Construction, Forestry, Mining and Energy Union v Novacoal
[2000] FCA 331
•22 MARCH 2000
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining & Energy Union v Novacoal
Australia Pty Ltd [2000] FCA 331INDUSTRIAL LAW – Question of continuing operation of an agreement ratified by the Coal Industry Tribunal pursuant to an award provision – Agreement formally extended to 10 June 1995 – Whether agreement had effect under s36(1) or (2) of Coal Industry Act immediately before abolition of Tribunal on 1 July 1995 – Whether Tribunal’s ratification order constituted an “award or order” made by the Tribunal – Whether the agreement was “filed” in a Registry of the Australian Industrial Relations Commission.
Industrial Relations Legislation Amendment (No.2) Act 1994, Sch.1 item 15
Industrial Relations Act 1988, ss147 and 148
Coal Industry Act 1946, ss 30, 32, 34 and 36CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v NOVACOAL AUSTRALIA PTY LIMITED
N1268 of 1999
WILCOX J
SYDNEY
22 MARCH 2000
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1268 of 1999
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND:
NOVACOAL AUSTRALIA PTY LIMITED
RespondentJUDGE:
WILCOX J
DATE OF ORDER:
22 MARCH 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
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
N1268 of 1999
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND:
NOVACOAL AUSTRALIA PTY LIMITED
Respondent
JUDGE:
WILCOX J
DATE:
22 MARCH 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J: The issue in this case is whether an instrument called “Howick Award Mark 1, 1993” remains in force, so as to regulate the industrial conditions applicable to the Howick Open Cut Mine, the Howick Coal Preparation Plant and the Newdell Coal Preparation Plant, all of which are operated by Novacoal Australia Pty Limited (“Novacoal”), the respondent.
The applicant, Construction, Forestry, Mining and Energy Union (“CFMEU”), an industrial organisation representing employees, asserts the instrument does remain in force and seeks a declaration in the following form:
“A declaration that the Howick Award Mark 1, 1993 has effect as, and is taken to be, an award made by the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth).”
Novacoal says the instrument is no longer in force and resists the application for a declaration.
The issue turns on legal technicalities, not on the question whether the conditions prescribed by the instrument are, or ever have been, appropriate or inappropriate.
Background
Part V of the Coal Industry Act 1946 authorised the Governor-General to enter into an arrangement with the Governor of a State for the constitution of a body known as the Coal Industry Tribunal and the appointment of a person to constitute that Tribunal: see s30. The Tribunal was to have all the powers and functions specified in Part V in relation to that authority: see s32(1). These powers and functions were to be vested in the Tribunal to the extent they were not in excess of the legislative power of the Commonwealth: see s32(2). The powers included powers under s34(1) to consider and determine:
“(a) an industrial dispute extending beyond the limits of any one State;
(b)an industrial dispute in the State;
(c)an industrial matter arising under an award or order of the Court or of the Tribunal relating to the coal mining industry in the State;
(d)an industrial matter arising under an award, order, determination or agreement continued in force by section three of the Coal Industry Act 1951 and relating to the coal mining industry in the State;”
Acting pursuant to these powers, on 23 November 1990, the Coal Industry Tribunal made a consent award, The Coal Mining Industry (Production and Engineering) Interim Consent Award, September 1990 (“the 1990 award”). The 1990 award made extensive provision for regulation of conditions in the coal mining industry in the States of New South Wales, Queensland and Tasmania. It bound, amongst other unions, the Federated Engine Drivers and Firemen’s Association of Australasia (a predecessor of CFMEU) and its members. The 1990 award contemplated the possibility of employers and employees, or their unions, agreeing to depart from its terms. Clause 20 of the award provided:
“Where an agreement is contemplated which proposes to substitute and/or trade off any matters, the subject of any provision in this award, then such agreement shall not be implemented without the written acceptance of the District/State secretary of the appropriate union. Such agreement shall provide for a specific term; and shall provide for a disputes procedure with the appropriate union involvement for resolution of any dispute arising out of the terms of such agreement; and insofar as award provisions are to be substituted and/or traded off shall be referred to the Tribunal for approval prior to its implementation.”
