Australasian Meat Industry Employees’ Union v; G and K O'CONNOR

[2001] FCA 624

FEDERAL COURT OF AUSTRALIA

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION v
G & K O'CONNOR [2001] FCA 624

INDUSTRIAL LAW – certified agreement made under Industrial Relations Act 1988 Div 3A Part VI – since expired but asserted by the Union to be continuing in operation under holding over provisions in respect of the certified agreement both contractual and statutory – whether such certified agreement displaced by either or both of two awards made subsequently during the holding over period by reason of the employer rejoining its relevant organisation of employers prior to the making of such awards – whether such two awards related to the same matters within s 148(1) of the Act as those the subject of the certified agreement.

Industrial Relations Act 1988 (Cth) ss 4(1), 111(1)(b), 111(1)(c), 113, 114, 134E(1), 134(J)(2), 134J(3), 134K, 134M, 134N, 148(1), 148(2), 149(1)(f), 149(2), 178(1), 178(4), 178(6)
Workplace Relations Act 1996 (Cth) ss 4(1), 89A(1), 89A(3), 143(1), 148(1), 148(3)
Industrial Relations Reform Act 1993 (Cth) s 35(2)(b)
Workplace Relations and Other Legislation Amendment Act 1996 (Cth) s 143
Conciliation and Arbitration Act 1904 (Cth)

Australasian Meat Industry Employees Union v G & K O’Connor Pty Ltd (2000) 104 FCR 80 referred to
Australasian Meat Industry Employees’ Union v Hamberger (2000) 102 FCR 74 applied
Brunton v Commissioner of Stamp Duties [1913] AC 747 applied
Burwood Cinema Ltd v Australian Theatrical & Amusement Employees Association (1925) 35 CLR 528 referred to
Byrne v Australian AirlinesLtd (1985) 185 CLR 410 referred to
Construction, Forestry, Mining and Energy Union v Botany Cranes & Forklift Services Pty Ltd (1997) 73 IR 44 applied
May v Lilyvale Hotel Pty Limited (1995) 68 IR 112 considered
North Western Health Care Network v Health Services Union of Australia (1999) 92 FCR 477 considered
Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235 referred to
Telstra Corporation Ltd v MacBean (1999) 97 FCR 421 referred to
The Queen v Tonkin; ex parte Federated Ship Painters and Dockers’ Union of Australia (1954) 92 CLR 526 considered
The Western Australian Timber Workers’ Industrial Union of Workers (South West Land Division) v The Western Australian  Sawmillers’ Association (1929) 43 CLR 185 referred to
Monard v H.M. Leggo & Co Ltd (1923) 33 CLR 155 referred to
R v Recorder of Oxford; ex parte Brasenose College [1969] 3 All ER 428 referred to
Bithell v Bithell [1955] P 76 referred to
George Hudson Ltd v Australian Timber Workers Union (1923) 32 CLR 413 considered
The Commonwealth v Verwayen (1990) 175 CLR 394 referred to
R v Clarke [1969] 2 QB 91 referred to
Amalgamated Collieries of W.A. Ltd v True (1938) 59 CLR 417 referred to
True v Amalgamated Collieries of W.A. Ltd (1940) 62 CLR 451 referred to

Pearce and Geddes, Statutory Interpretation (4^th ed, 1996) para 2.17
Young, Declaratory Orders (2^nd ed, 1984) para 101

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION AND ORS v G & K O'CONNOR PTY LTD

V 723 OF 2000

CONTI J
29 MAY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V 723 OF 2000

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION AND ORS APPLICANTS
AND:	G & K O'CONNOR PTY LTD RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	29 MAY 2001
WHERE MADE:	SYDNEY

THE COURT DECLARES THAT:

1.Upon the true construction of the Industrial Relations Act 1988 (Cth) (“IR Act”) and in particular Division 3A of Part VI thereof, paragraph (f) of sub-section (1) of section 149 of the IR Act has so applied to the events which have happened as to have displaced the operation of the following awards made under the Workplace Relations Act 1996 (Cth) (“WR Act”) namely:

(a)Consent Order of the Industrial Relations Commission (“the Commission”) made on 15 June 2000 pursuant to section 113 of the WR Act by way of variation of the Federal Meat Industry (Processing) Award 1996, and

(b)Order of the Commission made on 21 November 2000 pursuant to the WR Act known as the Federal Meat Industry (Processing) Award 2000,

in favour of the Victorian Meat Processing Agreement bearing date 8 December 1992 made between the Respondent employer of the one part and the First Applicant representing all employees of the Respondent engaged in the processing operations undertaken by the employer of the other part, the same having been certified under the provisions of the said Division 3A, save and except as to those employees who have entered into Australian Workplace Agreements.

2.The conduct of the Respondent in purported exercise of the election conferred by Clause 26.1 of the Federal Meat Industry (Processing) Award 1996 was of no force or effect.

THE COURT ORDERS THAT

1.The proceedings be stood over for directions as to the hearing of the Applicants’ monetary claims.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V 723 OF 2000

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION AND ORS APPLICANTS
AND:	G & K O'CONNOR PTY LTD RESPONDENT

JUDGE:	CONTI J
DATE:	29 MAY 2001
PLACE:	SYDNEY

INDEX FOR REASONS FOR JUDGMENT

Paragraph No.

Generally  1

The 1992 Victorian Meat Processing Agreement  2 to 7

Subsequent history of awards made by the Commission and of
negotiations and disputation between AMIEU and O’Connor
leading to Federal Court litigation  8 to 11

Identification of the body of law governing enforcement of the
1992 Agreements  12 to 14

The monetary claims made by the AMIEU in the subject
proceedings  15 to 16

Summary of principal issues raised by O’Connor  17 to 19

The operation of s 149(1)(f) and s 148(1) in relation to the 2000
Variation and FMIPA 2000 in the events which have happened as
summarised in these Reasons for Judgment  19 to 44

Whether O’Connor was entitled to make an election to use a
time-work system rather than a tally system  45 to 53

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V 723 OF 2000

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION AND ORS APPLICANTS
AND:	G & K O'CONNOR PTY LTD RESPONDENT

JUDGE:	CONTI J
DATE:	29 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Generally

1. These proceedings were heard on 13 to 15 December 2000 and 14 February 2001 for the purpose of adducing evidence. A large amount of documentary material was provided. The closing addresses of counsel were directed to the relevant legislation bearing upon the documentary evidence tendered in the proceedings, and it was agreed that any assessment of monetary claims and penalties should be deferred, pending my resolution of the main issues of law arising in the proceedings concerning the Applicants’ entitlement in principle to such claims and penalties. I was presented prior to oral addresses with 34 pages of written submissions of the Applicants, and 54 pages of written submissions of the Respondent (inclusive of a summary of relevant statutory provisions and case law developments since Federation, for which I acknowledge considerable assistance). In anticipation of the oral submissions of the Applicants, which were commenced on 1 March 2001, encroaching significantly into the final day’s hearing on 2 March 2001, the Respondent provided me with 20 pages of written submissions in reply at the close of addresses on that day. The Applicants provided further written submissions of 30 pages some time after the close of the hearing, pursuant to leave so to do, and the Respondent subsequently responded thereto, also by leave, with an additional 21 pages of written submissions bearing date 9 April 2001. In response to a query which I raised in relation to certain legislative provisions, the Applicants provided a further 3 page submission on 7 May 2001, to which the Respondent briefly replied on 11 May 2001.

   The 1992 Victorian Meat Processing Agreement

2. The Respondent Employer G & K O’Connor Pty Limited (“O’Connor”) operates an abattoir at Pakenham in Victoria. It is one of Australia’s leading beef exporters and Victoria’s second largest beef processor, slaughtering approximately 150,000 cattle annually and having an annual turnover in excess of $100 million. Beef processing involves two major steps:

   (i)slaughtering of different types of live cattle (steers, cows and bulls); and

   (ii)boning, slicing and packing beef into meat cuts in cartons for sale into export and domestic markets, either in chilled or frozen form.

   O’Connor employs about 300 persons. Approximately 250 of such persons are beef processing employees. Such beef processing employees may be divided into the following classifications and numbers:

   slaughterers – approximately 20
   boners – approximately 35
   slicers – approximately 35
   labourers – approximately 160

   (labourers are employed on the slaughter floor and boning room)

3. In 1990, there was a significant industrial dispute involving meatworks’ proprietors and meatworkers, being a dispute which prevailed mainly in the States of Victoria and New South Wales. O’Connor was then a member of the Meat and Allied Traders Federation of Australia (“MATFA”), an organisation of employers, and O’Connor was named in the Commission’s findings of 12 October 1992 in relation to such dispute as one of the employers involved in the same. Logs of claims which had formally initiated the dispute had been served by the First Applicant Australasian Meat Industry Employees Union (“AMIEU”) on eleven employers, inclusive of O’Connor. Some time in 1990 or thereafter, and prior to entering into the 1992 Agreement referred to below, O’Connor resigned from MATFA, and did not rejoin such organisation of meatworks’ employers until 3 June 1999, by which time it had changed its name.

4. In the context of prolonged industrial disputation following upon the service of such logs of claims, there was entered into on 8 December 1992 between O’Connor of the one part, and the AMIEU of the other part, the so-called Victorian Meat Processing Agreement (“the 1992 Agreement”) relating to O’Connor’s said meatworks at Pakenham. Such contractual arrangement stipulated terms of employment for piece workers, being slaughterers, boners and slicers, and “follow-on labourers”, and for time workers, being labourers generally. In the case of the AMIEU, it entered into the 1992 Agreement as representative of all employees engaged in the processing operations undertaken by O’Connor (see Clause 1.2(a) extracted in [6] below). The other Applicants in the proceedings before me, apart from AMIEU are the remaining members of the AMIEU employed by O’Connor, and the convenient course is to include all Applicants in the abbreviation “AMIEU”, except where inconsistent with the context. The 1992 Agreement was expressed to come into operation from the beginning of the first pay period commencing on or after 18 December 1992, and to continue in force until 30 September 1995. Thereafter the following “holding over” provisions were to apply:

   “1.3     Duration and Renewal

   …

   (b)The parties to this Agreement agree that negotiations to renew this Agreement will commence two months prior to the expiration of the Agreement.

   (c)Should negotiations not achieve agreement, the wages and conditions of employment shall continue as at the date of expiration.”

5. The Industrial Relations Act 1988 (Cth) (“the IR Act”) came into operation on 1 March 1989. The IR Act repealed the Conciliation and Arbitration Act 1904 (Cth). Subsequently there commenced in operation on 23 July 1992 Division 3A of Part VI of the IR Act headed “Certified Agreements”. Thus when the 1992 Agreement became certified by the Australian Industrial Relations Commission (“the Commission”) on 18 December 1992, that certification occurred under the auspices of such 1992 amendments. Paragraphs (a), (b) and (c) of s 134E(1) contained within the 1992 amendments read as follows:

   “134E            Certification of Agreements

   134E(1)The Commission must certify an agreement if, and must not certify an agreement unless, it is satisfied that:

   (a)the agreement does not, in relation to their terms and conditions of employment, disadvantage the employees who are covered by the agreement; and

   (b)the agreement includes procedures for preventing and settling further disputes between the employers and employees covered by the agreement about matters arising under the agreement; and

   (c)subject to subsection (3), before the application for certification of the agreement was made, each organisation of employees that is a party to the agreement took reasonable steps:

   (i)to consult with those of its members whose employment is covered by the agreement over the terms of the agreement; and

   (ii)to inform those members of the organisation’s intention to apply for certification;”

   Subsequent to the formation of the 1992 Agreement, that is to say, on 26 July 1993, a further log of claims was served by AMIEU on some 854 employers who covered the full range of AMIEU’s membership in Australia, inclusive of retailers and wholesalers. These claims were significantly different to those made in the logs referred to in [3] above. On 22 November 1993, yet a further log of claims was served on MATFA and an additional seven (7) employers. The hearings in relation to these additional claims did not conclude until January 1995. O’Connor was not served with any of those logs of claims, such process having taken place before the expiration of the term of the 1992 Agreement on 30 September 1995.

6. Paragraphs (a), (b) and (c) of Clause 1.2 of the 1992 Agreement reflect the contractual intentions of the parties thereto concerning the ambit of application thereof as follows:

   “1.2     Application of Agreement

   (a)This Agreement has been negotiated between G & K O’Connor Pty Ltd [O’Connor] and the Australasian Meat Industry Employees Union, representing all employees engaged in the processing operations undertaken by [O’Connor].

   (b)This Agreement is binding on the union and shall apply to its officers and members and [O’Connor] and the employees of [O’Connor} employed in Victoria who are eligible to be members of the union, whether members of the union or not.

   (c)This Agreement shall apply in relation to any employment to which it is applicable to the exclusion of the provisions of the Victorian Meatworks and By-Products Agreement Award and any Agreement based thereon or the Federal Meat Industry Award 1981 as varied and any Award varying or replacing the said Award or any other Award.”

