Construction, Forestry, Mining and Energy Union v Mount Thorley Operations Pty Ltd
[1997] FCA 1134
•30 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - Interpretation of award and certified agreement - whether Federal Court of Australia has power to interpret certified agreement certifed under repealed laws - whether provision in award requiring termination of contracts of subcontractors is a valid provision - meaning of "a decision to reduce hands" - meaning of the word "regulate" - discretionary considerations in deciding to make an order of interpretation.
Workplace Relations Act 1996
Industrial Relations (Consequential Provisions) Act 1988
Workplace Relations and Other Legislation Amendment Act 1996
Industrial Relations Legislation Amendment Act 1992
Marshall v Watson (1972) 124 CLR 640, considered
O'Toole v Charles David Pty Ltd (No 2) (1991) 17 CLR 232, considered
Victoria v The Commonwealth (1996) 138 ALR 129, considered
R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313, applied
R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470, considered
Hawkins v Commonwealth Bank (1996) 66 IR 322, considered
Tuker v Ministry of Agriculture, Fisheries and Food [1960] 1 WLR 819, considered
Re Queensland Electricity Commission; ex parte Electrical Trade Union of Australia (1987) 61 ALJR 393, considered
Re Brack & Ors; Ex parte Operative Painters and Decorators Union of Australia (1984) 51 ALR 731, considered
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v MOUNT THORLEY OPERATIONS PTY LIMITED
MOORE J
SYDNEY
30 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 704 of 1997
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
APPLICANTAND:
MOUNT THORLEY OPERATIONS PTY LTD
RESPONDENTJUDGE:
MOORE J
DATE OF ORDER:
30 OCTOBER 1997
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT:
Orders and declares, that on the true construction of cl 24 of the Coal Mining Industry (Production and Engineering) Interim Consent Award September 1990 an employer, in the absence of agreement with the appropriate union, must apply the principle “the last to come the first to go” as the means of identifying the employees it will retrench in the respective classes of work according to the length of service at the mine.
Orders that order 1 takes effect at 12 noon Friday 31 October 1997.
Orders that the application under ss 413 and 413A is otherwise dismissed.
Liberty to apply
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
NG 704 of 1997
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
APPLICANTAND:
MOUNT THORLEY OPERATIONS PTY LTD
RESPONDENT
JUDGE:
MOORE J
DATE:
30 OCTOBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 2 September 1997 an application was filed by the Construction, Forestry, Mining and Energy Union (“CFMEU”) in the Federal Court of Australia (“this Court”) pursuant to s 413 and s 413A of the Workplace Relations Act 1996 (“the Act”) and, in terms, pursuant to s 21 of the Federal Court of Australia Act 1976. The respondent was Mount Thorley Operations Pty Ltd (“the Company”) which is part of a joint venture operating a coal mine at Mount Thorley in the Hunter Valley. Those employed on that project are generally employees of the Company. The application sought three orders concerning the interpretation of the Mount Thorley Operations Enterprise Agreement 1996 (“the Agreement”) and the Coal Mining Industry (Production and Engineering) Interim Consent Award, September 1990 (“the 1990 Award”). An amended application was filed on 12 September 1997 which added an application under s 178 of the Act seeking the imposition of a penalty for breaches of both the Agreement and the 1990 Award.
The proceedings were brought in circumstances in which it was contended that the Company was proposing to retrench some of its workforce on or shortly after 1 November 1997. There was material to support the contention and it was an assertion that was not denied by the Company in the proceedings. It is a question I return to later. There was an element of urgency about the matter and I decided on 9 October 1997 to hear that part of the application brought under ss 413 and 413A of the Act. I did so because there was limited time in which to hear the application prior to 1 November 1997. Moreover, aspects of the application under s 178 appeared to involve substantial issues of fact and it was, in all probability, premature. The Company had contended that even if the Court accepted for present purposes that the retrenchment of employees might, in some respect, be in breach of the Agreement and/or the 1990 Award, no breach could have then occurred because no employee’s employment had been terminated.
The application, insofar as it arises under ss 413 and 413A of the Act, is brought against the following factual background. The Agreement was executed by the Company on 23 August 1996. It was certified under the Act by the Australian Industrial Relations Commission (“the Commission”) on 30 September 1996. It was a term of the Agreement that it would operate for a period of two years. The mine at Mount Thorley produces a semi-soft coking coal used primarily for the production of steel and steaming coal used primarily in power stations. Evidence was given by Mr Dudley Isles who is General Manager, Operations, at the mine. He deposed to difficulties experienced in the operation of the mine arising from the way in which overburden was being removed and the coal retrieved. He also deposed to economic pressures which were being experienced arising from variations in the price for which coal was being sold and what were said to be low levels of productivity. More detailed evidence about some of these matters was given by Mr Wayne Lonergan, a partner at Coopers & Lybrand and Mr Ian MacPhee who is the Executive General Manager for Marketing of Coal and Allied Operations Limited which is a subsidiary of Coal and Allied Industries Limited as also is the Company.
Evidence was given on behalf of the CFMEU by Mr Peter Jordan who is the Vice President of the Mining and Energy Division, Northern District. Apart from formal matters, Mr Jordan gave evidence about meetings in June and July of 1997 of members of the CFMEU at the mine, which were addressed by Mr Isles, and meetings involving Mr Isles and other executives acting on behalf of the Company with both Mr Jordan and other representatives of the CFMEU. From this evidence it emerges that a number of business plans had been considered by the Company to address what was perceived to be its financial and operating difficulties. The first plan involved the reduction of the work force at the mine by 230 employees. It also emerges that it was this plan that was adopted and was to be implemented on 1 November 1997.
The critical provisions in the Agreement are found in cl 37 which reads:
“37 SECURITY OF EMPLOYMENT
(a)Provided that the business situation does not deteriorate and change strategies are implemented there will be no retrenchments of employees during the life of this agreement. The parties recognise that job security is dependent upon Mount Thorley operating as a viable and reliable coal company.
(b)Relationship to Contractors
In the event of a downturn in the business, provided that Company employees are competent to do the work being done at the time by a contractor, the contract shall be terminated where possible or not renewed and such work shall be done by employees of the Company.”
