CFMEU v Ausn Industrial Relations Commission & Anor M38/1999 [2000] HCATrans 20 (11 February 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M38 of 1999

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

and

THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of The Honourable Justice Paul Munro, The Honourable Senior Deputy President Colin Polites and Commissioner Errol Hodder

First Respondent

GORDONSTONE COAL MANAGEMENT PTY LTD

Second Respondent

Application for special leave to appeal

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2000, AT 11.36 AM

Copyright in the High Court of Australia

____________________

MR S.C. ROTHMAN, SC: If the Court pleases, I appear with my learned friend, MR S.J. HOWELLS, for the applicant. (instructed by R.L. Whyburn & Associates)

MR F. PARRY: If the Court pleases, I appear for the second-named respondent. (instructed by Corrs Chambers Westgarth)

McHUGH J: Yes. The Deputy Registrar has handed me a certificate which states that she has been informed by the Australian Government Solicitor, the solicitors for the Australian Industrial Relations Commission in this matter, that the Commission does not wish to make any submissions and will abide by any decision of the Court save as to costs.

Mr Parry, we think we might hear from you in the first instance.

MR PARRY: If your Honour pleases. It is the submission of the second respondent that the judgment and orders of the Full Federal Court were correct and that no issue of public importance is raised by this application.

The issue is not under what constitutional power a disputes procedure comes to be in a certified agreement. Rather, the issue is, under section 89A, what the Commission is being asked to do. If the Commission is dealing with an industrial dispute by arbitration then section 89A applies. Your Honours, section 89A is a section which applies when the Commission is required to exercise a function dealing with the industrial dispute by arbitration.

We say that, in the case before the Court, the disputes procedure that occurred in the - I think it is set out, your Honour, at pages 31 and 32 of the application book. The procedure that is set out therein required that there be a determination by the Commission. Such a determination necessarily, in my submission, raised the issues of the Commission commencing an arbitration and we say that, on the wording of this particular disputes procedure, when the Commission commenced such an arbitration, it was then caught by section 89A. Your Honours, the issue about section 170MH

which is raised, in my submission, is beside the point. Section 170MH does not give the Commission more power, it is simply allows the parties to include a disputes procedure in a certified agreement.

McHUGH J: Yes, but one problem with the Full Court's reasoning, is it not, is that the scheme does not limit the powers of the Commission to make certified agreements in respect of allowable matters only, but if the Federal Court is right, then it can only make determinations in respect of allowable award matters?

MR PARRY: Yes, that depends on what the parties have agreed and it depends what functions they have given to the Commission. The parties themselves cannot give the Commission more power than it has under the legislation. They can only - and if the Commission is given powers beyond that, then it is not acting under the Workplace Relations Act 1988 . The functions and powers of the Commission are as prescribed in the Act and if the parties, by agreement, give the Commission a role in their dispute settling process, then that role must be one - the genesis for which can be found in the Industrial Relations Act .

McHUGH J: I appreciate that but it does seem rather odd, does it not, that the Commission has power to certify agreements in respect of non-allowable matters and yet it only has power to determine disputes about the application of an agreement in respect of allowable award matters?

MR PARRY: That, in my submission, your Honour, is the natural and logical reading of section 89A. Your Honour would be reading down section 89A by importing words into it but it would not apply where parties have agreed under a certified agreement to something different. In my submission, what the parties have agreed here is to give the Commission an arbitral role. When the Commission is given that arbitral role, it is necessary to see whether there is any limits on that arbitral role and section 89A, read simply, puts a limit on the Commission when exercising that arbitral role.

When one goes to section 89A, there is no reason for giving it a broader reading. It simply should be read in accordance with its normal terms. In my submission, when the Commission is exercising a power of either conciliation or arbitration, when it exercises the arbitral powers it is caught by section 89A.

McHUGH J: Well, that is a question whether there is an industrial dispute, is it not? If the dispute before the Commission, pursuant to clause 22, and 170MH is not an interstate dispute, then 89A does not apply.

MR PARRY: Your Honour, the parties can agree between themselves to allow the settling of other manifestations of the dispute and when the parties agree under section 170MH, they have agreed to allow the Commission to settle the underlying industrial dispute and, presumably, its manifestations.

McHUGH J: Yes. If special leave was granted, would you be wanting to raise a notice of contention to say that this was not made in settlement of an industrial dispute?

CALLINAN J: An interstate - - -

McHUGH J: Interstate?

MR PARRY: Yes, your Honour.

McHUGH J: You would?

MR PARRY: Yes, because, as your Honours would appreciate, that was an issue that was seriously canvassed - - -

McHUGH J: That was a point, yes.

