Federated Clerks' Union (Aust) v Victorian Employers' Federation

[1984] HCA 53

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson and Deane JJ.

THE FEDERATED CLERKS' UNION OF AUSTRALIA AND THE REGISTRAR OF THE INDUSTRIAL RELATIONS COMMISSION OF VICTORIA v. THE VICTORIAN EMPLOYERS' FEDERATION, THE RETAIL TRADERS' ASSOCIATION OF VICTORIA, THE VICTORIAN CHAMBER OF MANUFACTURERS, THE METAL TRADES INDUSTRY ASSOCIATION OF AUSTRALIA (VICTORIAN BRANCH), PRINTING AND ALLIED TRADES EMPLOYERS' FEDERATION OF AUSTRALIA (NATIONAL) AND THE MELBOURNE CHAMBER OF COMMERCE

20 August 1984

Decisions

GIBBS C.J. This is an appeal from a decision of the Full Court of the Supreme Court of Victoria quashing, under s.42 of the Industrial Relations Act 1979 (Vict.), as amended, ("the Act"), an award made by the Industrial Relations Commission established under the Act. The award - the Commercial Clerks Award (No. 3 of 1982) - amended an earlier award by inserting a new cl.39 in the following terms:

"39. Technological Change

(a) Definitions

For the purpose of this clause -

"Technological change" means the introduction, alteration or replacement of computers (including word processing machines), or work practices ancillary to the use of such equipment, which change, if implemented by an employer, may have material effects in or on the employment of persons to which this award applies.

"Computer" means an electronic device (including word processing machines) which is capable of receiving facts or data, processing or performing calculations on that data and delivering answers or information in the required format for use by a person, or to control the operations of another machine or computer.

"Material effects" means the termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retraining or transfer of employees to other work or locations.

(b) Notification

When the employer instructs or commissions employees, computer consultants or suppliers or any other persons to carry out an investigation of the feasibility of technological change or where he personally commences such an investigation he shall notify -

(i) the secretary of the Federated Clerks Union of Australia, Victorian Branch ("the Union"); and

(ii) in any case where the employer is able to identify the employees who may be materially affected in their employment by the change, those employees

that the investigation is being undertaken, and specify the employer's principal objective or objectives of such investigation.

(c) Consultation during Feasibility Investigation

During the course of any feasibility investigation the employer shall:-

(i) keep the Union and the employees who have been notified informed of; and

(ii) when requested in writing by the Union or by such employees or any of them to do so, consult with them about

any technological change being considered, any material effect which might ensue and alternative proposals which might eliminate or lessen such effects.

(d) Decision to Implement

(i) If an employer decides to implement technological change he shall notify the Union and the employees, who may be materially affected in their employment by the change, as soon as possible thereafter.

(ii) After notifying the decision the employer will inform the Union, and the employees who have been notified, of the nature and extent of likely material effects, will consult with them about the proposed change, the reasons for it and any alternative proposals which, if implemented might eliminate or lessen likely material effects.

(e) Information

In providing information to the employees and the Union the employer will indicate the source thereof and provide such technical data as will allow evaluation of the likely material effects of any proposal for technological change. The information provided pursuant to this clause shall not be divulged to any other employer nor be used for any purpose other than the making of the said evaluation.

(f) Method of Notification

(i) All notifications and information to the Union will be addressed in writing to the secretary of the Union or to such other official thereof as is designated by the said secretary.

(ii) All notifications and information, to employees shall be in writing.

(g) Consultations

All consultations between the Union and the employer will take place at the employer's place of business during the usual office hours at such time or times as are agreed upon, or in the absence of agreement as are specified by the employer."

