Genuine and 'Post-modern' Industrial Demands: The State Public Services Federation Decision and Federal Tribunal Practice

Abstract

This article examines the requirement of 'genuineness' in industrial demands—the doctrine established by the High Court, the manner in which the requirement has been interpreted and applied by the Australian Industrial Relations Commission, and the actual and likely future impact of recent developments upon federal tribunal practice. The commission has, as a matter of practice, considered that the service and subsequent rejection of a log of claims involving inflated, ambit demands through the mechanism of the 'paper dispute' was adequate to form the basis of a statutory and constitutional industrial dispute unless there was extremely clear evidence that the log constituted a mere device to attract federal jurisdiction. The result has been that genuineness has not been argued as a crucial issue before the commission in more than a handful of cases in the past decade. The High Court's re- examination of the genuineness requirement undertaken in cases placed before it during 1993 is unlikely to have a dramatic impact on the traditional doctrinal position. On a practical level, however, genuineness has subsequently been raised as a crucial issue on a far more regular basis, and certain changes to commission practice have been necessitated, first, because of perceived tightening of the require ment and, second, because legislative change has reduced the ability of employers to challenge commission jurisdiction on other bases.