On 30 August 1993 Mr B F Hartshorn, General Manager –Organisation, of Novacoal wrote a letter addressed to the Secretary of the Coal Industry Tribunal at 80 William Street, Sydney East. In that letter he made an application on behalf of Novacoal, and those of its employees who were members of CFMEU, “for ratification of an Agreement pursuant to Clause 20 of (the 1990 award)”. He said the agreement covered employees engaged at the Howick Open Cut, Newdell Washery and Howick Washery. Mr Hartshorn enclosed a copy of the agreement, which was called “Howick Award Mark 1, 1993”. There is a dispute between the parties as to whether the agreement is correctly described as an “award”. Without meaning to express any view about that matter at this stage, it is convenient for me to follow the parties’ example and refer to the document as “the Howick award”.
At a sitting held in Sydney on 10 September 1993, the Chairman of the Tribunal considered the application for ratification. Ratification was supported by Mr Hartshorn on behalf of Novacoal and Mr M Kelly, representing CFMEU. Both men spoke of the effort that had gone into negotiating the agreement and their view that it effected substantial improvements on the 1990 award regime. During the course of his address, Mr Hartshorn said the “agreement is … in full settlement of all industry matters currently before the Tribunal by way of union logs of claims and any variations which may ensue from those proceedings.”
The Chairman inserted a commencement date in cl 7.1 of the agreement and gave it formal approval.
Clause 6.2 of the Howick award states that it is in substitution for the 1990 award, all other awards and agreements (including site agreements) and customs or practices previously applicable to Howick employees and is not subject to the flow on of any wages or conditions, claims or arbitral decisions in respect of the 1990 award. Clause 7 provided:
“7.1This Award shall come into effect on 10.9.1993 and shall remain in force for a period of twelve months. Provided that this Award may be terminated by either party after a trial period of six (6) months where the Award’s objectives have not been met.
7.2This Award shall be binding upon Novacoal Australia Pty Limited in respect of Howick and it’s [sic] employees, members of the C.F.M.E.U., engaged at Howick.”
The Howick award contained detailed provisions regarding working conditions and practices at Howick. It is not necessary even to summarise those provisions. However, I must set out cl 26 of the Agreement, which is important to the respondent’s argument in this proceeding. It is headed “Consultative Review Arrangements” and reads:
“The representatives of employees as listed in 25.1 will meet with Company representatives as required to discuss the following:-
26.1Changes required to the Award to ensure the intent of the Award is achieved.
26.2Any matter of a general nature either party needs to raise.
26.3Review leave reserved items as recorded at ratification no later than three months prior to the expiry of this Award.
26.4No later than three months prior to the expiry of this Award the parties will evaluate the performance of the Award and decide to extend or replace the Award. The parties agree that it is not the parties’ intention to revert to pre Award work practices, work organisation or payment structures should difficulties emerge with this Award nor at the expiration of this Award.
The clear intention of the parties is to institutionalise structural efficiency and continuous improvement in productivity as an ongoing and integrated feature of the operation.
26.5However if the parties cannot agree to extend or replace this Award the Industry Award and any written agreements and arbitral decisions applying immediately prior to the Howick Award shall apply.”
The term “the Industry Award” is not defined in the Howick award. However, both the present parties accept it was intended as a reference to the 1990 award.
No action was taken by either party to terminate the agreement during the period of twelve months specified in cl 7.1. That period elapsed on 10 September 1994, but both parties thereafter continued to act as if the agreement remained in force. On 28 October 1994 representatives of Novacoal and CFMEU sent a joint letter to the Coal Industry Tribunal stating they had agreed, subject to Tribunal approval, to extend the agreement for a period of three months until 10 December 1994. They said this was done on the understanding that agreed modifications to cl 38 of the agreement (which related to personal effectiveness review) would apply during the three month period. On 9 November 1994 the Acting Secretary of the Tribunal wrote to the parties informing them the agreement “is formally extended from 2 November 1994 to 10 December 1994”.
On 12 December 1994 the parties again wrote to the Tribunal, this time requesting approval of an extension until 10 June 1995. On 2 February 1995 the Acting Secretary of the Tribunal notified an extension until that date.
There was no further formal extension of the agreement.
The Coal Industry Tribunal was abolished, by provisions of the Industrial Relations Legislation Amendment (No.2) Act 1994 that came into operation on 1 July 1995. One of those provisions was item 15 of Schedule 1 of that Act which relevantly provided:
“(1) A reference in this item to an instrument is a reference to:
(a)an award or order made by the Tribunal; or
(b)…
(c)an agreement made at a hearing before the Tribunal or a Local Coal Authority; or
(d)an agreement made under a provision of an award made by the Tribunal ;
that had effect as mentioned in subsection 36(1) or (2) of the Coal Industry Act immediately before the commencement of this item.
