Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch - [2002] WASCA 355

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: BURSWOOD RESORT (MANAGEMENT) LTD -v- AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH [2002] WASCA 355

CORAM: SCOTT J (DEPUTY PRESIDING JUDGE)
HASLUCK J
EM HEENAN J

HEARD: 2 OCTOBER 2002

DELIVERED : 18 DECEMBER 2002

FILE NO/S: IAC 9 of 2002

BETWEEN: BURSWOOD RESORT (MANAGEMENT) LTD (ACN 009 396 945)
Appellant
AND
AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH (ACN 009 396 945)
Respondent

Catchwords:

Industrial law - Appeal - Meaning of "industrial matter" - Respondent applied for new award 10 days after expiry of agreement - New award intended to replace previous agreement - Agreement still in force despite expiry - Jurisdiction to determine application whilst 2001 agreement still in force - Definition of "matter"

Legislation:

Industrial Relations Act 1979, s 7,s 23, s 29(1)(a), s 37(4), s 41, s 90

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T H F Caspersz & Mr D Brajevic
Respondent: Mr D H Schapper

Solicitors:

Appellant: Blake Dawson Waldron
Respondent: Derek Schapper

Case(s) referred to in judgment(s):

ALHMWU v Activ Foundation (Inc) (2000) 80 WAIG 4994
Australian Liquor, Hospitality & Miscellaneous Workers Union, WA Branch v Activ Foundation Inc (2000) WAIRC 00472; 80 WAIG 4994
Director General of the Ministry for Culture and the Arts v The Civil Service Association of Western Australia Incorporated (2000) 80 WAIG 453
Director General of the Ministry for Culture and the Arts v The CSA (2000) 80 WAIG 453
Griffin Coal Mining Co Ltd v Coal Miners Industrial Union of Workers of Western Australia [2000] WASC 107
Hooper v Kirella Pty Ltd (1999) 96 FCR 1
Hungry Jacks Pty Ltd v Wilkins and Office of Industrial Relations (1991) 71 WAIG 1751
Re Judiciary and Navigation Acts (1921) 29 CLR 257

Case(s) also cited:

Australian Rail, Tram and Bus Industry Union of Employees, WA Branch v Western Australian Government Railways Commission (2000) 80 WAIG 1740; [1999] WASC 196
Caledonian Collieries Ltd & Ors v The Australian Coal and Shale Employees' Federation (No 1) [1930] 42 CLR 527
Hooper v Kirella Pty Ltd (1999) 96 FCR 1
Hungry Jacks Pty Ltd v Wilkins & Office of Industrial Relations (1991) 71 WAIG 1751
Southern Cross Beverages Pty ltd v The Federated Engine Drivers' and Firemen's Association of Australasia, unreported; Full Bench AIRC; Print J5075; 13 November 1990

