Slonim v Fellows [1984] HCA 51

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson and Deane JJ. Slonim v Fellows [1984] HCA 51

ORDER Appeal allowed with costs. Order of the Supreme Court of Victoria set aside, and in lieu thereof order that a writ of mandamus be directed to the respondent, to compel her to determine according to law the industrial dispute between the Victorian Teachers' Union, acting in the interest of the appellant, and the General Committee of the Victorian Autistic Children's Association — Southern Centre, notice of which dispute was given to the Registrar of the Industrial Relations Commission of Victoria by the said Victorian Teachers' Union by letter dated 26 April 1983, and that the respondent pay the appellant's taxed costs of the application in the Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 20 Gibbs C.J.

This case, like Federated Clerks Union of Australia v. Victorian Employers' Federation [1] , which was heard on the same day, raises for consideration the question what is an industrial dispute within the meaning of the Industrial Relations Act 1979 Vict., as amended ("the Act").

1. Ante, p. 472.

The appellant, Margot Slonim, was, from 1972 to 1983, employed by the General Committee of the Victorian Autistic Children's Association — Southern Centre ("the Committee") as principal or supervisor of the day training centre conducted by the Committee at Mentone in Victoria. On 9 March 1983 the Committee asked her to tender her resignation but she refused to do so. On 15 April 1983 she was notified of the termination of her employment by the Committee to take effect on that day, and (in compliance with the relevant award) was paid four weeks' salary in lieu of notice. She acknowledges that her dismissal was not unlawful, but complains that it was harsh, unreasonable and unjust. On 18 April 1983 a meeting of representatives of the Victorian Teachers' Union (of which the appellant was a member), the Health Commission of Victoria and the Committee was held in an endeavour to resolve the dispute which had arisen between those parties concerning the Committee's decision to terminate the appellant's employment, but no agreement was reached. On 26 April 1983 the Victorian Teachers' Union notified the Registrar of the Industrial Relations Commission established under the Act of the existence of an industrial dispute between the Union and the Committee concerning the Committee's decision to terminate the services of the appellant. The notification stated that the matter should be referred to the Teachers (Day Training Centres) Conciliation and Arbitration Board ("the Board") at the earliest opportunity. The notice was given for the purpose of invoking the provisions of s. 44 of the Act which provides, inter alia, as follows:

(1) Where it appears to an employer or to the proper officer of an association of employers of employés that an industrial dispute has arisen in which he or his association has an interest he shall inform the registrar of the dispute.

(2) The registrar shall forthwith inform the President and the chairman of the Board affected and the chairman shall convene a meeting of the Board which shall attempt by conciliation to settle the matter of the dispute.

(3) If the Board is unable to settle the matter of the dispute by conciliation the chairman shall proceed to determine the matter by arbitration.

The respondent, Julia Fellows, who is the Chairman of the Board, convened a number of meetings of the Board to consider the matter. At the initial meeting she told the parties that in her opinion the Board had no power to determine a dispute involving an employee whose services had already been terminated and who was seeking reinstatement, but that frequently parties to disputes of that kind agreed to accept the Board's recommendation. It appears that the parties at first indicated that they would abide by the decision of the Board, and that the Board then heard witnesses, but on 17 May 1983 the Committee indicated that it had decided not to be a party to any agreement to give the Board jurisdiction to make a binding decision. At a meeting of the Board on 27 June 1983 a motion was proposed by the representatives of the Union that the Board order the re-engagement of the appellant in her former position of supervisor, but the respondent refused to allow the motion to be put and voted on. She held that she had no jurisdiction to determine the matter and declined to take any further action. The appellant thereupon applied to the Supreme Court of Victoria for an order nisi for a writ of mandamus requiring the respondent to determine the matter of the dispute. The application was heard by Young C.J., who held that the case was governed by the decision of the Full Court of the Supreme Court in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. [2] and refused an order nisi. An appeal from that decision has been brought to this Court by special leave. 1. [1983] 1 V.R. 469.

