FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - interpretation of Award - effect of the Workplace Relations Act 1996 on the Award - jurisdiction of Federal Court to interpret the Award and declare effect of the Act on the Award. Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1), Schedule 1 Federal Court of Australia Act 1976 s 32 Judiciary Act 1903 (Cth) ss 39B, 39B(2)(a), 44 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 4 Workplace Relations Act 1996 (Cth) ss 298Y, 298K(1), 298L(1)(a), 298V, 412(2), 412(3), 413 Industrial Relations Act 1979 (WA) s 41 Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) s 4 Workplace Agreements Act 1995 (WA) Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 358 -ref New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 - appl Kodak (Australasia) Pty Ltd v The Commonwealth of Australia (1988) 22 FCR 197 - ref Fencott v Muller (1983) 152 CLR 570 - ref Smith v Smith (1986) 161 CLR 217 - ref PCS Operations Pty Ltd v Maritime Union of Australia (1998) HCA 29 - ref Turner v Owen (1990) 26 FCR 366 - ref WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION v THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION AND AUSTRALIAN RAILWAYS UNION OF WORKERS, WEST AUSTRALIAN BRANCH WG 73 OF 1997 LEE J PERTH 14 MAY 1998 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 73 OF 1997 BETWEEN: WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION Applicant and: THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION First Respondent AND: AUSTRALIAN RAILWAYS UNION OF WORKERS, WEST AUSTRALIAN BRANCH Second Respondent JUDGE: lee j DATE OF ORDER: 14 may 1998 WHERE MADE: perth MINUTES OF ORDER THE COURT ORDERS THAT: Paragraphs 1 and 2 of the application be dismissed and that paragraphs 4, 5A, 5B, 6, 11, 12, 14(a) of the statement of claim and items 1 and 2 of the claims for declarations be struck out. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 73 OF 1997 BETWEEN: WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION Applicant and: THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION First Respondent AND: AUSTRALIAN RAILWAYS UNION OF WORKERS, WEST AUSTRALIAN BRANCH Second Respondent JUDGE: lee j DATE: 14 may 1998 PLACE: perth REASONS FOR JUDGMENT In July 1997 the applicant ("WAGR") by application and statement of claim commenced a proceeding in this Court. The Australian Municipal Administrative Clerical and Services Union ("ASU") was named as first respondent and the Australian Railways Union of Workers, West Australian Branch was named as second respondent. WAGR sought declarations as to "the true meaning and intent" of the Railway Salaried Officers Interim Award 1995 ("the Award") and as to the effect of the Award in particular circumstances set out in the statement of claim. The statement of claim recited that WAGR and ASU were parties to the Award made in June 1995 by the Australian Industrial Relations Commission ("the Commission"). The Award was amended by further orders made by the Commission on, inter alia, 21 May 1996 and 3 July 1997. The application was said to be made "under section 413 of the Workplace Relations Act, 1996 and s 32 of theFederal Court of Australia Act, 1976 and further on in [sic] s 4 of the Jurisdiction of Courts (Cross-Vesting) Act, 1987 (WA) and s 4 of the Jurisdiction of Courts (Cross-Vesting) Act, 1987 (Commonwealth)". The controversy brought before the Court by the application and statement of claim was said to be an issue between the parties as to whether the terms of the Award applied to an employment position created by WAGR, namely, that of Customer and Security Services Officer ("CSSO"). By later amendment to the statement of claim a further issue was pleaded as to the effect of s 298Y of the Workplace Relations Act 1996 (Cth) ("the Act") upon the Award. ASU has filed an appearance and a defence. The second respondent has not appeared but has filed an unsigned document described as "Response of Second Respondent to Amended Statement of Claim". The terms of that "Response" show that the second respondent accepts that the Award, to which it is not a party, applies to CSSOs. By a notice of motion ASU has sought an order dismissing that part of the application which seeks declarations as to the effect of the Act on the Award and an order staying the remainder of the proceeding. WAGR has pleaded, and ASU admits, that at all material times the Award applied only to persons who: (a) were entitled to be members of ASU in accordance with its Rules; (b) were members of ASU; and (c) occupy grades or occupations specified in the Award. The statement of claim did not set out a particular provision of the Award in respect of which it was said interpretation thereof was in dispute. The statement of claim recited the relevant controversy in the terms that ASU asserted that