SCOTT J: The respondent to this appeal lodged an application before the Commission in Court Session for a new award to apply to employees of the appellant.
The appellant had been a party to an industrial agreement with the respondent known as the "Burswood International Resort Casino Employees Industrial Agreement 2001" ("the 2001 agreement"). That agreement expired on 30 June 2002.
The application for a new award to replace the 2001 agreement bears a date stamp of the Western Australian Industrial Commission of 10 July 2002, that is, 10 days after the expiry of the 2001 agreement.
In the new award the respondent seeks conditions similar to the 2001 agreement, but with a number of minor additions, including increases to the rates of pay and journey cover.
The proposed new award was to replace an earlier award called the "Burswood Island Resort Employees Award" and the 2001 agreement. The new award was to commence from the first pay period after 1 July 2002.
In the Commission in Court Session the appellant contended that the Court had no jurisdiction to determine the application because the 2001 agreement remained in force. It was submitted that there was no "industrial matter" within the meaning of that term in s 29(1)(a) of the Industrial Relations Act1979 ("the Industrial Relations Act") which could be referred to the Commission for determination. The appellant's contentions in that regard will become apparent in the course of these reasons.
The Commission in Court Session, in reasons delivered on Wednesday, 28 August 2002, determined that there was jurisdiction and that the Commission had power to arbitrate and to make the award sought if the circumstances justified that course.
The appellant has appealed to this Court from that decision, contending that the Commission has no jurisdiction to deal with the application. The grounds of appeal are:
1.The Commission erred in law in finding that it had jurisdiction to determine application A4 of 2002, when
(i)the things the subject of the award sought by the application were the subject of an industrial agreement between the parties to the application, which industrial agreement remains in force as between the parties;
(ii)the respondent had not filed a notice of retirement from the industrial agreement that had taken effect;
(iii)therefore, there was no "matter" concerning the things the subject of the continuing industrial agreement capable of constituting an "industrial matter" that could be referred by the respondent to the Commission for determination; and
(iv)the application did not otherwise refer an "industrial matter" to the Commission for determination.
2.Ground 2 of the grounds of appeal was abandoned at the hearing of this appeal.
3.There is injustice to the appellant if the appeal is not upheld despite any ground of appeal being made out in that any further proceedings or decision or determination of the Commission would be held or made in excess of, or without, jurisdiction.
4.Further, and alternatively, by reason of the matters referred to in the preceding paragraph, there is good reason not to confirm the decision appealed against if any ground of appeal is made out.
The thrust of the appellant's case before this Court was that because the 2001 agreement had not been terminated despite its expiration, the parties remained governed by the agreed terms and conditions of the 2001 agreement. Accordingly, it was contended that there was no "industrial matter" between the parties of such a nature as to give rise to jurisdiction in the Industrial Commission.
For that argument to be considered, the relevant provisions of the Industrial Relations Act 1979 need to be considered. Section 29 provides:
"29. By whom matters may be referred
(1)An industrial matter may be referred to the Commission ¾
(a)in any case, by ¾
(i)an employer with a sufficient interest in the industrial matter;
(ii)an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or
(iii)the Minister."
"Industrial matter" is defined in s 7 of the Industrial Relations Act:
"'Industrial matter' means, subject to section 7C, any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to -
(a)the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;
(b)the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;
(c)the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;
(ca)the relationship between employers and employees;
(d)any established custom or usage of any industry, either generally or in the particular locality affected;
(e)the privileges, rights, or duties of any organisation or association or any officer or member thereof in or in respect of any industry;
(f)in respect of apprentices or trainees -
(i)their wage rates; and
(ii)subject to the Industrial Training Act 1975 -
(I)their other conditions of employment; and
(II)the rights, duties, and liabilities of the parties to any agreement of apprenticeship or training agreement;
(g)any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including -
(i)the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or
(ii)the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation;
[(h)deleted]
(i) any matter, whether falling within the preceding part of this interpretation or not, where -
(i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and
(ii)the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;
and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include -
(j)compulsion to join an organisation of employees to obtain or hold employment;
(k)preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation of employees;
(l)non-employment by reason of being or not being a member of an organisation of employees; or
(m)any matter relating to the matters described in paragraph (j), (k) or (l)."
In s 7C of the Industrial Relations Act the definition of "industrial matter" is limited to the extent that matters governed by workplace agreements are excluded from the definition.
The next provision of the Industrial Relations Act of importance to the appellant's contention is s 41 which provides:
"41. Industrial agreements
(1)An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.
(1a)An agreement may apply to a single enterprise or more than a single enterprise.
(1b)For the purposes of subsection (1a) an agreement applies to more than a single enterprise if it applies to -
(a)more than one business, project or undertaking; or
(b)the activities carried on by more than one public authority.
(2)Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission shall register the agreement as an industrial agreement.
(3)Before registering an industrial agreement the Commission may require the parties thereto to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.
(4)An industrial agreement extends to and binds -
(a)all employees who are employed -
(i)in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and
(ii)by an employer who is -
(I)a party to the industrial agreement; or
(II)a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;
and
(b)all employers referred to in paragraph (a)(ii),
and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.
(5)An industrial agreement shall operate -