(2)On and after the commencement of this item, an instrument, to the extent to which it was made under the powers and functions vested by subsection 32(2) of the Coal Industry Act, has effect as, and is taken to be, an award made by the Commission under the Industrial Relations Act”.
The word “Commission” in sub-item (2) referred to the Australian Industrial Relations Commission (“the Commission”).
Immediately before the commencement of item 15, s36 of the Coal Industry Act read as follows:
“(1)An award or order made by the Tribunal by virtue of the powers and functions vested in the Tribunal by sub-section (2) of section thirty-two of this Act –
(a)has effect in all respects as if it were an award of the Commission; and
(b)is binding on –
(i)the parties; or
(ii)the persons on whom it is expressed to be binding, including an organization if it is expressed to be binding on an organization,
and the provisions of the Conciliation and Arbitration Act 1904-1956 under which awards of the Commission may be enforced apply in relation to such an award or order made by the Tribunal as if it were an award of the Commission.
(2)Where, at the hearing before the Tribunal , an agreement as to the whole or part of an industrial dispute (being an industrial dispute in relation to which powers and functions are vested in the Tribunal by subsection (2) of section thirty-two of this Act) is made in writing between the parties to the dispute, the agreement shall be filed in the Principal Registry or a District Registry established under the Conciliation and Arbitration Act 1904-1956 and thereupon –
(a)the agreement has effect in all respects as if it were an award of the Commission;
(b)the agreement is binding on the parties to the agreement; and
(c)the provisions of the Conciliation and Arbitration Act 1904-1956 under which awards of the Commission may be enforced apply in relation to the agreement as if it were such an award.”
Although they failed to make any agreement for extension of the Howick award beyond 10 June 1995, until 3 April 1997 the parties continued to act as if it remained in force. On 3 April 1997 the Commission certified the Howick Coal Certified Agreement 1997. The Commission was informed the new agreement “replaces the agreement referred to as the Howick Award 1993 which was ratified by the Coal Industry Tribunal on 10 September 1993”. The new agreement was to come into force immediately and remain in force until 9 March, 1999.
Notwithstanding the stated expiry date, the 1997 agreement remained in operation until terminated by order of Justice Boulton on 5 August 1999, with effect on 4 September 1999.
In the meantime, on 7 April 1999, Novacoal’s solicitors had applied to the Commission for a variation of the Howick award – that is, the 1993 agreement – to take account of requirements of the Workplace Relations and Other Legislation Amendment Act 1996. That application was referred to Commissioner Bacon. On 6 September 1999, after cessation of the 1997 certified agreement, the Commissioner forwarded a memorandum to representatives of Novacoal and CFMEU in which he expressed a preliminary view that the Howick award had ceased to operate on 10 June 1995, so it was not perpetuated, as an award of the Commission, after 1 July 1995.
Through its solicitors, Novacoal accepted Commissioner Bacon’s preliminary view and withdrew its application for variation. However, CFMEU did not accept Commissioner Bacon’s preliminary view and put submissions.
By a decision issued on 8 October 1999, Commissioner Bacon affirmed his preliminary view. He gave the following reasons:
“[12]I have formed the view that the language of clause 20, ie that the ‘agreement shall provide for a specific term’ requires that the agreements operate for an explicit or definite period. Accordingly, the Tribunal cannot approve a clause 20 agreement by making an award or order which, because of the operation of s.148, would remain in place indefinitely. Rather, I think the parties consented to the insertion into the P & E Award a clause which allowed award provisions to be traded off (and other arrangements agreed) for an agreed period of time and no longer. The parties were free to extend (or make new agreements) at the termination of the agreement. However, it seems that if a party was dissatisfied with its agreement it could simply await the expiry date and be returned to the award provisions. In any event, in the matter before me it is not necessary to rely on this view about the operation of clause 20.
