R v Cohen; Ex parte Attorney-General (Qld) [1981] HCA 66

High Court of Australia Gibbs C.J. Murphy, Aickin, Wilson and Brennan JJ. R v Cohen; Ex parte Attorney-General (Qld) [1981] HCA 66

ORDER Order nisi for writs of prohibition and certiorari discharged.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 4 Gibbs C.J.

This application for prohibition, or alternatively for certiorari, directed to a Deputy President of the Australian Conciliation and Arbitration Commission ("the Commission") is made by the Honourable the Minister for Justice and Attorney-General for the State of Queensland and the Workers' Compensation Board of Queensland ("the Board"). The second respondent, the Australian Insurance Employees' Union ("A.I.E.U.") is an organization of employees under whose rules any persons "employed or usually employed in the business of Insurance" are eligible for membership. The Board is a body corporate established under s. 3A of the Workers' Compensation Act 1916 Q., as amended, and by s. 3A(4) it represents the Crown. Since 1 July 1978, when the Workers' Compensation Act Amendment Act 1978 came into force, the Board has performed the functions formerly performed by the State Government Insurance Office (Q.) ("S.G.I.O.") in relation to workers' compensation insurance, including the issuing of policies. However, the Board itself is not the employer of the persons who work in its office. Those persons are public servants who are appointed and hold office under the Public Service Act 1922 Q., as amended: see s. 5A of the Workers' Compensation Act.

On 10 July 1979 the A.I.E.U. served a log of claims, containing demands as to matters some of which were industrial, on statutory authorities in various States concerned with the business of insurance, including the Board. On 19 September 1979 the Commission found that an industrial dispute existed between the A.I.E.U. and authorities in a number of States. The Board, however, sought a finding that it was not a party to the dispute. Proceedings commenced before the Commission on 26 November 1979 and on that day, after the Deputy President had found that the persons employed in the office of the Board were employees of the Crown, the log was served on the Crown by delivering a copy to an officer of the Crown Solicitor for the State of Queensland. Neither the Board nor the Crown has complied with the demands in the log. The proceedings before the Commission extended over another four days, and after hearing a considerable body of evidence the Deputy President found that an industrial dispute exists between the A.I.E.U. and the Board, and that the matters in dispute are those claimed in the log which relate to industrial matters. It is not clear why the Deputy President found that the dispute was with the Board, when, according to her earlier finding, the employer was not the Board but the Crown. However, although one of the grounds in the order nisi refers to this circumstance, nothing has been made of it in argument before us. Perhaps it is regarded as a technical slip, capable of correction in the Commission itself. However, only one ground was argued before us in support of the application, and that was that no real and genuine dispute had been created by the service of the log on the Board and on the Crown and by their non-compliance with the demands contained in the log.