"Industrial dispute" is defined in s. 3(1) of the Act as follows:

"Industrial dispute" means a dispute arising between an employer and one or more of his employés, or between an association of employés and one or more employers or associations of employers, or between two or more associations of employers or two or more associations of employés, and includes a threatened or impending or probable dispute. For the reasons which I have given in Federated Clerks Union of Australia v. Victorian Employers' Federation [3] , this definition does not encompass every dispute between the parties mentioned in the definition; the object and scope of the Act indicate that the definition refers only to a dispute which would be regarded as an industrial dispute in the ordinary meaning of those words, except to the extent that the meaning is expanded by the description of the parties and by the reference to a threatened or impending or probable dispute. An industrial dispute in the ordinary sense of the words is, in my opinion, for the reasons which I gave in Federated Clerks Union of Australia v. Victorian Employers' Federation, a dispute which arises out of or, in the course of, the relationship between employer and employee as such. It will not be enough if the connexion between the subject of the dispute and the relationship of employer and employee is remote or indirect. 1. Ante, p. 472.

In the cases which have been decided under the Conciliation and Arbitration Act 1904 Cth, as amended, a distinction has been drawn between a claim in respect of the reinstatement of a former employee whose employment has been terminated, and a claim that before an employee is dismissed notice should be given or a particular procedure should be followed. It has been held that a claim of the latter kind does, but that one of the former kind does not, give rise to an industrial matter, question or dispute: see Reg. v. Gough; Ex parte Meat and Allied Trades Federation of Australia [4] ; Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots [5] and Reg. v. Portus; Ex parte City of Perth [6] . These cases largely depend on considerations which are relevant only to the effect of the Commonwealth Constitution, but in Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots [7] , Menzies J. said that a question about the notice to be given to dismiss employees, and the procedures to be followed in dismissing employees, would be an industrial question, for those matters do pertain to the terms and conditions of employment, whereas a question whether an employer, in dismissing employees, had fulfilled its obligations in that regard, would not pertain to the terms and conditions of employment. The words "pertain to the terms and conditions of employment" are a reference to the statutory provision which was in question in that case. Although the notion which they express is similar to the ordinary understanding of what is an industrial dispute, it is somewhat narrower, since an industrial dispute in the ordinary sense can include disputes which pertain to the relationship of employer and employee but not to the terms and conditions of the employment. None of these authorities is of direct assistance in the present case.

1. (1969) 122 C.L.R. 237. 2. (1971) 127 C.L.R. 11. 3. (1973) 129 C.L.R. 312. 4. (1971) 127 C.L.R., at p. 28.

On the other hand, the cases to which we were referred in support of the view that the jurisdiction of the Board does extend to a claim for reinstatement in employment are also distinguishable, on the ground that they depend upon particular statutory provisions which have no counterpart in the Act now under consideration. The New South Wales statute considered in Australian Iron and Steel Ltd. v. Dobb [8] contained an express power to order reinstatement. The decision of the Supreme Court of South Australia in Reg. v. Industrial Commission of South Australia; Ex parte Petersville Ltd. [9] turned on the fact that the claim by the union which created the dispute in that case had been made before the contracts of employment between the employees, who had been given notices of dismissal, and their employer, had been terminated. Bray C.J. was of the opinion that no industrial dispute could have come into existence as between a former employer and former employees after the contract of employment between them had been terminated [10] whereas King J. (as he then was) may have taken a wider view, although his words must be understood as having relation to the circumstances of the case before him [11] . However, the statutory provisions there in question were materially different from those in the present case.

1. (1958) 98 C.L.R. 586. 2. (1978) 18 S.A.S.R. 356, at p. 377. 3. (1978) 18 S.A.S.R., at pp. 357-359. 4. (1978) 18 S.A.S.R., at p. 377.

In Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. [12] it was stated that the dispute in that case was not as to the dismissal of the employee, but as to whether he should be re-employed. It is unnecessary to consider whether that statement was true of the particular facts of that case. It would not however be a correct, or at least a complete, statement of the nature of the present case. The dispute in the present case concerns whether the appellant was fairly dismissed, and if not, whether she should be reinstated. In my opinion such a dispute (provided it is sufficiently proximate in point of time) arises out of the relationship between employer and employee as such. I do not mean to say that a claim that an employer should employ a particular person, not being a recently dismissed employee, would be an industrial dispute, but that the fact that a dismissal has taken effect does not necessarily mean that a dispute as to the fairness of the dismissal cannot be an industrial dispute. It is true that the power to order the reinstatement of a dismissed employee can be regarded as an interference with an employer's ordinary rights, but it is apparent that the purpose of the Act is to give the Boards and the Commission established under the Act wide powers to affect the common law rights of employers in cases where an industrial dispute has arisen or an industrial matter exists. I can see no reason in principle why the conception of industrial dispute in its ordinary sense should be so narrow as to exclude a dispute as to the fairness of the dismissal of an employee. The legislature of Victoria is not subject to the constitutional constraints that might lead to a different conclusion in cases arising under Commonwealth legislation, and the Act itself is widely drawn, and contains no indication that a more limited construction was intended.