The critical provision in the 1990 Award is clause 24 which reads:
“24 REDUCTION OF HANDS
When a reduction of hands is decided upon by the employer it shall be regulated by the principle ‘the last to come the first to go’ in the respective classes of work according to length of service at the mine. Provided that if with regard to any mine an agreement is arrived at between the employer and the appropriate union, such agreement will bind such members notwithstanding that it may be inconsistent with the foregoing provisions of this clause.”
This application seeks an interpretation of these provisions.
It is convenient to set out what I perceive to be the substantial issues that arise in the proceedings. They are:
What is the meaning of cl 37(b) as raised in order 3 of the application. Order 3 is in the following terms:
A declaration and/or interpretation of Clause 37(b) of the Agreement in the following terms:
That upon the true meaning of Clause 37(b) of the Agreement, the Respondent is not permitted to carry out retrenchments of employees without first terminating or not renewing where possible the contracts of contractors whose work Company employees are competent to perform without any regard to the comparative cost of contractors and Company employees performing the work.”
What is the meaning of cl 24 of the 1990 Award as raised in order 4 of the application. Order 4 is in the following terms:
A declaration and/or an interpretation of Clause 24 of the Coal Mining Industry (Production and Engineering) Interim Consent Award, September 1990 (the “Award”) in the following terms:
That upon the true meaning of Clause 24 of the Award the clause validly provides that the employer, in the absence of agreement with the appropriate union, having decided upon a reduction of hands, is not entitled to take into account any other consideration other that the principle “the last to come the first to go” in the respective classes of work according to the length of service at the mine.”
Whether cl 37(b) of the Agreement is valid. Counsel for the Company and counsel for the Minister for Workplace Relations and Small Business, who intervened pursuant to s 471 of the Act, submitted cl 37(b) was not valid because the Commission had no jurisdiction to certify a term of an agreement dealing with contractors in the way cl 37(b) did. At one point counsel for the Company also sought to impugn the validity of cl 37(b) on the basis that it was beyond the ambit of any relevant dispute between the Company and the CFMEU though ultimately this contention was not pressed.
Whether as a matter of discretion any order of interpretation should be made in relation to either cl 37 or cl 24.
Whether the this Court has jurisdiction to make an order of interpretation under either s 413 or s 413A of the Act in relation to an agreement which was certified prior to the date at which recent amendments to the Act took effect.
The application also seeks the interpretation of cl 37(a) of the Agreement. The order sought is in the following terms:
“That upon the true meaning of Clause 37(a) of the Agreement, it cannot be said that the Respondent is not operating as a viable and reliable coal company merely because the Respondent is not expected to make a profit or meet a target of profit for the current year in circumstances where the Respondent has gone from a situation at the commencement of the Agreement of a substantial loss for the Respondent to a present situation of less than half the loss for the current year.”
Early in the hearing I indicated that the CFMEU would have difficulty in persuading me that such an order should be made, though that part of the application was not abandoned by counsel for CFMEU. My reasons for expressing this view will become apparent shortly.
The logical starting point in considering the issues raised in the application is the contention of the Company that this Court does not have power to interpret a certified agreement which had not been certified under Division 4 of Part VIB of the Act. The present application was filed on 2 September 1997. This was after significant changes to the Commonwealth industrial legislation took effect. I discuss them shortly. “The Court” is defined in the Act as this Court and ss 413 and 413A confer on this Court a power to interpret industrial instruments. Those sections provide:
“413(1)The Court may give an interpretation of an award on application by:
(a) the Minister; or
(b) an organisation or person bound by the award.
(2)The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court.
413A (1) The Court may give an interpretation of a certified agreement on application by:
(a) the Minister; or
(b) an organisation or person bound by the certified agreement; or
(c) an employee whose employment is subject to the agreement.
(2) The decision of the Court is final and conclusive and is binding on:
(a) the organisations and persons bound by the agreement; and
(b) the employees whose employment is subject to the agreement;
who have been given an opportunity of being heard by the Court.”
Section 4(1) of the Act defines award and certified agreement in the following way:
4(1) In this Act, unless the contrary intention appears:
...
“award” means an award or order that has been reduced to writing under subsection s143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA.
...
“certified agreement” means an agreement certified under Division 4 of Part VIB
...”
Thus the Act appears to confer a power to interpret a certified agreement as defined which is an agreement certified under Division 4 of Part VIB. It does not appear, in terms, to confer a power to interpret a certified agreement if it had been certified under earlier and repealed legislative provisions.
In order to understand more fully this issue, it is desirable to trace the recent legislative history of the power to give an interpretation of an award or certified agreement and to consider which court has been the repository of the power. At the time of its repeal, effective on 1 March 1989, the Conciliation and Arbitration Act 1904 (“C&A Act”) conferred by s 110 a power on this Court to give an interpretation of an award. Section 28 of that Act empowered the Australian Conciliation and Arbitration Commission to make a consent award or certify a memorandum of agreement made in settlement of an industrial dispute. Section 28(3) deemed a certified agreement to be an award for all purposes of the C&A Act. Thus, this Court was empowered to interpret a certified agreement.
When the Industrial Relations Act 1988 (“IR Act”) came into effect on 1 March 1989, it perpetuated the power of this Court to give an interpretation of an award: see s 51. Section 115 conferred a power on the Commission to certify a memorandum of agreement made in settlement of matters in dispute though that, and related sections, did not deem such an agreement to be an award. Rather the definition of award in s 4 was extended so as to include a certified agreement and certified agreement was defined in s 4 as an agreement certified under s 115. Section 7 of the Industrial Relations (Consequential Provisions) Act 1988 required an award made under the C&A Act to be treated as having been made under the IR Act and there is little doubt that, having regard to the provisions of s 28, this would have included a certified agreement.
