R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association [1982] HCA 5

High Court of Australia Gibbs C.J. Stephen, Murphy, Aickin and Wilson JJ. R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association [1982] HCA 5

ORDER Order nisi discharged.

Cur. adv. vult.

The following written judgments were delivered:—

1982, Feb. 11 Gibbs C.J.

On this return of an order nisi made by Stephen J., the prosecutor, Australian Telephone and Phonogram Officers' Association, seeks mandamus to compel a member of the Australian Conciliation and Arbitration Commission (Mr. Commissioner Clarkson) and three members of the Commission (the President, Williams J. and Mr. Commissioner Clarkson) who constituted a Full Bench of the Commission for the purpose of hearing two matters (C. No. 1217 of 1979 and C. No. 343 of 1980), to hear and determine those matters in accordance with law, i.e. without binding themselves to determine the same in accordance with any "Indexation Guidelines" or "Wage Fixing Principles" determined upon in other proceedings of the Commission. Alternatively, the prosecutor seeks certiorari to remove and quash an award of Mr. Commissioner Clarkson and of the three members who constituted the Full Bench made in the two matters on 4 June 1980 and mandamus compelling the Commissioner and the three members to hear and determine the matters in accordance with law. The apparent incongruity of seeking mandamus to the Commission constituted by a Commissioner, and to the Commission constituted by a Full Bench, to hear and determine the same matters is, as will be seen, not without significance.

The two matters arose out of an industrial dispute between the prosecutor and Australian Telecommunications Commission ("Telecom") as to the salaries to be paid to members of the prosecutor who were employed by Telecom. The details of the course which the dispute took need not be set out in full. It appeared at an early stage that Telecom opposed any increase sought by the prosecutor which was outside the Wage Fixing Principles, or as they are sometime called, the Indexation Guidelines, adopted by the Commission, whereas the prosecutor contended that the Commission should not regard itself as bound by those principles but should settle the dispute on the merits of the case before it. The Wage Fixing Principles were first formulated by the Commission in the reasons given for its decision in the National Wage Case — April 1975. At the times material to the present case they were in the form in which they were stated in the Wage Fixing Principles Case of 14 September 1978. The principles provided for wage indexation, i.e. for the periodic adjustment by the Commission of award wages and salaries in relation to the movement of the Consumer Price Index. They further provided that the Commision would each year consider what increase in the total wage or changes in conditions of employment should be awarded on account of productivity. However, the only other grounds that would justify increases in wages and salaries were those stated in principle 7, which included changes in work value (principle 7 (a)), catch-up of community movements (cases in which awards had not been considered in the light of community movements in 1974) but applications under this principle had to be lodged before 31 December 1978 (principle 7 (b)) and inequities (cases where employees performing similar work were paid dissimilar rates of pay without good reason) (principle 7 (d)). Inequities were to be dealt with only through the Anomalies Conference — a conference of "peak trade union councils" — called by the President. These peak trade union councils were bodies to each of which a number of trade unions in related fields were affiliated. One of them was the Council of Australian Government Employee Organizations (CAGEO) to which the prosecutor was affiliated. The prosecutor was not a party to the disputes in which the relevant principles of wage determination were established, or to the conference called before the Wage Fixing Principle Case, although (if it matters) CAGEO intervened in the proceedings in relation to those disputes, and was a party to that conference.