1. [1983] 1 V.R., at p. 477.

In my opinion an industrial dispute in the ordinary sense had arisen in the present case. To come within the definition in s. 3(1) of the Act the dispute must, however, be (amongst other things) between an employer and one or more of his employees or between an association of employees and one or more employers. In the present case, the applicant was no longer an employee, since her employment had been terminated. The dispute was, however, between an association of employees and an employer, and for the reasons that I have given I consider that it arose directly out of the relationship which had existed between a member of the association, as employee, and the employer, as employer. If it matters it was also a dispute of a kind which could cause industrial disharmony between the association and the employer. It seems to me that it was an industrial dispute within the meaning of the Act. Under s. 44 of the Act, it was the duty of the Board to attempt to settle the dispute by conciliation, and if the Board was unable to do so, it became the duty of the respondent, as chairman of the Board, to determine the matter by arbitration. The duty to determine the matter necessarily carried with it the power to make the determination effective; the Board therefore had power to order the reinstatement of the applicant if it decided that such a course was appropriate. It follows that the Board wrongly declined jurisdiction.

For these reasons I would allow the appeal and would grant an order for mandamus directed to the respondent.

Mason J.

For the reasons given by Wilson J. I would allow the appeal and would grant an order for mandamus directed to the respondent.

Murphy J.

"Industrial dispute" in the Industrial Relations Act 1979 Vict., means (among other things) "a dispute between an association of employés and one or more employers" (s. 3(1)). No doubt the dispute must be a dispute concerned with or arising out of industrial relations, but there is no express or implied limitation which would exclude a dispute about termination or proposed termination of employment or reinstatement or refusal to reinstate an employee, or about engagement or proposed engagement or refusal to engage a person as an employee.

Industrial disputes frequently occur over dismissal or refusal to reinstate dismissed employees. In times of widespread retrenchments, disputes are often about the necessity for retrenchment or its mode (such as "last on, first off") or its terms (such as severance pay or allowances for retraining).

The termination of the relationship of employer and employee does not preclude the existence of industrial claims, matters, and disputes. Industrial history shows that many bitter, prolonged and costly industrial disputes have occurred when the employment has been terminated. Costly interstate disputes have occurred over the dismissal of one or a few workers in one State.

The dispute in this case between the employer and the Association of employees about the termination of the appellant's employment and a claim for her reinstatement is an industrial dispute within the meaning of the Act. The decision of the Supreme Court of Victoria, in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. [13] , which expressed a contrary view, should be overruled.

1. [1983] 1 V.R. 469.

The appeal should be allowed.

Wilson J.

The appellant is a teacher. At all material times she has been a member of the Victorian Teachers' Union ("the Union"), an association of employees recognized pursuant to Pt V of the Industrial Relations Act 1979 Vict., as amended ("the Act"). For approximately fourteen years immediately prior to 15 April 1983 she was employed by the General Committee of the Victorian Autistic Children's Association — Southern Centre ("the Committee"). From 1972 until 15 April 1983 she was the Principal of an institution known as the Southern Centre caring for autistic children. On 9 March 1983 the appellant received a letter from the president of the Committee requesting her resignation. She did not resign. On 15 April 1983 she was informed that her employment was terminated with immediate effect and she was given four weeks' salary in lieu of notice. There is no suggestion that the Committee's action was not lawful. The complaint is that it was unfair.

