High Court Rejects Mandamus Application in Industrial Dispute Case

OUTCOME: Dismissed

High Court of Australia Barwick C.J. [NAME] and [NAME] JJ. Re [NAME] Tribunal; Ex p [COMPANY] [1971] HCA 58

ORDER Application dismissed. Order nisi discharged. [NAME] to pay the costs of [COMPANY].

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 18 Barwick C.J.

The [COMPANY] ("[COMPANY]") seeks an order making absolute an order nisi granted by a Justice of this Court on 22nd October 1971 for the issue of a writ of mandamus directed to the [NAME]' Industrial Tribunal ("the Tribunal") "commanding it to consider and determine an industrial question between the [COMPANY] and [COMPANY]. submitted to it by [NAME] pursuant to notification of dispute dated 21st September 1971 and numbered T. 17 of 1971". [COMPANY] is a declared body within the meaning of Pt IIIA of the Conciliation and Arbitration Act 1904-1970 ("the Act"), having been duly declared by the Minister for Labour and National Service to be a body to which s. 88Z of the Act applies. The members of [COMPANY] include [NAME] employed by [COMPANY]. ("[NAME]"). The terms and conditions of employment by [NAME] of [NAME] are prescribed by [NAME] ([NAME]) Award 1970 ("the Award"). Section 5 of the Award entitled "Contract of Employment" contains two provisions relevant to the discussion of the matter before the Court:

a. The services of a pilot shall be terminable by either the Company or the pilot:

(i) during the first twelve months of service or during any extended period of probation by fourteen days notice in writing; or

(ii) thereafter by twenty-eight days notice in writing; or

(iii) by the payment to the pilot of fourteen days or twenty-eight days pay in lieu of notice as aforesaid; or

(iv) by the forfeiture by the pilot of fourteen days or twenty-eight days pay in lieu of notice as aforesaid;

provided that the period of notice set out herein may be reduced or waived by mutual agreement between the Company and the pilot: and provided further that nothing shall derogate from the Company's right at common law to dismiss a pilot without notice for misconduct or other sufficient cause, in which event he shall be paid up to the time of dismissal only.

k. In the event that the services of a pilot with more than five years service are terminated by the Company because of redundancy it shall be open to [COMPANY] to raise the question of severance pay for such pilot. It shall be the duty of the Company to give to all [NAME] at least six months notice of possible termination on account of redundancy.

Nothing in the Award purports to give to any pilot whose services are terminated because of redundancy any right to severance pay; nor does any provision of the Award expressly provide for any consequence for the failure of [NAME] to give to all [NAME] a notice in conformity with s. 5K.

In April 1971 [NAME] gave ninety-six [NAME] in its service notice of termination of their services due to redundancy. The notice was given in some instances in the first place orally and subsequently confirmed in writing and in the remainder notice was given in writing in the first instance. The operative part of this notice was in a form of which the following is a specimen:

This will confirm the advice already given you by [NAME], Manager [NAME] and [NAME], on 22nd April 1971, when you were given six months' notice of termination due to redundancy. In your case, the effective date will be 2nd November 1971 and on that date your contract of employment will cease.

As promised by [NAME], I have set out in the attached the conditions which apply to your termination as well as an estimate of the entitlements accruing to you up to the date of your termination. I trust that this information enables you to plan accordingly.

The decision to reduce our pilot ranks is in no way a reflection on your ability to operate as a pilot on [NAME] aircraft. Please accept my own personal regrets that this action was necessary.

[COMPANY] took exception to the dismissal of the [NAME] and on 21st September 1971 it notified the Industrial Registrar of the existence of what it claimed was an industrial dispute with [NAME] with respect to the retrenchment of the [NAME]. This notification, numbered in the records of the Industrial Registrar as T. No. 17 of 1971, headed "In the Matter of [COMPANY] and [COMPANY] Re retrenchment of [NAME]", was in the following terms:

Pursuant to the provisions of Section 28 and Part IIIA of the Commonwealth Conciliation and Arbitration Act 1904-1970, the [COMPANY] hereby notifies you of the existence of an industrial dispute with [COMPANY] with respect to the following matters:

1. [COMPANY] on 22nd April 1971, gave notice of retrenchment to one hundred and thirty-eight (138) [NAME]; both [NAME].

2. The reason for the retrenchment notices was stated as being redundancy and firm termination dates were given.

1. [COMPANY] does not believe that there was a state of redundancy necessitating the termination of the [NAME].

