Aired? ol ce uN - woe = * Judaemont NOT. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD Q1 of 1987 INDUSTRIAL DIVISION ) BETWEEN: DUNDEE FASHIONS PTY. LIMITED , Applicant AND: THE CLOTHING AND ALLIED TRADES UNION OF AUSTRALIA First Respondent AND: ANGELA BURT, PATRICIA MANSFIELD, STEPHANIE McFARLANE, CAROLYN WATSON and ESTELLE WESTAWAY Second Respondents MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 2 MARCH 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be struck out. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. CATCHWORDS INDUSTRIAL LAW - award - application for interpretation - principally a challenge to validity - no present intention to pursue - whether should be struck out. Conciliation and Arbitration Act 1904 ss.60, 110 Dundee Fashions Pty. Limited v. The Clothing and Allied Trades Union of Australia & Ors. Qld Q1 of 1987 PINCUS J. BRISBANE 2 MARCH 1987 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD Q1 of 1987 INDUSTRIAL DIVISION ) BETWEEN: DUNDEE FASHIONS PTY. LIMITED Applicant AND: THE CLOTHING AND ALLIED TRADES UNION OF AUSTRALIA First Respondent AND: ANGELA BURT, PATRICIA MANSFIELD, STEPHANIE McFARLANE, CAROLYN WATSON and ESTELLE WESTAWAY Second Respondents PINCUS J. 2 MARCH 1987 REASONS FOR JUDGMENT The respondents ask for an order that this application for an interpretation of an award of the Australian Conciliation and Arbitration Commission be struck out. The applicant does not oppose the application's being adjourned sine die, but resists an order to strike out. It is not clear to me that it makes much practical difference whether or not the application is struck out, but since the respondents have pressed for that order, it 1s necessary to examine the matter in some detail. In February 1986, the applicant dismissed a number of its then employees. On 23 April 1986, Mr. Commissioner Neyland varied the Clothing Trades Award 1982 in a number of ways, one of which was the insertion of a new clause 51 relating to redundancy; it provided for severance pay. Mr. Commissioner Neyland's order was expressed to come into force from the beginning of the first pay period to commence on or after 16 October 1985, and to continue in force for 12 months. Subsequently, a dispute arose as to the entitlement of certain of the dismissed employees to severance pay under the order of Mr. Commissioner Neyland. A notification of that dispute was set down for hearing in November 1986, and then was adjourned to 18 December 1986. On 20 January 1987, the applicant filed an application in this Court claiming "an interpretation of clause 51 - (redundancy) of Clothing Trades Award 1982". The application did not specify the point of interpretation required to be determined, although it was accompanied by an affidavit giving an outline of the facts underlying the dispute. On 22 January 1987, the matter came before Mr. Deputy President Riordan who was informed of the institution of proceedings in this Court. After argument, the decision was reserved and it was handed down on 11 February 1987. Mr. Deputy President Riordan decided to make an order in the form of a further variation to the Clothing Trades Award 1982, requiring that severance payments be made in specified amounts to each of the employees whose entitlements were in question, the variation being expressed to be retrospective from 1 February 1986. The decision concluded: "The parties are directed to confer on the form of the Order giving effect to this decision and report the result of the conference to me within seven days hereof. If necessary, further argument will be heard so as to ensure that the order finally made would not be misunderstood by either party." Subsequently there were some communications concerning the decision, one of which was a telegram from the Registrar of the Australian Conciliation and Arbitration Commission referring to the dispute and advising the parties that "settlement of decision", by which was meant determination of the final form of the order, is to take place on 4 March 1987. On 24 February 1986 there was filed in this Court an affidavit annexing particulars of the application, the details of which are set out below. Each side was on that day represented by counsel and contended for the outcomes to which I have referred: that is, the respondents asked for an order that the application be struck out and the applicant opposed that but said it would not oppose the application's being adjourned sine die. Section 110(1) empowers "the Court" to give an interpretation of an award; by reason of the terms of s.118A, this Court has the jurisdiction in question. The particulars of the application I have referred to above are rather long but may he summarised as follows: l. The order of Mr. Commissioner Neyland could not (as it purported to do) operate retrospectively from October 1985. 2. The terminations of employment which occurred in February 1986 are not subject to the variation of April 1986. 3. "That in the event that the variation is not enforceable at law for determinations that occurred prior to 23 April 1986" the applicant is not liable to make severance payments to the relevant employees. 4. If the variation 1s, so far as it operates retrospectively, enforceable at law, the applicant 1s not liable to make the severance payments claimed to the relevant employees because 1t was not possible for the applicant to hold discussions with employees as contemplated by the award. 5. The provision of clause 51 (inserted by Mr. Commissioner Neyland) are "vague and uncertain and ... are unenforceable because of their vagueness and uncertainty". In giving "Details of this vagueness and uncertainty" in seven numbered sub-paragraphs, the applicant says or implies that in a number of respects 1t desires clarification of clause 51. Counsel for the respondent questioned whether the Court should entertain an application for interpretation of clause 51 after the handing down of the decision of Mr. Deputy President Riordan the practical effect of which is, or will shortly be, to resolve the dispute, leaving no live question of interpretation. Counsel for the applicant disclaimed any intention of pursuing the application as presently formulated, but said that the application should not be struck out but left on foot; he asserted that the applicant might later desire to raise certain questions of interpretation, even given the effect of Mr. Deputy President Riordan's decision and the order proposed therein. It should be added that on 16 February 1987, solicitors for the applicant informed Mr. Deputy President Riordan that the applicant intended to appeal against his decision under s.35 of the Act. Counsel for the respondents argued that, insofar as the application had sought to raise matters other than validity, it was not appropriately brought under s.110. He also argued that this Court had no right to consider the question of validity. On the former point counsel argued that there is an important difference between enforcement of an award and its interpretation and that s.110 gives this Court power with respect to the latter only. It does not seem to me necessary to say anything conclusive as to the question whether any point of interpretation, in the sense in which the word "interpretation" 1s used in the section, is raised by the application as presently particularised. That is so because it is not, in that form, being pressed. Counsel for the respondents' point as to validity relied of course upon s.60 of the Conciliation and Arbitration Act 1904, sub-s.(1) of which reads as follows: "Subject to this Act, an award (including an award made on appeal) - (a) is final and conclusive; (b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus or injunction in any court on any account." That provision has been read down: see R. v. Coldham and Others; Ex parte The Australian Workers' Union (1983) 153 C.L.R. 415 at p.418, but counsel for the respondents contended that none of the three conditions constituting, in effect, exceptions to the rule that validity may not be challenged applies here. That appears to me to be so, but apart from that there is the more fundamental point that s.110, which is the jurisdiction invoked, is not concerned with questions of validity. As the particulars disclose, the principal purpose of institution of the proceedings was to challenge the validity of the award variation of 23 April 1986. To bring such proceedings under s.110 was in my view entirely misconceived and may properly be characterised as an abuse of process. I also take into account that there 1s no present intention to pursue the application. The order will be that the application be struck out. ora mony 65S 3 rrott ee fe . ' =F el . Les ' Le! . - , ~ A hoe? Y 4 1 LOTTE , rnessclate ~ et ats, <7 Ds cd