Prior to the enactment of the Workplace Relations and Other Legislation Amendment Act 1996, which both changed the name of the IR Act to the “Workplace Relations Act 1996” and substantially amended it, the provisions of the IR Act dealing with the manner in which agreements might be certified by the Commission were amended twice. The Industrial Relations Legislation Amendment Act 1992 repealed s 115 and related provisions. It introduced a new division, Division 3A, into Part VI of the Act. It introduced a more detailed legislative regime for certifying agreements. It also substituted in s 4 a new definition of certified agreement which read:
""certified agreement" means an agreement certified under Division 3A of Part VI."
Section 19 of the Industrial Relations Legislation Amendment Act 1992 contained transitional provisions concerning certified agreements effectively deeming agreements certified under s 115 as having been certified under the provisions of Division 3A. The definition of award remained the same, as did the terms of s 51.
Significant changes to the IR Act were effected by the Industrial Relations Reform Act 1993. As to the power of the Commission to certify agreements, Division 3A of Part VI was repealed. A new part, Part VIB, was enacted which included Division 2. Division 2 conferred a power on the Commission to certify an industrial agreement: see s 170MC. The definition of award was amended though it continued to include a certified agreement. The definition of certified agreement was amended to read:
""certified agreement" means an agreement certified under Division 2 of Part VIB."
However the Industrial Relations Reform Act 1993 contained transitional provisions which provided that an agreement certified under the repealed Division 3A had effect as if the IR Act had not been amended by the Industrial Relations Reform Act 1993.
The Industrial Relations Reform Act 1993 also created the Industrial Relations Court of Australia: see s 361. It repealed s 51 but, by s 413, conferred on that Court the power to give an interpretation of an award. Though it is not entirely free from doubt, it is probable that the power so conferred was not only a power to interpret a certified agreement certified under Division 2 of Part VIB but also agreements which had been certified under Division 3A of the repealed provisions.
It is against this background that it is necessary to consider the provisions of the Workplace Relations and Other Legislation Amendment Act 1996 in more detail. Two relevant amendments were made to s 4. They introduced the definitions of award and certified agreement which I set out earlier in these reasons. The existing Part VIB was repealed and a new Part VIB was substituted. That part established an entirely new regime for the certification of agreements. These amendments were contained in Schedule 8 to the Workplace Relations and Other Legislation Amendment Act 1996. Schedule 8 contained transitional provisions dealing with certified agreements. The provisions dealing with the status of agreements certified under the repealed legislation were sub-items (2), (3), (4) and (5) of item 23 which provided:
“(2) If:
(a)an agreement was entered into before the commencement of this Schedule and was covered by Division 2 of Part VIB of the Workplace Relations Act 1996 as then in force; and
(b)whether before or after the commencement of this Schedule:
(i)the period of operation specified in the agreement; or
(ii)if it has been extended or further extended under section 170MJ of that Act as in force at the time - that period as extended or further extended;
has ended;
then, after the commencement of this Schedule, section 170MH of that Act as amended by this Schedule, instead of s 170MN of that Act as in force immediately before the commencement of this Schedule, applies to the agreement.
(3)If:
(a)an enterprise flexibility agreement is continued in force by Schedule 9; and
(b)any part (the post-commencement EFA period) of the period of operation specified in the agreement, or that period as extended or further extended, occurs after the commencement of this Schedule; and
(c)the enterprise flexibility agreement is, during the post-commencement EFA period, to any extent inconsistent with a certified agreement (whether made before or after the commencement of this Schedule); and
(d)the certified agreement was certified after implementation of the enterprise flexibility agreement was approved;
then the enterprise flexibility agreement prevails over the certified agreement, to the extent of the inconsistency, during the post-commencement EFA period.
(4)If:
(a)an enterprise flexibility agreement is continued in force by Schedule 9; and
(b)a certified agreement (whether made before or after the commencement of this Schedule) is at any time after the commencement of this Schedule to any extent inconsistent with the enterprise flexibility agreement; and
(c)subitem (3) does not apply to the inconsistency;
the certified agreement prevails over the enterprise flexibility agreement, to the extent of the inconsistency.
(5)Subsections 170LY(2) and (3) of the Workplace Relations Act 1996 as amended by this Schedule apply to certified agreements whether certified before or after the commencement of this Schedule.”
Item 23 was the only item in Part 2 of Schedule 8. It should be explained that the title of the IR Act was amended so as to read the Workplace Relations Act 1996 before the substantive changes to the legislation came into effect. This explains the reference in item 23(2)(a) and (5) to the “Workplace Relations Act 1996”. It can be seen that the transitional provisions bear upon agreements certified under the repealed legislation in four respects. Item 23(2) concerns the termination of a certified agreement under the new statutory regime which had been certified under the repealed law. Section 170MH in that new regime deals with the termination of a certified agreement in the public interest after its nominal expiry date. It reads:
“(1) After the nominal expiry date of a certified agreement;
(a) the employer; or(b)the majority of the employees whose employment is subject to the agreement; or
(c) an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement;
may apply to the Commission to have the agreement terminated
(2)On receiving the application, the Commission must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated.
(3)If, after complying with subsection (2), the Commission considers that it is not contrary to the public interest to terminate the agreement, the Commission must, by order, terminate the agreement.
(4)The termination takes effect when the Commission's order takes effect.
Thus, and notwithstanding the definition of certified agreement in s 4 (which was effected by item 3 in Schedule 8), the transitional provision in item 23(2) of Schedule 8 contemplates that s 170MH can apply to a certified agreement certified under the repealed legislation. Thus and to that extent, Schedule 8 preserves the operation of a certified agreement which had been certified under the repealed legislation. Item 23(3) renders paramount in certain circumstances an enterprise flexibility agreement over a certified agreement even if the certified agreement had been made before the new law came into effect. Item 23(4) has the opposite effect in other circumstances. Item 23(5) renders paramount an award made under s 170MX(3) (in that new regime) or an exceptional matter order, over any certified agreement whether made before or after the new provision came into effect. These provisions indicate that a certified agreement made under the repealed legislation continues to have legal effect although that effect is subject to the operation of the new legislation in the way identified in these sub-items of item 23.