(a)in the area specified therein; and
(b)for the term specified therein.
(6)Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first-mentioned agreement has been made.
(7)At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement.
(8)When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement ('the first agreement'), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.
(9)To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise."
Counsel for the appellant contends that the effect of s 41(6) is that the 2001 industrial agreement in this case continued in force, notwithstanding that it had expired. As I have said earlier in these reasons, that agreement expired on 30 June 2002, but it was submitted that by reason of s 41(6) of the Industrial Relations Act, the agreement continued in force notwithstanding its expiration. It was therefore submitted that because the 2001 agreement continued in force, there was no matter of contention between the parties of such a nature as to come within the definition of "industrial matter" so as to ground jurisdiction in the Commission.
In my opinion, s 41(6) of the Industrial Relations Act serves two purposes, namely:
(1)that it extends the operation of an industrial agreement beyond its expiry date in circumstances where the parties have not retired therefrom until a new agreement or award has been made. In other words, the agreement does not expire on its termination, but continues until it is replaced by any one of the methods contemplated by the section.
(2)To act as a transitional provision governing the parties' relationship between the expiration of the agreement and the time when a new agreement or award is made. The section acts as a transitional provision which is reflected in s 41(8) set out earlier in these reasons. The effect of that subsection is, that once either the new industrial agreement, new award, or new enterprise order replaces the existing industrial agreement, then the earlier agreement is taken to be cancelled, except to the extent that the new agreement, award or order preserves any of the provisions of the earlier agreement.
In my view, s 41(8) provides the answer to the plaintiff's submissions in this regard. The Industrial Relations Act clearly contemplates that the parties to an industrial agreement which remains in force despite its expiry can obtain a new agreement, award or enterprise order. Once that agreement, award or enterprise order comes into effect, then the earlier agreement is "taken to be" cancelled, subject to the exception contained in s 41(8).
Counsel for the appellant contended that the only way in which a party to an industrial agreement could terminate the agreement is under the provisions of s 41(7) set out earlier in these reasons. It was contended that for a party to "retire" from such an agreement 30 days' notice must be given and upon the expiration of that period, the party ceases to be a party to such an agreement. In my view, s 41(7) sets out but one of the ways in which an industrial agreement may be terminated. Contrary to the appellant's submission, in my view, that is not the only way. Alternatively, as happened here, the agreement may be terminated by the coming into existence of a new award. Section 41 provides for such a contingency.
Counsel for the appellant relied upon the decision of the Commission in Court Session in the matter of Australian Liquor, Hospitality & Miscellaneous Workers Union, WA Branch v Activ Foundation Inc (2000) WAIRC 00472; 80 WAIG 4994. That case involved an enterprise bargaining agreement which was registered under the provisions of s 41 of the Industrial Relations Act. During the course of the agreement one of the parties sought to introduce into the enterprise bargaining agreement a provision relating to salary packaging. Another of the parties had already given notice of retirement from the agreement, as provided for by s 41 of the Industrial Relations Act. The second party, the Hospital Salaried Officers Association of Western Australia ("the HSOA"), had not given notice to retire from the agreement and was still bound by the agreement as its term had not expired. In those circumstances the Commission in Court Session held that until the HSOA took steps to withdraw from the enterprise bargaining agreement, the salary package provision could not be inserted.
The distinction between that case and the one presently under consideration is apparent. The enterprise bargaining agreement, so far as the HSOA was concerned, was still current at the time when the HSOA sought to insert the salary packaging provision into the award. In those circumstances, in my view, it was open to the Commission in Court Session to conclude that such a provision should not be inserted until the HSOA had taken steps to withdraw from the enterprise bargaining agreement. As I understand the reasons of the Commission in Court Session in that case, so far as the HSOA was concerned, it was still bound by the terms of the agreement which did not include the salary package agreement. It remained bound by that agreement until it took steps to retire therefrom. Those steps had not been taken and the agreement was still current. In my view, that is factually different to the case presently under consideration. Here the 2001 agreement had expired at the time at which the respondent lodged its application for the award. Accordingly, in my view, the provisions of s 41(8) of the Industrial Relations Act set out earlier in these reasons conferred upon the Commission jurisdiction to determine such an application after the expiration of the industrial agreement.
Counsel for the appellant also sought to rely upon Griffin Coal Mining Co Ltd v Coal Miners Industrial Union of Workers of Western Australia [2000] WASC 107 (Scott J) where it was held that the registration of an industrial agreement gave the agreement statutory force. The corresponding legislation in that case gave the contractual agreement primacy over an award. In my view, the same can be said of the industrial agreement in this case during its term. The effect of giving the agreement statutory force was to enable remedial action to be taken in the event of breach. That is not to say that the statutory force ceased to have effect at the date of expiry of the agreement. The effect of s 41(6) of the Industrial Relations Act is to continue the statutory force notwithstanding expiry and until termination. That provision would not exclude the Commission from exercising jurisdiction in relation to the creation of a new industrial agreement, a new award or a new enterprise order, as authorised by s 41(8) of the Industrial Relations Act.
The structure of s 41 of the Industrial Relations Act precludes both the 2001 agreement and the proposed new award from operating at the same time. Section 41(8) of the Industrial Relations Act makes it clear that when the award comes into effect, the industrial agreement ceases. As the Act expresses it, the agreement "is taken to be cancelled" except to the extent that the new award saves the provisions of the agreement.

