Re Operative Plasterers Workers Federation of Australia; Ex parte Brown

High Court of Australia Gaudron J Re Operative Plasterers Workers Federation of Australia; Ex parte Brown

Gaudron J.

This case concerns an award provision in the National Building and Construction Industry Award 1990 (the 1990 Award), the effect of which is to allow what is said to be redundancy provisions to operate at the initiative of employees rather than employers.

The provision may or may not be found in other awards but it seems fairly clear it is not the standard redundancy provision in Commission awards which are based on the 1984 decision of the Conciliation and Arbitration Commission relating to termination, change and redundancy.

The application to this Court comes about because Mr Commissioner Palmer refused an application to delete the prosecutors as respondents to that particular provision of the 1990 Award. An application for leave to appeal to a Full Bench of the Commission was dismissed, the Full Bench saying in that regard that:

Having regard to the background to and the development of redundancy provisions in the building and construction industry, we do not consider that the appellants (the prosecutors in this case) have demonstrated that there is an arguable case that Commissioner Palmer manifested any error of principle in reaching his decision. It is contended on behalf of the prosecutors in this Court that there was an error of principle in that Commissioner Palmer mistook the concept of redundancy. It is said that that error of principle is compounded by the Full Bench decision refusing leave to appeal.

It is not every error that will ground prerogative relief. So far as mandamus, which is sought in this case, is concerned, there must be an error amounting to a refusal to exercise jurisdiction. Such an error, it is well established, may be constituted by what is said to be a constructive failure to exercise jurisdiction, that is, a mistake of some kind, the effect of which is that the Commission has failed to do that which it is obliged to do, whether pursuant to constitutional requirement or pursuant to statute.