IN THE MATTER of an application for writs of certiorari and mandamus against a Full Bench of the Australian Industrial Relations Commission and writs of certiorari and prohibition against Commissioner Leary & The Full Bench of The Australian Industrial Relations Commission, Commissioner Leary, The Australian Federation of Airline Pilots, Bristow Helicopters Australia Pty Ltd [1995] IRCA 353

CATCHWORDS INDUSTRIAL LAW - Grievance board established under an award - constituted by a member of the Industrial Relations Commission - whether an officer of the Commonwealth under paragraph 75(v) of the Constitution - whether grievance board had jurisdiction and power to order reinstatement Industrial Relations Act 1988 s412 The Constitution s75(v) Hilton v Wells (1985) 157 CLR 57 Re Federated Storeman and Packers Union of Australia Ex parte Wooldumpers (Victoria) Ltd (1989) 166 CLR 111 Re Boyne Smelters Ltd Ex parte Federation of Industrial Manufacturing and Engineering Employers of Australia (1993) 177 CLR 446 IN THE MATTER of an application for writs of certiorari and mandamus against a Full Bench of the Australian Industrial Relations Commission and writs of certiorari and prohibition against Commissioner Leary THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION - First Respondent COMMISSIONER LEARY - Second Respondent THE AUSTRALIAN FEDERATION OF AIRLINE PILOTS - Third Respondent Ex Parte: BRISTOW HELICOPTERS AUSTRALIA PTY LTD No WI 1131 of 1995 NORTHROP, SPENDER AND LEE JJ PERTH 28 JULY 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1131 of 1995 B E T W E E N: IN THE MATTER of an application for writs of certiorari and mandamus against a Full Bench of the Australian Industrial Relations Commission and writs of certiorari and prohibition against Commissioner Leary THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION - First Respondent COMMISSIONER LEARY - Second Respondent THE AUSTRALIAN FEDERATION OF AIRLINE PILOTS - Third Respondent Ex Parte: BRISTOW HELICOPTERS AUSTRALIA PTY LTD - Applicant/Prosecutor CORAM: NORTHROP, SPENDER AND LEE JJ PLACE: PERTH DATE: 28 JULY 1995 REASONS FOR JUDGMENT THE COURT: In the events which have happened, the matter before the Court is an application by Bristow Helicopters Australia Pty Ltd ("Bristow") for the issue of writs of certiorari and prohibition against Commissioner Leary, a member of the Australian Industrial Relations Commission ("the Commission"). The jurisdiction of the Court arises from subsections 412(2) and (3) of the Industrial Relations Act 1988 ("the Act") and an order made on 10 February 1988 by the High Court of Australia constituted by Toohey J remitting the matter to the Court. The application remitted by the High Court sought an order nisi that the Commission show cause why writs of certiorari and mandamus should not issue against the Commission. By an order made by a Judge of this Court on 16 February 1995, Commissioner Leary was added as second respondent to the application and directed to show cause why writs of certiorari and prohibition should not issue against her. Commissioner Leary has indicated that she will abide by the order of the Court and has taken no part in the matter. The third respondent, the Australian Federation of Airline Pilots ("the Federation"), is an organisation of employees registered under the Act. The Federation opposes the orders sought by Bristow. On the hearing of the matter Bristow did not continue its application for the grant of an order nisi against the Commission. The issues before the Court arise out of or in connection with the construction, effect and application of clause 33 of the Helicopter Pilots (General Aviation) Award 1988 ("the Award"). Originally the Award was made by the Flight Crew Officers Industrial Tribunal but under the Act such an award is now to be treated as an award of the Commission. Clause 33 in its current form provides: " 33 - GRIEVANCE PROCEDURE (a) The following procedure shall govern the settlement of disputes, claims or grievances arising out of the employment of a pilot under this Award. The procedure under this clause shall be open to a pilot or employer. (i) Upon a matter arising the pilot shall raise the matter with the employer or his nominated representative and the employer shall fully investigate the matter and shall reply to the pilot within 48 hours. (ii)In the event of the pilot not being satisfied with the employer's decision the pilot shall raise the matter with the Australian Federation of Air Pilots Branch or Sub-Branch who may raise the matter with the employer further. (iii) If the matter remains unresolved the parties shall convene a conference between the Federation and the employer organisation who shall attempt to resolve the dispute. (iv)A matter which is not resolved in conference will be referred to the Tribunal which shall deal with the matter as the Grievance Board or nominate some other party to constitute itself as that Board. The Board shall proceed in such manner, hear such parties and sit in such locations as it considers necessary to achieve resolution of the matter and the parties to this Award shall accept such resolution as binding. (b) The parties shall at all times confer in good faith and without undue delay and in the matters involving the termination of