Schedule 11 of the Workplace Relations and Other Legislation Amendment Act 1996 is entitled Consequential Amendments Relating to Certified Agreements, AWAs and Enterprise Flexibility Agreements. That schedule effects the change to the definition of award and also makes a number of changes to the Act to add references to certified agreements. It introduces s 413A which I earlier set out. It also deals with such matters such as prosecutions for breaching certified agreements and the review of certified agreements by the Commission if their contents are discriminatory. Schedule 11 also contains transitional provisions and item 88 provides:
“Certified agreements
Part 2 of Schedule 8 applies to the amendments made by this Schedule, as far as they relate to certified agreements, in the same way as that Part applies to the amendments made by Part 1 of Schedule 8.”
The critical question then becomes what was intended by item 88. In construing item 88 it is necessary to bear in mind the cautionary remarks of Stephen J in Marshall v Watson (1972) 124 CLR 640 at 649:
“Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simon said in Magor & St Mellons RDC v Newport Corp [1952] AC 189 at 191, “If a gap is disclosed, the remedy lies in an amending Act” and not in a “usurpation of the legislative function under the thin disguise of interpretation”.
However it is also necessary to bear in mind the observations of the High Court in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 55 ALJR 434 concerning a court’s task in construing an Act. It is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. A literal interpretation of the words of the statute may, in appropriate circumstances, not be preferred if some other construction appears to conform to the legislative intent ascertained from the provisions of the statute including the policy which may be discerned from those provisions: per Mason and Wilson JJ at 443. Moreover, there is a presumption that legislation will not oust the established jurisdiction of a superior court: see Pearce Statutory Interpretation in Australia 1996, 4th ed, para 5.24.
In my opinion, item 88 was not intended simply to treat certified agreements as existing for the purposes identified in Part 2 of Schedule 8. That had already been achieved by Part 2 of Schedule 8. Item 88 must have been intended to have some additional purpose. While it is not entirely clear, it is likely, in my opinion, that the purpose of item 88 was to notionally preserve the operation of agreements certified under the repealed law and render applicable to them the sections introduced by the earlier parts of Schedule 11 which included s 413A. There would be an obvious purpose in preserving their operation in this way and no obvious purpose in not. It follows, in my opinion, that the effect of item 88 of Schedule 11 was to confer upon this Court by s 413A a power to interpret a certified agreement even if the agreement was one that did not accord with the definition, that is one that had not been certified under Division 4 of Part VIB. While some of the preceding discussion was not the subject of argument, my analysis of the material I was taken to led to the conclusion I have just expressed: see also CFMEU v Gordonstone Coal Management Pty Ltd (Federal Court of Australia, unreported, 30 September 1997, Burchett J at 5-6). Its practical effect is limited, as will become apparent shortly.
I now turn to consider those parts of the Agreement for which the CFMEU seeks an interpretation.
It can be seen from the order of interpretation set out earlier that in relation to cl 37(a), the contentious part of the subclause is the expression “provided that the business situation does not deteriorate” together with the reference to “a viable and reliable coal company”. The application for interpretation of this part of the Agreement has its genesis in the meetings I earlier referred to in June and July 1997. In late July 1997 the Company circulated a briefing paper to employees who were CFMEU members. It took the form of answers to questions posed by employees and their representatives. One question concerned whether the Company had improved its performance. The answer noted that at the time the Agreement was negotiated the Company was projecting a profit of $6 - 8 million in the calendar year 1997 after a loss of $13.6 million in the calendar year 1996. The document noted that the projected profit for the calendar year 1997 was no longer going to be achieved and a loss of approximately $6 million was then being anticipated.
The CFMEU appeared to contend that a decision has been made to retrench employees and that decision was based on the what I have just said about the profits to be earned by the Company. The CFMEU sought to establish by this application that the failure of the Company to meet a projected profit did not constitute a situation where there had been a deterioration in the business situation as that expression appears in cl 37(a). Even accepting that this is a matter raising the interpretation of the Agreement, which I doubt, it is now clear that a range of factors are pointed to by the Company as possibly triggering the operation of cl 37(a). The CFMEU appeared to accept that this is now the Company’s position. Thus the issue sought to be raised in the application concerning the operation of cl 37(a) is, in my opinion, plainly hypothetical. It is not for this Court under the guise of interpretation to undertake a factual investigation about the financial circumstances of the Company, make findings of fact and then determine whether those facts give rise to “a business situation (which had) deteriorate(d)”. That is not a task to be undertaken in an application under s 413 or s 413A: Amalgamated Engineering Union v Metal Trades Employers Association (1944) 52 CAR 23 at 24; Re Clerks (Shipping) Award; Ex parte Lloyd Timber Mills Ltd (1954) 78 CAR 201; Printing and Kindred Industries Union v Bendigo Advertizer and Independent Pty Ltd (unreported, Federal Court of Australia, 25 February 1988) and Media Entertainment and Arts Alliance v John Fairfax Group Pty Ltd (1993) 49 IR 374. For these reasons I do not propose to further consider whether I should make any order of interpretation of cl 37(a).
Different considerations arise in relation to cl 37(b) of the Agreement. It is necessary to consider first a submission made by both the Company and the Minister that cl 37(b) was not valid in that it was not a provision that the Commission was empowered to certify at the time it did. The submission constitutes a collateral attack on the validity of the subclause: see O’Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232. At the time the Agreement was certified the source of the Commission’s power to certify it was s 170MC of the IR Act. That section authorised the certification of an agreement of the type referred to in s 170MA which provided:
“(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.
(2) If the parties to an industrial situation, or any of them, agree on terms for preventing the situation from giving rise to an industrial dispute between them, they may make a memorandum of the terms agreed on.
(3) A single memorandum may deal with 2 or more disputes or situations.
(4) All or any of the parties to the agreement may apply to the Commission to certify the agreement.”