4. The [NAME] were engaged for service with the Company on the assurance of secure, permanent and rewarding careers and had removed themselves from higher paid career positions and/or scholarships in the belief that such assurances given were true and correct. Indeed, many of the said [NAME], because of such assurances, had dropped fifty per centum (50%) in salary to join [NAME] and in some cases had been employed for approximately one month prior to notices of retrenchment being issued.

5. The [NAME] affected have not been able to return to their former positions or to take up the scholarships which were foregone in order to join [NAME]. Thus, their careers and, consequently, their earning potential was destroyed by this action of the Company's which [COMPANY] alleges was improper, unfair, harsh, unjust and unnecessary.

6. Sub-section K of Section 5 of the [NAME]) Award 1970 prescribes that it shall be the duty of the Company to give to all [NAME] at least six months notice of possible termination on account of redundancy. Such provision by wording and intent required the Company to give notice of possible redundancy, whereas the Company at the time of issuing notices declared an absolute state of redundancy. It is in [COMPANY]'s view unacceptable that, in respect of [COMPANY], a genuine state of redundancy would exist one month after [NAME] had been assured that no such state existed and that their careers were assured.

7. [COMPANY] maintains that the Company had an onus to act upon any believed possible redundancy and thereby, to take steps to avert an actual redundancy situation prior to the date of expiry of retrenchment notifications.

8. [COMPANY] alleges that the Company has not taken steps to avert the retrenchments whilst maintaining that the retrenchments were unnecessary as at April of this year, 1971, and that the Company's position is even better now than at that date.

9. [COMPANY] believes that the [NAME] should not have been given notice of retrenchment and that such notices should be withdrawn.

10. As the notice periods expire as from 22nd October 1971, and as there has been no indication from the Company that the notices will be withdrawn, the matter is now one demanding urgent attention and resolution.

11. The Company has had five (5) months in which to withdraw the notices and in that time has or should have taken steps to increase its operations and, thereby, its pilot establishment requirements.

12. Unless this matter is resolved prior to 22nd October 1971, the industrial situation could worsen.

Subsequently notice was served upon [COMPANY] and upon [NAME] presumably by the Industrial Registrar that "the industrial dispute will be heard by the [NAME]' Industrial Tribunal" at a stated time and place. Pursuant to this notice on Monday, 18th October 1971 the Tribunal entered upon the hearing of the dispute notified pursuant to s. 28 of the Act. Each of the parties was represented by an industrial advocate. The advocate for [COMPANY] opened the case he proposed to make in connexion with the notified dispute. After hearing the outline of [COMPANY]'s case the Tribunal required argument on the question of its jurisdiction to hear and determine the matter to which the notification of 21st September related.

The opening of [COMPANY]'s case and the argument of the question of the Tribunal's jurisdiction to entertain the matter continued through Monday, 18th and during the morning of Tuesday, 19th October. During the course of the argument the Tribunal asked the advocate for [COMPANY] to formulate the type of relief which [COMPANY] sought. This was done and some time on the morning of 19th [COMPANY]'s advocate handed to the Tribunal two documents of which at least the [NAME] was dated 20th October 1971. These documents were in the following terms:

Whereas on the 21st day of September, 1971, notification was given by the [COMPANY] of an industrial question relating to the retrenchment of [NAME] and cadet [NAME] employed by [COMPANY].

and whereas this industrial question came on for hearing from time to time thereafter and upon this day upon reading the said notification and upon hearing the submissions thereon made by representatives of the parties thereto this tribunal does award, order and prescribe as follows:

That the said [COMPANY] withdraw notices of termination of services served on the said [NAME] and cadet [NAME] and that the said [NAME] and cadet [NAME] be continued in employment by the said [COMPANY].

1. That in settlement of the industrial question so notified in respect of the [NAME] and cadet [NAME] currently employed by [COMPANY], Sub-section K of Section 5 of the Award of the Tribunal known as the [NAME]) Award 1970 be set aside and in its place the following be awarded: In the event that the services of a pilot with more than five years service are terminated by the Company because of redundancy it shall be open to [COMPANY] to raise the question of severance pay for such [NAME]. It shall be the duty of the Company to give to all [NAME] employed as at the twenty-[NAME] day of April, One Thousand Nine Hundred and Seventy-one at least twenty-four months notice of possible termination on account of redundancy.

2. That [NAME] employed by the said [COMPANY] and who were given notice of termination because of redundancy on or after the Twenty-[NAME] day of April, One Thousand Nine Hundred and Seventy-one be deemed to have been given not less than twenty-four months notice of such possible redundancy from that date.