a pilot the steps under this grievance procedure shall be completed prior to the expiration of notice given under this Award. (c) While the above procedure is being followed, work shall continue normally in accordance with this Award. (d) No party shall be prejudiced as to final settlement by the continuance of work in accordance with the clause. (e) In the event of a party failing to observe these procedures, the other party may take such steps as are open to it to resolve the matter or proceed to the next step or steps under this procedure." It is accepted that Bristow and the Federation are bound by the Award and, in particular, are bound by clause 33, but counsel for Bristow made a number of submissions that having regard to the logs of claim on which the Award is founded, the Commissioner has no jurisdiction or power to order the reinstatement of pilots whose employment had been terminated in reliance upon the provisions of clause 33. The Federation disputes these submissions. Further, counsel for the Federation contends that on the facts of this case, where Commissioner Leary has constituted herself a Grievance Board under clause 33 to resolve the grievance, in so acting Commissioner Leary is not an officer of the Commonwealth within paragraph 75(v) of the Constitution and so is not amenable to the orders sought by Bristow. As a result, the Court has no power to make the orders sought against the Commissioner. Putting aside the questions arising from the logs of claim, the essential facts relevant to the matter before the Court are simple. Two helicopter pilots, Captain Ward and Captain McLoughlin, were employed by Bristow to ferry supplies by helicopter to oil rigs in the sea off the port of Dampier in the State of Western Australia. On 12 May 1991, the helicopter they were piloting crashed into the sea. On 1 August 1991 Bristow terminated the employment of the two pilots and paid to each 28 days salary in lieu of notice. On 2 August each of the pilots advised Bristow they were invoking clause 33 of the Award. On the same day the Federation advised Bristow it was preparing to apply the grievance procedure in conformity with clause 33. On 19 August 1991, the Federation applied to the Commission for the appointment of a Grievance Board to deal with the issues involving the two pilots. The application, by administrative action, was given the number C No 323397 of 1991 and allocated to Commissioner Leary. The application came before Commissioner Leary on 2 September 1991 but was adjourned because an enquiry into the incident was being conducted by the Bureau of Air Safety and Investigation. The grievance of the two pilots related to their dismissal and involved a claim for their reinstatement as employees of Bristow. The application came on for further hearing before Commissioner Leary on 9 December 1993 when Bristow submitted she had no jurisdiction to hear and determine the application. On 22 April 1994 Commissioner Leary published her decision that she had the jurisdiction and power. Bristow appealed to a Full Bench of the Commission against the decision. On 8 November 1994 the Full Bench, dismissed the appeal on the ground that the decision of Commissioner Leary was a decision of a Grievance Board and therefore not appealable under section 45 of the Act. Thereafter, Commissioner Leary proceeded to hear the application under clause 33 of the Award. That procedure was being followed at the time of the hearing of the matter before the Court. Logically, the question of whether Commissioner Leary, in exercising the jurisdiction and powers conferred by clause 33, is an officer of the Commonwealth should be considered first since that question goes to the jurisdiction of the Court. The contention of counsel for the Federation is deceptively simple. The fact that Commissioner Leary is a member of the Commission and therefore an officer of the Commonwealth when exercising jurisdictions and powers conferred upon her as a Commissioner, is not determinative of the issue so it was contended. In exercising the jurisdiction and power conferred by clause 33, Commissioner Leary is the Grievance Board and acting as a designated person and not as an officer of the Commonwealth. The fact that the Grievance Board could be constituted by a person who, on any view, was not an officer of the Commonwealth, supported, so it was said, the contention made. In support of this contention counsel relied on expressions of opinion contained in Hilton v Wells (1985) 157 CLR 57 by Gibbs CJ, Wilson and Dawson JJ at 68-73. That case did not involve the exercise of jurisdiction by the High Court under paragraph 75(v) of the Constitution. In developing this contention counsel submitted that the Grievance Board was separate and distinct from a Board of Reference that could be constituted under section 131 of the Act and its predecessor section 50 of the Conciliation and Arbitration Act 1904. Counsel referred to what was said by Isaacs J in The King v Murray & Others Ex parte The Commonwealth (1916) 22 CLR 437 at 452-3 to the effect that State Judges, in exercising federal jurisdiction conferred by Commonwealth law, do not thereby become officers of the Commonwealth under paragraph 75(v) of the Constitution. This opinion was applied by the High Court in In the