It is also necessary to refer to the definitions of industrial dispute and industrial situation in s 4. They read:
“”industrial dispute” means:
(a)an industrial dispute (including a threatened, impending or probable industrial dispute):
(i)extending beyond the limits of any one State: and
(ii)that is about matters pertaining to the relationship between employers and employees; or
(b)a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a);
and includes a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in the capacity, the dispute extends beyond the limits of any one State);
“industrial situation” means a situation that, if preventive action is not taken, may give rise to:
(a)an industrial dispute of the kind referred to in paragraph (a) of the definition of “industrial dispute”; or
(b) a demarcation dispute of the kind referred to in that definition;”
Sections 170MC and 170MA did not, in terms, limit the nature of the matters that may be the subject of a certified agreement to those which may directly or, by virtue of the definition of industrial situation, indirectly be the subject of an industrial dispute. However, the High Court in Victoria v The Commonwealth (1996) 138 ALR 129 at 187 concluded that:
“The Commission cannot certify an agreement if any of its terms lacks a relevant connection with the dispute or industrial situation which would otherwise attract its award-making powers. Or to put the matter another way, the Commission can certify an agreement if and only if it could have made an award in the same terms. And that is so notwithstanding that its powers of certification are otherwise circumscribed so that, for example, they must be exercised if certain other conditions are fulfilled and must not be exercised if certain other conditions are not.”
The Commission itself has taken the approach that the reference to awards and award making powers in this statement was not intended to exclude the powers of the Commission to make a consent award under s 111(1)(b): see Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (unreported, Australian Industrial Relations Commission, Print 3415, 24 July 1997, Munro J, Polities SDP and Hodder C.)
However, I proceed on the basis that the power of the Commission to certify an agreement under s 170MC is limited to an agreement which deals with matters that may be the subject of an industrial dispute and thus must be about matters pertaining to the relationship between employers and employees. This leads to a consideration of R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313. In that matter the High Court was called upon to consider the validity of a clause in the Dry Cleaning and Dyeing Industry Award 1966. The validity of the clause arose in proceedings for prerogative relief against, inter alia, the Commonwealth Industrial Court which had found the prosecutor guilty of a contravention of the clause. The relevant provision, cl 30(1)(a), provided that an employer bound by the award “shall not cause any work to be done for him by any person outside his workshop or factory unless such person is the holder of a current outdoor workers permit...”. The leading judgment was that of Barwick CJ, Taylor and Owen JJ. Their Honours first construed the clause. They concluded it prevented an employer bound by it from entering into a contract, not being a contract of service, with another person to do the relevant work: see 317. Kitto J agreed with their reasons on this point: see 323. Windeyer J appeared, though it is not entirely clear, to agree with their reasons in their entirety. Menzies J also viewed the award clause as prohibiting the engagement of independent contractors: see 326. Barwick CJ, Taylor and Owen JJ went on to consider whether such a clause concerned a matter pertaining to the relations of employers and employees which reflected the language used in the definition of “industrial matter”. Their Honours concluded it did not. During the course of their discussion of this issue they referred to the capacity of the Commission to make an award which not only prohibited the engagement of independent contractors but also regulated the terms of their engagement. Insofar as it had been argued that the regulation of the employment of independent contractors might impact upon the terms and conditions on which employees worked, their Honours said:
“The question whether the practice of employing independent contractors in any particular industry is undesirable and should be forbidden or regulated is a matter for the appropriate legislature or legislatures and not for the Commission.”
It is comparatively plain that their Honours took the view that the regulation of the manner in which independent contractors performed work, apart from any prohibition on them doing so, was not a matter pertaining to the relations of employers and employees. The issue of regulation as opposed to prohibition was not addressed by either of the remainder of the majority who gave full reasons, Kitto J and Menzies J.
The general issue again arose in the High Court in R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470. The Court was dealing with applications for writs of prohibition and certiorari against the Commission in proceedings in which an industrial dispute had been found to exist between the Australia Workers Union and certain companies engaged in the mining of uranium. An issue arose as to whether a particular claim that had been made by the Australian Workers Union could give rise to a dispute as to an industrial matter. On this question Jacobs J, whose reasons Stephen J agreed with, said at 477 - 478:
There remains the argument depending on cl. 5 of the draft award. As I understand it, it is not submitted that such a clause can never be part of an award. Whether or not it an order can be depends on whether Reg v Commonwealth Industrial Court Judges; Ex parte Cocks has a wider application than the question actually decided in that case, namely, that an issue whether an employer should have work done by independent contractors outside their factory or workshop was not an industrial matter within the definition of those words in the Conciliation and Arbitration Act. It is said that in the circumstances of this case, where most, almost all, of those employed in the construction of the mining installations and associated work will be employed by contractors and not by the respondent companies, the insertion of such a clause in the award would be without jurisdiction. ... But it cannot be assumed that under no circumstances could the insertion of such a clause in an award settle a dispute as to an industrial matter. Here the evidence shows that the construction work will be large and extensive. It cannot be assumed that the respondent companies - both the mining and the project companies - will not be exercising continued supervision and co-ordination. It may well be that if the Commission considered it proper in order to achieve a settlement of existing or threatened disputes between the companies and their employees that the same award conditions should apply throughout the work of constructing the mines and their associated installations, it would be open to it to achieve that result by the insertion in the award of a clause along the lines of cl. 5. If the Commission could not do so, it would mean that the respondent companies could largely avoid the effective the imposition on what will be in substance their activities of award conditions considered appropriate to construction work in or in connexion with the uranium mining and processing industry. The question should not be determined until the facts are fully explored and the basis of the Commission’s decision (if it should be its decision) is known.”
The relevant clause was set out earlier in his Honour’s judgment. It provided:
5. WORK DONE THROUGH CONTRACTORS, ETC.
(a) No employer shall permit any operation or function or employment of any of the classes to which this Award is applicable to be carried on or exercised or entered into by any contractor or other person on behalf of the employer, except in accordance with the terms and conditions of this Award as if the contractor or other person were himself a party to and bound by this award.
(b) No employer shall enter into any contract for the carrying on of any of the work covered by this Award by means of employees unless the contract contains a clause binding the contractor to pay the rates and observe the conditions herein prescribed in respect of the work contracted for, so long as this Award remains in operation.”