2. The award was made by the Industrial Relations Commission in the exercise of its jurisdiction under s.11(1)(f) of the Act to hear and determine an appeal under the Act against an award made by a Board constituted under the Act. In the present case the appeal, brought under s.16(4) of the Act, was against an award by which the Board determined that the Commercial Clerks Award (No. 1 of 1982) be not varied by the inclusion of a clause sought by representatives of employees relating to technological change. It is provided by s.16(5) of the Act that for the purposes of an appeal brought under s.16 the Commission shall have and may exercise all or any of the powers conferred upon a Board by the Act and may amend the whole or any part of the award appealed against. The relevant powers of the Board, which under s.16(5) may be exercised by the Commission, are stated in s.34(1) as follows:

"Every Board shall have power to make an award

relating to any industrial matter whatsoever in relation to the trade or branch of a trade or group of trades for which that Board is appointed and in particular, without affecting the generality of the foregoing, to make an award determining all matters relating to -

(a) work and days and hours of work;

(b) pay, wages and reward;

(c) privileges, rights and duties of employers and employes;

(d) the mode, terms and conditions of employment or non-employment;

(e) the relations of employers and employes;

(f) industrial disputes;

(g) the employment or non-employment of persons of any particular age;

(h) the demarcation of functions and of any employes or class of employes;

(j) the issuing or giving out of any material whatsoever for the purpose of goods being wholly or partly manufactured outside a factory;

(k) questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole."

The functions of a board appointed under the Act are also dealt with by s.44. Subsections (1), (2) and (3) of that section provide as follows:

"(1) Where it appears to an employer or to the

proper officer of an association of employers or of employes that an industrial dispute has arisen in which he or his association has an interest he shall inform the registrar of the dispute.

(2) The registrar shall forthwith inform the

President and the chairman of the Board affected and the chairman shall convene a meeting of the Board which shall attempt by conciliation to settle the matter of the dispute.

(3) If the Board is unable to settle the

matter of the dispute by conciliation the chairman shall proceed to determine the matter by arbitration."

3. The question for decision in the present case is whether the award which inserted cl.39 is an award relating to a matter of the kind described in s.34(1). The Full Court held that it was not.

4. The expression "industrial matter" is not defined in the Act. However "industrial dispute" is defined by s.3(1) as follows:

"'Industrial dispute' means a dispute arising between an employer and one or more of his employes, or between an association of employes and one or more employers or associations of employers, or between two or more associations of employers or two or more associations of employes, and includes a threatened or impending or probable dispute."

5. On behalf of the registrar of the Industrial Relations Commission (who was joined as an appellant) it was submitted that the wide words of this definition have the effect that any dispute between the parties mentioned in the definition is an industrial dispute and therefore by reason of s.34(1)(f) a matter in relation to which an award may be made under s.34(1). In other words, it was said that the definition shows that it is enough that there is a dispute between the parties mentioned and that the subject of the dispute is immaterial - it need have no industrial flavour. This submission cannot be accepted. It is a fundamental rule of interpretation that the words of a statutory provision must be understood in the context in which they appear; their construction "must be controlled by the subject-matter, and the general intention of the Act": Clancy v. Butcher's Shop Employes Union (1904) 1 CLR 181, at p 207; they should be construed so as not to go outside the scope and purpose of the Act: Attorney-General of Queensland v. Wilkinson (1958) 100 CLR 422, at p 424. This principle has frequently been applied in the construction of statutes dealing with industrial relations. It is not without importance that the Supreme Court of Victoria, in decisions given on the effect of the Labour and Industry Act 1958 (Vict.), the relevant provisions of which were replaced by the Industrial Relations Act, held, in conformity with this principle, that the general words of that statute must be understood in their context as applying only in the area of industrial relations: see Reg. v. Industrial Appeals Court; Ex parte Frieze (1963) VR 709, at p 712 and Reg. v. Industrial Appeals Court; Ex parte Victorian Chamber of Manufactures (1975) VR 84, at pp 93-94. Although the words of the present Act are different from, and somewhat wider than, those of the earlier legislation, the subject matter of the Act indicates that it was intended that an industrial dispute within the meaning of the Act should be a dispute having some connexion with industrial relations. It was pointed out by the Supreme Court in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. (1983) 1 VR 469, a case decided on the present Act, that if the definition of "industrial dispute" meant any dispute arising between the parties described in that definition, it would cover a dispute between an employer and one of his employees having nothing whatsoever to do with the employment and that an intention to bring about such a result should not be attributed to Parliament in the absence of express provisions compelling that result: see at p.475. The Supreme Court then went on to say, at p.475, that the scope and purposes of the Act suggest that the Act is to be understood as referring to industrial disputes as generally understood in the ordinary meaning of that expression. I agree with that conclusion. This view does not deprive the definition of "industrial dispute" of its proper effect. The definition makes it clear who may be the parties to such a dispute, and that it includes a threatened or impending or probable dispute, but it says nothing about the subject matter of the dispute. That is indicated by the context of the Act as a whole: the dispute must be an industrial dispute in the ordinary sense.

