Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31

High Court of Australia Gibbs C.J. Mason, Brennan, Deane and Dawson JJ. Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31

ORDER Order nisi discharged.

Cur. adv. vult.

The following written judgments were delivered: —

May 14 Gibbs C.J.

This is an application by the prosecutor, the Customs Officers' Association of Australia, Fourth Division, to make absolute an order nisi for a writ of prohibition or, alternatively, a writ of certiorari. The application is a step in a demarcation dispute between the prosecutor and the Administrative and Clerical Officers' Association, Australian Government Employment ("ACOA"), both of which claim to be entitled to represent officers employed by the Australian Customs Service. Early in 1983, both unions made applications to the Public Service Arbitrator. The application by the prosecutor, dated 18 January 1983, was to vary a determination made in 1926 relating to the pay and conditions of customs officers and assistant customs officers. This application came before an Acting Arbitrator, who, on 25 March 1983, granted ACOA leave to intervene. The matter was then adjourned. In the meantime, on 10 March 1983, ACOA had made an application to the Public Service Arbitrator for a determination relating to the pay and conditions of service of members of ACOA employed by the Australian Customs Service and other related areas of the Department of Industry and Commerce in any of the following designations:

Assistant Customs Officers;

Customs Officers Band 1 to Band 7;

and other administrative and clerical designations in the Australian Customs Service and other related areas of the Department of Industry and Commerce.

On 17 August 1984 ACOA's application came before Ludeke J. sitting in the Australian Conciliation and Arbitration Commission. It is not now contested that by that time the Commission was empowered to deal with matters of that kind by s. 70B of the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"). Ludeke J. granted the prosecutor leave to intervene in the proceedings and the matter was adjourned. On 3 September 1984 ACOA's application (which by then was described as matter C No. 3908 of 1984) came before Mr. Commissioner Hastings. Counsel for the prosecutor then challenged the jurisdiction of the Commission on the ground that the work of customs officers and assistant customs officers was not within the conditions of eligibility of ACOA. Counsel for ACOA submitted that the prosecutor, as an intervener, should be allowed to argue only the question of its own capacity to represent customs officers, and that it should not be allowed to raise the question of the scope of the conditions of eligibility of ACOA which, it was said, had been decided by Ludeke J. in other proceedings on 31 July 1984. The matter was adjourned to enable the parties to engage in discussions, and has not since been relisted.