High Court of Australia McHugh J Re Australian Bank Employees' Union; Ex parte Illaton Pty Ltd McHugh J. This is an application for an order nisi for writs of mandamus and prohibition brought by the Australian Federation of Airline Pilots (the prosecutor) directed to a Deputy President of the Industrial Relations Commission and four airline companies (the respondents). The object of the application is to prevent the Deputy President from proceeding: further to hear and/or determine the Application by the Respondents Ansett Transport Industries (Operations) Pty Ltd, Australian Airlines Limited, East West Airlines (Operations) Pty Ltd and Mayne Nickless Limited (trading as Ipec Aviation) pursuant to s 18 of the Industrial Relations Act 1988 filed in the Industrial Relations Commission and numbered C No 31317 of 1990 and dated 14 May 1990, which purports to relate to a demarcation dispute between the Ansett Transport Industries (Operations) Pty Ltd, Australian Airlines Limited, East West Airlines (Operations) Pty Ltd and Mayne Nickless Limited (trading as Ipec Aviation) and the Prosecutor. The application for the order nisi arises out of an application which was filed in the Industrial Relations Commission on 14 May 1990, and by which the respondents sought orders under s 118 of the Industrial Relations Act 1988 Cth. The relevant part of s 118 for present purposes is subs (3) which provides: Without limiting the powers of the Commission in relation to demarcation disputes, the Commission may, for the purpose of preventing or settling a demarcation dispute, but subject to subsection 202(3), make one or more of the following orders: (a) an order that an organisation of employees shall have the right, to the exclusion of another organisation or organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation; (b) an order that an organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees shall have that right; (c) an order that an organisation of employees shall not have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation. "Demarcation dispute" is defined by s 4 to mean: (a) dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or (b) a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees. The respondents sought two orders under s 118: 1. That the Australian Federation of Air Pilots shall not have the right to represent under this Act the industrial interests of persons employed as pilots by the applicants. 2. Such further orders as to the representation of the industrial interest of pilots employed by the applicants as to the Commission seems fit on the hearing of the application. Order 1 obviously relies on s 118(3)(c) of the Act. Order 2 may rely on the provisions of s 118(3)(a) or (3)(b). The grounds upon which the application was made were: 1. The AFAP failed to comply with recommendations, directions and decisions of the Commission during the period from February 1989 to at least the beginning of March, 1990. 2. On 24 August 1989 the vast majority of AFAP members employed by the applicants resigned from employment in pursuit of industrial claims. 3. During the period from 30 August 1989 to at least the beginning of March 1990 the AFAP (a) imposed employment bans on the applicants (b) encouraged other airline pilot associations to impose such bans (c) conducted a campaign designed to humiliate and embarrass pilots accepting employment with the applicants (d) threatened that pilots employed by the applicants would be terminated from employment as a condition of any settlement of the AFAP's claims against the applicants. 4. During the period from 10 October 1989 to at least the beginning of March 1990 the AFAP boycotted pilot awards applying to the applicants. 5. The AFAP claims to have 1300 members whom it wishes the applicants to re-engage. 6. The overwhelming majority of pilots employed by the applicants are vehemently opposed to being represented industrially by the AFAP. 7. Pilots employed by the applicants have formed, respectively, the Ansett Airlines Pilots Association, the Australian Airlines Limited Pilots Association, the East-West Airlines Pilots Association and the IPEC Pilots Association (referred to collectively as "the associations") for the protection and advancement of their industrial interests and have sought the assistance of a registered organisation, the Australian Transport Officers Federation (ATOF) in this regard. 8. It is in the public interest that the application be granted because: (a) the industrial interests of pilots currently employed by the applicants cannot be effectively represented by the AFAP (b) by its conduct the AFAP has disentitled itself from representing the industrial interests of pilots employed or to be employed by the applicants (c) if the application is not granted (i) disharmony and disaffection as between pilots will grow and intensify (ii) there will be competition for membership as between the AFAP, the associations and ATOF (iii) the effective conduct of the applicant's businesses will be further disrupted (iv) industrial relations stability will not be achieved for many years, if at all, in the area of employment covered by the application. The Commission has not made any orders in respect of the application. However, on 29 June 1990, Mr Deputy President Hancock heard submissions on behalf of the prosecutor to the effect that the terms of the respondents' application and the grounds relied on in support of it were insufficient to enable the Commission to make orders pursuant to s 118(3). The Deputy President rejected the submissions and concluded: I have come to the firm conclusion that I should not now abort the proceedings by finding that the Commission lacks jurisdiction to deal with the application. Whether jurisdiction exists is a question to be considered further when the evidence is before me. The hearing will proceed in accordance with the programme of which the parties and others have been advised. Mr Gillard, on behalf of the prosecutor, relies on the grounds set out in support of the order nisi which are as follows: 1. The Respondent, the Honourable Keith Hancock failed or failed properly to exercise his jurisdiction in relation to the aforementioned Application C No 31317 of 1990 in that— (a) he failed or declined to decide whether the said Application disclosed facts which, if accepted would constitute a demarcation dispute for the purposes of s 118 of the Industrial Relations Act 1988; (b) he decided on 30 July 1990 that there was a demarcation dispute within the meaning of the said s 118. 2. The Respondent, the Honourable Keith Hancock exceeded his jurisdiction in relation to the aforementioned Application C No 31317 of 1990 in that— (a) he decided to hear the said Application without first deciding whether or not it disclosed facts which, if accepted, would constitute a demarcation dispute for the purposes of s 118 of the Industrial Relations Act 1988; (b) he decided to hear the said Application when there was no demarcation dispute for the purpose of the said s 118. 