6. The meaning of the expression "industrial dispute" has been considered in very many cases. It has been held again and again in cases arising under the Conciliation and Arbitration Act 1904 (Cth), as amended, that a matter does not become the subject of an industrial dispute simply because it is a matter with respect to which persons who are employers and employees are disputing: see R v. Kelly; Ex parte State of Victoria (1950) 81 CLR 64, at p 85; Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313, at pp 318, 327 and Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd. (1972) 127 CLR 353, at p 371. Of course these cases depend on the particular words of the Conciliation and Arbitration Act, but they nevertheless reflect a general understanding that a dispute is not necessarily an industrial dispute simply because the disputants are engaged in an industry.

7. Recently, in Re Coldham; Ex parte The Australian Social Welfare Union (1983) 57 ALJR 574, this Court said, at p 580, that it is "beyond question that the popular meaning of 'industrial disputes' includes disputes between employees and employers about the terms of employment and the conditions of work." In Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. it was held that "the essential element in an industrial dispute in the ordinary meaning of that expression is that it should be a dispute as to the terms and conditions of the employment of persons who are employees and are themselves disputants or are represented by one of the disputants.": see at p.476. Their Honours went on to say, at p.476:

"Although industrial matter is not defined in the Act it cannot in our opinion be given a meaning which would take it beyond the area that might form the basis of an industrial dispute. In other words, an industrial dispute must be a dispute as to an industrial matter and an industrial matter must be a matter concerning the terms and conditions of employment of employees."

The statement that an industrial dispute must be one concerning the terms and conditions of employment of employees is in my opinion too narrow. In the present case, Young C.J., after referring to the description of "industrial matter" given in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd., at p 476, said that in Reg. v. Industrial Appeals Court; Ex parte Victorian Chamber of Manufactures, at p 95, the court spoke of "industrial matters" as "matters arising in the course of industrial relations, that is to say in the course of relations between employers and employees as such", and added that it was not suggested that there was any inconsistency between the two statements. Unless the statements purport to be complete and definitive they are not inconsistent, but the latter is more comprehensive than the former.

8. Cases decided on a variety of statutes, Commonwealth and State, indicate that the word "industrial" in such expressions as "industrial matter" or "industrial dispute" refers to relations between employers and employees as such, and that a demand will give rise to an industrial dispute only if there is a relevant connexion between what is demanded and the relationship of employer and employee: Mutual Life and Citizens' Assurance Co. Ltd. v. Attorney-General (Q.) (1961) 106 CLR 48, at p 58; Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd., at pp 365, 371 and Reg. v. Booth; Ex parte Administrative and Clerical Officers' Association (1978) 141 CLR 257, at pp 263-264. Those cases express what is in my opinion the essence of the ordinary notion of an industrial dispute, viz., that it is a dispute arising out of or relating to the relationship between employers and employees as such. As Stephen J. said in Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd., at p 371:

"The matter demanded must always pertain to the employer-employee relationship so that the subject matter of demands by either party which are, for example, of a political or social or managerial nature will not be industrial matters."