The Union intervened on the appellant's behalf and, after some discussions with representatives of the Committee, it notified the Registrar of the Industrial Relations Commission, pursuant to s. 44(1) of the Act, that an industrial dispute had arisen between the Union and the Committee concerning the Committee's decision to terminate the services of the appellant. Thereafter, in accordance with the provisions of s. 44(2), several meetings of the Teachers (Day Training Centres) Conciliation and Arbitration Board ("the Board") were held in an effort to settle the matter of the dispute by conciliation. Those efforts were unsuccessful. On 27 June 1983 the respondent, in her capacity as Chairman of the Board, ruled that the Board lacked power to determine a dispute involving an employee whose services had already been terminated and who was seeking reinstatement. In making that ruling she acknowledged that the decision of the Supreme Court of Victoria in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. [13] compelled such a result. Thereafter application was made by the appellant to the Supreme Court for an order nisi for a writ of mandamus directed to the respondent requiring her to determine the matter of the dispute. The Chief Justice refused the application on the ground that the decision of the Full Court in Plumrose determined the issue against her. This Court subsequently granted special leave to appeal from the refusal.

1. [1983] 1 V.R. 469.

The issue in this appeal turns on the jurisdiction of the Board to determine an industrial dispute in the circumstances which I have briefly outlined. In s. 3 of the Act, an industrial dispute is defined as follows:

"Industrial dispute" means a dispute arising between an employer and one or more of his employés, or between an association of employés and one or more employers or associations of employers, or between two or more associations of employers or two or more associations of employés, and includes a threatened or impending or probable dispute. In terms, the definition is extraordinarily wide. If it were read literally, it would mean any dispute about any subject at all that arises between the parties described. However, the definition must be read down by reference to the Act as a whole and so read must be confined to a dispute of an industrial nature. Having said that, however, it is unnecessary and unwise to attempt any more precise definition save what may be necessary for the determination of the case in hand. No doubt the resolution of any particular case requiring a consideration of the scope of the term "industrial dispute" will be greatly assisted by the legislative intent reflected in the enumeration of what may loosely be described as industrial matters contained in s. 34(1) of the Act. It will also be assisted by the recent observations of this Court on the correct approach to the construction of the expression "industrial disputes" in s. 51(xxxv) of the Constitution in Reg. v. Coldham; Ex parte Australian Social Welfare Union [15] ("the Social Welfare Union Case"). The Court said: The words are not a technical or legal expression. They have to be given their popular meaning — what they convey to the man in the street. And that is essentially a question of fact.

It is, we think, beyond question that the popular meaning of "industrial disputes" includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective "industrial" imports some restriction which confines the constitutional conception of "industrial disputes" to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern.

1. (1983) 153 C.L.R., at pp. 312-313.

In considering the present problem, it may be important to remember that the dispute in question is a dispute between the Union and the Committee. It is not a dispute between the appellant and the Committee. The definition of industrial dispute contemplates that a dispute may arise between one employee and his employer but it may be doubted whether such a dispute could arise over the dismissal of the employee after the employment was terminated for the reason that the disputant would no longer be an employee — but cf. per King J. in Reg. v. Industrial Commission of South Australia; Ex parte Petersville Ltd. [16] . I should add that no question has been raised touching the standing of the appellant to bring the proceedings.

1. (1978) 18 S.A.S.R. 356, at pp. 377-378.

In Plumrose [17] the employer dismissed an employee for incompetence. The association of which the employee was a member notified the existence of an industrial dispute and the relevant Board, after a hearing, determined that the employee should be reinstated, but made no order. The dispute was then referred to the Commission and a commissioner commenced to hear the dispute, including an application for the employee's reinstatement. The employer sought and obtained a writ of prohibition from the Supreme Court. In a joint judgment, the Full Court (Young C.J., Starke and Fullagar JJ.) concluded a careful examination of earlier decisions of this Court with the following statement [18] :

