Re Construction, Forestry and Mining Employees Union; Ex parte Multiplex Constructions Pty Ltd [1992] HCA 8

High Court of Australia Mason CJ Re Construction, Forestry and Mining Employees Union; Ex parte Multiplex Constructions Pty Ltd [1992] HCA 8

Mason CJ.

This is an application by Multiplex Constructions Pty Ltd (Multiplex) for an order nisi for a writ of prohibition directed to Commissioner Grimshaw of the Australian Industrial Relations Commission (the Commission) and the Construction, Forestry and Mining Employees Union (the union). The circumstances giving rise to the application may be briefly stated. On or about 27 February 1991, Multiplex dismissed two employees who were members of the union from a construction site where Multiplex was the builder on the ground that they had removed certain property belonging to Multiplex. Charges were brought against the two employees in connection with the alleged removal of the property. The employees were acquitted of those charges in August 1991. The union sought reinstatement of the two employees but Multiplex refused to reinstate them. The union gave notification of the existence of a dispute, alleging that it related to "the unfair dismissal" of the two employees.

When the matter came before Grimshaw C on 13 November 1991, Multiplex argued that there was no interstate industrial dispute within the meaning of the Industrial Relations Act 1988 Cth sufficient to found jurisdiction in the Commission. Commissioner Grimshaw found that there was such a dispute and that he had jurisdiction to grant the relief sought which appears to have been relief by way of reinstatement of the two employees.

Multiplex sought leave to appeal against the decision to the Full Bench of the Commission on the grounds, amongst others, that there was no dispute between the parties extending beyond the limits of New South Wales, that the dispute was not about matters pertaining to the relationship between employers and employees and that there was no dispute between the actual parties to the proceedings. The application for leave to appeal is still pending and I am informed that it is likely to be heard by the Full Bench of the Commission early in April. Multiplex also applied for a stay of operation of Grimshaw C's decision pending the hearing of the application for leave to appeal and any appeal. The application for a stay was refused by Moore DP, although he acknowledged that Multiplex has an arguable case that there was a want of jurisdiction in the Commission to deal with the alleged dispute. However, as to the balance of convenience, Moore DP considered that he should not prevent a continuation of the proceedings before Grimshaw C pending the determination by the Full Bench of the application for leave to appeal and the appeal.