The Tribunal is set up by s. 88J for the purposes of Pt IIIA of the Act. The Tribunal is empowered by s. 88U so far as presently relevant:

(a) to make all such suggestions and do all such things as appear to it to be right and proper to encourage and assist the prevention or settlement by amicable agreement of industrial questions to which the powers of the Tribunal under the succeeding paragraphs of this sub-section extend;

(b) to consider and determine industrial questions in so far as the industrial matters concerned relate to one or more of the following:

(ii) employment of [NAME] by [COMPANY];

Division 1 of Pt III of the Act is made applicable to and in relation to industrial questions to the extent to which they are within the powers of the Tribunal and to and in relation to the Awards of the Tribunal as if in that division (a) references to industrial disputes were references to such industrial questions; (b) references to the Commission except in certain sections not presently material were references to the Tribunal and (c) references to a member of the Commission or the Commissioner were references to the person constituting the Tribunal. Certain sections of Div. 1 of Pt III not presently relevant were excepted from the operation of this provision.

As a consequence of s. 88U and s. 88V, s. 28 (2) of the Act was available in respect of an industrial dispute or question within the meaning of Pt IIIA. Further the power of determining a dispute or question notified under s. 28 (2) was exercisable by the Tribunal (s. 32).

An "industrial question" for the purposes of Pt IIIA is defined in s. 88H as meaning "a dispute or question as to industrial matters, including an inter-State industrial dispute;". "Industrial matters" are defined to mean "all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, [NAME] employed or to be employed by employers". Employer is defined widely enough to include [NAME].

During the course of the argument before the Tribunal it was submitted for [COMPANY] that the notices given by [NAME] in April were defective in that they "postulated a state of redundancy in absolute terms existing at the time when they were given" whereas par. K of the Award speaks of a notice of possible termination on account of redundancy. The Tribunal rejected this submission, rightly as I think for the reasons which will subsequently appear. The Tribunal decided in the afternoon of Tuesday, 19th October that the dispute notified on 21st September did not relate to an industrial matter and that therefore the Tribunal lacked jurisdiction to entertain and settle it.

Having regard to the submissions which have been made to this Court I should make some quotations from the reasons for judgment given by the Tribunal. After referring to the notification of 21st September the Tribunal said:

I have to decide one essential matter at this stage, namely whether there is a dispute or question in respect of which this Tribunal has jurisdiction.

It is necessary to decide whether the evidence relied upon by [COMPANY] raises an industrial matter for my consideration. Putting the issue quite simply, [COMPANY] contends that the retrenchment of [NAME] was unnecessary at the time the notices were given and that in any event this unnecessary act was compounded in error and misjudgment having regard to events which have occurred since the notices were given.

But I repeat that the essential issue is the justifiability of the notices of termination.

Having decided, rightly as I think, that the matter did not involve a dispute or question "pertaining to the remuneration or to work done or to be done etc." the Tribunal said:

The important matter for decision is whether the question of the justifiability of the terminations pertains to the terms or conditions of service or employment of [NAME] The Tribunal concluded for several reasons that it did not. In relation to one of these reasons the Tribunal said: The hardships which [NAME] will suffer have been outlined in the opening address given on behalf of [COMPANY]. They are referred to in bald terms in the notification. It was also stated that the company ought not to have given the notices and need not have persisted with them having regard to the factors then and now operating and extending into the future. The foregoing material was to be submitted as relevant to the question whether the terminations were justifiable. But the hardships are the consequences or the effects of the pending terminations and the other factors which relate to alleged mismanagement and incompetence are alleged reasons for, or alleged causes of, the pending terminations and of the company's failure to alter its decision. It is not for this Tribunal, in endeavouring to find an industrial matter, to look at causes and effects and treat them as the "matter" itself. This would be to mistake the shadow for the substance. If these causes and effects are discarded, as I think they must be for present purposes, all that is left is the action of [NAME] in giving the notices of termination in accordance with the provisions of the award. The notices and the pending terminations affect or pertain to the terms of employment in the context of the award itself; but the causes and effects to which I have referred do not pertain to any terms of employment at all. They are causes and effects of an act done which pertains to the terms of employment, but do not themselves pertain to those terms. It follows that no presently existing industrial matter exists which can invoke the jurisdiction of this Tribunal. I should also add that I would not find any industrial dispute to be in existence for the reasons I have already outlined. In stating its [NAME] reason for thinking that there was no industrial matter before it the Tribunal said this: The issue involved, and this is what the dispute is about or what the question involves, is whether there has been a managerial mistake on the part of [NAME]. It is really whether a management decision pertaining to the retrenchment of [NAME] is wrong and ought to be corrected. But there is no defined industrial matter involved in that issue at all. It could only involve an industrial matter if, having found that [NAME] could not be justified in taking the action to terminate, I were to qualify the present terms and conditions of employment so as to make some provision for the effects of the company's decision. But where is my authority to inquire into the company's decision? I am really being asked to assume that authority quite gratuitously without any foundation for so doing and then to manufacture, as it were, an industrial matter from the result of my inquiry. This is insupportable.