Thus the essential element in an industrial dispute in the ordinary meaning of that expression is that it should be a dispute as to the terms and conditions of the employment of persons who are employees and are themselves disputants or are represented by one of the disputants. Thus a dispute as to whether a particular employer should employ a particular employee is not within the general concept of an industrial dispute even when the demand is made by an association of employees. The dispute does not touch the terms or conditions of employment of any employee. Their Honours also considered the question in the light of the powers conferred on a Board by s. 34(1). They said [19] : The opening words of sub-s. (1) are controlled by the words "relating to any industrial matter" and it will be apparent from what we have already said that the dispute between the parties here does not relate to an industrial matter. But the enumerated paragraphs of sub-s. (1) may extend the powers of the Board beyond those granted by the introductory words. All that it is necessary to say about those paragraphs, however, is that none of them suggests that Parliament intended to give a Board the power to direct that A employ B. It must be remembered that such a power is a very drastic one and the Court should not impute to Parliament an intention to confer such a power upon a statutory tribunal unless the Act contains the most express and compelling language to that effect. It must be borne in mind that their Honours, when ruling on this question, did not have the benefit of the reasons of this Court in the Social Welfare Union Case, to which I have referred. 1. [1983] 1 V.R. 469. 2. [1983] 1 V.R., at p. 476. 3. [1983] 1 V.R., at p. 477.

With all respect to their Honours in Plumrose , I would make three comments about that decision. First, a clear distinction should be drawn between employment of a person and reinstatement of a recently dismissed employee. As the court rightly observed, the power to direct that A employ B is a very drastic one. It is not lightly to be inferred in the absence of compelling language. But the difficulty of drawing such an inference is perhaps very much less in a case where, in the context of arbitrating a dispute concerning the fairness of a recent dismissal, a claim for reinstatement is made. The fact that industrial legislation in other places may expressly confer such a power does not necessarily deny its availability in the absence of such express mention; on the contrary it may serve to identify such a remedy as forming part of the recognized armoury of available remedies in the modern pursuit of harmonious industrial relations. However, it will always be a power to be exercised with caution having regard to the circumstances of the case. There will be many cases where the working relationship of employer and employee is so close that to impose such a relationship by an award would be quite destructive of industrial harmony.

Secondly, one must not overlook the concluding phrase of the definition of "industrial dispute", namely, "and includes a threatened or impending or probable dispute". In a case where an association of employees is aggrieved by what it conceives to be the unfair dismissal of one of its members, and its overtures to the employer are rejected, there could very readily be perceived, if not an actual dispute, a threatened or impending or probable dispute. Such a dispute, if not open to be dealt with promptly in accordance with the Act as a dispute involving the dismissal and reinstatement of a particular employee, could readily escalate into a major confrontation between the association and the employer. It is perhaps not without significance in the present case that the letter from the Union to the Registrar notifying the existence of the dispute foreshadowed the submission of a proposal with respect to dismissal and grievance procedures.

Thirdly, the description by their Honours of "the essential element" in an industrial dispute, namely, that it should be "a dispute as to the terms and conditions of the employment of persons who are employees and are themselves disputants or are represented by one of the disputants" overlooks the full significance of the definition of the term in s. 3. A dispute does not have to involve an employee or employees. It may arise between an employer and an association of employees. I understand their Honours to be saying that a union can never itself be a disputant in its own right. It can only represent employees who are disputants. It seems to me that the statutory definition envisages that an industrial dispute may arise between employers and unions without any necessity to identify a particular employee or group of employees as themselves disputants. If this be so, then does it not follow that a union can bring about an industrial dispute by taking up the cudgels for a dismissed employee? If it were thought to be necessary to identify any specific powers possessed by a Board to deal with such a dispute (that is, under s. 34(1)) reference could be made to the "rights and duties of employers and employés" (par. (c)); "the modes, terms and conditions of employment or non-employment" (par. (d)); "the relations of employers and employés" (par. (e)); and "questions of what is fair and right in relation to any industrial matter" (par. (k)). In my view, however, it would be sufficient merely to point to "industrial disputes" (par. (f)).

I have come to the conclusion that the decision in Plumrose [20] reflects too narrow an approach to the concept of "industrial dispute" in the Act. The present case seems clearly to fall within the jurisdiction of the Board. There was a prompt notification of a dispute between the Union and the Committee following the termination of the appellant's employment. When the Board was convened to conciliate the dispute issues were raised concerning the fairness of the dismissal and the Union sought the appellant's reinstatement. Applying the test laid down by this Court in the Social Welfare Union Case [21] there was, in my view, an industrial dispute. Conciliation having failed, the respondent was obliged to proceed to determine the matter by arbitration (s. 44(3)).

1. [1983] 1 V.R. 469. 2. (1983) 153 C.L.R. 297.

I would allow the appeal and would grant an order for mandamus directed to the respondent.

Deane J.

I agree with the judgment of Wilson J.