Griffin Coal Mining Co Ltd v Coal Miners Industrial Union of Workers of Western Australia involved an agreement made under the provisions of the Coal Industry Tribunal of Western Australia Act 1992

which, by s 17 of that Act, gave to the agreement the force and effect of an award made under the provisions of the Industrial Relations Act. Again, in the context of those statutory provisions, the statutory status of the agreement was important in relation to the enforcement of the contractual terms because breach proceedings were available in the Industrial Magistrates Court. There is nothing in that decision, in my view, which is contrary to any of the views that I have reached in this case. The terms of the 2001 agreement were, and remained, enforceable until such time as the agreement was terminated either by retirement or because it was superseded under the provisions of s 41(8) of the Industrial Relations Act.

Similarly, in Director General of the Ministry for Culture and the Arts v The Civil Service Association of Western Australia Incorporate (2000) 80 WAIG 453 Anderson J referred to the non‑coercive nature of industrial agreements. In that context Anderson J referred to the fact that industrial "agreements" cannot be imposed upon the parties by coercive order of the Commission. Those agreements are agreements freely and voluntarily made and registered. Once registered, however, the enforcement provisions of the Industrial Relations Act take effect so as to give to the agreement statutory force. In that context Anderson J concluded that it was not appropriate for the Commission to order that an agreement operate from a date earlier than the date agreed between the parties.
The fact that the terms of the award in this case proposed to deal with a number of matters not covered by the 2001 agreement was, in my view, of little relevance. It is not necessary to consider those separate matters in determining whether or not the Industrial Commission has jurisdiction in relation to the matter.
In my view, no error has been demonstrated in the decision of the Commission in Court Session in determining that the Commission has jurisdiction to deal with the application. I would therefore dismiss this appeal.
HASLUCK J: The appellant, Burswood Resort (Management) Pty Ltd, seeks to set aside certain declarations made by the Industrial Relations Commission in Court Session on 28 August 2002, namely, that the respondent's application for a new award raises an industrial matter within the meaning of the Industrial Relations Act 1979; that the Commission has power under the Act to make a new award in the terms sought by the respondent to this appeal.

The appeal is brought pursuant to s 90 of the Industrial Relations Act which provides for an appeal to the Industrial Appeal Court from any decision of the Commission in Court Session on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not on an industrial matter or is erroneous in law.

Grounds of Appeal

The grounds of appeal are that the Commission erred in law in finding that it had jurisdiction to determine application A4 of 2002 when:
"(i)the things the subject of the award sought by the application were the subject of an industrial agreement between the parties to the application, which industrial agreement remains in force as between the parties;
(ii)the respondent has not filed a notice of retirement from the industrial agreement that had taken effect;
(iii)therefore, there was no 'matter' concerning the things the subject of the continuing industrial agreement capable of constituting an 'industrial matter' that could be referred by the respondent to the Commission for determination; and
(iv)the application did not otherwise refer an 'industrial matter' to the Commission for determination."
The principal issue raised by the grounds of appeal is whether certain matters that are said to have been covered by an industrial agreement that is still in force between the parties can be dealt with by the Commission as "industrial matters".
The appellant seeks orders that application A4 of 2002 be dismissed; or, alternatively, that the appeal be upheld and the matter be remitted back to the Commission in Court Session to be determined according to law.