[COMPANY] has submitted in support of the application to make absolute the order nisi three principal submissions though the first was but faintly pressed; first, that the notice of termination was invalid as not conforming to the terms of s. 5K of the Award; [NAME] that the question whether [NAME] in all the circumstances ought to have given notices of termination was an industrial question within the meaning of Pt IIIA and third that the Tribunal was in error in refusing to entertain an application to vary the Award. When pressed to indicate the terms of the mandamus appropriate to the third of the submissions counsel proposed that the order nisi should be varied by inserting the words "as an application for the variation of the award" as part of the description of the matter to be heard and determined.

[COMPANY] has fully developed these several submissions and has said all that could be said in their support. However there is in my opinion no substance in the first submission. The notice to the [NAME] was a notice of termination of their service. They were given six months notice, although there is much to be said for the view that in the case of these [NAME] the Award would have permitted their services to be terminated upon fourteen days notice. It seems to have been assumed by [COMPANY] that the terms of cl. 5k in some way qualify the terms of cl. 5a. I am far from persuaded that this is so. But I find no need to decide the relationship, if any, of the two clauses, in order to dispose of this application. [NAME] did not attempt to give a notice of termination solely referable to cl. 5a. It gave six months notice thus accommodating the notice to the terms of cl. 5k. It is sufficient therefore to say that, though cast in the form of a notice of termination of service on account of redundancy, the notice in my opinion satisfied the requirements of cl. 5k.

With respect to the [NAME] submission the Tribunal in my opinion rightly concluded that the dispute the subject of the notification dated 21st September did not relate to an industrial matter, as defined in s. 88H. The question whether or not an employer ought to have given notice of termination of the employment in accordance with the terms of an Award does not form or relate to a matter "pertaining to the remuneration or other terms or conditions of service or employment". In arbitral systems which give an arbitration tribunal a power to order the reinstatement or employment of a dismissed employee, the industrial propriety of the termination of that employee's services in the circumstances may be examined by the tribunal to a limited extent. See North West County Council v. [NAME] [1] . But that is because of the statutory provisions and not because the question whether an employee lawfully dismissed ought to have been dismissed is an industrial question. However no such statutory power is involved in this matter. Further, whilst it may be no objection to an award or order settling an industrial dispute or question that the award or order may impinge upon management or the exercise of managerial discretion, management or managerial policy as such is not in my opinion a proper subject matter for an award or order. The Tribunal in this case, in my opinion, had no jurisdiction to enquire into or make any decision about the business considerations upon or for which [NAME] decided to give the notices of termination to the [NAME]. The question whether or not the notices of termination ought to have been given is not in my opinion an industrial question nor is a dispute as to whether or not they ought to have been given an industrial dispute within the meaning of Pt IIIA. Thus in my opinion the notification dated 21st September did not relate to an industrial matter.

1. (1971) 126 C.L.R. 247.

The basis of the third submission was an assertion that [COMPANY] in the course of the hearing of the notified dispute asked for a variation of the Award in circumstances which in substance raised a separate question. Consequently, it was said that because the question involved in the notified dispute then included a question as to the advisability of amending the Award the Tribunal had erroneously refused to entertain the application for a variation of the Award upon the ground that it lacked jurisdiction to grant it.