9. The distinction between, for example, a political dispute and an industrial dispute is easily recognized, even when the disputants are employer and employees. Where the dispute is as to a matter of management, the line may be more difficult to draw. It is clear that a decision made by an employer as to the management of his business may have a great effect, beneficial or detrimental, on the prospects of his employees. A decision to close an existing branch of a business, or to open a new branch, is an obvious example. However it is well established that a dispute concerning the management of a business is not an industrial dispute as ordinarily understood. In the absence of statutory provisions to the contrary, the management of the business in which the employees are engaged is the employer's sole responsibility, and a dispute concerning management does not directly involve the relationship of employer and employee or arise out of that relationship. The principles were stated in an important passage in R v. Kelly; Ex parte State of Victoria, where it was held that a dispute as to trading hours was not an "industrial dispute" within the Conciliation and Arbitration Act. The Court said, at p.84:

"Provisions with respect to trading hours may affect the turnover of shopkeepers who employ persons and so indirectly affect their ability to pay award rates, and this state of affairs may in turn affect the relations of those shopkeepers and their employees. But this is the most that can be said, and it is obviously not enough. It shows only the possibility of an indirect, consequential and remote effect upon the relations of the last-mentioned persons. All kinds of matters, e.g. supply and prices of raw material, the state of the money market, may affect the capacity of employers to pay wages at a certain standard. But these are not industrial matters within the definition contained in s. 4 of the Act. What O'Connor J. said in Clancy v. Butchers' Shop Employees Union (at p 207) is as true of the Commonwealth Act here in question as it was of the New South Wales Act there under consideration. His Honour said: 'If once we begin to introduce and include in its scope' (i.e. the scope of the Act) 'matters indirectly affecting work in the industry, it becomes very difficult to draw any line so as to prevent the power of the Arbitration Court from being extended to the regulation and control of businesses and industries in every part.'"

The views expressed in this passage have been accepted in subsequent cases: see, for example, Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1966) 115 CLR 443, at pp 450-452, 456-457 and Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots (1971) 127 CLR 11, at pp 20, 31. These cases were all concerned with Commonwealth legislation, to which constitutional constraints apply, but a similar view has been taken in questions arising under State legislation: see Brownells Ltd. v. Ironmongers' Wages Board (1950) 81 CLR 108, at pp 120, 130 and Attorney-General of Queensland v. Wilkinson, at p 434. There are sound practical reasons for drawing the distinction between a dispute regarding a managerial question and an industrial dispute. The costs of an erroneous decision in the course of management will be borne directly by the employer, whereas the effects of any such decision will be felt by the employees indirectly, if at all. In the light of the authorities it is to be expected that if a legislature intends to give power to an industrial tribunal to interfere in what are purely matters of management, it will express its intention in clear words. The general words of the Act now under consideration are not sufficient for that purpose.

10. For these reasons I agree with Young C.J. who said in the present case:

"So a question whether an employer should discontinue an unprofitable line of business which might result in a reduction in the number of his employees would not be a question as to an industrial matter. A question whether an employer should choose one brand of machine in preference to a brand thought by some to be more or less efficient would not raise an industrial matter even if it could be shown that one choice might result in the employer being unable to afford to employ so many employees."

11. The question whether cl.39 relates to an industrial dispute within s.34(1)(f) of the Act depends on whether it deals with a matter arising out of the relationship of employer and employees as such or whether it deals simply with a matter of management. Young C.J. described the effect of cl.39 as follows:

"The award here in question is not an award of

which the subject matter is technological change. The subject matter of this award is notification or notification and consultation. The necessity to give certain notice may be properly regarded in some cases as ancillary to the substantial subject of the award, but in the present case there is nothing beyond notification and consultation and neither of itself is an industrial matter."