Background

Employees of the appellant company were subject to the terms of the Burswood Island Resort Employees' Award A23 and A25 of 1985 ("the 1985 Award"). There have been variations and adjustments to the award but it was common ground between the parties to the appeal that the 1985 Award remains in force.
In the manner allowed for by s 41 of the Industrial Relations Act the parties subsequently negotiated various industrial agreements. It appears from an order made by Commissioner Wood on 24 August 2001 that in due course these agreements were replaced by an agreement which was entitled the Burswood International Resort Casino Employees' Industrial Agreement 2001 ("the 2001 Agreement"). It is apparent from cl 2 of the 2001 Agreement that it purports to cover the full range of matters usually contained in an award. The Agreement is said to be binding upon all employees employed by the appellant in its capacity as manager of the Burswood Property Trust.
Clause 4 provides that the term of the 2001 Agreement shall be from the date of registration to 30 June 2002. By cl 45 the company and the union agree that there will be no extra claims for the term of this Agreement and whilst it continues in force.
It seems that early in 2002, prior to the expiry of the 2001 Agreement, negotiations commenced between the parties for a replacement agreement. These negotiations were unsuccessful. The respondent's application A2 of 2002 for a new award was dismissed on the grounds that the parties had agreed to defer extra claims for the term of the 2001 Agreement.
Shortly after the term of the 2001 Agreement expired, on 10 July 2002, the respondent union filed an application for a new award to be called "Burswood Island Resort Employees' Award 2002" (the "proposed 2002 Award"). This application, A4 of 2002, is the subject of the present appeal.
It appears from Sch B to the respondent's application that, in effect, the union seeks a new award to replace both the 1985 Award and the 2001 Agreement. The document in question contends that the respondent sought to negotiate a new industrial agreement but the respondent refused to enter into an agreement of the kind proposed. Against this background, and having regard to the expiry of the 2001 Agreement on 30 June 2002, the respondent seeks a new award.
It is apparent from the terms of the proposed 2002 Award that the Award covers essentially the same matters as the 2001 Agreement. On the hearing of this appeal counsel for the appellant submitted that the only real differences between the 2001 Agreement and what is sought to be covered by the proposed 2002 Award are, first, the wage rates in the proposed new award are higher; second, the proposed award provides for an item called "journey cover"; third, the "no extra claims" clause is omitted.
It emerges, then, that as a consequence of a difference of opinion or dispute between the parties concerning the respondent's claim for higher wages and extra entitlements, an application was lodged with the Commission for resolution of what purports to be an industrial matter. The term "industrial matter" is defined in s 7 of the Industrial Relations Act to include any matter affecting or relating to the work, privileges, rights, or duties of employers or employees. The definition encompasses any matter relating to the wages or other remuneration of employees.
The appellant filed and served a notice of answer and counter‑proposal. It is not necessary for present purposes to traverse the entirety of the appellant's notice of answer. The appellant alleged, inter alia, that the respondent's application for relief was in breach of cl 45 of the 2001 Agreement concerning no extra claims. The appellant submitted a counter‑proposal directed to the employees' conditions of employment which I will call the "Burswood Proposed Award".
The appellant then contended, as a matter of law, that the Commission had no jurisdiction to determine the respondent's application. The appellant said that all matters in issue between the parties had been settled by the 2001 Agreement which, notwithstanding expiry of the prescribed term, remained in force under and by virtue of s 41(6) of the Industrial Relations Act. In the absence of any live issue or "matter" between the parties the Commission did not have jurisdiction to deal with the application, for s 23 of the Act, which defines the jurisdiction of the Commission, limits the jurisdiction of the Commission to enquiring into and dealing with any "industrial matter". If the application was not made in respect of a "matter" then it could not be said to be in respect of an industrial matter.
On 28 August 2002 the Commission in Court Session declared that the respondent's application for a new award raised an industrial matter and the Commission had power to make a new award in the terms sought by the union. The question of whether a new award should be made in the terms sought will not be decided until the jurisdictional issue has been resolved.
Before turning to the contentions of the respective parties, it will be useful to look briefly at the relevant statutory provisions and some of the decided cases bearing upon the jurisdictional issue.