3. The Respondent, the Honourable Keith Hancock had no jurisdiction to exercise the powers conferred by the said s 118 because there existed no demarcation dispute for the purposes of the said section. The grounds relied on, however, seem to me to misconceive the nature of the jurisdiction of the Commission under s 118(3). The jurisdiction conferred by that subsection is a jurisdiction to make orders of the kind described for the purpose of preventing or settling a demarcation dispute. By necessary implication, the Commission has power to take all steps necessary to determine whether the power under s 118 should be exercised. That includes determining whether there is, or there is likely to be, a demarcation dispute which requires the making of orders under s 118. However, the jurisdiction of the Commission does not depend upon it making any finding as to the existence, or the potential existence, of a demarcation dispute before it makes orders. Moreover, while the jurisdiction is created for the purpose of conferring rights and benefits on persons who may be affected by the existence of an actual or potential demarcation dispute, it is important to note that the jurisdiction of the Commission, under s 118, is not dependent upon any particular person making an application. Indeed, s 30 of the Act permits the Commission to act of its own motion and to make orders under s 118. Accordingly, independently of any application before the Commission, it is entitled to take steps to determine whether, because of any actual or potential demarcation dispute, it should exercise its powers under s 118. This fact shows that the jurisdiction of the Commission is in no way dependent upon the form of any application before it. Whether the Commission acts on its own motion or embarks on an inquiry at the suit of a person interested in obtaining an order, it has jurisdiction to inquire whether facts exist which make it proper to make an order under the section. The Commission's jurisdiction does not and cannot depend upon the form of the applicant's application. Neither the Act nor the Rules require any application under s 118 to be in any particular form. In any event s 110 directs the Commission to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms and to inform itself on any matter in such manner as it considers just. Section 111 provides that the Commission may correct, amend or waive any error, defect or irregularity, whether in substance or form. Thus the form of an application by itself could not prevent the Commission from proceeding under s 118, even if the Act required an applicant to set out the grounds upon which he relied in seeking an order. In the present case, the Commission, in my view, would have had jurisdiction to inquire whether it should exercise its powers under s 118, even if the application contained no grounds. Questions of natural justice aside, the jurisdiction of the Commission to proceed does not depend in any way upon the grounds relied on by an applicant. On this ground alone the claim of the prosecutor must fail. But in any event, the Deputy President found that the grounds of the application expressly and impliedly included assertions which, if established by evidence, would authorise the making of orders under s 118. The Deputy President said: The grounds of the application include assertions about the respective roles of the AFAP and ATOF. There is an assertion that the overwhelming majority of pilots do not wish to be represented by the AFAP. The applicants also claim that pilots, having formed various associations, have sought the assistance of ATOF — a registered organisation. If these statements are true, there may be a real prospect of pilots wishing to become members of ATOF. The airlines assert that if their application is not granted, "there will be competition for membership as between the AFAP, the associations and ATOF". All of these contentions raise for consideration the question whether there is an actual or likely demarcation dispute between the AFAP and ATOF such as would fall within paragraph (a) of the definition. Must the disputing organisations envisaged by the definition both have the constitutional capacity to enrol the employees to whom their dispute relates? If they must, the requirements of paragraph (a) are not met; if not, those requirements may well be satisfied. The former construction appears to deprive s 118(2)(b) of all or most of its content. This lends weight to the alternative view. Moreover, I agree with Mr Giudice that the "dispute" to which paragraph (a) refers is about the arrangement which ought to obtain rather than the existing legal situation. An organisation not currently able to enrol certain employees might wish to change its capacity to enrol and, as a consequence, find itself in dispute with another organisation. To be a party to an industrial dispute an organisation must be able to enrol the employees whose interests it purports to represent. The question of representation, however, is of the essence of a demarcation dispute and to rely upon the existing facts of eligibility may be to pre-empt the resolution of the dispute. For these reasons, I lean to the view that the AFAP and ATOF could be or become involved in a demarcation dispute as defined in paragraph (a). This is a tentative opinion only and the matter may be argued further. The applicants also make assertions about the past and present state of industrial relations in their industry. These assertions manifest a perception of the state of affairs which may cause the employers to attempt demarcations in the work of pilots. For example, they may seek to differentiate between members of the AFAP and non-members; between pilots who resigned on 24 August 1989 and pilots who did not then resign; between formerly-employed pilots who offered themselves for work before March 1990 and those who offered themselves subsequently; or between pilots who belong to the associations mentioned in ground 7 and other pilots. Having regard to the authorities cited by Mr Giudice, I think that all demarcations of work based on criteria such as these would be "demarcations of functions of employees or classes of employees". The impact of s 334 on demarcations of this nature may, of course, be argued in due course as a factor affecting the credibility of evidence and assertions about their occurrence. It is true that the grounds set out in support of the application do not include explicit assertions as to the existence or the likelihood of demarcation disputes; but the assertions which are made imply real possibilities of demarcation disputes. Whether those assertions are true and whether demarcation disputes actually exist or are likely to arise are matters to be determined when the evidence has been heard. I agree with the reasons of the Deputy President for thinking that the assertions made in the grounds of the application, at least by implication, show a real possibility that demarcation disputes either exist or at all events may exist in the future. Indeed, I do not think that the submissions made on behalf of the applicants, or the grounds relied on in support of the order nisi, are arguable. The Deputy President did not exceed or refuse to exercise or misconceive his jurisdiction by refusing to find whether the grounds set out in the application were sufficient to enable him to exercise the powers conferred by s 118. It follows, therefore, that I must refuse this application.