It was submitted by counsel for the appellants that Young C.J. was in error in characterizing the award in this way, the submission being that the subject matter of cl.39 is the control and amelioration of the material effects of technological change on contracts of employment. It does not seem to me that the appellants would be assisted if the award were characterized as they suggest. There can be no doubt that an apprehension that persons employed in clerical occupations might be adversely affected in their employment by technological changes of the kind referred to in par.(a) of cl.39, and a desire to mitigate the possible effects of likely changes of that kind, provide the motive or purpose for the making of the award. However what the clause does is to provide for the giving of notification and of information and for consultation in the circumstances mentioned in cl.39 and the question is whether s.34 of the Act empowers the making of an award of that kind.

12. In my opinion the provisions of pars.(b) and (c) of the award do not deal with an industrial dispute. It is clear, as Anderson J. said in the Full Court, that the award could not validly give an effect to the outcome of consultation, or give the employees the right to control or direct the decision of management, for if it did it would be dealing with a matter of management and not with an industrial matter. Paragraphs (b) and (c) do not go so far, but they do give the employees and the union an opportunity to take a certain part in the management of the business. Those paragraphs require the employer to notify the union, and in some cases the employees, at the commencement of an investigation into the feasibility of technological change (however tentative or preliminary the investigation may be), to keep the union and the employees informed, amongst other things, of any such change that is being considered, and, if requested, to consult with the union and the employees about the technological change being considered, and material effects which might ensue, and alternative proposals which might eliminate or lessen such effects. The employer is thus required to reveal the nature of investigations made in the course of management and to consult about them, whether it is likely that they will lead to action which may affect the employees, or not. The object of those paragraphs is plainly to give the union and the employees an opportunity to influence the employer before he makes what is purely a management decision. Consultation often plays a valuable part in industrial relations but a demand for consultation does not give rise to an industrial dispute simply because the demand is made upon an employer by his employees. The topic on which the proposed consultation is to occur determines whether the demand is industrial in nature. The consultation required by pars.(b) and (c) relates to proposed or possible management decisions. Paragraphs (b) and (c) of the award do not relate to an industrial dispute within the meaning of the Act, for in my opinion a dispute regarding whether employees should have the right to be informed and consulted before a management decision is taken is a dispute as to management, and not an industrial dispute.

13. Paragraph (d) of cl.39 is different in kind. It deals with the situation that arises when the employer has decided to implement technological change. In that event the employer is required to notify the union and the employees who may be materially affected in their employment by the change. It is true, as Young C.J. pointed out, that the words of par.(d) are not well chosen and that sub-par.(ii) of par.(d) assumes that the employer may have room to change his mind and may be persuaded to adopt some alternative proposal. This consideration led Young C.J. to conclude that the notifications required by par.(d) are not different in essence from those prescribed by par.(b), and that both provide procedures for notification and consultation before a decision has become irrevocable or is implemented. Nevertheless, with all respect, it seems to me that a dispute between employers and employees as to whether the parties should consult about a decision which has been made by the employer, and which is likely materially to affect the employees in their employment, is a dispute which arises out of the relationship between the employers and the employees as such. It is true that the decision in question is one of management, but the mitigation of the undesirable effects which a management decision may have on the employees affected by it is a matter that arises in the course of the employer-employee relationship, and this, I think, is none the less so because the consultations may reveal an alternative proposal, preferable from the employees' point of view but suitable from that of the employer, which may be adopted in place of the original decision. The distinction may seem a fine one but in my opinion par.(d) is on the right side of the ill-defined borderline between questions which are industrial and questions which relate purely to management, and pars.(b) and (c) are not. Paragraphs (b) and (c) allow the union and the employees to intrude into management, whereas par.(d) requires the parties to consult regarding a decision which, having been made by the employer, may detrimentally affect the employees.