the position of CSSO corresponded to the position of "Patrol Officer"; that the wages and conditions of employment of CSSOs were governed by the Award; and that the Award bound WAGR in relation to CSSOs. WAGR contended that CSSOs were not "employed on an annual salary" and, therefore, were not eligible for membership of ASU and that the position of CSSO was not a grade or occupation specified in the Award. By the amended statement of claim, WAGR introduced the further pleading that the Award had the effect of permitting WAGR to offer terms and conditions of employment to persons who were not members of ASU that were more favourable than the terms or conditions of employment for ASU members pursuant to the Award and that as a result "the Award" was contrary to s 298Y of the Act and void. The statement of claim recites that CSSOs are employed pursuant to the terms of an agreement ("CSSO agreement") made between WAGR and the second respondent registered pursuant to s 41 of the Industrial Relations Act 1979 (WA) or, alternatively, are employed pursuant to the terms of agreements ("workplace agreements") made between WAGR and CSSOs, such agreements being registered under the Workplace Agreements Act 1995 (WA). WAGR contends that because of the terms and conditions of employment it offers in the CSSO agreement and workplace agreements, discrimination against a member of ASU would occur if that member was offered employment as a CSSO on the terms and conditions of the Award. The pleading is predicated upon an implication first, that a person employed on the terms of the Award would be disadvantaged against a person employed under the CSSO or a workplace agreement and second, that if WAGR acted in such a way it would carry out that conduct for a "prohibited reason" contrary to s 298K(1) of the Act. A material fact in the latter implication would be that WAGR, as employer, had formed the intention to offer employment on lesser terms and conditions because the person was a member of ASU. (See: ss 298L(1)(a), 298V.) It is apparent that this pleading is not directed to interpretation of the Award but to the question of the effect of the Act on the terms of the Award. By a decision delivered on 9 February 1996, and order pursuant thereto made on 21 May 1996, the Commission varied the Award by inserting therein terms which, inter alia, required WAGR to refrain from making an offer to employ a person in work covered by the Award if the terms and conditions of employment offered were less than any of the terms or conditions prescribed by the Award. In April 1996 WAGR commenced a proceeding in the High Court, to which ASU was made a party, seeking the issue of writs of prohibition, certiorari, and mandamus, with respect to the decision of the Commission made on 9 February 1996. On 6 May 1996 the matter was remitted by the High Court to the Industrial Relations Court of Australia. By a consent order made on 9 September 1996 the remitted application was adjourned sine die. No step has been taken in the proceeding since that date. After the order made on 21 May 1996 WAGR made application to the Commission for revocation of that order. WAGR submitted to the Commission that the Commission had acted beyond its jurisdiction in so far as the order made purported to apply to CSSOs. The ground for that submission was that persons who had carried out that work were not eligible to be members of ASU in that the terms of employment offered by WAGR under the CSSO and workplace agreements stipulated a "fortnightly salary" and not an annual salary. ASU submitted that the duties of a CSSO were, in all substantial respects, equivalent to those performed by a Patrol Officer before that position was made redundant by WAGR and that under the Award an employee performing those duties had to be paid an annual salary. In a decision delivered on 27 May 1997 the Commission found that the position of CSSO was equivalent to that of a Patrol Officer and that a person performing the duties of a CSSO was eligible to be a member of ASU. Therefore, the Commission was satisfied that it had jurisdiction to make orders varying the Award in respect of that employment position. The Commission accepted, however, that the terms of the variation order made on 21 May 1996 had been too wide and by an order made on 3 July 1997 the Commission further varied the Award by restricting the operation of the terms inserted in the Award by the order made on 21 May 1996 to employees who were Patrol Officers or CSSOs. That is, WAGR could not offer terms and conditions of employment for the position of CSSO that were less than the terms or conditions prescribed by the Award for that position. On 11 July 1997 WAGR commenced these proceedings. It is apparent from the foregoing that there is no issue as to the proper interpretation of the Award. It