7. The 1992 Agreement, which comprises some 59 pages, purported to regulate a comprehensive list of subject matters, a glimpse of which may be obtained from the following headings and sub-headings:

   “2.      Conditions of Employment

   2.1Contract Of Employment

   2.2Work To Be Performed

   2.3Changes to Systems & Methods of Work

   2.4Hours Of Work

   2.5Rostered Days Off

   2.6Starting And Finishing Times

   2.7Shift Work And Work On Weekends & Public Holidays

   2.8Redundancy

   2.9Payment Of Wages

   2.10Meal Times

   2.11Employee Facilities

   2.12Employee Liability

   2.13Juveniles

   3.Pay Rates

   3.1Slaughterers

   3.2Boners And Slicers: Pieceworkers

   3.3Follow-On Labourers

   3.4Other Labourers

   3.5Additional Payments For Labourers

   3.6Juveniles

   3.7Guaranteed Minimum Weekly Payments

   3.8Penalty And Disability Payments

   4.Additional Payments

   4.1Overtime

   4.2Waiting Time

   4.3Work On Time

   4.4Make Up Pay

   4.5Guaranteed Minimum Payment

   4.6Intermittency Payment

   4.7Meal Allowance

   4.8Superannuation

   5.Production Processes

   5.1Grindstones

   5.2Tools Of Trade

   5.3Sharpening Of Knives

   6.Leave Provisions

   6.1Annual Leave

   6.2Sick Leave

   6.3Long Service Leave

   6.4Public Holidays

   6.5Compassionate Leave

   6.6Parental Leave

   6.7Special Leave

   6.8Jury Service

   6.9Eve’s Days

   6.10Resuming After An Absence

   7.Union Arrangements

   7.1Preference

   7.2Right Of Entry

   7.3Union Meetings

   7.4Notice Board

   7.5Time And Wage Records

   8.Consultative Arrangements

   8.1Union Shop Committee

   8.2Union/Management Consultative Committee

   8.3Settlement Of Disputes

   9.Occupational Health and Safety and Rehabilitation

   9.1OHS Act

   9.2Rest Periods

   9.3Protective Clothing

   9.4First Aid

   9.5Handling Condemned Carcases

   10.Training

   10.1Process For Development Of Training

   10.2Induction Training

   10.3Training Of Pieceworkers

   10.4Trade Union Training Leave

   11.Piecework Provisions

   11.1General Provisions

   11.2Beef Slaughtering On Rail

   11.3Boning, Slicing & Packing

   11.4Follow-On Labourers”

   Subsequent history of awards made by the Commission and of negotiations and disputations between AMIEU and O’Connor leading to Federal Court litigation

8. The subsequent history of negotiation and disputation between the AMIEU and O’Connor summarised in [9] below has been partly adapted from the findings of two Full Court decisions in proceedings between the parties, the first delivered on 25 August 2000 (AMIEU v Hamberger and Anor (2000) 102 FCR 74 (Beaumont, Lee and Gyles JJ)) to which I will hereafter refer as “Hamberger”, and the second delivered on 5 December 2000 (AMIEU v G & K O’Connor Pty Ltd (2000) 104 FCR 80 (Wilcox, Merkel and Finkelstein JJ)). That first proceeding in particular bear significantly upon the resolution of the issues here arising.

9. The material events thus leading to or bearing upon the present litigation between AMIEU and O’Connor are summarised as follows:

   (i)Negotiations between AMIEU and O’Connor for renewal of the 1992 Agreement commenced in late 1995, and some new conditions were agreed with effect from the middle of 1996, and apparently implemented for the time being. As I have already indicated, the fixed term of the 1992 Agreement expired on 30 September 1995, and thereafter the holding over provisions stipulated by Clause 1.3(c) thereof commenced to apply (see [4] above). Negotiations between O’Connor and AMIEU on additional matters continued until the end of 1996, and some further conditions were agreed and implemented for the time being.

   (ii)Such negotiations between AMIEU and O’Connor took place in the context of the wider contentious negotiations triggered by the logs of claims, referred to in [5] above, between AMIEU and numerous employer wholesalers, retailers and meatworks represented by National Meat Association of Australia (“NMAA”), the employer’s organisation formerly called MATFA (see [3] above). Such employers did not include O’Connor, which had not rejoined NMAA at this stage, and which had in any event concluded its own arrangements with O’Connor back on 8 December 1992 in the form of the 1992 Agreement, and after the expiration whereof resumed negotiations for a renewed certified agreement. NMAA has been at all material times an organisation of employers registered under the IR Act and subsequently the Workplace Relations Act 1996 (Cth) (“WR Act”).

   (iii)On 19 December 1996, a Consent Award was made by the Commission for the implementation of a new Federal Meat Industry [Processing] Award (“FMIPA 1996”), which purported to supersede the 1981 award (“FMIPA 1981”) referred to in Clause 1.2(c) of the 1992 Agreement (see Clause 1.2(c) in [6] above). This award was made under s 143 of the Workplace Relations And Other Legislation Amendment Act 1996 (Cth), which came into operation on 25 November 1996 for a period of twelve months, such s 143 constituting a reproduction of much of the text of s 143 of the IR Act. This legislation was subsequently renamed Workplace Relations Act 1996 (Cth) (“WR Act”). The WR Act reproduces a substantial number of other sections and sub-sections of the IR Act, and in doing so conveniently retains the same section and sub-section numbering assigned thereto by the IR Act. One of the main reforms introduced by the WR Act was the facility called Australian Workplace Agreements (“AWAs”). FMIPA 1996 was made in the context of the logs of claims which had been served by AMIEU upon wholesalers, retailers and meatworks located in various States of Australia (see again [5] above). As there indicated, such respondent meatworks did not include O’Connor. The text of the Commission’s Decision preceding the making of the Consent Award comprising FMIPA 1996 included the following:

   “These matters relate to applications by [NMAA] for the making of new minimum rates awards to replace the Federal Meat Industry Award 1981. The awards, which will apply to the processing, smallgoods and retail and wholesale sectors of the meat industry, are to be known as:

   the Federal Meat Industry [Processing] Award 1996;

   the Federal Meat Industry [Smallgoods] Award 1996; and

   the Federal Meat Industry [Retail and Wholesale] Award 1996

   …

   In further proceedings on 16 December 1996, the NMA[A] and the AMIEU advised that agreement has been reached as to the making of the three new awards and the terms of the awards. The awards will initially apply only to the NMA[A] and its members ‘in respect of all their employees in classifications contained herein whether members of the union or not’. However the awards will not apply to employers who, whether members of the NMA[A] or not, are at the date of making the awards bound by a State award. An associated application has been made to the Commission to make the NMA[A] and its relevant members no longer bound by the Federal Meat Industry Awards…

   As part of the agreement between the NMA[A] and the AMIEU, the Federal Meat Industry Award will continue in operation at this stage. However there is scope for other employers bound by that award to become respondents to the new awards in the future, subject to appropriate applications being made. It is envisaged by the parties that the Federal Meat Industry Award will eventually be cancelled.”

   Clause 8 of FMIPA 1996 reads as follows:

   “PARTIES BOUND

   8.This award shall be binding on:

   8.1The Australasian Meat Industry Employees Union, its branches and members; and

   8.2The National Meat Association of Australia and its members in respect of all their employees in classifications contained herein whether members of the Union or not.”

   Thus O’Connor was not bound by FMIPA 1996 at the time the same took effect, for the reason that O’Connor had not by then rejoined the NMAA as an organisation of employers, had thus not been respondent to the log of claims and the consequential Commission proceedings leading to the making of FMIPA 1996, directly or indirectly through membership in the NMAA, and thus had not been involved in the dispute or disputes which resulted in FMIPA 1996. Significantly from AMIEU’s perspective in the proceedings before me, the last paragraph extracted from the Commission’s above Decision commencing “As part of the agreement between…”, indicated that employers still bound by FMIPA 1981, could subsequently become “respondents” to FMIPA 1996 in the place of FMIPA 1981, “subject to appropriate applications being made”. No such application was ever made by O’Connor. FMIPA 1996 was comprehensive in its content, the same extending over some 132 pages, but one critical feature thereof may be emphasised at this point of the narrative of events: as appears from what has been already extracted from the Commission’s above Decision leading to FMIPA 1996, such award was made in response to “… applications… for the making of new minimum rates awards to replace [FMIPA 1981]”. The scheme of the award making provisions of Part VIA of the WR Act is that of “Minimum Entitlements”. Clause 10 of FMIPA 1996 reads as follows:

   “10     RELATIONSHIP WITH OTHER AWARDS

   10 .1    Award respondency

   10.1.1An employer or employer organisation which is respondent to this award is not bound by the Federal Meat Industry Award 1981 from the date of commencement of its respondency to this award.

   10.1.2All rights, obligations and liabilities accrued or incurred under the Federal Meat Industry Award 1981 shall not be affected by the employer becoming bound by this award.”

   As has been seen from Clause 1.2(c) of the 1992 Agreement, the abovementioned FMIPA 1981 had already been excluded from application to the O’Connor employees.

   (iv)In January 1997, following upon the expiration of the fixed term of the 1992 Agreement on 30 September 1995, and the negotiations for renewal thereof thereafter undertaken, a new industrial agreement was entered into between AMIEU and O’Connor, which has been referred to in this present litigation as the “1995 Agreement”. This so-called 1995 Agreement was apparently certified by the Commission, pursuant to the legislative successor to the abovementioned certified agreement provisions of Division 3A of Part VI of the IR Act, namely Divisions 3 and 4 of Part VIB of the WR Act. In mid 1998, AMIEU commenced negotiations with O’Connor for a new collective agreement, but no such further agreement was ever made. Nevertheless, according to the second AMIEU judgment referred to in [8] above, O’Connor observed the terms and conditions contained in such so-called 1995 Agreement until the first lock-out referred to below took place. On a date in 1999 which I have not identified from the vast bulk of material placed before me, the 1995 Agreement was set aside by the Commission, in circumstances not placed in evidence before me.

   (v)On 19 March 1999, O’Connor locked out its employees, purporting so to do under the “protected action” provisions of s 170ML of the WR Act, and the lock-out continued until the middle of August 1999. During that period of time, namely on 3 June 1999, O’Connor rejoined membership of the NMAA, the same being a registered “organisation” as defined by s 4(1) of both the IR Act and the WR Act, and being of course the organisation of employers formerly named MATFA. As will shortly be seen, O’Connor took the view that by so doing, it would effect in law, ipso facto, the displacement of the 1992 Agreement, as a continuing “award” for the purposes of the IR Act, in favour of FMIPA 1996, in pursuance of s 149(1)(f) thereof and by virtue of the operation of s 148(1) of the IR Act and/or the WR Act, in relation to new awards. That intended legal consequence was rejected in Hamberger, because the joining of an organisation bound already by an award did not cause the new member to be bound retrospectively to any pre-existing award, pursuant to s 148(1). In the present proceedings however, O’Connor has contended that such rejoinder of NMAA on 3 June 1999 has the effect in law that the Commission’s subsequent awards binding the NMAA have displaced the 1992 Agreement, pursuant to s 149(1)(f) and by reason of “new award” provisions of s 148(1). Such subsequent awards are summarised in sub-paragraphs (ix) and (x) below.

   (vi)On 14 August 1999, O’Connor sent to each of its locked-out employees for signing a form of AWA, said to be framed under the auspices of Part VID of the WR Act, and on 17 August 1999, O’Connor notified AMIEU that it no longer wished to renew the 1992 Agreement; since that time, the relationship between AMIEU and O’Connor has been marked by unrelenting hostility, and visited by a rash of litigation.

   (vii)From 19 August 1999 until 22 November 1999, which was of course subsequent to O’Connor re-joining NMAA on 3 June 1999, O’Connor put in place a second lock-out of its employees. However on 26 September 1999, AMIEU successfully applied to the Commission for an order under s 127 of the WR Act to the effect that the second lock-out should cease, and such decision in favour of AMIEU was upheld on appeal by a Full Bench of the Commission.

   (viii)On 21 November 1999, the second lock-out came to an end, and on the following day, the O’Connor employees returned to work. By 2 December 1999, however, most of such employees had entered into AWAs with O’Connor, whilst about sixty employees had not done so, and the latter remained members of the AMIEU, though the numbers in the latter category remaining in O’Connor’s employment have since declined to those represented by AMIEU in the proceedings. It is my understanding that since such return to work, all non-AWA employees had been first remunerated by O’Connor on the basis of FMIPA 1996, and subsequently on that basis as varied by reference to the awards respectively described in sub-paragraphs (ix) and (x) below, but at no time since the return to work on the basis of the 1992 Agreement. As already indicated in the Commission’s Decision related to FMIPA 1996, the same was “a new minimum rates award[s]” (see again sub-paragraph (iii) above). It is asserted by AMIEU and supported by affidavit evidence that such remuneration for its production workers has been about 40% lower than what prevailed or would have prevailed at O’Connor’s Pakenham meatworks under the auspices of the 1992 Agreement immediately prior to the first lock-out. In any event, according to the judgment in the second Full Court proceedings between the parties referred to at [8] above, it is common ground that such O’Connor employees’ earnings under the 1992 Agreement, and also their actual earnings up to 14 March 1999, have not been calculated on a “tally” basis for its production workers. In conformity with the 1992 Agreement. In that regard, FMIPA 1996 gave employers the option of calculating remuneration on a time work basis instead of a tally or so-called “piece work” basis, being an option which O’Connor sought to exercise after the conclusion of the lock-outs above referred to, and in the context of its new membership of NMAA obtained on 3 June 1999.