I have already set out the circumstances in which it was suggested that the Award be varied. The draft orders handed to the Tribunal were suggested means of settling the notified dispute. The first draft required the withdrawal of the notices, thus continuing the employment of the [NAME]. The [NAME] draft was designed to lengthen the period of notice so that the employment would not terminate until some future time. It suggested a variation of the Award, together with a deemed compliance with it, as such a means. Each order was premised on a finding that [NAME] ought not to have given the notices and was designed either to nullify or for the present to delay the operation of the notices. Unless the premise was made out, no occasion existed for the making of either order. There was in fact in my opinion no independent application for a variation of the Award. Of course an application to vary an award raises an industrial question. But here the suggested variation was proposed as a means of correcting the effect of notices of termination which the Tribunal was asked to find ought not to have been given. The application to vary the Award thus depended upon the question of the propriety of giving the notices being dealt with and answered favourably to [COMPANY]. This, it seems to me, is the view the Tribunal took. It held, rightly as I have said, that it lacked power to enquire into the managerial propriety of giving the notices. Lacking that jurisdiction, the Tribunal held quite clearly, not that it could not vary the Award but that there was no occasion for doing so. Referring to the notified dispute, the Tribunal said "But there is no defined industrial matter involved in that issue at all. It could only involve an industrial matter"—i.e. the variation of the Award "if, having found that [NAME] could not be justified in taking the action to termination, I were to qualify the present terms and conditions of employment" i.e. by varying the Award "so as to make some provision for the effects of the Company's decision". Thus, in my opinion, the Tribunal did not refuse to consider the variation of the Award on the ground that it lacked jurisdiction so to do. Indeed, in my opinion, it considered whether it should do so and concluded, rightly as I think, that it ought not to do so.

There is therefore, in my opinion, no basis for mandamus on the ground that the Tribunal has refused to exercise a jurisdiction to vary the Award. It was not asked to do so as an independent matter and in any case, the Tribunal so far considered whether or not it should vary the Award as to conclude that no occasion for doing so had arisen.

The application fails on all grounds and should be dismissed.

[NAME] J.

By this application the [COMPANY] ("[COMPANY]") seeks an order making absolute a rule nisi granted by a Justice of this Court for a writ of mandamus directed to the Deputy President of the Commonwealth Conciliation and Arbitration Commission constituting the [NAME] Tribunal ("the Tribunal").

The facts of this matter are that on 22nd April 1971 [COMPANY]. ("[NAME]") gave notice of redundancy to ninety-six [NAME], the majority of whom were members of [COMPANY], pursuant to s. 5K of the [NAME]) Award 1970 ("the Award"). Section 5K reads as follows:

In the event that the services of a pilot with more than five years service are terminated by the Company because of redundancy it shall be open to [COMPANY] to raise the question of severance pay for such pilot. It shall be the duty of the Company to give to all [NAME] at least six months notice of possible termination on account of redundancy.

On 21st September 1971 [COMPANY], which is a body declared by the Minister for Labour and National Service pursuant to s. 88Z of the Conciliation and Arbitration Act 1904-1970 Cth ("the Act"), gave notice to the Tribunal of a dispute. The Notification of Dispute was headed "Re Retrenchment of [NAME]". On 18th and 19th October 1971 at the hearing before the Tribunal pursuant to the notification of dispute the Tribunal heard argument on the question of jurisdiction. In the course of that argument the Tribunal requested that the nature of the relief sought by [COMPANY] be formulated. In response to that request the following orders were suggested:

That in settlement of the industrial question so notified in respect of the [NAME] and cadet [NAME] currently employed by [COMPANY], Sub-section K of Section 5 of the Award of the Tribunal known as the [NAME]) Award 1970 be set aside and in its place the following be awarded:

In the event that the services of a pilot with more than five years service are terminated by the Company because of redundancy it shall be open to [COMPANY] to raise the question of severance pay for such [NAME]. It shall be the duty of the Company to give to all [NAME] employed as at the twenty-[NAME] day of April, One Thousand Nine Hundred and Seventy-one at least twenty-four months notice of possible termination on account of redundancy.

That [NAME] employed by the said [COMPANY] and who were given notice of termination because of redundancy on or after the Twenty-[NAME] day of April, One Thousand Nine Hundred and Seventy-one be deemed to have been given not less than twenty-four months notice of such possible redundancy from that date.

The Tribunal however came to the following conclusion with respect to its jurisdiction:

It follows that no presently existing industrial matter exists which can invoke the jurisdiction of this Tribunal. I should also add that I would not find any industrial dispute to be in existence for the reasons I have already outlined. It was contended for [COMPANY] before this Court that mandamus should go to the Tribunal requiring it to exercise the jurisdiction conferred on it by the Act to consider and determine the industrial question set out in the notification of dispute. It was submitted that the source of the Tribunal's jurisdiction was s. 88U of the Act, which states, so far as it is material:

(1) The Tribunal is empowered—

(ii) employment of [NAME] by [COMPANY];

Section 88H of the Act contains the following definitions: "industrial question" means a dispute or question as to industrial matters, including an inter-State industrial dispute.