[13]A perusal of this agreement approved by the Tribunal indicates that the parties did not agree that the agreement should operate beyond its expiry date (unless extended by agreement). Indeed, the parties had agreed that should they be unable to agree to extend or replace the agreement then on its expiry (not termination) ‘the industry award and any written agreements and arbitral decisions applying immediately prior to the Howick Award [agreement] shall apply’ (clause 26). Such provision makes the intention of the parties clear. That intention was that the agreement would not extend beyond its expiry date or the last expiry date in the event of an extension or extensions being granted. The operation of this provision was brought to the attention of the Tribunal by the CFMEU in the proceedings of 10 September 1993. To the extent that the Tribunal made an award or order it was to approve the agreement. By its terms as amended (ie the extensions granted by the Tribunal) the agreement expired on 10 June 1995 and did not operate beyond that date. That was the terms of the awards or orders made by the Tribunal when approving the agreement on three occasions. Those awards or orders of the Tribunal are inconsistent with that part of s.148 that continues awards in force. That part of s.148 that continues awards in force is subject to the Tribunal’s award or order. In the current matter the Tribunal‘s award or order approving the agreement until 10 June 1995 must prevail over that part of s.148 that would continue the award in force.
[14]Accordingly, I have concluded that in extending the approval of the agreement until 10 June 1995 the Tribunal did exercise its discretion and made an award or order the effect of which was that such award or order would not operate beyond 10 June 1995. The agreement was not in effect at any time after 10 June 1995. It was therefore not an instrument of the type provided by Schedule 1 Item 15(1) and (2) of the IRLA (Industrial Relations Legislation Amendment Act). The agreement is not an award of this Commission.
[15]CFMEU also suggests that this agreement is one identified in s.36(2) of the CI Act (Coal Industry Act). I do not believe that it is. S.36(2) provides that such agreements ‘shall be filed in the Principal Registry or a District Registry established under the Conciliation and Arbitration Act 1904-1956 and thereupon ….’ There is no evidence that this agreement was ever so filed. Such failure means that the agreement is not of the type referred to in s.36(2) of the CI Act. Whatever it was the Tribunal did in approving the agreement consistent with the requirements of clause 20, it is clear the Tribunal (and/or the parties) did not create an agreement of the type identified in s.36(2) of the CI Act.” [Original emphasis]
CFMEU did not make an application for leave to appeal against this decision to the Full Bench of the Commission. Instead, on 5 November 1999, it instituted this proceeding.
The argument for CFMEU
Counsel for CFMEU, Mr S Crawshaw SC and Mr P Ginters, commence their argument with item 15 of Schedule 1 of the 1994 Act. They say that, if the Howick award is an “instrument” within the meaning of item 15(1), it has the same status as an award made by the Commission under the Industrial Relations Act 1988. Such an award, they point out, continues in force until superseded by a new award dealing with the same matters. Counsel point out that, at 1 July 1995, s147 of the Industrial Relations Act required that an award made by the Commission “specify the period for which the award is to continue in force”; however, s148(1) read:
“Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters.”
The first question then, according to CFMEU’s counsel, is whether the Howick award is an “instrument” within the meaning of item 15(1) of the 1994 Act. In relation to that matter, counsel rely, in the alternative, on each of paras (a), (c) and (d) of item 15(1).
It is not necessary to set out the arguments by which counsel for CFMEU seek to bring the Howick award into each of the three paragraphs. Mr G J Hatcher, counsel for Novacoal, concedes that the Howick award at least falls within para (d) of the sub-item.
The next question is whether the Howick award had effect as mentioned in s36(1) or (2) of the Coal Industry Act immediately before 1 July 1995. Counsel for CFMEU rely, in the alternative, on both subsections. In relation to subs (1), they say the document was an “award or order” of the Tribunal made in the exercise of its power under s34(1)(b) of the Coal Industry Act to consider and determine “an industrial dispute in the State” or its power under s34(1)(c) to consider and determine “an industrial matter arising under an award or order of … the Tribunal relating to the coal mining industry in the State”.
Counsel say the term “award” in s36(1) has the meaning identified by Fullagar J in The Queen v Hamilton Knight; ex parte Commonwealth Steamship Owners’ Association (1952) 86 CLR 283 at 320: “a decision inter partes upon matters in dispute inter partes”. They refer to Mr Hartshorn’s indication to the Chairman of the Tribunal, at the time of ratification, that the agreement was intended to operate as full settlement of all outstanding claims.
The argument based on s36(2) of the Coal Industry Act is that the agreement was made in writing between the parties to a dispute at a hearing of the Coal Industry Tribunal.