Legal Principles

The Industrial Relations Act makes provision for the creation and enforcement of awards and industrial agreements affecting employers and employees. Arrangements of this kind are undoubtedly intended to remove or minimise areas of disputation between the interested parties. Nonetheless, in according a particular status to organisations of employers and employees, the legislation clearly recognises that fresh arrangements will have to be made from time to time as circumstances change. Various procedures are prescribed with a view to averting and resolving disputes.
Prior to 1 August 2002 the Act provided that terms and conditions of employment could be regulated by awards made by the Commission or industrial agreements registered with the Commission. Since that time, the Commission can now also make an "enterprise order" which will prevail over an industrial agreement or award if an issue arises.
The structure of the Act suggests that in contemporary times the interested parties are at liberty to choose different legal regimes in carrying into effect their industrial arrangements, but they will be bound by the regime they have chosen. The assumption underlying the legislation clearly is that industrial arrangements will be more productive and disputes less likely to occur if rights and duties are defined with certainty and not departed from unless and until the relevant procedures have been complied with.
Awards are made as a consequence of the Commission exercising jurisdiction under s 23(1) of the Act to deal with industrial matters referred to it under s 29(1)(a) of the Act. In the course of exercising its jurisdiction in that regard, the Commission has power to make awards that extend to and bind all employees employed in the industry to which the award applies and all employers employing those employees. By s 37(4) an award shall, subject to any variation made under the Act, remain in force until cancelled, suspended or replaced.
As I have already indicated, by s 41 of the Act an agreement may be made between employers and employees with respect to any industrial matter or for the prevention or resolution of disputes. The decided cases establish that in circumstances where an award and an industrial agreement cover the same ground, and where the agreement was made subsequent to the award, the agreement will prevail unless it expressly provides otherwise: Hungry Jacks Pty Ltd v Wilkins and Office of Industrial Relations (1991) 71 WAIG 1751. This precept is now reflected in s 41(9) of the Industrial Relations Act.
Section 41 of the Industrial Relations Act reads as follows:
41.Industrial agreements
(1)An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.
(1a)An agreement may apply to a single enterprise or more than a single enterprise.
(1b)For the purposes of subsection (1a) an agreement applies to more than a single enterprise if it applies to ¾
(a)more than one business, project or undertaking; or
(b)the activities carried on by more than one public authority.
(2)Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission shall register the agreement as an industrial agreement.
(3)Before registering an industrial agreement the Commission may require the parties thereto to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.
(4)An industrial agreement extends to and binds ¾
(a)all employees who are employed ¾
(i)in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and
(ii)by an employer who is ¾
(I)a party to the industrial agreement; or
(II)a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;
and
(b)all employers referred to in paragraph (a)(ii),
and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.
(5)An industrial agreement shall operate ¾
(a)in the area specified therein; and
(b)for the term specified therein.
(6)Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first-mentioned agreement has been made.
(7)At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement.
(8)When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement ('the first agreement'), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.
(9)To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise."
In Director General of the Ministry for Culture and the Arts v The CSA (2000) 80 WAIG 453 Anderson J observed at par 39 that the whole scheme of the Act in relation to industrial agreements is based upon the notion of consensus. There is nothing in s 7 (which contains the definition of "industrial agreement") or s 41 which would support the notion that an industrial agreement can be created in whole or in part by coercive order of the Commission. The Commission has no power to order an organisation to become a party to an industrial agreement and the powers of the Commission to vary agreements are extremely limited.
In ALHMWU v Activ Foundation (Inc) (2000) 80 WAIG 4994 the Court relied upon reasoning of this kind in the course of holding that in circumstances where a union had not retired from the enterprise bargaining agreement in question an order made in proceedings concerning other entitlements could not have the effect of amending the enterprise bargaining agreement.

The Appellant's Case

Counsel for the appellant submitted that the "matters", if any, raised by the respondent's application for the proposed 2002 Award were essentially the same as those covered by the 2001 Agreement. The union had not taken any steps to retire from the agreement with the result that the agreement continued in force, notwithstanding the expiry of the prescribed term. This meant that any so‑called matter between the appellant and the respondent concerning the conditions of employment could be taken to have been settled and would remain in that state until the respondent retired from the industrial agreement. It would be contrary to the objectives of the legislation and give rise to deleterious uncertainty if matters which were thought to have been settled could be re‑opened unilaterally.
Counsel went on to submit that the jurisdiction of the Commission depends upon the existence of a matter between the parties of an industrial nature, that is to say, some issue in the nature of a justiciable dispute in Re Judiciary and Navigation Acts (1921) 29 CLR 257; Hooper v Kirella Pty Ltd (1999) 96 FCR 1. In the present case the respondent's application did not bring any matter into contention because the debate about industrial matters that preceded the negotiation of the 2001 Agreement had been brought to an end by the making of the Agreement. Mere dissatisfaction with the terms of a binding arrangement is not something that the Commission can deal with under s 23(1) of the Industrial Relations Act.
Counsel said further that the respondent was seeking to take advantage of the benefits provided by the current 2001 Agreement by not retiring from it, whilst concurrently applying to the Commission for a new award in respect of essentially the same matters that had been dealt with by the Agreement. The no extra claims provision in cl 45 of the Agreement and the objectives of the legislation precluded such an approach.
Counsel for the appellant sought to reinforce his description of what was the correct approach by pointing to the 1985 Award. If the respondent retired from the 2001 Agreement in the manner allowed for by s 41(6) of the Act the 1985 Award continued to apply. This was sufficient to rebut any suggestion that it was not open to the appellant to retire from the 2001 Agreement until a new agreement had been negotiated or a new award was brought into existence pursuant to an order of the Commission.
It followed from this line of argument that if the respondent did retire from the 2001 Agreement it would be at liberty to press for the proposed 2002 Award (or an agreement in that form) and to bring an application for relief in respect of an industrial matter if the parties were unable to agree. Counsel supported this contention by reliance upon the Activ Foundation case (supra).

