Re Australian Bank Employees' Union; Ex parte Citicorp Australia Ltd [1989] HCA 41

High Court of Australia Mason C.J. Deane, Dawson, Gaudron and McHugh JJ. Re Australian Bank Employees' Union; Ex parte Citicorp Australia Ltd [1989] HCA 41

ORDER Order nisi for mandamus made absolute to the extent necessary to direct a hearing and determination by the Australian Industrial Relations Commission of the issue whether it is convenient and appropriate to entertain the prosecutor's application that the powers under s. 111(g)(iii) of the Industrial Relations Act 1988 Cth be exercised in Matter C. No. 2097 of 1987 (in so far as that matter affects the prosecutor) without a dispute finding being made. Otherwise discharge the order nisi. Order that a writ of certiorari issue to quash the decision of Commissioner Laing dated 31 October 1988 and the decision of the Full Bench of the Australian Industrial Relations Commission dated 29 May 1989.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 3 Mason C.J., Deane, Dawson, Gaudron and McHugh JJ.

Citicorp Australia Ltd. ("Citicorp") was served with a log of claims by The Australian Bank Employees Union ("the Union"). Proceedings were thereafter instituted by the Union in the Conciliation and Arbitration Commission. In those proceedings Citicorp requested the Commission to exercise its powers pursuant to s. 41(1)(d) of the Conciliation and Arbitration Act 1904 Cth to dismiss or refrain from hearing that part of the matter as it affected Citicorp without determining under s. 24(1) of that Act whether Citicorp was party to an industrial dispute. The Commission, constituted by Commissioner Laing, held that the power conferred by s. 41(1)(d) could only be exercised after the making of a dispute finding under s. 24(1).

The Conciliation and Arbitration Act was repealed with effect from 1 March 1989 when the Industrial Relations Act 1988 Cth came into force. An appeal by Citicorp from the decision of Commissioner Laing was heard by a Full Bench of the Industrial Relations Commission and determined by reference to the provisions of the Industrial Relations Act. See Industrial Relations (Consequential Provisions) Act 1988 Cth, s. 14. The appeal was dismissed, it being held that the power to dismiss or refrain from further hearing a matter conferred by s. 111(1)(g) of the Industrial Relations Act could only be exercised after the making of a dispute finding under s. 101(1) of that Act.