In relation to the requirement of filing the agreement, counsel comment that, although it might have been expected that, consequential upon the replacement of the Conciliation and Arbitration Act 1904 by the Industrial Relations Act 1988, s36(2) of the Coal Industry Act would have been amended so as to substitute a reference to the latter Act, this apparently did not happen. Nonetheless, they say, in 1995 it would have been correct to read the reference to a Registry established under the Conciliation and Arbitration Act as a reference to a Registry established under the Industrial Relations Act: see s10(b) of the Acts Interpretation Act 1901.
Counsel for CFMEU are unable to refer to evidence of an express act of filing the Howick award in a Registry of the Industrial Relations Commission. However, they point out the document was forwarded to the Secretary of the Coal Industry Tribunal on 30 August 1993 and a copy was completed by the Chairman on 10 September 1993. Counsel note the word “filed” is not defined in the Coal Industry Act and submit it means no more than “depositing the document at the relevant court office for the purpose of its use in the court”: see Director of Public Prosecutions v His Honour Judge Fricke [1993] 1 VR 369 at 373.
In anticipation of a submission that there is a distinction between filing a document in the Coal Industry Tribunal and in a Registry established under the Industrial Relations Act, CFMEU adduced evidence, which was not challenged, to the effect that, in 1995, the Tribunal shared a Registry with the Industrial Relations Commission at 80 William Street, Sydney East. On the basis of this evidence, counsel argue that the letter sent to the Secretary of the Tribunal on 30 August 1993 had the effect of filing the agreement in a Registry kept under the Industrial Relations Act.
The argument for Novacoal
As indicated, Mr Hatcher, counsel for Novacoal, concedes the Howick award falls within para (d) of item 15(1) of the 1994 Act. However, he says the document did not have effect under either s36(1) or s36(2) immediately before 1 July 1995.
In relation to s36(1), Mr Hatcher argues that, notwithstanding its title, the document was not an award or order of the Tribunal . He points out that the Chairman never expressed himself as making an award or order; he was asked only to approve the agreement reached by the parties, and that is all he did. Far from intending to make a public award or order, the Chairman indicated a view that the agreement was a private document. During the course of Mr Hartshorn’s address, the Chairman said he regarded clause 20 agreements “as documents that are the parties’ property and the agreements, quite apart from anything that might be registered or accompanying them, are not released without the consent of the parties.”
Mr Hatcher also observes that the only reason why this agreement came before the Tribunal was that it contained award trade off provisions. He suggests it would be strange if the duration of an agreement to vary the terms of the 1990 award was affected by the question whether or not it was an agreement requiring approval of the Tribunal .
In relation to CFMEU’s reliance on s36(2), Mr Hatcher argues it was insufficient for the agreement to be provided to the Secretary or Chairman of the Coal Industry Tribunal. He says:
“Whatever the status of the agreement, there is nothing anywhere to suggest that it was ever filed in any registry of the Conciliation and Arbitration Commission. This is fundamental to the statutory provision. However loosely one may interpret the word ‘filed’ it nonetheless needs to be done according to the statute before a Tribunal other than the Coal Industry Tribunal, that is the Conciliation and Arbitration Commission. There is no basis upon which it can be suggested that there was some legislative mistake, clearly it was intended that a particular step needed to be taken with any agreement made under a provision of an award of the Tribunal if that agreement were to be given effect pursuant to section 36(2). It was not done on the evidence in these proceedings and accordingly the agreement could not fall within s36(2). Indeed, it is clear on the face of the record before the Tribunal referred to above, that the Tribunal regarded the clause 20 Agreement as the parties’ property.”
Mr Hatcher notes that, for item 15 to have application, it was necessary for the Howick award to have effect immediately before 1 July 1995. He says it did not have any effect at that time. As was required by clause 20 of the 1990 award, in relation to any agreement falling within that clause, the Howick award was expressed to be for a specific term: twelve months from 10 September 1993. By clause 26.5 of the Howick award, the parties provided that, if they failed to agree about extension or replacement of the Howick award, “the Industry Award” (that is, the 1990 award) and any relevant written agreements and arbitral decisions should apply. Mr Hatcher says this provision is as much a part of the Howick award as any other provision; to give effect to the Howick award is to give effect to the parties’ agreement that, absent extension or replacement, at the end of the twelve months, conditions at Howick will again be governed by the 1990 award and relevant agreements and decisions. There was in fact no agreement for extension or replacement, so clause 26.5 took effect. Mr Hatcher acknowledges his client did not act on this basis immediately after 10 September 1994; it continued to apply the terms of the agreement until 3 April 1997. But he says that is immaterial; it is not as if there was an agreed further extension.