Matter of an Application for a Writ of Prohibition Directed to Mr Justice David Ross Anderson, a Judge of the Family Court of Australia Ex parte Bateman (1979) 53 ALJR 165 at 165. This principle does not prevent an order of prohibition being made against persons not being officers of the Commonwealth if, in the same application, an order is sought against an officer of the Commonwealth. It is irrelevant whether the other persons are members of a tribunal of which the officer of the Commonwealth is a member, or, as in this case, that the Federation, is not a member of the Tribunal. The submissions made on behalf of the Federation on this issue are rejected. Commissioner Leary is an officer of the Commonwealth. Clause 33(a)(iv) of the Award provides that if the matter is not resolved in conference it "will be referred to the Tribunal which shall deal with the matter as the Grievance Board...". The reference to "the Tribunal" is to the Flight Crew Officers Industrial Tribunal which no longer exists and is to be read as a reference to the Commission. Commissioner Leary as a member of the Commission dealt with the matter as the Grievance Board. The principles discussed in Hilton v Wells have no direct application to the facts of this case. There the High Court held that in exercising the relevant power, Judges of the Federal Court were not exercising judicial power. That conclusion does not negate the fact that nevertheless the Judges remained officers of the Commonwealth exercising a power conferred upon them by a Commonwealth law. In the present case, it is not necessary to determine whether a person, not being an officer of the Commonwealth, but nominated under clause 33(a)(iv) to be the Grievance Board, thereby becomes an officer of the Commonwealth. Having determined that the Court has jurisdiction, it is necessary to consider the substantive issues. Initially counsel for Bristow contended that the disputes that formed the basis for the making of the Award did not include a dispute relating to the matters contained in clause 33 of the Award insofar as the dispute related to Bristow. At the hearing it became apparent that this contention was untenable. The Award was based on four different disputes identified administratively as Nos T 30 and 31 of 1986 and 2 and 3 of 1987. Dispute No T 3 of 1987 arose from a log of claims served on the Federation by Australian Mines and Metals Association (Inc), on behalf of three employers one of which was Bristow Helicopters Pty Ltd. Australian Mines and Metals (Inc) is not an organisation under the Act. It acted as agent only and not as a party principal. The log of claims was in the form of an award. Clause 31 in the log of claims was headed "Grievance Procedure". For practical purposes it was similar to clause 33 of the Award. In particular it contained a sub-clause identical with clause 33(a)(iv) of the Award and clause 31(b) was, apart from grammar, identical with clause 33(b) of the Award. On 5 February 1987, Coldham J, a presidential member of the Conciliation and Arbitration Commission, in his capacity as the Flight Crew Officers Industrial Tribunal, made a finding of dispute in matter T 3 of 1987, between, among others, Bristow and the Federation in relation to the matters contained in the log of claims which had been served on the Federation. At the same time that dispute was joined with the other disputes being T Nos 30 and 31 of 1986 and 2 of 1987. Thereafter, the Award was made by consent on 6 June 1988. Bristow is bound by clause 33 of the Award, but this leads to a consideration of the real issue raised in this application. Clause 5B of the Award contains provisions relating to termination of employment of a pilot on notice, payment in lieu of notice and for instant termination for misconduct. In the present case Bristow made payment in lieu of notice of termination to the two pilots. There is no express clause relating to reinstatement of employment of pilots. The Federation claims that the grievance procedure contained in clause 33 applies to enable the Grievance Tribunal to consider any claim or grievance by a pilot arising out of the employment of the pilot under the Award including a claim for wrongful termination and a claim for reinstatement. Where a claim or grievance of this nature arises and the procedure laid down in clause 33 is invoked, paragraph (a)(iv) empowers the Board to "proceed in such manner, hear such parties and sit in such locations as it considers necessary to achieve resolution of the matter and the parties to this Award shall accept such resolution as binding" (emphasis added). A reference in clause 33(b) to matters "involving the termination of a pilot" shows, so it is said, that a termination of employment is a grievance for the purposes of the Award and can form the subject of a grievance procedure. Normally, this should be completed before the expiration of the period of notice, but payment in lieu of notice cannot take away the right to make the determination, including reinstatement, the subject of a grievance. Counsel for Bristow, by referring to the other disputes on which the Award is based, contended clause 33 of the Award did not apply to Bristow. For reasons given, this is irrelevant since dispute T No 3 of 1987 does include a grievance