"industrial matters" means all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, [NAME] employed or to be employed by employers.

The Tribunal found that there was not a dispute as to a matter pertaining to terms or conditions of service or employment of the [NAME] in question and so as to an "industrial matter" within the meaning of s. 88H, but rather a dispute as to an exercise by [NAME] of its right of giving notice according to a condition set out in the Award and not in issue as to its meaning. In my opinion this finding was correct.

It was further argued before this Court that an industrial question was raised by the Federations' proposal that the Award be varied by the substitution for s. 5K of the suggested section proffered during argument before the Tribunal. In my opinion [COMPANY]'s request that the Award should be thus varied did raise an industrial question as to a matter pertaining to terms or conditions of service or employment of the [NAME] to whom notice had been given.

It must be decided therefore whether the Tribunal did in fact consider and determine this question. The Tribunal made the following finding on this point:

It could only involve an industrial matter if, having found that [NAME] could not be justified in taking the action to terminate, I were to qualify the present terms and conditions of employment so as to make some provision for the effects of the company's decision. But where is my authority to inquire into the company's decision? I am really being asked to assume that authority quite gratuitously without any foundation for so doing and then to manufacture, as it were, an industrial matter from the result of my inquiry. This is insupportable.

In my judgment the Tribunal did consider and determine this question. It acknowledged its power to vary the Award in the way requested but refused to do so on the valid ground that such a variation could only be made after an examination of [NAME]' reasons for giving notice, an examination which it regarded as unjustifiable. This amounts in my opinion to a proper consideration by the Tribunal of the matter before it and a determination of the matter pursuant to such consideration.

In my opinion therefore the rule nisi should be discharged.

[NAME] J.

This is an application to make absolute an order nisi for mandamus sought, presumably, under the Constitution, s. 75 (v.), to command the Deputy President of the Commonwealth Conciliation and Arbitration Commission, constituting the [NAME] Tribunal, to consider and determine an industrial question between the [COMPANY] of [NAME] and [COMPANY]., submitted to the Tribunal by [NAME] pursuant to a notification of dispute dated 21st September 1971 and numbered T. 17 of 1971. The ground alleged is that the Tribunal has refused to exercise the jurisdiction conferred upon it by Pt IIIA of the Conciliation and Arbitration Act 1904-1970 Cth to consider and determine such a question. [NAME], which is a declared body under s. 88Z of the Act, is a party to the current Award made earlier by the Tribunal, viz. [NAME]) Award 1970.

The Tribunal did, I think, decide—subject to one reservation to be referred to later—that it had no jurisdiction in the matter because the notification of dispute referred to did not raise an industrial question for determination.

Part IIIA of the Act empowers the Tribunal "to consider and determine industrial questions" (s. 88U). An "industrial question" is "a dispute or question as to industrial matters " (s. 88H). " "Industrial matters" means all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, [NAME] employed or to be employed by employers" (s. 88H). It is to be observed that this definition of industrial matters is considerably narrower than the better known definition of such matters in s.

4. Among other things, it would not seem to cover either a refusal to employ or reinstatement in employment once employment has ceased.

It is with the foregoing provisions in mind that I examine the notification of dispute to ascertain whether it did raise an industrial question for determination. For the present, I exclude from consideration par. 6 of the notification and reserve it for later consideration, because it seems to me that the Tribunal did, rightly or wrongly, deal with the subject matter of this paragraph.

The notification asserts the existence of an industrial dispute with respect to matters set out in twelve paragraphs. The facts asserted are that [NAME] had given notice of retrenchment on the ground of redundancy to [NAME]. For the rest, apart from alleging matters of hardship, the paragraphs are argumentative; they record that [COMPANY] does not believe that there was a state of redundancy and does believe that the notices should not have been given and should be withdrawn. There is attributed to [NAME] the failure to avert an actual redundancy, and it is argued that it should have taken steps to increase its operations and consequently its requirements of [NAME]. In the notification there is nothing at all about varying the existing Award.

The Tribunal, not unnaturally, had some difficulty in ascertaining from the document what was said to be the industrial question that it was requested to determine, and, in an attempt to obtain elucidation of this, it invited those representing [COMPANY] to submit a form of order sought for the determination of the industrial question which it was claimed had arisen. Pursuant to this request, two forms of order were put forward. They were as follows:

Whereas on the 21st day of September, 1971, notification was given by the [COMPANY] of an industrial question relating to the retrenchment of [NAME] and cadet [NAME] employed by [COMPANY]

That the said [COMPANY] withdraw notices of termination of services served on the said [NAME] and cadet [NAME] and

That the said [NAME] and cadet [NAME] be continued in employment by the said [COMPANY].