This issue was also addressed by Gibbs J at 473 who expressed the view that Cocks' case was distinguishable. Of that earlier judgment his Honour said at 473:
“It decided that the dispute as to whether or not it should be permissible for an employer in a particular industry to employ independent contractors in performing relevant work outside the employer’s factory or workshop is not an industrial dispute as defined in the Conciliation and Arbitration Act 1904 (Cth) , as amended (“the Act”). However the present dispute, in so far as it relates to Cl. 5 of the log of claims, is not as to whether contractors should be engaged, but as to whether, if they are engaged, their employees should be entitled to the benefits of the award, assuming that one is made. The evidence has failed to show that in the circumstances prevailing in the industry in question such a clause could not be capable of being regarded as merely incidental to the settlement of the dispute as to the conditions of employment of workers in or in connexion with metaliferous mining. I agree with Jacobs J that this question should not be finally determined until the facts are fully explored.”
Aickin J, with whose reasons Barwick CJ agreed, expressed the view that the facts in Moore did not raise the question that had been decided in Cocks’ case and there was no room for the application of that decision in those proceedings.
Since Cocks’ case there have been a number of decisions of the High Court indicating that a narrow view should not be taken of what is an industrial dispute at least for constitutional purposes: see R v Colham; ex parte Australian Social Welfare Union (1983) 153 CLR 297 and statutory definitions concerning matters pertaining to the relationship between employers and employees should not be narrowly construed: see Re Cram; Ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117, Re Amalgamated Metal Workers Union; Ex parte The Shell Company of Australia Limited (1992) 174 CLR 345 and Re Boyne Smelters Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 446, though limits still exist on the scope of the statutory power deriving from those definitions: see Re Financial Sector Union; Ex parte Financial Clinic (Victoria) Pty Ltd (1993) 178 CLR 352; and Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96.
In the present case the issue is not what, for constitutional purposes, might be comprehended by an industrial dispute but rather the scope of the definition of industrial dispute and industrial situation as they impact on the power of the Commission under s 170MC. While there exists a basis for treating the views of Barwick CJ, Taylor and Owen JJ, which were expressed in broad terms, as capable of being approached on the footing that disputes concerning independent contractors may pertain to the relationship of employers and employees, their joint judgment nonetheless remains an expression of concluded view by several judges of the Court. The clause in question in the present case is, effectively, a prohibition on the engagement of independent contractors in the sense that existing contracts must be terminated and not reviewed. It is more akin to the type of provision considered in Cocks’ case than a provision of the type referred to in Moore. Accordingly, I feel constrained as a single judge of this Court to give effect to the views of Barwick CJ, Taylor and Owen JJ, seemingly embraced by Windeyer J. Accordingly I should treat cl 37(b) as a provision which does not pertain to the relationship between employers and employees even though, in a direct and practical sense, it plainly does. I say that because, in my opinion, cl 37 embodies a scheme intended to limit the circumstances in which employees are retrenched by requiring the Company to terminate contracts with independent contractors to preserve the employment of employees. Nonetheless, for the reasons I have just discussed, cl 37(b) it could not have been certified under s 170MC. Accordingly it is not a valid provision of a certified agreement and no order of interpretation should be made in relation to it: see Cocks' case at 321 - 322, 324 and 328.
I should note that the challenge to the validity of cl 37(b) was based on limits on the statutory jurisdiction of the Commission and not, at least directly, based on the provisions of s 51(xxxv) of the Constitution. Had the challenge arisen under repealed Commonwealth industrial laws, the operation of the privative clause would have had to be considered having regard to the limited basis of the challenge: see O'Toole per Brennan J at 273 - 275. However the present privative clause, s 150 of the Act, applies to awards and its operation does not extend to certified agreements whether made under the Act or under repealed laws. Accordingly the Agreement gains no protection from s 150.
I now consider the submissions made in relations to cl 24 of the 1990 Award. I earlier set out its terms. It appears as one of a number of provisions in the 1990 Award which are grouped together and deal with the introduction of change and redundancy together with severance and retrenchment pay. Its structure and, to an extent, its content reflect the provisions established by the Termination, Change and Redundancy Test Case (1984) 294 CAR 175. Clause 24 appears with cl 23A - INTRODUCTION OF CHANGE, cl 23B - REDUNDANCY, cl 26 - SEVERANCE AND RETRENCHMENT PAY and cl 27 - INCREASE IN HAND: NEW SOUTH WALES. Clause 23A concerns situations where an employer has made a definite decision to introduce major change likely to have significant effects on employees. The employer is obliged to discuss these matters with the employees and their union so as to, inter alia, ascertain whether measures can be taken to avert or mitigate the adverse effects of such change. Clause 23B deals with situations in which the employer has made a definite decision that the job of an employee is not to be done by anyone. Then, in certain circumstances, the employer is obliged to discuss the matter with the employee and the union. Clause 26 deals with severance and retrenchment pay and requires an employer to pay retrenchment pay to an employee who is retrenched. Clause 26 repeats the language of cl 24 in that it speaks of a situation “when a reduction of hands is decided upon by an employer”. In those circumstances an employee who is retrenched is entitled to the payments identified in the clause.
The first question that arises in relation to the operation of cl 24 is when the clause, properly construed, is intended to operate. It is to be recalled that the opening words of the clause read “when a reduction of hands is decided upon by the employer it shall be regulated by ...”. It seems comparatively clear, in my opinion, that the notion of “reduction of hands” involves a decision of the employer to reduce the size of the workforce that is made prior to the implementation of the decision. Its implementation may or may not be achieved by retrenchments if retrenchment in the 1990 Award means the compulsory termination of the employment of an employee. In my opinion, it does have that meaning,. It reflects the ordinary meaning of the word as I discussed in Hawkins v Commonwealth Bank (1996) 66 IR 322 at 340:
“The meaning of the word “retrenchment” was considered by Lockhart J in Commissioner for Superannuation v Bayler (1979) 28 ALR 293 at 310-31 and it is reasonably clear that his Honour viewed it as relating to termination by an employer: see 311.1, though he found it unnecessary to determine whether it was for any reasons or for a reason relating to a particular employee. There are other authorities in which the word “retrench”, or derivatives of it have been considered, such as Lawrence v Clutha Development Pty Ltd (unreported, 10 May 1985), in which Keely J concluded that the word “retrenchment” in an award was a reference to the conduct of the employer only though that conclusion plainly turned on the language of the award under consideration. Other authorities supportive of the word “retrench” meaning termination by an employer, though each turns on the context in which it appears are Chantler v Local Government Superannuation Board (1985) 9 IR 284 at 297; Australian Workers Union of NSW Branch v Roads and Traffic Authority of New South Wales (1989) 29 IR 202 at 210 and 215; Preference to Unionists Case (1977) LBC Current Review 218 at 230; Re Montgomery and Commissioner for Superannuation (1985) 3 AAR 67 at 76-78. See also Re Beverage Packers (Australia) Pty Ltd [1990] VR 446 as to a consideration of “redundant”. No authority emerged from my research which suggest “retrench” might mean termination other than by the employer.”