procedure referring to termination. Normally, such a clause would, at least by inference, include a reference to reinstatement. Otherwise, instant dismissal could never be remedied under the grievance procedure, nor for that matter, where payment was made in lieu of notice. This then was the issue whether the Grievance Board had power to order reinstatement as part of its power to achieve resolution of the grievance. The main submission put by counsel for Bristow was that on the facts of this case, the Commission had no power to order reinstatement and thus the Grievance Board could not have that power. In an appropriate case, the power of the Commission, and a board of reference constituted under an award, is very far reaching, see The Queen v Hegarty Ex parte Salisbury City Corporation (1981) 147 CLR 617. During the course of submissions counsel for Bristow said that what Commissioner Leary was doing was arbitrating and that clause 33(a)(iv) allowed that, but that her powers were restricted to the scope of the disputes and that the scope was so limited as to not allow her to arbitrate with respect to reinstatement. The concession as to power is, having regard to Hegarty, correct but nevertheless consideration must be given to the limits of the power where, as here, the scope of the dispute can be seen by reference to clause 31 in the log of claims served on behalf of Bristow. Counsel contended that Commissioner Leary has neither jurisdiction nor power, whether acting as the Commission or as a Grievance Board under clause 33 of the Award, to order or recommend reinstatement of the two pilots where employment was terminated, one may add, in conformity with the terms of the Award. This is in circumstances where the reputation of a pilot forms an important, one may say, essential, element in the professional standing of a pilot. Further where the termination follows the event of a helicopter under the control of those two pilots crashing, the inference is that they were at fault, professionally, in allowing the helicopter to crash. In support of their contention, counsel for Bristow relied upon opinions expressed in Re Federated Storeman and Packers Union of Australia Ex parte Wooldumpers (Victoria) Ltd (1989) 166 CLR 111 ("Wooldumpers") and Re Boyne Smelters Ltd Ex parte Federation of Industrial Manufacturing and Engineering Employers of Australia (1993) 177 CLR 446 ("Boyne"). Each of these cases concerned the jurisdiction of the Commission to make an award relating to reinstatement. In Wooldumpers, the dispute arose with respect to reinstatement after the termination had been made. It was held that there was not a sufficient nexus between those terminations and an earlier dispute claiming permanency of employment to enable the earlier dispute to found jurisdiction for an award of reinstatement. Thus the High Court held that the Commission did not have jurisdiction to make the award sought. A similar question arose in Boyne but there an earlier dispute included a claim relating to reinstatement and the High Court held that the claim for an award of reinstatement with respect to particular employees was fairly incidental to the settlement of a dispute involving issues of reinstatement. Thus, the High Court held that the Commission had authority to make the award sought. The legal principles are illustrated clearly by reference to what was said in Boyne by Brennan, Deane, Toohey and Gaudron JJ at 455-6: "As was pointed out in Re Ranger Uranium Mines Pty Ltd Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR at pp 660-661, where a dispute as to the reinstatement of individual employees arises after dismissal, two questions will usually arise: is the dispute interstate, and, does it pertain to the relationship between employers and employees or merely to the relationship between the employer and the individual former employee or employees concerned? That second question will often also arise when it is said that a "paper" dispute authorises an award for the actual reinstatement of a former employee or former employees. A "paper" demand made only to enable the Commission to hear and determine applications for the actual reinstatement of individual former employees as and when dismissals occur would not, in our view, give rise to dispute about a matter involving the relationship between employers and employees unless the circumstances show that, in some way, it is a matter affecting the industrial interests of other employees. In the absence of circumstances of that kind, its subject matter would involve no more than the relationship between an individual employer and the individual former employee or employees concerned. Cleary, there may be circumstances where an award for the actual reinstatement of former employees may be relevantly connected with a demand for a regime regulating dismissal or formulating the circumstances in which an employer will come under an obligation to reinstate. This was recognised by Mason CJ in the Wooldumpers Case. His Honour allowed that, "in appropriate circumstances, the Commission might well conclude that the making of an award reinstating particular employees was fairly incidental to the settlement of a dispute involving a claim to permanent employment", adding that it "would depend on the nature of