CALLINAN J: Would that involve any attack upon the notion of the so-called paper dispute?

MR PARRY: Not in large part, your Honour. As I recall, the industrial situation that was relied on, was not simply a paper dispute matter, so I am not sure that this would raise those issues, your Honour.

McHUGH J: Would you want to be attacking Hegarty at all?

MR PARRY: Your Honour, there certainly would be submissions made about some of the observations made in Hegarty.

McHUGH J: Yes. In any event, I am talking about matters that can only arise if special leave was granted, so I am interfering with your time so you might deal - - -

MR PARRY: If your Honour pleases. The submission - - -

McHUGH J: You could help me on this: "certified agreement" is defined as an agreement certified under Division 4 of Part VIB of the Act, is it not, and yet this particular agreement was certified under section 170MC which was in Division 2 of Part VIB? How does this come to be a certified agreement for the purposes of 89A?

MR PARRY: Your Honour, it is not any part of our argument that the status of this instrument as a certified agreement is relevant to the operation of section 89A. We say that section 89A comes into force and operates when the Commission comes to exercise a function and in our submissions today, we say when it exercises the functions of arbitration then section 89A comes into play.

McHUGH J: Yes, well, the Full Court did say it was a certified agreement for the purpose of the Act but I do not think it was necessary to its reasons and I think it has some problems about it, but your argument is that section 89A does not refer to certified agreements, is it?

MR PARRY: That is right, and it is not to the point for any part of our submission, your Honour.

McHUGH J: No.

MR PARRY: Of course, the certification of this agreement was under - and this is one of the other reasons why we say special leave is not warranted. It is under the Industrial Relations Act 1988 . This was a certified agreement under that Act.

McHUGH J: Yes, I know.

MR PARRY: Accordingly, when it comes to the interpretation and force of section 170MH and also the certification of agreement provisions in MC, we submit that - - -

McHUGH J: But are not all certified agreements which confer power on the Commission to resolve disputes affected by this decision and not only those under the former Act? It must apply.

MR PARRY: It would generally apply subject to this though, your Honour. Of course, the Workplace Relations Act 1996 now allows for certification of agreements between constitutional corporations. Therefore, there is two streams of agreements, some that may be referable to the industrial constitutional head, others referable to the corporations constitutional head and that would be a consideration in looking at the analogous provision in the Act as it stands now. So, we do not necessarily accept that any law that pertains to section 170MH necessarily automatically translates to section 170LW of the new Act.

Your Honour, 170MH of the old Act has been relied on both by the Full Federal Court and was relied on by the Commission. I should submit that 170MH is a discretionary matter. It does not require that there be a particular form of settlement of disputes procedure placed in any agreement and the form of the settlement of disputes procedure, we say, there are any number of different forms of settlement of disputes procedure, some which would expressly allow for arbitration; some which would allow for mediation; some which may allow for conciliation.

We submit that if the Commission is given a function it is a function that it can exercise under the Act. It cannot be given a function outside that. The functions of the Commission, as under the Act, are conciliation and arbitration, therefore, one should come to view what particular function the Commission is exercising. If it forms the view that it is exercising an arbitral power then we submit that section 89A should be given its normal terms and the normal terms of 89A would limit the matters upon which the Commission could arbitrate.

We say there is nothing in the dispute settling procedure here which gives the Commission other powers that specifically speaks of determination. We say a determination is clearly an arbitration. In those circumstances, we submit that the decision of the Full Federal Court was right. It correctly constructed 89 - - -

McHUGH J: Yes, I appreciate that, but you have the very experienced judges of the Full Bench. They held what? They rejected your submission that there was no dispute between the parties that sustained the making of the resolution procedures and that is a point you would want to raise by a notice of contention. They rejected your submission that there was no interstate dispute, properly underpinning clauses 21 and 22, because they were inserted for the purpose of determining local disputes and the Full Bench rejected your submissions that even if the resolution procedures were within jurisdiction, the role given to the Commission was constrained by section 89A.

The Federal Court took a different view about the last of those matters. But they do raise some very important issues, it seems to me, on which there are respectable arguments on each side and I must say, speaking for myself, it seems to me it is a case that does raise a matter for special leave, particularly given the difference of opinion between the Commission and the Federal Court.

CALLINAN J: I agree with that.

MR PARRY: Your Honour, I only further submit that we say that the public importance matters are not there.

McHUGH J: Yes.

MR PARRY: If your Honours please.

McHUGH J: Thank you very much, Mr Parry. Yes, there will be a grant of special leave in this matter, Mr Rothman.

AT 11.50 AM THE MATTER WAS CONCLUDED