See also Wilson v South Australia Superannuation Board (No 2) (1996) 64 IR 226 at 228 - 229. Support for the view that retrenchment has this meaning in the 1990 Award is found in cl 19(g) and (h).
As I noted earlier, the expression "a decision to reduce hands" refers, in my opinion, to a decision that precedes any compulsory termination of an employee’s employment. So much is apparent from cl 26(b) which contemplates a sequence of, first, a decision to reduce hands and, second, the giving of notice of retrenchment to an affected employee. However, cl 24 is directed to the manner in which a reduction in hands is to be “regulated”. In my opinion, it is intended to operate only in circumstances where a decision to reduce hands ultimately results in the retrenchment of employees. It is unlikely that the principle of “the last to come the first to go” could have any sensible application when an employer might decide to reduce hands and might decide to give effect to that decision by calling for employees to volunteer to leave their employment. The employees may be invited to leave on terms involving the payment of a sum equivalent to the sums they would be paid if they were retrenched. The word “regulated” implies, in my opinion, a regime that the employer must give effect to in certain circumstances. It is true that the language cl 24 may be contrasted with the language in cl 27 which deals with the increase in hands. The first paragraph of cl 27 provides:
“When in any District of New South Wales an increase in hands is decided upon by employer former employees who were retrenched and who apply shall be re-engaged in order of their seniority in the respective class of work according to length of service at the mine.”
This provision imposes unambiguously an obligation on the employer to follow a particular course. While the language of cl 24 is not as direct, its effect is, in my opinion, nonetheless comparatively clear. The meaning of regulate in the Macquarie Dictionary is:
“1. To control or direct by rule, principle, method, etc.
2. To adjust to some standard or requirement as amount, degree, etc.”
The word regulate or derivatives of it have been judicially considered on many occasions in the context of the conferral of a power on a statutory authority to regulate a matter. Its meaning is often considered in the context of the exercise of the power in a way that might be viewed as prohibiting that which is able to be regulated: see for example Melbourne Corporation v Barry (1922) 31 CLR 174 and Swan Hill Corporation v Bradbury (1937) 56 CLR 746. However in Tuker v Ministry of Agriculture, Fisheries and Food [1960] 1 WLR 819 an issue arose about a marketing scheme promulgated under the Agriculture Marketing Act 1931 (UK). That Act contained a power to approve a scheme for regulating the marketing of agricultural products. The scheme provided for the constitution of a board upon which was conferred a range of discretionary powers concerning the marketing of apples and pears. In issue was whether this scheme was one for the regulation of those agricultural products. The Court of Appeal concluded it was not and said at 827:
“We, however, accept as fundamental to the operation of the Act the submission of the Attorney-General that a scheme regulating the marketing of an agricultural product is one which introduces some orderly system of marketing of that product. Furthermore, we accept his argument that while such a scheme may properly confer upon a board thereby constituted many discretionary powers and duties so as to give proper flexibility to the working of the scheme, yet a scheme which is from start to finish purely discretionary cannot properly be described as a scheme regulating the marketing of an agricultural product. Some schemes containing nothing more than the mandatory provisions it is possible might satisfy the requirements of the Act. Others, however, seemingly complex and detailed, might not do so.
In the present case the Company contends that the selection of employees to be retrenched might be based on a range of criteria including the employees capacity, general acceptability, competence to do the work and length of service. On this approach, it was submitted, the word “regulated” means “have regard to”. In my opinion, it is unlikely that it has this meaning. Clause 24 is intended to impose a regime involving an obligation on the employer to retrench employees in an order determined by their date of engagement. This, in my opinion, is the meaning of the clause. Not only is that meaning consistent with the language used, the construction contended for by the Company would effectively deprive the clause of any utility at all. The parties to the award chose to identify one matter only as the criterion to select employees who would be retrenched. It is unlikely that it was intended that its apparent pre-eminence would be dissipated by treating a range of other matters as relevant also. While I was not referred to it during the hearing, observations in the decision of the Coal Industry Tribunal in R Field v Coalpac Pty Ltd (1990) AILR 45 appear to be consistent with the conclusion I have reached.
During the course of his submission counsel for the Company raised a number of matters justifying the making of no order of interpretation of cl 24. In considering these submissions the starting point is, in my opinion, the observations of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trade Union of Australia (1987) 61 ALJR 393 at 399:
“The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is “amenable to the jurisdiction” of the courts and other public tribunals.”
It may be accepted, however, that there is now a well established line of authority indicating that the power to make an order of interpretation is a discretionary one at least in the sense that certain circumstances might justify no order being made. The scope of the discretion remains an open question: see Victoria v Australian Teachers Union (1993) 49 IR 149 at 151 and 161. I earlier referred to authorities which establish that the power to give an order of interpretation is not one to be exercised where the interpretation depends upon disputed questions of fact. Other considerations which bear more upon the exercise of such discretionary power as exists, include: that the controversy over the meaning of the award is being considered by the Commission: see Victoria v Australian Teachers Union, and is that the application for interpretation is, in substance, being brought for purposes of enforcement when prosecutions are on foot or in prospect: see Re Graphic Arts Award (1957) 1 FLR 22.