Dated this_______day of October in the year One Thousand Nine Hundred and Seventy one.

Signed...............................................................................................

Tribunal

Dated this___________day of October in the year One Thousand Nine Hundred and Seventy-One.

Tribunal

It is to be observed that each of the proposed determinations recited that there had been a notification of an industrial question and that this had come on for hearing.

My examination of the notification of dispute, excluding par. 6, satisfies me that it does not raise any question pertaining to the terms and conditions of service or employment of the [NAME], unless such a question appears from par. 9 which is in these terms:

[COMPANY] believes that the [NAME] should not have been given notice of retrenchment and that such notices should be withdrawn. It would seem that the first of the foregoing proposals for a determination was probably drawn with this paragraph in mind.

The primary matter for determination, as I see it, is whether the assertion of a belief or the making of a claim in terms of par. 9 is the formulation of an industrial question, i.e. a question pertaining to "terms or conditions of service or employment" of [NAME] employed by [NAME].

At this point it is necessary to set out two provisions of the existing [NAME]) Award. They are s. 5, A (in part) and K:

(ii) thereafter by twenty-eight days notice in writing; or

It appears that, in purported compliance with the foregoing provisions, [NAME] had, on 22nd April 1971, given the [NAME] concerned six months' notice of termination due to redundancy.

Here too I should also set out par. 6 of the notification of dispute referred to previously:

Sub-section K of Section 5 of the [NAME]) Award 1970 prescribed that it shall be the duty of the Company to give to all [NAME] at least six months notice of possible termination on account of redundancy. Such provision by wording and intent required the Company to give notice of possible redundancy, whereas the Company at the time of issuing notices declared an absolute state of redundancy. It is in [COMPANY]'s view unacceptable that, in respect of [COMPANY], a genuine state of redundancy would exist one month after [NAME] had been assured that no such state existed and that their careers were assured.

It seems that the Tribunal did actually consider and determine the question raised by this paragraph. The decision was that the submission, that notices given were invalid, failed. Whether or not this decision was correct has no bearing upon the present complaint that jurisdiction was wrongly refused. In relation to this matter there was, rightly or wrongly, an exercise of jurisdiction. In any event the judicial interpretation of an award is not a matter for the Tribunal.

I now turn back to what I have described as the primary matter for decision, namely, whether par. 9 of the notification gives rise to an industrial question.

There is no doubt that a question about the notice to be given to dismiss employees, and the procedures to be followed in dismissing employees, would be an industrial question within the definition of s. 88H, for those matters do pertain to the terms and conditions of employment. Thus pars. A and K of s. 5 were properly included in the existing award. Furthermore, of course, the question whether these existing terms should be altered, for any reason, would be an industrial question. It is, however, another matter if the question which has arisen is whether or not, in doing what has been done in dismissing employees, [NAME] has fulfilled its obligations relating to the dismissal of employees. Such a question would not pertain to terms and conditions of employment. It seems to me that any question raised by par. 9 of the notification is of this character. It relates entirely to policy and in no way to the terms and conditions of employment of [NAME].

Accordingly, in deciding that the notification—apart from par. 6—did not raise an industrial question, and in deciding not to hear the matter further, the Tribunal did not refuse to exercise a jurisdiction which it had; rather, it correctly decided that the giving of the notification, relied upon to raise an industrial question, did not do so.

There is, however, a complication that requires consideration. It arises from the putting forward by [NAME] of the [NAME] proposal for an order already set out. Part of what is there proposed is that the existing award should be varied and, before us, it was contended that the Tribunal wrongly decided that it had no jurisdiction to make such an order. If, of course, the Tribunal had, upon a request for a variation, so decided that it had no power to do so, there would have been a refusal to exercise a conferred jurisdiction, for the question whether an award should be varied in regard to a term or condition of employment is an industrial question, whatever be the ground upon which the application to vary may be made. For instance, an application to vary, based upon the suggestion that existing terms had been unnecessarily applied, would give rise to an industrial question.