   (ix)On 15 June 2000, a Consent Order was made by the Commission pursuant to s 113 of the WR Act, which purported to vary FMIPA 1996, mainly in relation to the classifications and wage rates appearing in clause 3 of Appendix 3 of FMIPA 1996, such variations being expressed to take effect on or after 3 August 2000, and to continue in force for a period of six months (this instrument is hereafter referred to as “2000 Variation”). NMAA was named as “respondent to this award”. There is no evidence that O’Connor was involved in whatever dispute or disputes gave rise to the 2000 Variation, though as stated above, O’Connor had by then rejoined the NMAA. Thus, O’Connor for its part did not take up the invitation of the Commission referred to in the last paragraph of the text of its Decision on FMIPA 1996 extracted in sub-paragraph (iii) above “… to become respondents to the new awards” the subject of FMIPA 1996, preferring instead to gain the benefit thereof by virtue of its renewed membership of NMAA. The 2000 Variation made certain alterations in relation to what O’Connor submits to fall entirely within the matter of what it designated by the wide description of “remuneration”. I henceforth use the word “matter” or “matters” because of the reference to those important words in s 148(1) of the IR Act. The 2000 Variation provided a new schedule of minimum wages relating to so-called Grades 1 to 10, and further purported to substitute a new Clause 24.7 to such minimum rates in the following terms:

   “The rates of pay in this award include the arbitrated safety net adjustment payable under the Safety Net Review – Wages May 2000 decision [Print S5000]. This arbitrated safety net adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above award payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Australian workplace agreements, award variations to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.”

   In such context the 2000 Variation was thus said to operate as an “arbitrated safety net adjustment”, in other words, as a minimum wage mechanism, and it thereby implicitly recognised the existence of so-called “above award” wages. O’Connor has submitted that the 2000 Variation postulated a “dual obligation”, one of such obligations being for members of the NMAA (such as O’Connor) to pay the minimum wage rates the subject of the 2000 Variation pursuant to ss 149(1)(f) and 148(1) in combination.

   (x)On 21 November 2000 a further Order in the nature of an award or variation of an award was made by the Commission under the WR Act, against the context of an earlier lengthy and complex Decision of a Full Bench of the Commission made on 24 September 1999. Again, NMAA was the sole respondent to this award, and as indicated in sub-paragraph (v) above, O’Connor by this time had been a member of such renamed employer’s organisation for more than a year. This Order is hereafter referred to as “2000 FMIPA”, consistently with its “Award Title” specified in Clause 1 thereof, which clause reads “This award will be known as the Federal Meat Industry (Processing) Award 2000”. Nevertheless the Order itself is headed “FEDERAL MEAT INDUSTRY [PROCESSING] AWARD 1996”, and paragraph A thereof reads as follows:

   “A.     The above award is varied as follows:

   By deleting all clauses, schedules and appendices and inserting the following…”

   It is apparent from the Commission’s preceding Decision of 24 September 1999, upon the basis of which FMIPA 2000 was subsequently made, that the proceedings which led to FMIPA 2000 were brought formally pursuant to the award variation provisions of s 113 of the WR Act (which is identical to s 113 of the IR Act). The fact that the Order was not formalised for more than one year after the handing down of such Decision demonstrates the complexity and detail of the Decision, the latter taking up 91 pages and the Order taking up 48 pages. O’Connor has submitted that FMIPA 2000 took effect in substance as a new award, though in the form of a variation of an award, which, for what it may matter, would seem to be correct.

   FMIPA 2000 sets out, under the main heading “WHERE AND WHO THE AWARD COVERS”, the following:

   “5.2     Who does the award apply to?

   5.2.1This award will apply in meat processing establishments, as defined, in respect to employees employed by the employers bound and respondent to this award for whom rates of pay and general conditions of employment are prescribed herein.

   5.2.2At the time of making this award, where an employer was bound by a State award, then this award will not apply, regardless of whether such employers were members of the National Meat Association of Australia or not.

   6.PARTIES BOUND AND RESPONDENTS

   6.1This award will be binding on:

   6.1.1the Australasian Meat Industry Employees Union, its officers and its members; and

   6.1.2the National Meat Association of Australia and its members in respect of all their employees in classifications contained herein, whether members of the Union or not…

   6.2Succession or replacing of awards

   This award replaces the Federal Meat Industry (Processing) Award 1996 and the Federal Meat Industry Award 1981.

   6.3Savings

   No right, obligation or liability accrued or incurred by an employer or an employee in accordance with the provisions of any awards superseded or replaced by this award shall be affected by the making of this award.”

   By paragraph B of FMIPA 2000, the same was stipulated to commence from 1 November 2000, and to remain in operation for a period of twelve months.

1. Following upon the first lock-out in 1999 (see [9(v)] above), three sets of legal proceedings were commenced in this Court by the AMIEU and certain of its members, for relief against O’Connor as follows:

   (i)On 25 August 1999 for orders restraining O’Connor from continuing the lockout, from applying duress to its employees in connection with the signing of the AWAs, and for penalties and compensation;

   (ii)On 22 November 1999 for orders pursuant to s 178(1) of the IR Act imposing penalties for breach of the 1992 Agreement and other redress; and

   (iii)On 2 December 1999 for orders rendering inoperative the AWAs.

   In the events which next happened, the Full Court in its said judgment in Hamberger, supra, at [51], in response to the following question of law referred by Marshall J, namely:

   “Whether the G & K O’Connor Pty Ltd and Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 1992… was binding at any, and if so what, times between 19 August 1999 and 22 November 1999?”

   answered the same in the affirmative. The above stated period of time from 19 August 1999 to 21 November 1999 represented the period of the second lock-out – see [9(vii)] above. In so deciding, the Full Court rejected O’Connor’s contention that by joining the NMAA on 3 June 1999, O’Connor became ipso facto bound by FMIPA 1996 as a “new award” within s 148(1) of the IR Act in relation to its meatworks employees at Pakenham, with the consequence the 1992 Agreement has remained on foot at least until 21 November 1999. The critical passages of the judgment in Hamberger at [46-47] are reproduced below:

   “[46]O’Connor accepts that the 1992 agreement would have been, at the named times, in force and binding on it were it not for the operation of s 148(1) of the WR Act, which has been in the same terms throughout, and is set out in [17] above. O’Connor contends that at the time it joined the NMAA in 1999 it became bound by the Federal Meat Industry (Processing) Award 1996 (the FMIPA), and so a new award was made within the meaning of s 148(1), dealing with the same matters as were dealt with by the 1992 agreement. It is common ground that, generally speaking, where a party joins a registered organisation it becomes bound by all awards to which the organisation is a party which relate to the activities of the organisation (s149(1)(f) WR Act; Burwood Cinema Ltd v Australian Theatrical & Amusement Employees Association (1925) 35 CLR 528).

   [47]However, the AMIEU submits:

   (1)that at the time it was in fact made the FMIPA did not bind O’Connor as it was not a member of the NMAA – becoming bound by an award later is not the equivalent of the making of an award;

   (2)the FMIPA does not deal with the same subject matter as the 1992 agreement.

   (3)The FMIPA was general, and did not override the specific terms of the 1992 agreement.

   [48]In our view the submission of the AMIEU as to the meaning of the phrase “until a new award is made” in s 148 is correct. We see the force of the argument put on behalf of O’Connor. It was put that the sense of the provision is captured by the wording “has been made”, in s 58(2) of the 1904 Act. However this, of course, is a significant change in tense and in sense. We do not, in any event, think that it quite suffices to capture the effect of the submission on behalf of O’Connor which, to be effective, requires the phrase to read “until a new award binds the parties”. In our view, this is inconsistent with the language of the section which, in this respect, is intractable. There is no dictionary meaning of “made” or “make” which could accommodate this meaning. There is a difference in meaning, as well as language involved, which this case illustrates, and it is not for us to obliterate that difference. It is conceivable that the legislature intended to differentiate the two cases.”

   The text of ss 148(1) and 149(1)(f) are reproduced at [12(iv-(v)] below. AMIEU’s second and third submissions set out in [47] of the judgment above did not need to be addressed by the Full Court, in the light of its response to the first submission there set out.

   The statutory foundation for AMIEU’s claims and the legislative provisions material thereto

2. It is important to record at this juncture the common ground between the parties that it is the body of law in force at the time of making the 1992 Agreement on 8 December 1992, in the form of the IR Act, as amended on 23 July 1992 by way of introduction of Division 3A of Part VI (see [5] above), which governs the enforceability thereof by AMIEU in the present proceedings. I refer in this regard to Hamberger at [40], where the finding was made by the Full Court to the effect that the body of law governing “pre-Reform Act” certified agreements, such as the 1992 Agreement, is the pre-Reform Act legislation, namely the IR Act as so amended on 23 July 1992. The “Reform Act” so referred to is the Industrial Relations Reform Act 1993 (Cth), which took effect on 30 March 1994. That important finding of the Full Court in Hamberger was made upon the basis of the detailed legislative analysis undertaken by an earlier Full Court (Ryan, Marshall and Finkelstein JJ) in Telstra Corporation Ltd v MacBean (2000) 171 ALR 357. The transitional provisions of the Reform Act upon which the latter Full Court’s findings were focused are s 35(2) thereof, the text of which is extracted in [13] below. Thus AMIEU contends and O’Connor accepts that subject to the legal implications of the 2000 Variation and FMIPA 2000 (see again [9](ix)-(x) above), the 1992 Agreement as a certified agreement has at all material times continued on foot, pursuant to Clause 1.3(c) thereof (see [4] above), as an “award” for the purposes of the IR Act, the s 4(1) definition thereof reading as follows:

   “4(1)   In this Act, unless the contrary intention appears:

   ‘award’ means an award or order that has been reduced to writing under subsection 143(1), and includes a certified agreement;”

   It follows that although the s 4(1) definition of “award” contained in the WR Act excludes reference to certified agreements, and instead makes separate and extensive provisions in relation thereto, namely in Part VIB thereof, such exclusion is immaterial for purposes of identification of the body of law governing enforcement of the 1992 Agreement.

3. (i) The statutory cause of action for recovery of AMIEU’s claims, which are detailed in [15-16] below, is s 178 of the IR Act, the relevant sub-sections whereof reading as follows:

   “178(1)       … where an organisation or person bound by an award or an order of the Commission breaches a term of the award or order, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction.

   …

   (4)The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award or order is:

   (a)where the penalty is imposed by the Court:

   (i)if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e) - $500; and

   (ii)in any other case - $1000; and

   (b)where the penalty is not imposed by the Court - $500.

   …

   (6)Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award or order, the court may order the employer to pay to the employee the amount of the underpayment.”

   The reference to “the Court” is to the Federal Court of Australia. Similar but updated provisions are to be found in the WR Act. Certain relief is also claimed under the WR Act which need not be referred to at this stage of the proceedings.

   (ii)The AMIEU monetary claims (and those of its Applicant union members) in the present proceedings (set out in [15] below) have thus been pursued under the statutory authority of the WR Act, though as stated in [11] above, by reference to the body of law comprising the IR Act as it stood at the time of certification of the 1992 Agreement. Enforcement has not been pursued additionally or alternatively at common law for breach of contract, presumably for the kind of reasons recently explained by the Court of Appeal in Victoria in Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235 at 238-9, where Brooking JA said as follows:

   “It is clear that to make a contract on behalf of a principal an agent must contract on behalf of a principal who is then ascertainable: Trident General Insurance Co Ltd v McNiece Bros. Pty Ltd (1988) 165 CLR 107 at 113 per Mason C.J. and Wilson J. This rule lies formidably in the way of the adoption of the view that a trade union has entered into a collective agreement as agent for its members. For usually the intention will be to benefit future as well as present members of the union, and the future members cannot be identified as principals when the collective agreement is made. Other difficulties include the source of the union’s authority from its supposed principals and the closely related matter of the withdrawals of authority. Is the authority to be found in the rules of the union? If so, must a unionist terminate his membership in order to terminate the authority to contract on his behalf? If the authority is to be found, not in the rules of the union, but in some act of the members, and a vote at a meeting of members of the union is relied on as conferring the authority, questions arise about the position as supposed principals of those who did not attend the meeting and those who attended the meeting but abstained from voting or voted against the proposal.”

   The foregoing dictum addresses of course the subject of practical obstacles to enforceability at common law for breach of contract of award entitlements, framed in the setting of so-called “collective agreements”, but does not gainsay the underlying contractual nature of an award in the form of a certified agreement under the IR Act, in the context of the entire legal relationship between employer and employee (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420-1).

   (iii)As indicated in [5] above, the 1992 Agreement was certified by the Commission pursuant to s 134E(1) of Division 3A of Part VI of the IR Act. Such Division 3A commenced in operation on 23 July 1999, and forms part of the body of law here applicable in terms of enforcement of the 1992 Agreement, to which reference has been made in sub-paragraph (i) above. It is now appropriate to set out other material provisions of Division 3A of Part VI of the IR Act for ease of reference (ie additional to s 134E(1) already reproduced in [5] above), since the same will be referred to later in this judgment.

   “134A(1)The objects of this Division are:

   (a)to facilitate the making and certifying of agreements; and

   (b)to encourage their use in the prevention and settlement of industrial disputes.

   134A(2)The Commission must, as far as practicable, perform its functions under this Division in a way that furthers the objects of this Act and, in particular, the objects of this Division.

   …

   134C(1)If the parties to an industrial dispute, or any of them, agree on terms for:

   (a)the settlement of all or any of the matters in dispute; or

   (b)the prevention of further industrial disputes between them;

   they may make a memorandum of the terms agreed on.

   …

   134C(3)The parties to the agreement may apply to the Commission to certify the agreement.

   …

   134J(1)A certified agreement comes into force when it is certified and, during the period of the agreement, it remains in force unless:

   (a)the Commission terminates it under subsection 134G(2); or

   (b)because of one or more orders or declarations under section 134M or 134N:

   (i)the agreement is terminated; or

   (ii)all the remaining parties to the agreement are organisations of employees; or

   (iii)all the remaining parties to the agreement are employers or organisations or employers.

   134J(2)During the period of the agreement, section 148 does not apply to the agreement.

   134J(3)If the agreement remains in force until the end of the period of the agreement, then at the end of that period:

   (a)section 148 applies to the agreement, and the agreement continues in force accordingly; and

   (b)in the application of section 148 to the agreement, the references in that section to the period specified in the award as the period for which the award is to continue in force are to be read as references to the period of the agreement.

   134J(4)           In this section:

   ‘period of the agreement’ means the period of operation of the agreement specified in the agreement, or that period as extended or further extended under section 134K.

   …

   134K(1)Subject to subsection (2), the parties to a certified agreement may extend the period of operation of the agreement.

   134K(2)An extension has no effect unless:

   (a)the parties agree to the extension; and

   (b)the parties notify the Commission in writing of the extension before the end of the period of operation of the agreement or that period as extended or further extended under this section.

   134L(1)During the period of operation of a certified agreement specified in the agreement, or that period as extended or further extended under section 134K:

   (a)the terms of the agreement prevail over the terms of an award or an order of the Commission; and

   (b)a term of the agreement can be set aside or varied by the parties, but only as provided by section 134M; and

   (c)the agreement or a term is not to be set aside under subsection 113(1) or cancelled or suspended under section 187; and

   (d)the agreement may only be varied under sub-section 113(2) for the purpose of:

   (i)removing ambiguity or uncertainty; or

   (ii)including, omitting or varying a bans clause; or

   (iii)including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee; and

   (e)except as provided by this Division, the Commission is not to exercise arbitration powers to vary the agreement.

   134L(2)The agreement may, by express provision, exclude or limit the operation of subparagraphs (1)(d)(ii) and (iii).

   134M(1)At any time while a certified agreement is in force, a Full Bench may review the operation of the agreement after giving the parties to the agreement an opportunity to be heard.

   134M(2)The Full Bench may act under subsection (1) only:

   (a)on its own initiative; or

   (b)on application by an organisation or person bound by the agreement.

   134M(3)If the Full Bench finds:

   (a)in the case of any agreement – that the continued operation of the agreement would be unfair to the employees covered by the agreement; or

   (b)in the case of an agreement that does not apply only to a single business, part of a single business or a single place or work – that the continued operation of the agreement could be contrary to the public interest;

   it may do any of the following things:

   (c)by order, terminate the agreement;

   (d)accept an undertaking from all or any of the parties in relation to the operation of the agreement;

   (e)permit the parties to vary the agreement.

   134M(4)If an undertaking is not observed, the Full Bench may, by order, terminate the agreement after giving the parties an opportunity to be heard.

   134M(5)If a party to a certified agreement engages in industrial action in relation to a matter dealt with in the agreement, another party who is affected by the industrial action may apply to the Commission for a declaration that the party so applying is no longer bound by the agreement.

   134M(6)On such an application, the Commission may, by order, declare that the applicant is no longer bound by the agreement if the Commission is satisfied that it is in the public interest to make the declaration.

   …

   134N(1)A party to a certified agreement may, with the consent of all the relevant parties, give the Commission written notice stating that the party does not want to remain bound by the agreement.

   134N(2)All the parties to a certified agreement may jointly give the Commission written notice stating that they want the agreement to be terminated.

   134N(3)On receipt of such a notice, if the Commission is satisfied that it would be in the public interest for the party to be no longer bound or for the agreement to be terminated, as the case may be, the Commission may, by order, make a declaration to that effect.”

   There has been no extension of the term of the 1992 Agreement pursuant to s 134K above, as distinct from holding over. Thus in the events which have happened as earlier described, the same has continued in force pursuant to the above s 134J(3), subject of course to resolution of the issue the subject of present proceedings. Such legislative “holding over” situation was described in the Explanatory Memorandum to the introduction of Division 3A of Part VI as follows:

   “… if an agreement remains in force until the end of the period of operation specified in the agreement…, then at that date, s 148 commences to apply to the agreement. This has the effect that, after the specified period of operation, the agreement continues in force but may be varied, set aside or replaced as if it were an ordinary award.”

   There may be thus identified a measure of conforming operation of s 134J(3) with the holding over provisions of Clause 1.3(c) of the 1992 Agreement (see again [4] above).

   (iv)The reference in ss 134J(2) and 134J(3) of the IR Act above to s 148 thereof is to one of the two crucial statutory provisions involved in this litigation (and in Hamberger), as is apparent from what has been cited from the Full Court’s judgment in [10] above. Sub-sections (1) and (3) of s 148 of the IR Act (and identically of the subsequent WR Act) read as follows:

   “148(1) Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters.

   …

   (3)Where, under subsection (1), an award has continued in force after the end of the period specified in the award as the period for which the award is to continue in force, an award made by the Commission for the settlement of a further industrial dispute between the parties may be expressed to operate from a day not earlier than the day on which the industrial dispute arose.”

   Thus the continuation of the 1992 Agreement following the expiration of the term thereof, to which I have referred in sub-paragraph (iii) above, is recognised by s 148, subject to new award thereafter being made which deals with the same particular matters the subject of the 1992 Agreement.

   (v)The other principal statutory provision involved in this litigation (and in Hamberger) is sub-section (1) of s 149 of the IR Act (which is in identical form in the WR Act) reading as follows:

   “149(1)       Subject to any order of the Commission, an award determining an industrial dispute is binding on:

   (a)all parties to the industrial dispute who appeared or were represented before the Commission;

   (b)all parties to the industrial dispute who were summoned or notified (either personally or as prescribed) to appear as parties to the industrial dispute (whether or not they appeared);

   (c)all parties who, having been notified (either personally or as prescribed) of the industrial dispute and of the fact that they were alleged to be parties to the industrial dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the industrial dispute;

   (d)any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer;

   (e)all organisations and persons on whom the award is binding as a common rule; and

   (f)all members of organisations bound by the award.”

   It is of course the abovementioned paragraph (f) which is involved in this litigation, but nevertheless the entire content of s 149(1) is material.

   To sub-section 149(1) I should also add the text of sub-section 149(2), which was introduced into the IR Act by Division 3A of Part VI thereof:

   “(2)An award that is constituted by a certified agreement, or that otherwise is made by consent of the parties to an industrial dispute, is binding on:

   (a)each of the parties to the agreement; and

   (b)all members of an organisation that is a party; and

   (c)an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the whole or part of the business of the party, including a corporation that has acquired or taken over the whole or part of the business of the party.”

   Sub-section (2) was not reproduced in the WR Act, and each of FMIPA 1996, the Variation 2000 and FMIPA 2000, as already indicated, were made under the WR Act. No submission appears to have been made in relation to s 149(2) in Hamberger.

   (vi)The reference in s 148(1) above to s 113 of the IR Act picks up relevantly sub-sections (1) and (2) of s 113 of the IR Act concerning the setting aside and variation of awards (which are in identical form in WR Act) reading as follows:

   “113(1)       The Commission may set aside an award or any of the terms of an award.

   (2)The Commission may, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary an award.

   ….”

   (vii)Cognate to s 113 are s 111(1)(b) and (c) and s 114 of the IR Act relating to the making of new awards (which are also in identical form in the WR Act) reading as follows:

   “111(1)       Subject to this Act, the Commission may, in relation to an industrial dispute:

   …

   (b)make an award or order, including one by consent of the parties, in relation to all or any of the matters in dispute, including:

   (i)a provisional award or order; or

   (ii)an interim award or order; [and]

   (c)in accordance with Division 2 of Part VIB certify an agreement;

   ….

   114The fact that an award or order has been made for the settlement of an industrial dispute, or that an award or order made for the settlement of an industrial dispute is in force, does not prevent:

   (a)a further award or order being made for the settlement of the industrial dispute; or

   (b)an award or order being made for the settlement of a further industrial dispute between all or any of the parties to the earlier award or order, and whether or not the subject-matter of the further industrial dispute is the same (in whole or part) as the subject-matter of the earlier industrial dispute.”

1. As has been already explained in [11] above, the coming into force of the Reform Act on 30 March 1994 preserved the pre-existing law in relation to then subsisting certified agreements, notwithstanding the repeal of Division 3A of Part VI of the IR Act by the Reform Act, and the introduction by the Reform Act of a new statutory regime for the certification of agreements. The transitional provisions of s 35(2) of the Reform Act relevantly provided as follows:

   “(2)     Despite the repeal of Division 3A of Part VI of the [IR] Act:

   …

   (b)an agreement certified under that Division and in force immediately before the commencement day has effect as if the [IR] Act had not been amended by this Act, but may be extended under section 170MI of the amended Act.”

   The Reform Act did not alter the definition of “award” contained in the IR Act (see again [11] above), and for the purpose only of future certified agreements, the Reform Act changed the IR Act definition of a certified agreement to “an agreement certified under Division 2 of Part VIB”. No changes were made to s 148 or s 149 of the IR Act (see [12(iv)] above), which continued to govern the 1992 Agreement as part of the applicable “body of law” (see again Hamburger at [40] thereof).

2. To complete the legislative picture, there was subsequently introduced in 1996 the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (already identified in [12(iii)] above, which was proclaimed in four consecutive stages on 5 December 1996, 31 December 1996, 15 January 1997 and 12 March 1997, and which thereafter was renamed as the Workplace Relations Act (ie what I have been already abbreviating as “WR Act”). The WR Act introduced a new statutory regime for certification of agreements, and for the effect and operation of agreements so certified, though the content of the WR Act retained much of the same sections with the same section numbering as comprised within the IR Act.

   The monetary claims made by the AMIEU in the subject proceedings

3. The proceedings presently before me were commenced by AMIEU by way of Statement of Claim filed on 21 September 2000, and such proceedings advanced a catalogue of claims in purported reliance upon the finding of the Full Court in Hamberger referred to in [10] above, and in the events which have thereafter happened from at least the time of the second lock-out which commenced on 19 August 1999. The orders made in Hamberger affirmed the continuation in force and effect of the 1992 Agreement for at least the period from 19 August 1999 to 22 November 1999 (see [51] of the judgment). This finding involved acceptance of the AMIEU proposition that the 1992 Agreement had not been displaced as an “award” within the IR Act definition, being a displacement alleged by O’Connor to have occurred pursuant to s 149(1)(f) of the IR Act, in favour of FMIPA 1996 as a “new award” within s 148(1) of the IR Act, by reason of O’Connor having rejoined membership on 3 June 1999 of employer organisation NMAA, and such employer organisation being bound by FMIPA 1996. Such catalogue of claims may be summarised as follows:

   (i)penalties for breach of the 1992 Agreement in the period commencing from 19 August 1999, pursuant to s 35(2)(b) of the Reform Act and its ongoing operation in relation to the recovery provisions of s 178(1) of the IR Act, such penalties to be paid to the AMIEU;

   (ii)all monies unpaid to employees and former employees of O’Connor, being employees and former employees who did not enter into AWAs with O’Connor, in respect of the period of time commencing from about 19 August 1999, to be made direct to those employees and former employees, in conformity with s 35(2)(b) of the Reform Act and its ongoing operation in relation to s 178(6) of the IR Act;

   (iii)such shortfall in payments in respect of employees to the Meat Industry Employees Superannuation Fund as occurred (presumably also from about 19 August 1999) in breach of the 1992 Agreement, to be made to that Fund in conformity with s 35(2)(b) of the Reform Act and its ongoing application to s 178(6A) of the IR Act;

   (iv)interest on such unpaid moneys in conformity with s 35(2)(b) of the Reform Act and its ongoing operation in relation to the interest provisions of s 179A(1) of the IR Act.

   It is pleaded by the AMIEU that all such employee claimants had been engaged by O’Connor as “daily hire” employees, and in addition as either piece workers or time workers (the latter being sometimes referred to as labourers), and in the case of piece workers under the tally system operated by O’Connor.

4. The Further Amended Statement of Claim (“S/C”), filed on 23 November 2000 by AMIEU and its employee members in support of the above monetary claims, makes the following averments:

   (i)Since 21 November 1999, that is to say, the date of termination of the second lockout, O’Connor has purported to observe and apply the terms of Part 1 of FMIPA 1996, and not the terms of the 1992 Agreement, in respect of employees who had not entered into AWAs with O’Connor; in the case of two employees out of the thirty-eight listed in the Schedule to the S/C, namely Messrs Sheean and Datsun, although they are alleged to have signed AWAs, nevertheless such agreements have not been approved pursuant to Division 4 of Part VID of the WR Act; Messrs Sheean and Datsun are included in the description “non-AWA employees” in the S/C;

   (ii)Since 24 November 1999, such of those non-AWA persons abovementioned who are designated as “boners” have been required by O’Connor to remove meat in the form of cuts specified by O’Connor from time to time, and such of those employees who are designated as “slicers” have been required to slice to O’Connor’s requirements by methods such as “seaming”;

   (iii)On and from 24 November 1999, as to those non-AWA employees who have worked for a minimum of eight hours per day on each ordinary work day, being Monday to Friday inclusive of each week, with the exception of periods of leave or rostered days off, such employees have achieved maximum “tally” within the meaning of the 1992 Agreement, which was equal to 7 hours 20 minutes (Clause 11.1.1), together with a further period of overtime covering at least the 40 minutes’ differential as to an eight hour working day, and they were consequently entitled to be paid in respect of such differential in times pursuant to the 1992 Agreement;

   (iv)On and from 24 November 1999, as to those twenty-three non-AWA employees who are listed in Part 1 in the Schedule to the S/C, O’Connor has failed and refused to engage such persons as regular daily employees and to pay them according to the daily rates and unit rates set out in Clause 3 of the 1992 Agreement, as adjusted by Clause 1.4 thereof, and to take into account the penalties provided for in Clauses 11.2.3 and 11.3.1(c) thereof;

   (v)Further as to those twenty-three non-AWA employees having the designation “slicer” or “boner”, and by reason of the matters set out in (ii) above, O’Connor has failed to apply the increase of 7.5% in the rates of pay specified in Clause 3 of the 1992 Agreement, as required by Clause 11.3.1(b) thereof;

   (vi)By reason of the matters set out in (iii) above, O’Connor has failed and refused to comply with Clause 11.1.1(f) of the 1992 Agreement concerning hours of work, by requiring such twenty-three non-AWA employees to attend for work for a minimum of eight hours exclusive of breaks, in lieu of 7 hours 20 minutes as stipulated by such Agreement, and to pay overtime for the excess pursuant to Clause 4.1.2 of the 1992 Agreement;

   (vii)As to those fifteen non-AWA employees who are listed in Part 2 in the Schedule to the S/C, O’Connor has failed to pay such employees from 24 November 1999 for work performed in accordance with the rates of pay set out in Clauses 3.3, 11.4.1 and 11.4.2 of the 1992 Agreement, which rates have applied to such employees by reason of Clause 3.5.1 thereof;

   (viii)Further as to such fifteen non-AWA employees, O’Connor has failed and refused to pay to the daily allowances stipulated by Clause 3.5.2 of the 1992 Agreement, and O’Connor has also failed to pay a special allowance to one employee Kirkham pursuant to Clause 3.3.1(iv) thereof, and in addition O’Connor has failed and refused to pay overtime, within the meaning of Clauses 4.1 and 11.4.1(c), as provided for in Clauses 3.3 (as adjusted by Clause 1.4 thereof), 11.4.1 and 11.4.2 thereof, and/or as applied by Clause 3.5.1 thereof;

   (ix)As to all non-AWA employees listed in the Schedule to the S/C (ie thirty-eight) in number, O’Connor has failed to pay for rostered days off taken by such employees in accordance with rates of pay established by Clause 2.5.2(a) of the 1992 Agreement;

   (x)Further as to all non-AWA employees who had ceased to be employed, O’Connor has failed to pay accrued entitlements to rostered days off in accordance with Clause 2.5.3 of the 1992 Agreement, on the basis of the rates established by Clause 2.5.2(a) thereof;

   (xi)Further as to all such non-AWA employees, O’Connor has failed to pay for periods of sick leave taken by them as provided for in Clause 6.2.1 of the 1992 Agreement, at the rates of pay established by Clause 6.2.2 thereof;

   (xii)Further as to all such non-AWA employees, O’Connor has failed to make minimum superannuation contribution of $45.00 per week, in breach of Clause 4.8.4 of the 1992 Agreement, and has failed to forward superannuation contributions on a monthly basis in breach of Clause 4.8.6 of the 1992 Agreement; in addition, claim is made against O’Connor in respect of notionally lost earnings upon such unpaid sums;

   (xiii)Further as to all such employees, O’Connor has failed to keep time and wage records in breach of Clause 7.5.1 of the 1992 Agreement;

   (xiv)As to those employees who acted as teachers, O’Connor has failed to pay the daily allowance of $5.00 when so engaged, in breach of Clause 10.3.3 of the 1992 Agreement;

   (xv)Further as to all non-AWA employees abovementioned, O’Connor has failed to pay for periods of annual leave loading provided for in Clause 6.1 of the 1992 Agreement, being leave taken by such employees, at the rates of pay established by Clause 6.1.16(a) of the 1992 Agreement.

   Summary of principal issues raised by O’Connor

5. O’Connor has raised three principal issues in opposition to the AMIEU claims above, and the proceedings before me have been conducted essentially by way of AMIEU’s responses to such issues. The same has been formulated as follows (for simplicity I omit reference in the contexts below, in the light of [11] above, to the IR Act and the WR Act, since as already indicated, ss 149(1) and 148(1) of both Acts are in identical form.

   (i)FMIPA 1996 (referred to in 9(iii) above), being an award of the Commission made on 13 December 1996, which determined an industrial dispute involving the AMIEU as an organisation of employees on the one hand, and NMAA as an organisation of employers on the other hand, became thereupon binding upon O’Connor and its AMIEU member employees from the date when O’Connor rejoined NMAA, that is to say, on 3 June 1999, pursuant to s 149(1)(f), and did so as a “new award”, within s148(1), and since FMIPA 1996 dealt with the “same matters” for the purposes of s 148(1) as those the subject of the 1992 Agreement, or substantially so, the 1992 Agreement became displaced by FMIPA 1996 from 3 June 1999;

   (ii)Irrespective of (i) above, pursuant to an industrial dispute involving AMIEU and NMAA, an award was made on 15 June 2000 by the Commission by way of the 2000 Variation referred to in 9(ix) above appertaining to that dispute, and since O’Connor was by then a member of NMAA (being an organisation of employers), and certain of its employees were still members of the AMIEU (being an organisation of employees), the 2000 Variation became binding upon O’Connor as a member of the NMAA from 15 June 2000, or alternatively from 3 August 2000 when the 2000 Variation was expressed to come into force, and also became binding on such members of the AMIEU from whichever of such alternative dates applied, pursuant to the said s 149(1)(f), to the extent that the 2000 Variation dealt with the matter of so-called “remuneration”, pursuant to the said s 148(1);

   (iii)Irrespective also of (i) above, pursuant to a further industrial dispute involving AMIEU and NMAA, an award was made on 21 November 2000 by the Commission by way of FMIPA 2000 referred to in [9(x)] above appertaining to that dispute, which award was expressed to come into force retroactively from 1 November 2000, and since O’Connor continued to be a member of NMAA and certain of its employees continued to be members of the AMIEU, O’Connor and the latter employees of O’Connor became respectively bound by FMIPA 2000 pursuant to the said s 149(1)(f), from the time the same took effect, whether from 1 November 2000 or alternatively from 21 November 2000, to the extent of all matters dealt with by FMIPA 2000, being so-called “remuneration” and most other conditions of employment, pursuant to the said s 148(1).

6. The submission in [17(i)] above has been made by O’Connor formally at this stage, in order to keep alive the issues the subject thereof in the event that special leave might be granted by the High Court in Hamberger, and any appeal pursuant to leave granted might be subsequently successful. No resistance therefore can be offered by O’Connor, for purpose of these Reasons for Judgment, with respect to the remuneration and other claims made in respect of at least any period of time preceding the date when 2000 Variation took effect, notwithstanding that the Full Court judgment in Hamberger was expressed to relate only to the period from 19 August 1999 to 22 November 1999 (see again [10] above). The contentions made by O’Connor, in terms of [17(ii) and (iii)] above, have been however vigorously pressed in opposition to the AMIEU claims particularised in [15-16] above, to the further extent that such claims relate to the period of time after the 2000 Variation took effect, or after FMIPA 2000 took effect. It is appropriate that I commence with an examination of O’Connor’s principal submissions in support of its contentions in [17(ii)-(iii)] above, since it is O’Connor which is propounding entitlement to resort to the legislative scheme of s 149(1)(f) and s 148(1), as a means of legitimising an apparently substantial reduction in the status quo of employee entitlements under an expired certified agreement (ie the 1992 Agreement), to which it had been privy as employer since 8 December 1992.

   The operation of s 149(1)(f) and s 148(1) in relation to the 2000 Variation and FMIPA 2000 in the events which have happened as summarised above in these Reasons for Judgment

7. The threshold submission of O’Connor in relation to this first segment of controversy falling for resolution is that the word bound appearing in paragraph (f) of s 149(1) of the IR Act and the WR Act reflects the notion of “apply”, rather than its usual notion of “obligation”. The statutory meaning of “bound” or “binding”, in relation to an industrial award, appears to have carried such notion of “apply” during the life of the 1904 legislation, being a notion which does not distinguish between the burden and benefit of any particular obligation imposed upon parties to an award (including of course a certified agreement). An early illustration of such usage attributable to the word “binding” or “bound” in relation to the terms of an award is to be found throughout the joint judgment of Knox CJ, Gavan, Duffy and Starke JJ in Western Australian Timber Workers’ Industrial Union of Workers (S.W. Land Division) v Western Australian Sawmillers’ Association (1930) 43 CLR 185 at 197. A further illustration appears from the judgment of Isaacs J, as one of the majority, in Burwood Cinema Ltd v Australian Theatrical & Amusement Employees Association (1925) 35 CLR 528 at 541-2. I do not understand the AMIEU to have adopted any different view as to the import of the word “bound”, where appearing in s 149(1)(f). Indeed Clause 1.2 of the 1992 Agreement (extracted at [6] above) uses the words “binding” and “apply” interchangeably. Nevertheless it remains somewhat enigmatic to describe O’Connor as having become “bound” to remunerate its AMIEU members only to a reduced extent of about 40% of their monetary entitlements otherwise contractually payable under the 1992 Agreement, upon the footing of its contentions propounded in [17(ii)-(iii)] above being resolved in O’Connor’s favour. By “contractually payable”, I merely refer to what has been earlier discussed in [12(iii)] above, and also to the decision of the High Court in Amalgamated Collieries of W.A. Ltd v True (1938) 59 CLR 417 at 431, where Dixon J at 431 said as follows:

   “Contracts of employment may, at any rate in theory, provide for wages in excess of the minimum rates which are at any given time prescribed by an award. They may provide for wages at those rates and for wages below those rates. In the first case, the full wages can be recovered only upon the express contract…,”

   being a view which was subsequently approved by the Privy Council in the same litigation: True v Amalgamated Collieries of W.A. Ltd (1940) 62 CLR 451 at 455.

8. O’Connor has advanced two principal submissions concerning the operation of s 149(1)(f) upon the events which have happened or have allegedly happened as earlier recounted in this judgment. The first is that the 2000 Variation and the subsequent FMIPA 2000 became respectively binding as awards upon O’Connor as a member of the organisation of employers (NMAA), at the successive times from which the same took effect, and also upon members of the organisation of employees (AMIEU), being of course those members of the AMIEU remaining employed by O’Connor, unaffected by and divorced from the terms and conditions of the 1992 Agreement. The reason for that outcome, so O’Connor contends, is that the opening words of s 149(1)(f), namely “Subject to any order of the Commission…,” were not capable as a matter of interpretation of referring to any order (assuming in favour of AMIEU that a certified agreement is an order) preceding an award which subsequently became binding pursuant to any of the paragraphs of s 149(1), and paragraph (f) in this particular case. It is appropriate that I reproduce below the text of part of O’Connor’s written submissions in support of such submission:

   “The Commission cannot, in making one award, order that no future award made by any other member of the Commission could operate in a particular way, or in particular circumstances. The Commission’s responsibility is to settle each industrial dispute by arbitration if necessary, and to make such awards as may be necessary in that behalf. In this respect the applicants’ point is met directly by s 110(1) of the WR Act, and associated provisions.

   …

   When the Commission’s responsibilities are properly understood, the opening words of s 149(1) are to be seen as empowering the Commission to modify the effect of the section with respect to the award then being made by the Commission. In a two-state dispute, for example, the Commission may decide to make its award binding on employers in one of the States only.”

   The critical words of the submission are “then made”, which O’Connor would contend to be implicitly incorporated at the conclusion of the opening words of s 149(1) “Subject to any order of the Commission…”.

   The second principal submission of O’Connor was to the effect that the 1992 Agreement as a certified agreement did not in any event constitute “any order of the Commission” within the opening words of s 149(1). The full text of s 149(1) of the IR and WR Acts has been reproduced in [12(v)] above.

9. O’Connor next contended that at least in consequence of the viability of either one of the propositions advanced in [20] above, each of the 2000 Variation and the FMIPA 2000 was binding pursuant to s 149(1)(f) as a “new award” within s 148(1) of the IR and WR Acts, free from any constraint of the 1992 Agreement, in the case of the 2000 Variation to the extent of the critical “matter” of so-called “remuneration” or what O’Connor otherwise paraphrased as “pay”, and in the case of FMIPA 2000, in relation to virtually all “matters”, inclusive of “remuneration” or “pay” (I use the words “matter” and “matters” in the sense appearing in s 148(1)). As to the latter proposition concerning FMIPA 2000, O’Connor prepared a table of “matters” therein stipulated by such award, which it asserted to be common to the 1992 Agreement (see again the headings and sub-headings thereof listed in [7] above), which table of alleged “same matters” is reproduced below:

1992 Agreement	FMIPA 2000	Comments
1.4	14	Remuneration
2.1.1	8	Whether weekly hire, daily hire etc
2.1.2(a)	8	Engagement as regular daily employees
2.1.2(b)	14	101. pay loading
2.1.2(c)	8	Continuation of daily employment
2.4	21	Hours of work
2.5	21.10	Rostered days off
2.7	21.9 & 25	Shift work
2.8	10	Redundancy
2.9	17	Payment of wages
2.10	23	Meal breaks
3	14	Remuneration
4.1	24	Overtime
4.2	14	Remuneration
4.3	14	Remuneration
4.5	14	Remuneration
4.6	14	Remuneration
4.7	19.5	Meal allowance
4.8	20	Superannuation
6.1	26	Annual leave
6.2	27	Sick leave
6.2	31	Public holidays
6.5	28	Compassionate/bereavement leave
6.6	30	Parental leave
6.9	21	Eve’s days (eg Christmas Eve)
7.5	16.4	Time and wages records
11	14, 16	Tally system

1. In my opinion, O’Connor is not correct in its contention that the opening words of s 149(1), namely “Subject to any order of the Commission…”, are not capable, upon the true construction of s 149(1), of referring to an order of the Commission made prior to any award to which paragraph (f) thereof applies. I find no justification for confining or limiting such opening words or prefix to s 149(1) in that way, either as a matter of language or of statutory purpose, and as will shortly be seen, such contention of O’Connor is I think inconsistent with recent authority of this Court. If the Legislature had intended such an important qualification to the operation of s 149(1), it would have inserted the word “contemporaneous” before the word “order”. By not so qualifying the word “order” at the commencement of s 149(1), the Legislature must be taken to have recognised the practice of prior awards being limited in operation to particular parties or categories of parties, and to particular circumstances of employment, and of subsequent awards being expressed in more wide-reaching or general terms, where it may be rightly deduced, for instance, that the generality of the provisions of the latter awards or parts thereof were not intended by the Commission to displace the particularity or specificity of its earlier awards. Moreover the structure of s 149(1) militates against the interpretation for which O’Connor contends. Paragraphs (a) to (d) of s 149(1) address varying circumstances referrable to the particular and identifiable parties to a dispute (inclusive of employer’s successor in business) becoming bound by an award, whereas paragraph (f) addresses the consequences of members for the time being of organisations becoming bound by an award, and paragraph (e) is similar in structure to the preceding paragraph (f) concerning common rules. In particular situations which can be readily hypothesised, it would be potentially inimical to some of the objectives of s 3 of the IR Act (and also of s 3 of the WR Act, as the case may be), if a party to an expired award of the traditional kind, or to an expired certified agreement (given the latter to be an “order”), could necessarily or automatically avoid the continuing application of any of paragraphs (a) to (d) of s 149(1) pursuant to statutory and/or holding-over provisions for the time being otherwise operating upon such party, and thus circumvent or avoid the need for resort to the statutory route for varied or new awards in replacement of the status quo of an employment relationship, as provided by ss 111 and 114 (as to which see again [12(vii)] above), by the expedient course of merely joining (or resigning from, as the case may be) an organisation (as defined by s 4(1)), in order to alter the status quo of that party’s existing industrial obligations. Indeed it is AMIEU’s contention that the circumstances of this case illustrate the observation that I have just made. In Burwood Cinemas (supra) at 537, Isaacs J applied a long established principle of legislative interpretation, in relation to an issue of construction arising under the 1904 Commonwealth industrial legislation, enunciated in Brunton v Commissioner of Stamp Duties [1913] AC 747 at 759. Such is apposite to the present task of determining the scope of meaning of the opening words to s 149(1):

   “Where in a statute words are used capable of more than one construction the results which would follow the adoption of any particular construction are not without materiality in determining what construction ought to prevail.”

   Brunton and a number of other long established authorities are cited in Pearce and Geddes Statutory Interpretation (4^th ed, 1996) para 2.17 headed “Consequences of a particular construction”.

2. The operation of the critical opening words to s 149(1) “Subject to an order of the Commission…”, in relation to past orders (as contended by AMIEU) and not merely contemporaneous orders (as contended by O’Connor), is in my opinion, supported by the decision of Moore J in Construction, Forestry, Mining and Energy Union v Botany Cranes & Forklift Services Pty Ltd (1997) 73 IR 44, being proceedings (such as the present case) for recovery of unpaid employee entitlements pursuant to s 178 of the IR Act where the issue involved was whether an earlier Mobile Crane Award made in 1988 applied to the exclusion of a later Building Award made in 1991 in relation to the matter of severance payments. At 51, in the course of resolving that issue in the affirmative, his Honour said as follows:

   “The operation of each of the paragraphs is subject “to any order of the Commission”. While no order is pointed to in these proceedings as qualifying the operation of either award, the opening words of s 149 illustrate that the Commission’s intentions, as the maker of the award, are paramount. I find compelling the argument of the Union that if an award is made which, in express terms, is stated to apply to a particular employer as one of a number of identified employers concerning an undertaking or activity common to each of them, then that award is intended to operate to the exclusion of another award. This is even if made later, where the employer is not named as a respondent, is bound only by membership of an organisation of employers, and the award applies not only to the activities or undertakings of the employer but to other and more general activities. That this is so, in my opinion, is reinforced by the limited operation of s 149 on an employer bound  by virtue of s 149(1)(f). If a person bound only by that paragraph resigns from the organisation, then they cease to be bound by the award in relation to future liability under it: see WA Timber Workers’ Industrial Union of Workers (South West Land Division) v WA Sawmillers’ Association (1929) 43 CLR 185. It is thus unlikely that by making the Building Award in 1991 the Commission was intending to displace the more direct and enduring regulation of the wages and conditions of employment of employees of the Company arising from the Mobile Crane Award.”

   Thus his Honour treated the later award, which was couched in general terms of application, as operating subject to certain specific provisions of the earlier award, in so far as the latter concerned the particular subject matter of the dispute. In pointing out that the earlier award was “more direct and enduring” in its regulation of the wages and conditions of employment of the applicants for relief, his Honour expressed his perception of the possibility for employers to otherwise avoid what may be or may have become an unsuitable or inconvenient award by the expedient course of resignation from their organisation, that being the reverse of the strategy here adopted by O’Connor of rejoining an organisation of employers pursuant to s 149(1)(f) (see again the words “If a person bound only by that paragraph resigns…” appearing in the passage above cited from Botany Cranes). In the circumstances which I have related in [9(ix)-(x)] above, O’Connor was bound to the 2000 Variation and FMIPA 2000 only by virtue of paragraph (f) of s 149(1). Such opinion of Moore J in Botany Cranes as to the operation of the opening words of s 149(1) of the IR Act in relation to retrospective awards of the Commission has been subsequently echoed by dicta of general observation in a Full Court decision in North Western Health Care Network v Health Services Union of Australia (1999) 92 FCR 477 at 496, where in the context of a s 149(1)(d) dispute, RD Nicholson J (with whose reasons for judgment Spender and Madgwick JJ expressed agreement) said as follows:

   “There is nothing in s 149 to suggest that the order of the Commission need be made at the time of or after the transmission of business.”

3. O’Connor has submitted that if Moore J’s judgment in Botany Cranes was to the effect that the Commission, in making one award, could provide that no future award would be binding on the employer concerned, then his Honour was wrong, and that the parties to the 1992 Agreement could not have validly purported to exclude the operation otherwise of a future award by the Commission. I do not read his Honour’s reasons for judgment as embracing so far reaching a proposition, which goes well beyond what AMIEU contends or needs to contend to be the width of operation of the opening words to s 149(1). Nor has AMIEU denied, nor needs to deny, the operation of s 134J(3), once the term of the 1992 Agreement expired, as O’Connor seems also to suggest. To repeat what his Honour found as a result of construing the two awards in question, the particularity of an aspect of the earlier award evinced the intention of the Commission that the same should prevail over the generality of the later award in the application thereof to the same employer and the same employees in respect of the same particular employment activity. O’Connor sought to distinguish Botany Cranes in any event by reason of the circumstance that the later Building Award there involved applied not just to the operation of cranes but to all manner of building activities, in contrast to the earlier Mobile Crane Award, whereas the later 2000 Variation and FMIPA 2000 here involved applied to the same activities of slaughtering of animals and the processing of meat as did the preceding 1992 Agreement. I am unable to see why that circumstance in Botany Cranes provides any legitimate basis for rejecting an analogous application of his Honour’s reasons for judgment to the circumstances here involved, since in both cases, the later awards purportedly related to relevantly similar circumstances of employment as the earlier award (or deemed award in the case of the 1992 Agreement as a certified agreement under the IR Act).

4. As to O’Connor’s second principal submission foreshadowed to in [20] above, it is appropriate to reproduce below the precise text thereof:

   “The Commission did not ‘order’ that the agreement be certified. Who, apart from the Commission itself, would or could have complied with any such order? What the Commission said was that it “hereby certifies” the 1992 Agreement… By certifying the agreement the Commission was not enacting as its own measure, as it were, every provision thereof.”

   O’Connor contrasted the Commission’s authority to certify an agreement pursuant to Division 3A of Part VI of the IR Act, which is of course the situation here in relation to the 1992 Agreement, with its authority to make orders conferred by s 111(1)(b) and (c) of the IR Act, the text of which explicitly equates an award to an order, but not a certified agreement to an order (see again [12(vii)] above. O’Connor further contended that the Commission’s so-called certification “concern”, pursuant to Division 3A of Part VI, of the IR Act, was merely to ensure that the 1992 Agreement met the statutory criteria of s 134E of Division 3A, being a function supposedly to be compared for example with ss 134M(3)(c), 134M(4) and 134N(3) of Division 3A, where in alleged contrast the Commission is specifically empowered to act by order (see [5] and [12(iii)] above respectively for the texts of relevant sub-sections of ss 134L, 134M and 134N).

5. I do not think that O’Connor’s submission as to such confined meaning of the word “order”, in the context of the opening words of s 149(1), is sustainable. I make the preliminary observation that it would be highly unlikely that the opening words to s 149(1) would recognise only an order in the nature of an award in the traditional sense of that expression, yet not similarly intend to apply such functional description to a certified agreement. The word “order” is not defined in the IR Act (or for that matter in the WR Act). Whilst the words “award” and “order” are used interchangeably in the legislation, for instance in s 114 (extracted at [12(vii)] above), and whilst I have not been able to identify within the legislation a similar pairing of “certified agreement” and “order”, it would be surprising if the Commission’s functions of varying and terminating certified agreements conferred by ss 134M and 134N of the IR Act would involve the making of orders, but not its equally important function of certifying the formation of an agreement in the first place, that latter function of the Commission involving investigation and the drawing of conclusions. As was said by Isaacs J in Monard v H.M. Leggo & Co Ltd (1923) 33 CLR 155 at 164-6, the formation of an agreement reached in settlement of a dispute or a part of a dispute in the context of the 1904 Act is a process having similar implications to an award. Thus his Honour made the following observations at 164-5:

   “… The words ‘an award’ might mean, according to their context, a piece of paper or the settlement by arbitration of disputed terms. In the Act they have various contexts, and sometimes they mean one thing and sometimes the other.

   The expression here means not the piece of paper – the material memorandum of the terms – but that the terms themselves, once the parties have agreed to them, shall be regarded precisely as if the Court had independently sanctioned them by compulsorily awarding them.”

   At 166, his Honour further observed:

   “    But the point is, that conciliation, openly preferred by the Legislature as being the simpler, surer and happier method, and most conducive to better understanding and mutual goodwill – perhaps the greatest asset in industrial operations, – is not penalised, or placed in an inferior or more disadvantageous position than is the compulsive process, which may prove necessary when conciliation fails, and is the last resort.”

   Since a certified agreement under the IR Act came into force when it was certified, and during the period of such agreement, remained in force subject to the provisions of s 134J (extracted in [12(iii)] above), and on certification fell within the s 4(1) definition of “award” in the IR Act, the process of certification under the IR Act was in terms of both function and status that of making an order, with the consequence that the critical opening words of s 149(1) of the IR Act “Subject to any order of the Commission” must be so interpreted as to include reference to a certified agreement under that Act, and for reasons I have earlier advanced, a prior certified agreement, as well as one that was contemporaneous with an award falling for consideration in contexts to which the sub-section purportedly applies. It would further follow that the identical text of s 149(1) in the WR Act, pursuant to which legislation the 2000 Variation and FMIPA 2000 were made, should be similarly construed, since the process of certification of agreements pursuant to Part VIB thereof is analogous to that pursuant to the earlier Division 3A of Part VI of the IR Act.

6. Judicial precedent provides useful examples of the characterisation of official conduct as orders, by reference to the exercise of both curial and administrative functions, and there is no good reason why such an approach should not also apply in relation to the act of certification by the Commission of an agreement pursuant to Division 3A of Part VI of the IR Act. Some examples of such characterisation are given below:

   (i)A declaratory judgment by a court as to pre-existing or currently existing rights, or as to new rights, is normally to be characterised additionally as an order of the court, yet the defendant/respondent is not thereby ordered to carry out certain action or desist from certain action, as O’Connor has seemingly insisted to be a necessary characteristic of an order. I cite from PW Young, Declaratory Orders (2^nd ed, 1984) at para [101]:

   “The term ‘declaratory order’ denotes two things. First, it denotes that what is pronounced is an order of the court and so is as much res judicata as any other order of the court… Secondly, it denotes that the order is distinguished from a mere advisory opinion which really is not in the proper area of judicial activity at all…”

   (ii)In R v Recorder of Oxford; ex parte Brasenose College [1969] 3 All ER 428 at 431 Bridge J explained the meaning of an order in a curial context:

   “The word ‘order’ in relation to legal proceedings in itself is ambiguous; clearly it may mean, perhaps, a linguistic purist would say that its most accurate connotation was to indicate, an order requiring an affirmative course of action to be taken in pursuance of the order, but it is equally clear that the word may have a much wider meaning covering in effect all decisions of courts.”

   There is no good reason why a similar meaning cannot be transposed into the process of finalisation by the Commission of industrial disputation by way of certification of an agreement.

   (iii)In Bithell v Bithell [1955] P 76, it was held that a woman admitted to a mental hospital as a temporary patient was, from the date on which she was certified, detained in pursuance of an “order” under the Mental Treatment Act 1930 (UK) (c.23) within the meaning of s 1(2)(a) of the Matrimonial Causes Act 1950 (UK). As in the case of (iv) below, this is an example of characterisation of certain kinds of administrative decision-making, pursuant to a non-curial process, as an order, because of the rights and obligations thereby created.

   (iv)In R v Clarke [1969] 2 QB 91, it was held that the word “order” in s 2 of the Documentary Evidence Act 1868 (UK) (c.37) ought to be given a wide meaning covering for instance an executive act of government performed by the bringing into existence of a public document for the purpose of giving effect to an Act of Parliament, in this case the Breath Test Device (Approval) (No. 1) Order 1968.

   Given the formal and official nature of the exercise by the Commission of the statutory function to certify an agreement, against the context of industrial disputation, and involving as it did under the IR Act (and still does so under the WR Act) an exercise of decision-making on the part of the Commission by way of forming a conclusion of satisfaction as to fulfilment of the requirements of s 134E(1) of the IR Act, and given also that a certified agreement requires any variation thereto or termination thereof to be made by an order pursuant to ss 134M and 134N thereof, there is no sound basis for withholding from the Commission’s exercise of the function of certifying an agreement pursuant to Division 3A of Part VI of the IR Act the characterisation of an order within the opening words of s 149(1).

7. It follows from the conclusions I have reached upon the meaning and application of the opening words to s 149(1), namely “Subject to any order of the Commission”, that the same are capable of potentially providing significant areas of qualification to the operation of the following paragraphs thereof, including in particular paragraph (f), and that the result for which O’Connor contends, as set out in [21] above, does not necessarily follow upon the circumstance of O’Connor having purportedly brought itself with the terms of paragraph (f) by its rejoinder of the employer’s association NMAA in order to gain the benefit of NMAA’s involvement as an employer’s association in the formation of awards. What must also be taken into account, by reason of such opening words, is the objective intention of the Commission in exercising its function of certifying the comprehensive 1992 Agreement, to which Agreement of course O’Connor was privy as sole employer, relevantly to any future general award of the Commission in the meat processing industry, by which O’Connor might thereafter unilaterally seek to become bound pursuant to s 149(1)(f) in respect of its Pakenham meatworks. As stated by Moore J in Botany Cranes in the passage cited in [23] above, by reason of the critical opening words to s 149(1), the intention of the Commission as maker of both, albeit not contemporaneous awards, is “paramount” in a context of that kind. AMIEU has pointed to the following circumstances, in my opinion correctly, as reflecting the Commission’s intention in certifying the 1992 Agreement, in relation to the potential operation upon such certified agreement of any subsequent awards which the Commission might thereafter make, particularly in a wider industrial context such as occurred in relation to the 2000 Variation and FMIPA 2000:

   (i)The 1992 Agreement, the subject of the Commission’s prior order by way of certification, was confined in scope to the contracting parties thereto, being O’Connor of the one part, and the AMIEU “representing all employees engaged in the processing operations undertaken by the employer” of the other part; moreover the 1992 Agreement was comprehensive in its regulation of the relationship between such parties (as may be initially inferred from the headings’ index reproduced in [7] above), and was finalised in the matrix of circumstances set out in [3-4] and recited in [6] above.

   (ii)The 1992 Agreement was expressed to take effect for the period from 18 December 1992 until 30 September 1995, and stipulated for negotiations to thereafter occur for renewal thereof, in the context in the meantime of preservation of the status quo, pursuant to Clause 1.3 of the 1992 Agreement (extracted in [4] above). Such stipulation operated of course subject to the right of either party to the 1992 Agreement to invoke the Commission’s jurisdiction as to making a new award, pursuant to the scheme of ss 111 and 114 of the IR Act or any successor legislation, once for instance the unlikelihood of consensus for a renewed certified agreement in whole or in part was perceived by either party to be the reality. Such a contractual stipulation was consistent with the statutory scheme concerning holding and renewal the subject of ss 134J and 134K of the IR Act (extracted in [12(iii)] above) then in force.

   (iii)The 1992 Agreement was expressed by Clause 1.2(b) thereof to be binding upon AMIEU and its officers and members on the one hand, and O’Connor and its Victorian employees on the other hand, and it provided by Clause 1.2(c) thereof that the same was to apply to the exclusion (inter alia) of FMIPA 1981 as varied, and any award varying or replacing FMIPA 1981, or “any other Award” (see again [6] above). As has been seen, FMIPA 1996 purported to replace the said FMIPA 1981 (see [9(iii)] above), and the 2000 Variation and FMIPA 2000 were expressed in turn to vary FMIPA 1996 (see [9(ix)-(x)] above.

1. I do not think that the submission can be sustained, at least in the context of s 148(1). As I have earlier pointed out in [12(vi)] and [12(vii)] above, though the WR Act (as did the IR Act) distinguishes the Commission’s power to vary awards from its power to make new awards in certain contexts, the legislation provides no definition of variation of an award per se. The definition of “award” contained in the WR Act (as in the case of the IR Act) commences “‘award’ means an award or order that has been reduced in writing under subsection 143(1)…”, and s 143(1) of the WR Act (as in the case of the IR Act) commences “Where the Commission makes a decision or determination that, in the Commission’s opinion, is an award or an order affecting an award…”. The operation of s 148(1) would become disjointed in operation if the same did not accommodate, within the statutory notion of “award”, an award variation. Depending I suppose on the context where the contrary intention may appear, it seems to me that other important provisions of the legislation would become potentially unworkable if, as a general rule, the variation to an award did not comprise an award as defined. The FMIPA 2000 illustrates that concern, since although it is framed in terms of a variation and obviously intentionally so, yet the same operates as a matter of substance, as O’Connor has submitted, as an award. By way of contrast, the 2000 Variation is not wholly comprehensible or workable without recourse to FMIPA 1996.

2. AMIEU next submitted, in relation to the operation of s 148(1) to the circumstances of the case, that neither the 2000 Variation, nor FMIPA 2000, deal “with the same matters” within the meaning of that expression contained in such sub-section; AMIEU pointed in summary to the following circumstances in support of such submission:

   (i)both the 2000 Variation and FMIPA 2000 purported to address and regulate only minimum terms and conditions awards (as indeed s 89A(3) of the WR Act seemingly requires);

   (ii)in the case of the 2000 Variation, Clause 24.7 thereof (extracted in [9(ix)] above) was expressed to operate only as an “arbitrated safety net adjustment”, did not purport to reduce existing wage levels, left untouched “above award” payments made under, for instance, certified agreements (such as the 1992 Agreement), and did not address such matters as conditions of employment, tally systems, hours of work etc as are to be found in the 1992 Agreement;

   (iii)in the case of FMIPA 2000, the same did not purport to address wage and employee emoluments and other financial entitlements beyond minimum time work rates for the entire industry, and did not address tallies (subject to limited exceptions), penalty provisions, intermittency payments, work-on-time, guaranteed minimum payments and employee liability; and

   (iv)In the case of both the 2000 Variation and FMIPA 2000, there was no commonality of parties with those parties the subject of the 1992 Agreement, the identification of parties to awards being asserted by AMIEU to be a “matter” for the purposes of s 148(1); the absence of commonality of parties was said to be constituted by the fact that O’Connor of the one part and AMIEU representing O’Connor’s employees of the other part were parties to the 1992 Agreement, whereas the “parties” to the two awards were the organisations NMAA and AMIEU.

3. O’Connor’s general response in relation to the 2000 Variation is that the same dealt with the single matter of most fundamental importance to an award, being what O’Connor characterised as “remuneration” or “pay”, and in relation to FMIPA 2000, the same dealt mainly with the matter of “remuneration”, as may be seen from the table prepared by O’Connor and reproduced at [21] above. It assists to understand the scope of this submission to refer to the large number of headings and sub-headings to the 1992 Agreement reproduced in [7] above. Both parties referred me in the present context to the decision of the Industrial Relations Court in May v Lilyvale Hotel Pty Limited (1995) 68 IR 112, where in relation to a claim for unpaid “remuneration” within ss 170DE and 170EE of the IR Act, Wilcox CJ declined to confine such statutory description to salary and wages. At 115, his Honour said as follows:

   “In several decisions in this Court, the contrary has been assumed. Non-salary benefits have been taken into account in assessing the employee’s ‘remuneration’ under s 170EE(3). An example is my own decision in Messervy v Maldoc Pty Ltd (1995) 63 IR 61, where I included the value of the employees’ board and lodging in assessing their ‘remuneration’.”

   His Honour then referred to and adopted the Macquarie Dictionary definition of the words “remuneration” and “remunerate” as follows:

   “1. the act of remunerating, 2. That which remunerates; reward; pay.” The verb “remunerate” is defined, more helpfully, as: 1. to pay, recompense, or reward for work, trouble etc; 2. to yield a recompense for (work, services, etc)….”

4. In my opinion, May does not materially assist either party in determining the ambit of the s 148(1) meaning of “matters”, in the context either of a traditional award or a certified agreement such as the 1992 Agreement, since May was concerned with the statutory expression of “remuneration”, and thus whether “remuneration” embraces termination entitlements in a context divorced from s 148(1), and not of the word “matters” per se. The word “matters” is to be found however in other contexts of the WR Act (see for instance the s 4(1) definition of “industrial dispute”). The s 148(1) meaning of “same matters” is controlled by the preceding expression “particular matters”, and I do not think that such latter use of the word “matter” can be literally applied in context to words of generality such as “remuneration” or “pay”. If comparisons are to be made between the 1992 Agreement on the one hand and the 2000 Variation and FMIPA 2000 on the other, upon the footing of the descriptions “remuneration” or “pay”, as contended by O’Connor, the result would not sensibly reflect what s 148(1) requires by its use of the preceding words “particular matters”. The 1992 Agreement, in addition to what is described therein as guaranteed minimum payments (Clauses 3.7 and 4.5), also provides for “pay rates” for different categories of meatworkers (Clause 3.1 to 3.4 and 3.6), and for various categories of so-called “additional payments”, which are not readily comparable with the “safety net adjustments” scheme of the 2000 Variation, or the complex minimum payments scheme of Part 4 of FMIPA 2000 headed “Wages and Related Matters”.

5. I would not, on the other hand, accept AMIEU’s submission that the word “matters”, where used in s 148(1), also includes the identity and circumstances of parties to the dispute giving rise to an award (or award variation), including the parties who are respondent to the award ultimately put in place pursuant to the Commission’s order. The submission does not accommodate for instance paragraphs (e) and (f) of s 149(1), as it must in the light of the fact that s 148(1) is designed to accommodate the impact of those paragraphs, as well as the four other paragraphs that proceed the same. Another submission advanced by AMIEU upon the construction of s 148(1) was in the following terms:

   “The Respondent seeks to argue that the new award discontinues in operation the continuing award only in so far as there is an inconsistency. Those are not the words or intent of section 148. Section 148 operates on an award, not the terms of an award. It is the whole award that continues in operation pursuant to the terms of section 148(1) and it is the whole award that is discontinued in operation pursuant to the terms of section 148(1).”

   It suffices to say that the submission, if correct, would render nugatory the sub-section’s reference to “dealing with particular matters”, and indeed for all practical purposes would tend to render s 148(1) inoperable, or virtually so.

6. O’Connor has advanced detailed submissions which purport to demonstrate, upon the basis of my conclusions in [29] being incorrect, that the later awards comprising the 2000 Variation and/or FMIPA 2000 displace the terms of the award relationship between O’Connor on the one hand and AMIEU as representing O’Connor employed AMIEU members on the other, as constituted of course by the earlier 1992 Agreement, upon the basis that there are numerous “same matters” dealt with by the 2000 Variation and/or FMIPA 2000 which correspond to “particular matters” dealt with by the 1992 Agreement. To respond adequately to such submissions of O’Connor would not be a simple task, particularly given the circumstance that the context of awards designed for industry application may be expected to be structured in more general terms than that of a certified agreement involving a single employer and a single work place. Given the conclusion which I have reached upon the critical s 149(1)(f) issue set out in [29] above, it becomes unnecessary for me to extend this already lengthy judgment to the extent that would be needed to respond to such detailed submissions provided by O’Connor. It suffices for me to say that what AMIEU has provided to me in the general terms described set out in [38(ii)-(iii)] above would need further elaboration and detail by way of more specific response to the corresponding O’Connor submissions as to “same matters”. What would be the formidable task of presenting discrete subjects or topics the subject of the 2000 Variation and FMIPA 2000, said to be identical to, or else sufficiently comparable with, “the same [subject] matters” addressed by the 1992 Agreement, would desirably be undertaken in the first instance by an integrated document prepared by the parties, which would produce in relation to each alleged “same matter” specific submissions in sequence isolating the areas of agreement and disagreement (as the case may be).

7. Finally, though not now necessary for me to determine, I should nevertheless indicate what would have been the dates when the 2000 Variation and FMIPA 2000 respectively took effect, in the light of the alternatives appearing in the formulation of the issues by [17(ii)-(iii)] above. As to the 2000 Variation, I hold that the same took effect on 3 August 2000, being the date when it was prospectively expressed to take effect pursuant to paragraph B thereof. I do not think that any different result is dictated by the circumstance that s 148(1) of the IR Act uses the expression “is made”, since I would think that implicit in that statutory expression is the notion of “according to the terms thereof”. As to FMIPA 2000, I would similarly hold that the same took effect from the time which was retrospectively fixed by paragraph B thereof, namely 1 November 2000, and again not at the date of making of the Order. Incidentally, there is already statutory precedent available for the retroactive commencement of an award (which as earlier indicated will at least normally include a variation of an award) in the form of s 148(3) of the WR Act.

8. In the result, the principal issues raised by O’Connor as formulated in [17(ii)-(iii)] above must be answered adversely to O’Connor, with the consequences as set out in [29] above. The other principal issue raised by O’Connor as formulated in [17(i)] above does not of course arise, by reason of the Full Court’s decision in Hamberger. I will grant declaratory relief accordingly. That leaves for resolution the final issue raised for consideration in this judgment, which I will now address.

   Whether O’Connor was entitled to make an election to use a time-work system rather than a tally system.

9. The meat industry tally system was described in [10] and [12] of the Commission’s Decision dated 24 September 1999, pursuant to which FMIPA 2000 was made, in the following terms:

   “[10]A tally system is one form of the more general class of payment by results systems of work. The notion of tally, or unit of computation, derives from ancient commercial counting practices, and more proximately in Australia from live stock head counting practices. Tally systems of one kind or another operate widely in abattoirs covered by the FMIP Award and many other awards and agreements applying to the commercial slaughtering and processing of animals. Only boners, slicers and slaughterers, typically 30% of the workforce in a plant, are engaged as tally workers. The balance of the employees are paid for the hours they work – known as time work.

   …

   [12]In essence, the notion of tally systems in the meat processing industry is built around a daily level of the input for production to be processed within ordinary hours by a specified or calculable number of employees. There are three fundamentals of award based tally schemes. The first is the tally or level of production throughout. It is set usually by reference to a criterion for tally, or criteria for minimum tally and maximum tally. The second is the pay rate or piece rate to be applied to the tally level. The third is the progression factor used to calculate payment for production levels above minimum tally, including “overs” for production outside ordinary working hours or beyond maximum tally if one is prescribed.”

10. The future of tally systems was put “under a cloud”, if I may use that expression, in the course of the formulation of the above Decision, upon the footing that the same had developed inefficiencies to the point where at least in the absence of rectification, the Commission would stipulate changed incentive systems. The Commission had this to say as to the future of tally systems in [149-151] of its said Decision of 24 September 1999:

    “[149]Whilst this is an application to vary the FMIP Award, the proceedings have been treated as a test case for meat industry tally provisions generally. As we noted earlier, applications have been made to amend the tally provisions in many other awards in the industry. The parties to nineteen other awards were given an opportunity to make submissions in this case. A large number of awards and agreements were tendered in the proceedings. Not all of these awards contain tally provisions that are identical with those in the FMIP Award. Some do and others contain provisions which are substantially the same. A number of our conclusions in this case about the provisions of Appendix 3 will apply equally to similar provisions in many other awards. However, we must qualify that observation in relation to some awards. We expect that our general findings would be widely applicable. Findings and conclusions based on the detailed provisions of the FMIP Award and its operation may need to be considered carefully against the detail of a particular award before being applied. Subject to that qualification, we would expect applications to vary those provisions to be deal with in accordance with this decision, subject to some important reservations we now mention.

    [150]We were told that some tally provisions have been updated and are not subject to the deficiencies identified in this application. Where it can be demonstrated that this has occurred and that the provisions are in active use, the case for deletion of the provisions might not be compelling, depending upon the circumstances overall. From the evidence in this case, however, we doubt whether prescriptive multiple or dual tally systems of the kind contained in Appendix 3 could ever be appropriate in an award applying to a range of different processing plants. The evidence has exposed the near impossibility of applying a prescriptive system to a range of different types of plants. That finding leads to the conclusion that the manner of operation of incentive systems is best left to negotiation at the employer or enterprise level, a course in harmony with the scheme of the Act.

    [151]In any simplification proceedings concerning other federal awards in the industry a party which seeks to retain the tally provisions will bear the onus of demonstrating that those provisions do not include deficiencies of the type in Appendix 3, and that it is appropriate that the award contain a prescriptive tally system. Unless the Commission is satisfied on those two issues, the tally provisions are to be deleted and replaced by provisions dealing with incentive systems along the lines which we have provisionally determined in this case, and will finalise in due course.”

11. At least until the commencement of the first lock-out, O’Connor had conducted what may be described as a species of a tally system, pursuant to the 1992 Agreement, which distinguished between “time work” and “piece work”, the former being geared to set hours of work and the latter to amounts of daily production. The tally system is in the nature of “piece work”.

12. The 1992 Agreement contained the following provisions bearing upon the tally system issue arising between the parties:

    “2.2.4  With respect to pieceworkers:

    (i)employees will perform their duties in accordance with agreements reached between the employer and the union with regard to methods of work and other arrangements;

    (ii)there will be no variation, alteration or addition to the conditions of employment of these workers unless agreed with the union.

    …

    2.3.1General decisions regarding methods of work, production processes, waste minimisation, introduction of machinery or new technology etc. shall be made following consultation and agreement with the Consultative Committee established under Clause 8.2.

    …

    11.1.4No variation, alteration, or addition to the conditions of employment of pieceworkers and/or ‘follow-on’ labourers shall be introduced at any works without agreement in writing of the union and the employer.”

13. By Clauses 26.1 and 26.3 of FMIPA 1996, which took effect on 19 December 1996, it was provided as follows:

    “26.1Each employer under this award shall elect whether to operate under a payment by results or incentive system (including piece work or tallies) or a time work system.

    …

    26.3The Union and the National Meat Association may agree to modify or terminate a system in question.”

14. In or around August 1999, O’Connor told the Employment Advocate that it wished to work under a time system, and this was said to have been formalised by letter dated 2 September 1999 from O’Connor to the Employment Advocate. The text of the letter reads as follows:

    “Re: Lodgement of The G & K O’Connor Pty Ltd Australian Workplace Agreement

    Please find two copies of The G & K O’Connor Pty Ltd Australian Workplace Agreement for filing. These AWA’s have been duly signed by the parties in accordance with the Workplace Relations Act 1996.

    G & K O’Connor Pty Ltd declare that the content of the AWA complies with Section 170VG of the Workplace Relations Act 1996, that before the employee signed the AWA, the Company handed him a copy of the information statement prepared by the Employment Advocate and that the Company has offered the AWA in the same terms of all comparable employees.

    When reviewing the G & K O’Connor Pty Ltd AWA, please note the following points:

    1.G & K O’Connor Pty Ltd joined the National Meat Association in late June 1999. As a consequence, the Company is respondent to the Federal Meat Industry Award 1996. The Company, despite working to a tally system under previous Enterprise Bargaining Agreements, has not previously made an election in accordance with Section 26(1) of the Federal Meat Industry Award 1996. G & K O’Connor Pty Ltd elects to work a time work system and the AWA reflects that election.

    2.During recent years, G & K O’Connor Pty Ltd has had insufficient cattle to process on average for eight (8) days per year. The Company would anticipate that this trend would continue over the next three (3) years.

    3.Learners (Classification Level 5 in Clause 10.1 of the AWA) would be expected to be promoted to Employee Classification 4 within their first five (5) working days.

    4.In order to best reflect the seasonal nature of the Victorian beef industry, the Company has adopted daily rather than weekly hire.

    We look forward to receiving a filing receipt. Please contact the undersigned should you have any questions.”

1. The election alleged to have been made by the mode appearing in [50] above was said to have been confirmed or formally notified by O’Connor to AMIEU and to the O’Connor employees on 22 November 1999, in the ways indicated below. On that day, O’Connor’s Operations Manager (Mr Allen) addressed a gathering of employees who were about to commence work at the conclusion of the lock-out, and informed them that they would be paid as time-workers “in accordance with FMIPA”. He further told the employees present at the meeting that they would not be working according to the tally system. Immediately prior to the meeting, Mr Allen gave the same information to five representative employees. O’Connor submits that the abovementioned Clause 26.1 of FMIPA 1996 imposed no requirement for the election to be communicated to AMIEU, or to any employee of O’Connor at any rate.

2. Since the recommencement of work on or about 22 November 1999, O’Connor has not operated a tally system, and has purported to apply the time-work provisions of FMIPA 1996 (Part 1).

3. Assuming that a right of election was conferred upon O’Connor by Clause 26.1 of FMIPA 1996, I have difficulty with the O’Connor submission that the same imposed no requirement upon it for the election to be communicated to AMIEU or to any employee. At common law, there exists an individual contract of employment between O’Connor and each employee (see [12(ii) and [19] above), and prima facie, for the election to have been effective in conformity with Clause 26.2, adequate notification would be required to be given personally to each employee affected, or at worst to AMIEU as his or her agent. In that context, I would cite the consequence of election indicated by Brennan J in The Commonwealth v Verwayen (1990) 170 CLR 394 at 421 as effecting “the sterilisation of a legal right otherwise than by contract”. Such a radical consequence is not in my opinion to be constituted by the informal and somewhat uncertain or ambiguous means described in [50-51] above. In any event, whether the election was validly communicated by the processes described in [50-51] matters not, for the following reasons:

   (i)The right of election conferred by FMIPA 1996 was not exercisable by O’Connor, as such award did not “apply” to O’Connor, for the reason established by the Full Court in Hamberger; I use the word “apply” in the sense which I have described in [19] above; I am thus unable to see how s 149(1)(f) so operates in relation to the 2000 Variation or FMIPA 2000 as to “bootstrap” O’Connor to an entitlement to exercise the rights conferred upon employers under FMIPA 1996. Particularly must that be so, given the terms of Clauses 2.2.4(ii) and 11.1.4 of the 1992 Agreement set out in [48] above, and the absence of AMIEU’s agreement to abolition of the tally system provided by the 1992 Agreement, or to the introduction in its place of a time-work system; and

   (ii)In any event, I think that the AMIEU has rightly submitted that Clause 26.1, upon its true construction, implicitly required that the election be made forthwith upon the FMIPA 1996 taking effect; otherwise the use of the word “shall” would have been contextually inapposite, because no time or period of time was otherwise stipulated for exercise of the right of election; in the events which happened of course, the purported election was not made until some three years or so after FMIPA 1996 took effect.

4. In the result, O’Connor has not succeeded on the principal issues which I am required to determine at this stage of the proceedings, and I will make appropriate declarations to give effect to these Reasons for Judgment. I propose to stand the proceedings over for directions at a time beyond the expiration of twenty-eight days from the date of ordering the declarations (I use the word “order” in the sense explained in [27(i)] above). If no appeal is lodged by O’Connor, I will be requiring detailed written submissions and calculations from the parties on the outstanding issues, together with a document assembled between the parties of a kind analogous to a Scott Schedule used in building construction disputes, and thus containing the competing calculations of the parties for each disputed ingredient of claim made in [16] above.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             29 May 2001

Counsel for the Applicant:	Mr S Rothman SC and Mr E White
Solicitor for the Applicant:	Gill Kane and Brophy
Counsel for the Respondent:	Dr CN Jessup QC and Mr N Harrington
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13-15 December 2000, 14 February 2001, 1-2 March 2001
Date of Judgment:	29 May 2001