In the present case there is plainly a controversy between the Company and the CFMEU about the meaning of cl 24. Nonetheless the Company appeared to contend that this application is brought in a hypothetical context. In the course of the hearing the CFMEU tendered an application by the Company to the Commission to render inapplicable cl 24 to the Company’s operations. One of the grounds advanced in the application was in the following terms:
“3. Changes in mining methods and design and the accompanying restructuring are scheduled for implementation on 1 November 1997. This will involve a reduction of approximately 210 in the number of employees employed in the Operations. Fifity volunteers for retrenchment are due to leave the Company on the 12 September 1997. Approximately 30 other people have expressed an interest in volunteering for redundancy effective later in 1997, requiring the Company to implement the remaining approximately 130 retrenchments required on an involuntary basis.”
The application was signed by a Ms Helen Spencer who, from the affidavit evidence and as she describes herself in the application, is the Manager, Organisation of the Company or its Human Resources Manager.
Counsel for the Company submitted that the statements in the application do not constitute an admission. He did so on the basis that this was a pleading and could not found an informal admission. That a pleading does not, with some exceptions, constitute an informal admission is now settled: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 71. Whether an application to the Commission is of the same character as a pleading of the type considered by the High Court is, in my opinion, open to doubt. However, even accepting that it is, there is other material before the Court which points to the prospect of retrenchments of the type I have just discussed. On the second day of the hearing I was handed a document by counsel for the CFMEU. It read:
“20 October 1997
INDUSTRIAL UPDATE
Result of todays, 20th October Hearing
As a result of proceedings before Justice Moore of the Federal Court today, it is now clear that the proceedings will not lead to any finding that clause 37a of the Mount Thorley Operations Agreement prevents the company from retrenching employees during the period of the Agreement.
The CFMEU conceded to Justice Moore that retrenchments could occur if an overall view of the business circumstances justifies such a conclusion. The Union has chosen not to challenge the company’s evidence on those issues.
The Federal Court proceedings will now effectively be confined to the ability to utilise contractors and the meaning of the reduction in hands clause of the award. The proceedings in the AIRC on the method of retrenchment will proceed.
Dudley G Isles
General Manager Operations
Mount Thorley Operations Pty Limited”
That this document had been published by Mr Isles was not put in issue by counsel for the Company. Indeed counsel for the Company said that, with one exception, what appears in the second paragraph is an accurate statement. What counsel said may itself constitute an admission though no submission to this effect was made by the CFMEU.
However it is not necessary, in my opinion, for me to be satisfied that retrenchments of the type I earlier discussed will in fact occur. Rather it is sufficient that there is a reasonable possibility that they will and that there is a controversy about the meaning, and thus the operation, of cl 24 if they do. It appears to me that there is sufficient material to proceed on the basis that there is a reasonable possibility that retrenchments will occur. That being so, these proceedings properly invoke the jurisdiction of this Court under s 413.
The Company submitted that I should refrain from giving an interpretation of cl 24 because the application had been made to the Commission to vary it. I do not accept this submission. In considering the application the Commission will no doubt exercise a discretionary power having regard to a range of considerations that are irrelevant to these proceedings. It may be assisted by an interpretation by this Court and such an interpretation will not, and is certainly not intended to, fetter the exercise of the Commission's discretionary power: see Re Brack & Ors; ex parte Operative Painters and Decorators Union of Australia (1984) 51 ALR 731. As the High Court noted in Brack at 733, what the Commission can do is:
“... to accept the Federal Court’s interpretation and determine that the operation of the award provision, so interpreted, was unsatisfactory, having regard to the circumstances already mentioned.”
Equally the Commission may form some other view about the operation of the clause.
As to the relationship between the application for interpretation and proceedings under s 178, it may be accepted that proceedings are already on foot alleging contravention of cl 24. Having regard to the view I have taken about the meaning of cl 24 those proceedings are plainly premature. In my opinion, the fact that those premature proceedings have been brought and proceedings might later be regularly brought is not a ground for refusing to make an order for interpretation. Indeed in circumstances where there is a genuine controversy between the parties about the meaning of an award provision, there are, in my opinion, fairly compelling reasons for a court to give an interpretation if called upon to do so. In following this course, the Court will provide the parties with a clearer understanding of the obligations the award imposes on them. That may well result in no breach of the award occurring. A case such as the present is to be contrasted with one where an order for interpretation is sought in circumstances where events have already occurred which may arguably constitute a breach of the award: see the Graphics Arts Award case.
The form of order proposed by the CFMEU does not reflect what I view as the proper construction of cl 24. It must be said, however, that during the hearing the CFMEU moved from a position of not contending the operation of cl 24 was confined to retrenchments to a position where it submitted it applied only to compulsory retrenchments, that is retrenchments of the type I earlier discussed. The narrowing of the area in which it was submitted cl 24 operated was not reflected in any amendment to the order sought. Consistent with the views I have expressed the appropriate order may be:
“The Court orders and declares, that on the true construction of cl 24 of the Coal Mining Industry (Production and Engineering) Interim Consent Award September 1990 an employer, in the absence of agreement with the appropriate union, must apply the principle “the last to come the first to go” as the means of identifying the employees it will retrench in the respective classes of work according to the length of service at the mine.”
However the parties have not been given an opportunity to address this form of order and there may be vices in it that I presently do not appreciate. Accordingly, I propose to make an order declaring that this is the meaning of cl 24 but on the basis that the order will operate from 12 noon, Friday 31 October 1997. I will give the parties liberty to apply so that between the time this judgment is given and the time the order takes effect, a party can approach the Court to have the matter relisted. That can be done to enable submissions to be made about the form of order. If the liberty to apply is not exercised then the order will take effect at the nominated time.
I certify that the preceding twenty-five (25) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore
Associate:
Dated: 30 October 1997
Counsel for the Applicant: Mr S Crawshaw Solicitor for the Applicant: R L Whyburn and Associates Counsel for the Australian Colliery Staff Association (intervening): Ms K Nomchong
Solicitor for the Australian Colliery Staff Association (intervening): John Sarroff & Company
Counsel for the Respondent: Mr J N West QC and
Mr H J DixonSolicitor for the Respondent: Freehill Hollingdale and Page Counsel for the Minister: Mr J L Trew QC and
Mr D H GodwinSolicitor for the Minister: Australian Government Solicitor Date of Hearing: 20 and 22 October 1997 Date of Judgment: 30 October 1997
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