14. Paragraph (e) seems to me to go beyond dealing with an industrial dispute. The paragraph is no doubt intended to be merely ancillary to the operative provisions of the award and if it did no more than make par.(d) effective it would in my opinion be valid. However, in my opinion, it goes quite beyond the scope and purposes of the Act to make an award obliging employers to give the source of the information which they are required to provide and obliging them to provide technical data which may, as par.(e) recognizes, be confidential. Provisions of that kind do not deal with a dispute that arises out of the relationship between employer and employee, although a paragraph along the same lines but omitting reference to sources and technical data might well be unobjectionable.

15. For these reasons I hold that cl.39 is partly within power - pars.(a), (d), (f) and (g) are valid, but pars.(b), (c) and (e) are not.

16. I have dealt particularly with the question whether cl.39 is an award determining matters relating to an industrial dispute, within s.34(1)(f) of the Act, for that paragraph is in my opinion as wide in its scope as any other paragraph of s.34(1). In the alternative, the appellants relied on the powers given by pars.(c), (d), (e) and (k) of the subsection, but the reasons that I have given for holding that s.34(1)(f) does not empower the making of pars.(b), (c) and (e) of cl.39 would equally lead to the conclusion that no other provision of s.34(1) supports the making of those parts of the award.

17. The power given by s.42 of the Act enables an award to be quashed in whole or in part. I would allow the appeal in part and would vary the order of the Full Court by quashing pars.(b), (c) and (e) of cl.39 of the award.

MASON J. The facts and relevant statutory and award provisions are set out in the judgment of Gibbs C.J.

2. The issue for decision is whether the award which inserted cl.39 relates to a matter of a kind described in s.34(1) of the Act. By this subsection the Board is given a general power to make an award "relating to any industrial matter whatsoever" and, in particular, to make an award determining all matters relating to, inter alia -

".....

(c) privileges, rights and duties of employers and employes;

(d) the mode, terms and conditions of employment or non-employment;

(e) the relations of employers and employes;

(f) industrial disputes;

.....

(k) questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole."

3. The definition of "industrial dispute" in s.3(1) is important, not only because it is an exclusive definition except for its inclusion of a threatened, impending or probable dispute, but also because it contains no limitation on the character or subject matter of a dispute. It simply defines the expression by reference to a dispute between certain nominated parties, i.e., between:

(1) an employer and one or more of his employees; or

(2) an association of employees and one or more employers or

associations of employers; or

(3) two or more associations of employers or two or more

associations of employees.

4. To the reader unfamiliar with the long course of judicial decisions on the meaning and content of the expressions "industrial matters" and "industrial dispute(s)" as they appear in s.4 of the Conciliation and Arbitration Act 1904 (Cth) it would seem obvious from the structure of s.34(1) that the expression "industrial matter" is broader than "industrial disputes" in par.(f). The latter is treated as a particular instance or extension of the former. And the relegation of "industrial disputes" to par.(f) of the particular instances or extensions indicates that the two expressions are not synonymous, that the former is the significantly wider of the two, that it extends beyond the notion of an industrial dispute and that therefore the award-making power is not conditioned on the existence of such a dispute, no matter how frequently the existence of such a dispute or the threat of it may be the occasion for the exercise of the power. And the reader would be inclined to conclude from the statutory definition of "industrial disputes" that so long as there was a dispute between an employer and an association of employees, that was enough to attract the award-making power without there being any need to establish that the subject matter of the dispute was of a particular character or class.

5. Be this as it may, the inclusion in par.(f) of the expression so defined provides no reason for failing to give the expression "any industrial matter whatsoever" a broad meaning, embracing any matter having an industrial character so long as it has a relevance to or connexion with industrial relations, the topic with which the statute is concerned. However, for present purposes, it is sufficient to say that the expression covers any matter arising in the course of or out of industrial relations, especially between employers and employees. This interpretation is similar to that favoured by the Full Court of the Supreme Court of Victoria in Reg. v. Industrial Appeals Court; Ex parte Victorian Chamber of Manufactures (1975) VR 84, at p 95, viz., "matters arising in the course of industrial relations, that is to say in the course of relations between employers and employees as such". Although that case concerned an earlier version of the present Act, the interpretation which I would give to the present Act more closely resembles that interpretation than the one which the Full Court expounded in relation to the present Act in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. (1983) 1 VR 469, at p 476, where it was said that an industrial matter "must be a matter concerning the terms and conditions of employment of employees".