It is necessary, therefore, to determine whether the Tribunal did refuse to determine a question about the variation of par. K of s. 5 of the Award. I do not think it did. In the first place, the draft determination was submitted, not to raise an industrial question, but to help elucidate whether any industrial question had been raised by the earlier notification. As I have already said, there is nothing in the notification relating to the variation of the existing Award. Furthermore, the Tribunal did not deny that it had jurisdiction to deal with an application to vary the existing Award. What the Tribunal did decide in this regard was that no question about the variation of the Award could arise unless it had been found that there was insufficient justification for [NAME] having taken action to terminate the employment of the [NAME] to whom notice was given. What was said is as follows:

As I have already pointed out, the question which I have been asked to decide is the justifiability of the decision of [NAME] to terminate on account of redundancy. This essential issue requires me to hear evidence of the nature described in the opening address presented on behalf of [COMPANY]. The outline of that evidence is contained in the notification. The issue involved, and this is what the dispute is about or what the question involves, is whether there has been a managerial mistake on the part of [NAME]. It is really whether a management decision pertaining to the retrenchment of the [NAME] is wrong and ought to be corrected. But there is no defined industrial matter involved in that issue at all. It could only involve an industrial matter if, having found that [NAME] could not be justified in taking the action to terminate, I were to qualify the present terms and conditions of employment so as to make some provision for the effects of the company's decision. But where is my authority to inquire into the company's decision? I am really being asked to assume that authority quite gratuitously without any foundation for so doing and then to manufacture, as it were, an industrial matter from the result of my inquiry. This is insupportable. This cannot be read as a refusal to exercise a jurisdiction to vary an existing award.

To obtain mandamus [NAME] must show that the Tribunal was requested to exercise a particular jurisdiction, which it had, and that this request was refused. This has not been shown. Furthermore, any order for mandamus would have to be precise about the jurisdiction to be exercised by the Tribunal. What is sought by the order nisi is that the Tribunal should "consider and determine an industrial question between the [COMPANY] and [COMPANY]. submitted to it by [NAME] pursuant to notification of dispute dated 21st September 1971 and numbered T.17 of 1971". In an endeavour to make more precise the order now sought, counsel for [NAME] asked this Court to make an order as requested but with an addition as follows: " as an application for the variation of the [NAME]) Award." An order in such terms, however, could obviously only be made if there were to be found in the notification of dispute an application for the variation of the Award and, as I have pointed out, there is no such application.

It is for the foregoing reasons that I consider that the order nisi should be discharged.

It was contended on behalf of [NAME] that, if there were otherwise grounds for granting the mandamus sought, it should be refused because now none of the [NAME] affected by the notice of retrenchment referred to in the notification of dispute remain in the employ of the company and that, consequently, any industrial question that there may have been has already disappeared. Having regard to what I have already decided, it is unnecessary for me to deal with this contention, and I refrain from so doing.

[NAME] J.

I agree that this application should be refused and the rule nisi discharged. I consider that there was no industrial question, in the statutory sense, which gave the [NAME] Tribunal a jurisdiction which it refused to exercise. The grievance of [NAME], as expressed in its original notification of what it called an industrial dispute, was that its members who had been given notice of the termination of their employment would suffer hardship. That, although it may attract sympathy, does not confer jurisdiction. The Award provides for the termination of the services of [NAME] because of redundancy. The expression is clumsy: but the meaning is plain. The contention that the respondent, [NAME], had a duty "to avert a redundancy situation" and that it should have "taken steps to increase its operations and thereby its pilot establishment" is simply a complaint of the way in which it had managed its affairs. The Tribunal has no obligation, indeed I consider no authority, to investigate the way in which an employer conducts his business if he does so within the framework of the existing law. A mandamus can issue out of this Court against the Tribunal, or more accurately against the officer of the Commonwealth who constitutes it: The Constitution, s.

75. A mandamus commands the person to whom it is addressed to do an act or to shew cause why he has not done it: High Court Rules, O. 55, r.

19. I do not think that any such order could issue on the existing material, for it is not apparent to me what it is said that the Tribunal has failed to do that it ought to have done. Having regard to the way the proceedings before the Commissioner who constituted the Tribunal developed, what he was asked was really to vary the existing award, by repealing one provision of it and substituting a provision in a different form which would have a retrospective operation. As I read his judgment he declined to do this, not because he held that he had no jurisdiction to vary the Award, but because he considered that no occasion for doing so had arisen. I need not elaborate further my agreement in the judgment of the Chief Justice.

[NAME].

I have had the advantage of reading the judgment prepared by the Chief Justice. I agree with it and with the order proposed by him.