Conclusion

There can be little doubt that the respondent's application is notionally in respect of an industrial matter and therefore, prima facie, lies within the jurisdiction of the Commission. There is clearly a live issue between the parties as to the conditions of employment and level of remuneration. Prima facie, matters of this kind are generally characterised as industrial matters. The respondent union has advanced a claim for a new award and a perusal of the claim shows that each of the clauses sought are clauses of a familiar kind concerning wages, hours of work, leave and other entitlements.
This view of the matter does not appear to be seriously disputed. The question for determination is whether the matters supposedly in issue have ceased to be in issue (for the time being) having regard to the terms of the 2001 Agreement and s 41(6) of the Industrial Relations Act.

I see considerable force in the submissions made by counsel for the appellant. In my view, the effect of s 41(6) of the Act is to keep in force the 2001 Agreement until such time as a party to it retires from the agreement in the manner provided for by s 41(7) of the Act. It follows from earlier discussion that such a construction appears to be consistent with the scheme of the legislation.
When an award or an industrial agreement comes into effect both parties should be able to assume that the relevant arrangements will continue to apply until new arrangements are made in accordance with the prescribed procedure. In many cases, a new agreement will have been negotiated before the former agreement expires. In such a case, upon retirement from the existing agreement, the new agreement will come into effect immediately. If a new agreement cannot be negotiated, as in the present case, the relationship between the parties will be controlled by an underlying award. This will protect the position of the employee if it becomes necessary to retire from the existing agreement in the manner contemplated by s 41(7) of the Act in order to apply for a new award.
However, it seems to me that these are all matters which can and should be taken into account if an application of the kind in question is brought before the Commission. I have great difficulty in accepting that the line of argument advanced on behalf of the appellant gives rise to a jurisdictional issue. The undoubted reality is, in the circumstances of the present case, that there is a contest between the parties concerning remuneration and conditions of employment. A controversy of this kind must clearly be characterised as an industrial matter.
It may be inconsistent with the scheme of the Industrial Relations Act, (and arguably with the no extra claims clause of the 2001 Agreement) for the respondent to raise extra claims while the 2001 Agreement remains in force. Indeed, the no extra claims provision in cl 45 may turn out to be a complete answer to the respondent's application for a new award, for cl 45 is not confined to the term of the 2001 Agreement but is said to apply while the 2001 Agreement "continues in force". This, in effect, was the approach adopted by the Commission in dismissing the respondent's case with respect to the prior application A2 of 2002.
Nonetheless, if the position emerges that one party (in this case the respondent) contends that the 2001Agreement and related statutory provisions should be construed in a certain way, and upon the basis that the respondent union is not precluded from advancing a claim for extra entitlements, to my mind, this brings into issue an industrial matter. In

other words, there is a difference of opinion, or dispute, between the parties about issues referable to the employment. The dispute can properly be characterised as a "matter", and the nature of the dispute makes it an industrial matter. Section 23(1) provides that the Commission has authority to enquire into and deal with industrial matters. I am therefore not persuaded that the Commission does not have jurisdiction to deal with the application in the present case.

I would dismiss the appeal.
EM HEENAN J: I have had the advantage of reading the reasons to be published by Hasluck J. I agree with those reasons and have nothing further to add.