Finally, Mr Hatcher puts a discretionary argument. He says CFMEU had an opportunity to seek leave to appeal to a Full Bench of the Commission against the decision of Commissioner Bacon but chose not to do so; that being so, this Court should decline to grant relief.
Conclusions
Notwithstanding the position taken at the time by the parties, I am of the opinion that the Howick award did not have effect under s36(1) or (2) of the Coal Industry Act immediately before 1 July 1995. I agree with Commissioner Bacon that it was fundamental to the Howick award that it operate only for a specified, limited time. Specification of a limited term was an essential ingredient of any trade off agreement that could be made pursuant to clause 20 of the 1990 award. It is not necessary to determine whether the Howick award came to an end on 10 September 1994 or 10 June 1995; that would depend upon whether the gaps between 10 September and 28 October 1994 and 10 December and 12 December 1994 were covered by informal agreements for extension. What is important is that there is no suggestion of any agreement for extension after 10 June 1995. After that date, at least, the agreement was at an end.
Even if the Howick award remained in operation at 1 July 1995, I do not think it had effect as mentioned in either subs (1) or (2) of s36 of the Coal Industry Act. Although the document was called an “award”, it was not an award in the usual sense of that word. An award is a decision of an arbitrator resolving a dispute. As Fullagar J pointed out in Hamilton Knight at 320, an industrial award “depends for its binding effect entirely upon the Act”. An industrial award binds the parties to the award because a statute provides, first, that a designated person or body is to have power to make an award and, secondly, that any such award is to bind the parties to the award and be legally enforceable between them.
An award may be made by consent of the parties, as was apparently the position in relation to the 1990 award. Nonetheless, it derives its status and enforceability from the terms of the statute under which it is made, not from the consensus of the parties.
The Howick award is an agreement inter partes. The Tribunal was informed on 10 September 1993 that it was a product of long and difficult negotiations; no doubt about hotly disputed matters. Nonetheless, it was an agreement. It derived its legal force from the fact that it was agreed by the parties, not that it was ordained by the Tribunal , even at their joint request.
I do not overlook the fact that clause 20 of the 1990 award required that any trade off provisions were required to be referred to the Tribunal for approval before implementation. But that does not mean that the agreement only came into effect at the time of approval. The Tribunal was concerned only with those provisions of the agreement that substituted or traded off matters covered by the 1990 award. Its approval had to be obtained only in respect of those provisions, and then only prior to their implementation, as distinct from them being agreed.
Although the Chairman of the Tribunal expressed himself informally on 10 September 1993, no doubt his indication of the Tribunal’s approval of the trade-off provisions of the agreement can be regarded as an “order” of the Tribunal . However, the effect of the approval order was simply to permit the agreed trade-off terms to be implemented, in accordance with the agreement and during its life. The approval order had no effect capable of being perpetuated after expiration of the term of the agreement.
Turning to s36(2), I accept that the Howick award was “an agreement as to the whole or part of an industrial dispute” in relation to which the Tribunal had powers under s32(2) of the Coal Industry Act. It was also an agreement made in writing between the parties to that dispute. However, it was not an agreement filed in a Registry established under the Industrial Relations Act. It is not enough that copies were made available to the Secretary and the Chairman of the Tribunal and that the Tribunal and Commission shared Registry facilities. The obvious purpose of the requirement that the agreement be filed in a Registry established under the Conciliation and Arbitration Act (and therefore the Industrial Relations Act) was that the Commission have knowledge of, and access to, the agreement. It is not evident this result would have stemmed from the document being supplied to officers of the Tribunal. I accept Mr Hatcher’s submission on this aspect of the case.
It follows from the above conclusions that CFMEU is not entitled to the declaration that it seeks. The application must be dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.
Associate:
Dated: 22 March 2000
Counsel for the Applicant: S Crawshaw SC and P Ginters Solicitor for the Applicant: R L Whyburn & Associates Counsel for the Respondent: G Hatcher Solicitor for the Respondent: Freehill Hollingdale & Page Date of Hearing: 24 February 2000
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