is beyond argument that words of clear intent and import have been used in the Award to apply the provisions of the Award to the "wages and conditions of employment of persons employed by WAGR as CSSOs." Torely upon the jurisdiction conferred on the Court by s 413 of the Act to seek a declaration that the Award is not to be read according to its terms would be a collateral challenge to the validity of the Commission's order. This Court obtains jurisdiction to review the exercise of the powers of the Commission by its officers only by the remittal to the Court by the High Court of a matter in which such review is sought by prerogative writ. (See: Judiciary Act 1903 (Cth) ss 39B(2)(a), 44; Workplace Relations Act 1996 (Cth) s 412(2), (3); Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1), Schedule 1.) The Court should not allow a proceeding to be continued which, in effect, seeks such a review by use of declaratory orders, where the proceeding relies upon jurisdiction under s 413 of the Act that is no more than colourable. (See: Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 358; New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369.) Therefore, such part of the application as relies upon s 413 of the Act should be dismissed. With regard to the remainder of the proceeding, counsel for ASU submitted that the issue of the effect of the Act on the Award did not concern interpretation of the Award and that on the face of the proceeding it did not attract accrued jurisdiction or jurisdiction conferred on the Court in respect of an associated matter by s 32 of the Federal Court of Australia Act 1976. Counsel for WAGR submitted that the Court had obtained jurisdiction under s 32 of the Federal Court Act and, alternatively, that the jurisdiction of the Supreme Court of Western Australia, "cross-vested" in this Court by relevant "cross-vesting" legislation, enabled the Court to make declarations as to the effect of the Act on the Award. As to the latter point it is plain that the controversy described in the proceeding arises under a law of the Federal Parliament and that any jurisdiction exercised by this Court, or by the Supreme Court of Western Australia, in respect thereof would be federal jurisdiction. Such jurisdiction is not, and cannot be, jurisdiction "cross-vested" in this Court by State legislation. (See: Kodak (Australasia) Pty Ltd v The Commonwealth of Australia (1988) 22 FCR 197, 202-203.) For similar reasons there is no accrued jurisdiction. Accrued jurisdiction is that part of the jurisdiction of the Court which the Court may exercise in respect of non-federal claims that arise in a controversy constituting the matter in respect of which jurisdiction has been conferred on the Court. (See: Fencott v Muller (1983) 152 CLR 570 at 608-610.) No non‑federal claims arise in this matter. Section 32 of the Federal Court Act confers jurisdiction on the Court if there is a separate but associated "federal" matter to the matter relied upon to attract the jurisdiction conferred on the Court by s 413 of the Act. (See: Smith v Smith (1986) 161 CLR 217 at 240; PCS Operations Pty Ltd v Maritime Union of Australia (1998) HCA 29; Turner v Owen (1990) 26 FCR 366 per Pincus J, 375-377). Whether those circumstances are satisfied in this proceeding is unnecessary to determine for the reasons which follow. In April 1997 s 39B of the Judiciary Act 1903 was amended to include in the original jurisdiction of the Court any matter arising under any laws made by the Federal Parliament. The controversy between the parties as to the effect of the Act on the Award is such a matter and, therefore, the Court has jurisdiction to resolve it. The Court has not been required to consider whether, in the exercise of that jurisdiction, the case sought to be made by WAGR as to the effect of the Act on the Award is reasonably arguable. Similarly, whether it is appropriate that there be a proceeding in this Court in respect of a difference arising under the Award rather than a determination by the Commission upon an application by a party to the Award to vary the Award has not been considered. An order will be made dismissing so much of the application (paras 1, 2) that seek an order under s 413 of the Act and striking out the relevant paragraphs of the statement of claim, namely, paras 4, 5A, 5B, 6, 11, 12, 14(a) and items 1 and 2 of the claims for declarations. I certify that the preceding six pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee Associate: Dated: Counsel for the Applicant: P M Nisbet QC D S Ellis Solicitors for the Applicant: Freehill Hollingdale & Page Counsel for the First Respondent: S C Rothman SC Solicitors for the First Respondent: R L Whyburn & Associates Date of Hearing: 3 March 1998; Written submissions filed 10 March 1998, 4 May 1998 Date of Judgment: 14 May 1998