appeal under sub‑s (1) may be instituted in any case, other than those specifically dealt with, "by an organisation or person aggrieved by the decision". Dr Quickenden is clearly a person aggrieved by the decision certifying the Agreement and he did not contend otherwise[8].
This Court has said more than once that ordinarily a single Justice "should not grant an order nisi for prohibition unless and until the prosecutor exhausts its remedies in the Commission, in particular by way of appeal to the Full Bench"[9]. Counsel for Dr Quickenden submitted that such dictates might need reconsideration in light of the scope for remitters to the Industrial Relations Court. I do not agree. The Act provides a structure whereby remedies are available to a person aggrieved by a decision under the Act. In the ordinary course that structure should be employed and resort not had to this Court, bypassing the Full Bench of the Commission.
Other matters of a discretionary nature were raised by the respondents. They have some force but I do not need to rely upon them. In my view the prosecutor has failed to establish a prima facie case of absence or excess of jurisdiction on the part of the Commission. In those circumstances the need to consider remitter does not arise. The application for prerogative relief must be refused.
[1]See Victoria v Commonwealth (1996) 70 ALJR 680 at 718-720; 138 ALR 129 at 186‑188.
[2]s 170MD(1).
[3]References in s 170MC itself to "award" do not include a certified agreement: s 170MC(6).
[4](1935) 54 CLR 387.
[5]Re Finance Sector Union of Australia; Ex parte Financial Clinic (Vic) Pty Ltd (1993) 178 CLR 352 at 360.
[6]Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84 at 92.
[7]Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84 at 92. See for instance ss 178(5)(ca) and 179 of the Act.
[8]See, as to the right of appeal and the matter of standing, Tweed Valley v Ross (1996) 137 ALR 70 at 86‑91.
[9]Re Construction Union; Ex parte Multiplex (1992) 66 ALJR 266 at 267.