the original dispute and the way in which it had evolved" (1989) 166 CLR at p318. An obvious example is a case where it is necessary to restore the status quo pending arbitration of a claim for the imposition of a general regime. And there may be circumstances where a demand for actual reinstatement (whether in respect of dismissals that have occurred or in respect of dismissals that might occur) will give rise to a dispute involving the required relationship between employers and employees and not merely the more limited relationship between employer and former employee usually encountered in situations where claims for reinstatement are made ad hoc or as and when dismissals occur. Thus, for example, the circumstances may reveal that the demand was made "on behalf of the remaining employees" because of their "interest in the security of their own employment" Re Ranger Uranium Mines Pty Ltd Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR at p661. Or it may be that they show a concern with staffing levels or the skill and qualifications of fellow workers." There is no substance in the contention that the Commission had no jurisdiction to make clause 33 of the Award since the claim in the log was, for practical purposes, the same as the existing award binding Bristow and the Federation. The new dispute covered the whole range of matters relating to salaries and conditions of employment of pilots covered by the log. The fact that some of those matters were not in dispute does not affect the totality of the dispute arising from the non-acceptance of the demand made by Bristow. All matters are dependant on one another. Further, in the present case, there is no complication arising from a second log served by the Federation after the termination with respect to the reinstatement of the two pilots. Counsel for the Federation stated that the Federation did not rely on that dispute although it may have been possible to argue that the dispute came within the examples illustrated by the last two sentences of the passage from Boyne just cited. It is clear that any claim for an award of reinstatement is dependent upon the proper construction and application of clause 31 of the log of claims made on behalf of Bristow. As has been noted, the claim was drawn as a draft award which by clause 5 contained provisions for the termination of employment of a pilot. These included the termination on notice, payment in lieu of notice and instant dismissal for misconduct. These were similar to the terms in clause 5B of the Award. Nowhere in the log of claims was there any specific reference to reinstatement. Clause 31(b) of the log of claims, in similar terms to clause 33 of the Award, referred to "matters involving the termination of a pilots (sic) employment". This is in the context where clause 5 of the log of claims contains provisions enabling the services of a pilot to be terminated by either the employer or the pilot. Implicit in these provisions is the fact that the termination of a pilot may form the subject matter of a grievance under clause 31 of the log of claims. These clauses defined the ambit of the dispute arising from the non-acceptance of the Federation of the log of claims served on behalf of Bristow. As was said earlier, the fact that the procedures under clause 33 of the Award have not been completed before termination of employment has occurred cannot deprive a party to the Award of benefits conferred by clause 33. Thus, a pilot whose employment is terminated without notice, or upon payment in lieu of notice, is not thereby deprived of the benefits conferred by clause 33. Under clause 33(a)(iv) when the grievance is not resolved: "The Board shall proceed in such manner, hear such parties and sit in such locations as it considers necessary to achieve resolution of the matter and the parties to this Award shall accept such resolution as binding." There is nothing novel in the concept that in an appropriate case the resolution of the matter (grievance) would be a direction to the employer to reinstate the employee with all necessary consequential directions. On these considerations, the existing disputes on which the Award is based, and the Award itself come within the opinion appearing in Boyne, set out above, namely circumstances "where an award for the actual reinstatement of former employees may be relevantly connected with a demand for a regime regulating dismissal or formulating the circumstances in which an employer will come under an obligation to reinstate." In the present case, the obligation to reinstate arises if the Board so directs as being necessary to achieve resolution of the grievance. This conclusion is consistent with authorities of the High Court, see for example The Queen v Hegarty per Mason J with whose reasons Gibbs CJ, Stephen and Wilson JJ agreed, see also Slonim v Fellows (1984) 154 CLR 505 per Gibbs CJ at 510 and Wilson J at 515. There is nothing in the reasons of Heerey J in National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 which is inconsistent with this conclusion. Accordingly the application by Bristow is dismissed and the order nisi made on 16 February 1995 is discharged. I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment of Justices Northrop, Spender and Lee. Associate: Date: