Baker & Anor v Delta Hydraulics- Baker & Anor v Minister for Industrial Relations

[1994] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Hobart        No H15 of 1994

B e t w e e n -

PHILLIP SYDNEY BAKER & THE
  AUTOMOTIVE FOOD METALS AND
  ENGINEERING UNION

Applicants
  and

DELTA HYDRAULICS PTY LTD

Respondent

Office of the Registry
              Hobart        No H16 of 1994

B e t w e e n -

PHILLIP SYDNEY BAKER & THE
  AUTOMOTIVE FOOD METALS AND
  ENGINEERING UNION

Applicants

and

THE MINISTER FOR INDUSTRIAL
  RELATIONS AND TRAINING

Respondent

Second Respondent
  Applications for special leave to
  appeal

MASON CJ
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 DECEMBER 1994, AT 10.15 AM

Copyright in the High Court of Australia

_________________________

MR R.W.F. YOUNG:   If Your Honour pleases, I appear together with MR B.R. McTAGGART for the applicants.  (instructed by Jennings Elliott)

MR D.J. BUGG, QC:   If the Court pleases, I appear with my learned friend, MR L.E. NORRIS, for the respondent Minister.  (instructed by D.J. Bugg QC, Director of Public Prosecutions (Tasmania))

MR M.E. O’FARRELL:   If the Court pleases, I appear for the respondent, Delta Hydraulics.  (instructed by Dobson Mitchell & Allport)

MASON CJ:   Mr Young.

MR YOUNG:   If Your Honour pleases, it is appropriate that both these matters be heard together, and I assume that ‑ ‑ ‑

MASON CJ:   Yes, that seems the convenient course.

MR YOUNG:   Your Honour, in this particular application, the basis of the application for special leave is that the Full Court misapplied the tests in Annetts v McCann and in doing so considered the statutory right for leave to intervene and the common law right to procedural fairness to be indistinguishable.

In the circumstances of the decision, the consequences of this decision are of wide effect throughout the State of Tasmania, both industrially as to the foundation of the award system and in so far as the decision gives certain rights to enterprise agreements to adversely affect employment contracts.

The applicant applies to substitute the further amended draft notices of appeal which have been filed, and they are dated 1 December.

MASON CJ:   You do not need leave to amend a draft notice of appeal.  All you need to do is to bring it to the attention of the Court and your opponents.

MR YOUNG:   That has been done, Your Honour, and in that draft notice there is sought a declaration.  This is an application arising out of the 1992 amendments to the Industrial Relations Act, Tasmania, inserting Part IVA which provides for a mechanism for the approval and registration of enterprise agreements by an enterprise commission.  The application for special leave against the decision is one made because the Full Court found that the Act removed the common law right to procedural fairness, and the applicant, as an employee organisation, to appear in its own right in proceedings before the Enterprise Commission for the approval of an enterprise agreement where that agreement would be binding upon the applicant’s members and abrogate awards to which the applicant was a party, and which was bound, and which set employment conditions of the applicant’s members.

Your Honours, the effect of the decision is widespread and it is as follows.  An organisation that is a party to, or merely has the benefit of, an award which is to be abrogated cannot be heard in those proceedings.  An organisation cannot be heard on behalf of its members who have the benefit of the award where that award is so abrogated, and the members are not parties to the enterprise agreement.  The scheme of the Act is such that one does not have to be a party to an enterprise agreement in order to be bound by it.  So, employees that are not parties but will be bound by the enterprise agreement have no right to be heard in proceedings for its approval.

TOOHEY J:   Mr Young, can I just interrupt you?  When you speak of awards being abrogated, what specifically do you mean?

MR YOUNG:   In effect, they have been overwritten by the effect of the enterprise agreement.  The enterprise agreement overrides an award to the extent of inconsistency.  If an enterprise agreement purports to completely remove the award, then the agreement has precedence.  It is section 61M, which deals with the effect of a registered enterprise agreement.

MASON CJ:   This occurs on registration?

MR YOUNG:   It occurs on registration, and the application for approval is a process that has to be gone through in determining whether or not an enterprise agreement ought to be registered.

TOOHEY J:   But once registered - I am just trying to understand the relationship between the two - I appreciate that the enterprise agreement then determines the conditions of employment of those persons to whom it relates, but are you saying that in some way or other the award, as a document emanating from the Commission, may cease to exist?

MR YOUNG:   It does not cease to exist except so far as it formally had application to the persons bound by the enterprise agreement.

TOOHEY J:   Effectively, it takes those persons out of the operation of the award, leaving the award intact for whatever purposes it may have.

MR YOUNG:   For other purposes.  Quite so.  The effect of the scheme of the Act is that a person - if the Full Court’s decision is correct - a person who is not a party to an enterprise agreement can have his or her employment conditions materially altered without his or her knowledge or consent and without having any right of his or her employee organisation to procedural fairness.

It is submitted that the appeal raises two questions of law:  the exclusion of procedural fairness and the need for a more determinative ruling as to the manner in which Parliament must express its intention to remove procedural fairness and the difference between the statutory right to intervene and the common law right to procedural fairness.  It is submitted that these questions are of public importance because of the widespread effect of the decision upon industrial relations in Tasmania.  Enterprise government employees, for instance, could have their conditions of employment reduced.

MASON CJ:   I think you should direct your submissions to the question whether or not the decision of the Full Court is wrong.

MR YOUNG:   Your Honour, the essence of the Full Court decision is to be found in its considerations of section 27, section 61I and section 65.  In effect, the Full Court found that the way in which the Act expressed those particular sections manifested a clear intention that the common law right of the applicant to procedural fairness was removed.  But, if one looks carefully at section 27, there is a real difficulty in seeing how that particular section can really support the ‑ ‑ -

MASON CJ:   Where do we find section 27 conveniently set out in full as amended?

MR YOUNG:   Your Honour, I do not think I have set it out conveniently in full as amended.  It may well be in the ‑ ‑ ‑

MASON CJ:   It is set out somewhere in the application book, from recollection.

MR YOUNG:   I think it is set out in some of the judgments.

MASON CJ:   The current version of the Act has not got subsection (4) in it.

MR YOUNG:   It is to be found at page 25 of the application book.

MASON CJ:   Yes, that is it.

MR YOUNG:   Subsection (1) says:

The Minister may intervene in the public interest or otherwise in any proceedings before the Commission or the Enterprise Commissioner.

Prior to the amendment of 1992, the words “Enterprise Commissioner” were not in there.  Subsection (2) says:

An organization may, with leave of the Commission, intervene in any proceedings before the Commission.

The relevant section, subsection (4) says:

Subsections (2) and (3) do not apply to proceedings before the Enterprise Commissioner under Part IVA.

It is of interest to note that the section is to be found in Part II of the Act, dealing with proceedings before the Commission, and on its face does not appear to apply to proceedings before the Enterprise Commissioner.  That is prior to its amendment.  Subsection (2), on its face, does not appear to apply to proceedings before the Enterprise Commissioner.  They are dealt with in Part IVA, and that part seems to be more or less complete within itself.

DAWSON J:   Is the Enterprise Commissioner the Commission?

MR YOUNG:   The Enterprise Commissioner is a commissioner, but he acts in his capacity as an Enterprise Commissioner to approve enterprise agreements, and to that extent he has a separate entity, a separate hearing and separate procedure in matters before him.

DAWSON J:   But his decisions are decisions of the Commission, are they?

MR YOUNG:   I am not certain whether that is a fact, Your Honour.  They are decisions relating to the approval of an enterprise agreement.  They are not the same decisions of the Commission where there is an application made relating to an award or under Part II generally ‑ ‑ ‑

DAWSON J:   But you see, subsection (4) says:

Subsections (2) and (3) do not apply to proceedings before the Enterprise Commissioner -

But (5) and (6) which refer to the Commission apparently do.

MR YOUNG:   Your Honour, there is a lot of difficulty in working out exactly what section 27 means.  It would appear that if one looks at subsection (4) there was no need for it to be an Act, because subsection (2), on its face, does not apply to proceedings before the Enterprise Commissioner.

TOOHEY J:   When you say “on its face”, do you mean by virtue of its language?

MR YOUNG:   By virtue of its language.

TOOHEY J:   But subsection (2), Mr Young, is looking at a different situation, is it not?  The union would ordinarily be a party to an award, or to proceedings before the Commission, but some other organisation may wish to intervene; for instance, to claim that it has constitutional coverage over the employees in question, or that there are some reasons why an award ought not to be made.  So, you can see why subsection (2) might be there, but that is a different ball game to the one that we are concerned with this morning.  I just wonder whether section 27 really has much to say about the matter one way or another.

MR YOUNG:   It is the applicant’s submission that sections 27(4) and (2) really do not evidence an intention to remove the right to procedural fairness, and there are a number of reasons why the applicant makes that submission.

TOOHEY J:   But when you speak of procedural fairness, what you are really saying, I take it, is that your organisation should have been notified of the proceedings before the Enterprise Commissioner ‑ ‑ ‑

MR YOUNG:   That is so.

TOOHEY J:   ‑ ‑ ‑ so that it could be heard on any matters on which it had a legitimate interest, and that nothing in section 27 takes away that right.

MR YOUNG:   That would appear to be the case.

TOOHEY J:   What do you mean it would appear to be - that is your argument, is it not?

MR YOUNG:   That is the argument, yes.  It is submitted that the Full Court was in error because, in saying that the right to procedural fairness was taken away, it relied on subsection (4) and its effect in saying that subsection (2) does not apply in proceedings before the Enterprise Commission.  If that is the case, there are a number of hurdles that the Full Court had to jump in order to say that subsection (4) removed procedural fairness.  It first has to say that there is no distinguishable difference between the statutory right to intervene and the common law right to procedural fairness, and it is submitted that that is in fact an incorrect conclusion, because one could conceive that there are major differences, and I think Justice Deane in Reg v Ludeke and Others, (1985) 155 CLR 530 said”

What has been said above does not mean that the Commission is precluded from granting leave to intervene in proceedings to a non‑party who has no direct interest in them. 

I am leaving out small portions of it.  The section:

recognises “the power of the Commission to grant leave to a person or organisation to intervene in any matter” before it.

It is submitted that that makes it clear, and I think the Chief Justice’s comment at page 522:

Intervention is a procedure unknown to the common law.  It is very much the creature of statute.....In some instances the exercise of the discretion is largely uncontrolled -

illustrates that there is a very marked difference between right to seek leave under statute to intervene and the right to procedural fairness.  The Full Court has said, in essence, that there is no distinguishable difference and therefore the removal of the so‑called statutory right to intervene that one must infer arises out of subsection (2) necessarily results in the right to remove a very different matter - namely, the right to procedural fairness.  So it removes, in fact, the very different matter - the right to procedural fairness.

It is submitted that section 27, because of its lack of clarity, cannot be said to express the necessary intendment to exclude procedural fairness.  It is supported by the fact that subsection (2) cannot really be said, on its face, to refer to proceedings before the Enterprise Commissioner, when one considers that there have been amendments in subsection (1) inserting the words “Enterprise Commissioner”, so that subsection (1) says:

The Minister may intervene in the public interest or otherwise in any proceedings before the Commission or the Enterprise Commissioner.

So that it is stretching the matter too far to say that subsection (2) gives a statutory right to intervene in proceedings before the Enterprise Commissioner, and therefore to remove that section, removing that statutory right, also removes a different common law right.  To the extent that the Full Court decision relies on Part IVA, section 61I in particular, it is submitted that the decision is incorrect.  Section 61I confers statutory rights - it does not take them away.  Section 61I(6) merely confers a statutory right upon parties to appear, but it does not exclude people from appearing.  Subsection (6) says:

A party to the enterprise agreement may appear before the Enterprise Commissioner in person or by an agent.

Section 61I generally deals with hearing, and I think His Honour Mr Justice Zeeman in the Full Court misconstrued the effect of that section.  In the summary of argument there is a reference to the fact that His Honour said that the section only gave a right for parties to be heard.  That is at page 41, line 35.  He says:

Section 61I(6), which confers a right to be heard only upon parties to an enterprise agreement.

At page 41 of the application book His Honour is considering if sections 61I and 27(2) and 27(1) and 61I(6) is the basis upon which he draws from the statute the intention to remove the common law right.  It is submitted that ‑ ‑ ‑

DAWSON J:   What is the purpose of intervention or being heard, if the Enterprise Commissioner has to approve the agreement - “must”, said in 61J - unless satisfied that various matters which would have nothing to do with non‑parties to the agreement?

MR YOUNG:   It has been put quite succinctly in my learned friend Mr Bugg’s special leave summary at page 3, half‑way down the page:

The Enterprise Agreement, the subject matter of these proceedings, was signed by 67 employees in the enterprise.  The Enterprise commissioner, Justice Underwood, and the Full Court were all provided with documentary material establishing the following:

1.  There were 74 employees eligible to vote in the secret ballot (Section 61D(2) of the Industrial Relations Act 1984);

2.  Two ballot papers were not distributed.

3.  68 employees voted.

4.  55 employees voted in favour of the proposal and, later 67 employees signed the Agreement.

5.  13 employees voted against the proposal.

So, the scheme relating to the approval of an enterprise agreement is quite complicated, and it is quite possible that parties that ought to be appraised of the matter would have no knowledge of it.  The hearings or the proceedings for approval conducted by the Enterprise Commissioner might well need a skilled person such as a union representative to show that the requirements of the Act have not been complied with; that there might have been duress.  Section 61J(1) says:

The Enterprise Commissioner must approve an enterprise agreement unless satisfied that -

(a)  the conditions of employment fixed by that agreement are less than the conditions specified in 61F;

I think they are certain minimum award conditions. 

(b)  The parties to the agreement do not demonstrate an understanding of the matters specified in section 61I (2);

TOOHEY J:   But a union could be a party to an enterprise agreement, could it not?

MR YOUNG:   It could be; that is quite so.  But in many circumstances it is not.

TOOHEY J:   No, I understand that, but my question to you is going to be:  it might be one thing for a union to say, “We are not a party to this enterprise agreement, but it will have, or may have, implications for other employees, and therefore we should be heard.”  But that is not apparently the basis upon which you are putting it.  You are saying that the union ought to be heard in order to, perhaps, demonstrate to the Enterprise Commissioner that, so far as the individual employees are concerned, this agreement does not meet the requirements of the Act.

MR YOUNG:   That is so, Your Honour.

TOOHEY J:   That is a much more limited basis , is it not?

MR YOUNG:   It is limited.  There are a number of matters that could be put related to that.  It is submitted that section 65, the failure to grant a statutory right to intervene ‑ in section 65(2) a union or an organisation does not mean that it removes another distinct right.  Section 61ZC(3) imposes an obligation upon the Enterprise Commissioner to act in accord with equity and good conscience.  There is no definition of equity and good conscience and to that extent, the section imposes certain common law obligations upon the Commissioner, and such imposition runs directly counter to the finding that the Act

evidences the necessary intention to remove the effect of the award.  Your Honour, my time is up.

MASON CJ:   Yes.  Yes, Mr Bugg.

MR BUGG:   Thank you, Your Honour.  Your Honours, the scheme for the approval of enterprise agreements by an Enterprise Commissioner appointed pursuant to the provisions of the Industrial Relations Act 1984 was implemented into that Act by a block of amendments in 1992. The approach of the Full Court in its consideration of the statutory intention, apparent and manifested from the provisions of that block of amendments, was to consider the totality of what was occurring and particularly to examine the nature of the inquiry which was required to be undertaken by the Enterprise Commissioner. If I could take Your Honours to those provisions. They are in Part VIA of the Act. Your Honours have section 61A, which is the first section in Part - I am sorry, Part IVA of the Act and you will see under section 61D that there are a number of persons who can enter into an enterprise agreement.
But:

Before an employee or an employee committee -

and there are provisions in the Act for the appointment of an employee committee; no doubt where there is a sizeable organisation.  Before they:

can become a party to an enterprise agreement, the proposed agreement must be approved in a secret ballot by at least 60% of the persons employed -

So you start with a situation where, in fact, the employee base affected by the agreement, and to which that agreement will apply if it is entered into, is notified and has the opportunity to vote by secret ballot.  So, you do not start with a situation as posited by the applicant in saying that there are persons who may be in the enterprise who may be affected by an enterprise agreement and will not even know about it.  The enterprise agreement must satisfy that preliminary requirement, and the Enterprise Commissioner has control over that.  But once an agreement has been entered into ‑and the minimum terms of that agreement are set out in sections 61E and 61F ‑ the agreement must be in writing and it must be lodged under section 61H.

TOOHEY J:   Just before you go beyond section 61E, Mr Bugg, I take it that an enterprise agreement as approved cannot apply to any employee other than an employee who is a party to the agreement?

MR BUGG:   No, it can apply to any employee in the enterprise, so one of the propositions put by the applicant, which no issue is taken with, is that there may be persons who are not party to the agreement who will be affected by it.  It is the rule of the majority of at least 60 per cent of the workforce.

TOOHEY J:   That is what I rather thought was the argument that we were going to have put to us, but Mr Young has, I think, identified the argument now as being one in which the role of the union is simply to direct the Enterprise Commissioner to respects in which the requirements of the Act may not have been met.

MR BUGG:   That is right.

TOOHEY J:   That is a much narrower argument.

MR BUGG:   It is, certainly, Your Honour, and in so far as that is concerned, that is why I was taking you to the nature of the content of the hearing which the Commissioner is directed by statute to undertake.  So that if one is examining whether or not the rights of the actual parties to the agreement - that is the persons who are required to receive notice and attend before the Commissioner, and of course, the Commissioner cannot approve the agreement unless he satisfies himself of certain things, but in fact, there is a statutory compulsion upon him to approve the agreement to which Your Honour Justice Dawson referred, under section 61J.  But Your Honours will see under 61H, that:

On receipt of an enterprise agreement, the Enterprise Commissioner must -

(a)  set a hearing date and notify the Minister and the parties to the agreement accordingly; and

(b)  forward a copy of the agreement to the Minister.

Then, subsection (2) ‑ ‑ ‑

DAWSON J:   Can I just stop you there.  If 60 per cent vote in favour, are the 40 per cent that do not still parties to the agreement?

MR BUGG:   In this particular case, yes.  Almost 93 per cent of the workforce were parties to the agreement.  You will recall the figures that my learned friend Mr Young read out.  There were 74 employees to which this agreement applied.  Fifty five of them ‑ ‑ ‑

DAWSON J:   The point of my inquiry is that there would be a contra dicta if those who oppose the agreement were none the less parties to it, and that is so, is it not?

MR BUGG:   Yes.

TOOHEY J:   Except that those who were not parties to the agreement but were potentially liable to be bound by the agreement, as I understand it, would have no right on any approach to be heard other than to argue that the requirements of the Act had not been met.  Is that right, or is that putting it too narrowly?

MR BUGG:   No, that is not putting it too narrowly.  That is correct.

TOOHEY J:   In other words, they could not be heard to say, “There are more beneficial conditions operating in an award that does apply, or may apply, to us.”

MR BUGG:   In other words, “I lose something by this particular workplace entering into an enterprise agreement with the employer”.  The rule of the majority is what is predicated within the percentage figures that are contained in that.  I suppose if anything, looking at the Minister’s right to intervene, that would be one avenue of approach when you say they do not have any right to present that argument.  They obviously would through the Minister.  If their position was that the requirements of the Act were not being complied with, then of course, they have their own entitlement to appropriate relief through the courts in any event, I would have thought, in terms of prerogative relief.

TOOHEY J:   Take a situation, for instance, in which the union might say, “There are proceedings pending in the federal jurisdiction that are going to affect these employees and, if successful, will result in a better range of benefits than this agreement provides”.  Would that be a legitimate point to make before the Commission, or does it not fall within the context of the Act?

MR BUGG:   It would not fall within the province of the Act because there is a clear demarcation between federal awards and State awards.  This Act only applies to State awards and employees working under that award system.  Of course, that award system is governed entirely by the Commission which is established under the Act, the hearing proceedings for which are contained in sections 22 to 27.

DAWSON J:   In any event, it is just not one of the matters which the Enterprise Commissioner is to consider.

MR BUGG:   No.  The enterprise Commissioner is only required to inquire as to whether or not the parties to the agreement understand the matters mentioned in section 61J, and so it is a very narrow ‑ ‑ ‑

TOOHEY J:   That is not quite right, is it?  I mean, the enterprise agreement must comply with section 61F.

MR BUGG:   Yes.

TOOHEY J:   That is designed to ensure that the employees do not lose out by reason of entering into an enterprise agreement.

MR BUGG:   Yes.  Then you go to section 61J and he must approve it unless he is satisfied that the conditions fixed by that agreement are less than the conditions specified in F.

TOOHEY J:   Yes, I see that.

MR BUGG:   So, there is a statutory compulsion.  The limited nature of the inquiry, of course, is the starting point of each of the members of the Full Court when they examine just what the applicant before this Court says was its entitlement - that is, as a representative body to appear before the Enterprise Commissioner and make submissions on behalf of the parties to the agreement as to whether or not they properly understood it.  The Commissioner himself has a statutory requirement to inquire as to whether or not the parties properly understand their rights and the terms of the agreement.

So, in effect, what the applicant says is, “We are being deprived of procedural fairness”.  That is a right to be heard, not on our behalf, but on behalf of parties to the agreement to intercede on their behalf as to non‑compliance with the requirements of the Act or a lack of understanding of the provisions of the agreement.  Yet, they are the express statutory obligations on the Commissioner which he must inquire of before the persons - each member who enters into an agreement must satisfy him that he understands it and that he understands the difference between that and the obligations under the Act.  So, he has a statutory obligation.

Looking at that simple aspect of it, the focus of the applicant’s argument is confined to section 61, but of course, when the Full Court examined the matter it said just what was the statutory intention in implementing this block of amendments.

DAWSON J:   The Enterprise Commissioner is the Commission?

MR BUGG:   Yes, he is.  Under section 5, he is an ex officio member of the Commission.

DAWSON J:   So that his decisions are decisions of the Commission?

MR BUGG:   No, they are not.  Does Your Honour have section 5 of the Act there?  There was an amendment to section 5(2A) as a result of the 1992 amendments, and that merely says:

The Enterprise Commissioner, by virtue of that office, is a member of the Commission.

But the decisions of the Enterprise Commissioner are not decisions of the Commission but decisions of the Enterprise Commissioner.  That distinction, we say ‑ ‑ ‑

DAWSON J:   Yet they have the effect of abrogating an award of the Commission.

MR BUGG:   Yes, they do.

DAWSON J:   Why is not his decision a decision of the Commission?  He is a member of the Commission; he acts in his capacity as a member of the Commission.

MR BUGG:   He does to that extent, but he is only ex officio a member of the Commission.  He is not a Commissioner; he is the Enterprise Commissioner.  It is a specific title which is identified clearly, and distinguished between that of the Commission, both in the amendments to section 27 ‑ ‑ ‑

DAWSON J:   He is a Commissioner having certain functions, but nevertheless a Commissioner.  I find it hard to see that he would not be the Commission for that purpose.  That is of some relevance in relation to section 27.

MR BUGG:   Yes.  Your Honour, if you go to sections 27 and 28, you will see that there a specific distinction was drawn between the Commission and the Enterprise Commissioner by an actual amendment in 1992, when subsection (1) was amended to read:

The Minister may, on behalf of the Crown, intervene in the public interest or otherwise in any proceedings..... before the Commission.

or the Enterprise Commissioner.  No similar amendments were made to subsection (2) and likewise the amendment to subsection (4), which was given emphasis by the Full Court, says:

Subsections(2) and (3) do not apply to proceedings before the Enterprise Commissioner under Part IVA.

Then similar amendments were made to section 28(1) and some weight is attached to that in the outline of submissions in reply because, under section 28, quite clearly there is no real distinction drawn between intervention and being a party to proceedings.  Your Honours will see in (2), it says:

“party” includes an intervener.

28(1) says:

Subject to this section, a party to any proceedings before the Commission -

or the Enterprise Commissioner or before the registrar may appear in person or by his agent.

So they draw that distinction but then later, when further amendments are made to subsections (3) and (4), the words “Enterprise Commissioner” are not added, and they relate to proceedings involving associations; that is, organisations such as, obviously, the applicant in these proceedings.

MR BUGG:   Mr Bugg, can I just ask you this.  If special leave were refused, the order of the Full Court would stand.  That would quash the order made by Mr Justice Underwood quashing the determination of the Enterprise Commissioner.  That would leave the decision of the Enterprise Commissioner on foot.

MR BUGG:   No, there is a new agreement.  That is what I have said in the outline of submissions.  To some extent ‑ ‑ ‑

TOOHEY J:   Yes, I am just trying to follow it through as to its implications for the existing orders that have been made.

MR BUGG:   Yes.

TOOHEY J:   That would, what - subject to any changes that may have taken place, on the papers it would leave the orders made by the Enterprise Commissioner untouched, would it?

MR BUGG:   Untouched, but they have been superseded, because the parties have been back before him with a fresh enterprise agreement which has replaced this enterprise agreement, has been registered, and is in

effect and operating within that enterprise, and is not the subject of any judicial or appellate challenge.

TOOHEY J:   Did the present applicant play any part in those proceedings?

MR BUGG:   Was invited to attend.  I am not in a position to take that any further because it was not a matter which was canvassed in an evidentiary sense before the Full Court, but certainly it was a matter which was discussed to that extent.  That is why, in response, we say much of what the applicant seeks by way of leave to appeal, that is for a quashing of the decision of the Full Court and a direction that the Enterprise Commissioner review this matter, is superfluous because it is ‑ ‑ ‑

DAWSON J:   It is academic.

MR BUGG:    Well, it is, yes.  As far as the Full Court is concerned, we say that each member of the court correctly addressed the principles applicable to matters of this nature as laid down by this Court in Annetts v McCann and all the other decisions referred to in the judgments.

TOOHEY J:   That might be a matter for argument but, on your case, even if that is not correct, it is not an appropriate case for the grant of special leave by reason of supervening events.

MR BUGG:   That is right.  In any event, what we say is that what you have is a matter of interpretation of the statute by the unanimous decision of the Full Court as to the application of that statute in the confined sense to which the applicant seeks to have it reviewed, and has determined that the clear intention of the legislators was to remove or abrogate whatever right the applicant may have had to so intervene or participate as a party.  He is certainly not a party to the proceedings because they are not a party to the agreement.  I cannot advance on that any further, if Your Honours please.

MASON CJ:   Thank you, Mr Bugg.  Do you wish to say anything, Mr O’Farrell?

MR O’FARRELL:   Just briefly, Your Honour.  If I might respectfully adopt the submissions of my learned friend, Mr Bugg, and just in answer to a question that was put to him by Your Honour Justice Dawson:  the Enterprise Commissioner is constituted in a sense under section 61ZA of the Act, so that it is a separate statutory office and so essentially, in exercising his functions as Enterprise Commissioner, he is acting under that separate statutory office and he is not an industrial commissioner in the sense of being a member of the Commission for that purpose.  That is all I wish to say.  If the Court please.

MASON CJ:   Yes.  Yes, Mr Young.  What do you say to this submission that this case is not a suitable vehicle for determining questions that you seek to have raised, because, in effect, it is academic by reason of what has occurred since.

MR YOUNG:   It is submitted that there was a live dispute before Mr Justice Underwood at the time, and even though now there is no live dispute and it is an appropriate matter for a declaration, it is of great public importance because, if special leave is not granted and the Full Court decision is arguably incorrect, then that decision would stand and bind all courts in Tasmania and have very persuasive effect on the way the Enterprise Commission would conduct matters before him.

MASON CJ:   But we have constantly taken the view in this Court that if the dispute is academic and is not live, no matter how important the question is, we do not grant special leave.

MR YOUNG:   The matter is not live at the moment, and if that is the view of the Court, then it will mean that if another matter comes to the courts for decision, it is very quick for an enterprise agreement to be changed, and that agreement could well result in a dispute that was live, not being live by the time the matter got before this Court.  I suppose that is the risk that the applicant runs, and each applicant would run.

MASON CJ:   Yes.

MR YOUNG:   But it will mean that the Full Court decision would stand and would be binding, even though it is, on the applicant’s submission, in error and has major effects in the State.  Do Your Honours wish to hear me on any other matters that the respondents have raised?

MASON CJ:   No, we do not wish to hear you on anything else.

By reason of supervening events, the questions sought to be agitated by the applicant in the proposed appeal are no longer live questions.  That being so, the case is not an appropriate one for the grant of special leave and the application is refused.

MR BUGG:   I seek an order for costs.

MR O’FARRELL:   I seek an order for costs.

MASON CJ:   You do not oppose that, Mr Young?

MR YOUNG:   No, Your Honour; no submission.

MASON CJ:   The applications are refused with costs.

AT 10.53 AM THE MATTER WAS ADJOURNED SINE DIE