6. According to the respondents' argument, which was accepted in the Full Court, the interpretation which I favour is too simplistic. It ignores the course of judicial decisions to which I have already made fleeting reference, decisions which, it is suggested, must necessarily influence the interpretation of s.34(1) and, in particular, of the critical expressions. From the decided cases the following propositions may be extracted:

(1) a matter does not become an "industrial matter" or the

subject of an "industrial dispute" simply because it is a matter with respect to which persons who are employers and employees are disputing (R v. Kelly; Ex parte State of Victoria (1950) 81 CLR 64, at p 85; Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313, at pp 318, 326-327);

(2) in order to constitute an "industrial matter" and become

the subject of an "industrial dispute" what is demanded must have a relevant connexion with the relationship of employer and employee (Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd. (1972) 127 CLR 353, at p 365; Reg. v. Booth; Ex parte Administrative and Clerical Officers' Association (1978) 141 CLR 257, at pp 263-264) or, as it has been put more narrowly, "the relationship of employer and employee must be directly involved in the demand" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1966) 115 CLR 443, at p 450), a connexion resting on an indirect effect or consequence being insufficient for this purpose (Reg. v. Findlay; Ex parte The Commonwealth Steamship Owners' Association (1953) 90 CLR 621, at pp 629-630);

(3) a demand by employees for something of a management or

managerial nature has no relevant connexion with the relationship of employer and employee and is not an "industrial matter" (Melbourne and Metropolitan Tramways Board, esp. at pp 451-452; Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots (1971) 127 CLR 11, at pp 20, 31); and

(4) likewise, a demand for something of a political or

social nature is for the same reason not an "industrial matter" (Portus, at p.371).

7. Of these propositions the first two plainly reflect the statutory definitions of "industrial dispute" and "industrial matters" contained in s.4 of the Conciliation and Arbitration Act. They proceed on the footing that it is of the essence of an "industrial dispute" that it is a dispute in relation to an "industrial matter" and that it is of the essence of the latter expression and it pertains to the "relations of employers and employees". The same comment may be made of Attorney-General of Queensland v. Wilkinson (1958) 100 CLR 422, at p 434, and Mutual Life &Citizens' Assurance Co. Ltd. v. Attorney-General (Q.) (1961) 106 CLR 48. They reflect the statutory definitions of The Industrial Conciliation and Arbitration Acts 1932 to 1955 (Q.) which established a similar relationship between "industrial disputes" and "industrial matters" (see Mutual Life &Citizens, at p.54 et. seq.). These decisions, together with those sustaining the first two propositions, far from reflecting a common or general understanding of what the two expressions mean, give effect to the statutory definitions and to the particular relationship which exists between them, reinforced by arguments arising from the perceived purpose of the relevant Act and the role of the tribunal. The reasoning on which they are based is to be contrasted with that in Re Coldham; Ex parte The Australian Social Welfare Union (1983) 57 ALJR 574, where the Court, unimpeded by statutory definition, gave effect to the popular meaning of the expression "industrial disputes" by observing (at p.580), "the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes".

8. This discussion of the authorities is sufficient to make the point that the statutory provisions which were the subject of examination were very different from those now under consideration. The relationship between the two expressions under the Victorian Act is substantially different from that in the Conciliation and Arbitration Act and "industrial matter" is not defined and is not restricted to the relations of employers and employees, that topic being included in par.(e) of s.34(1).

9. The third proposition which I have extracted from the decided cases is in one respect the product of the second proposition and in another the product of other considerations. When the Court in Kelly rejected the claim that a dispute between an organization of employees and an organization of employers as to the trading hours of shopkeepers was an industrial dispute, it did so on the ground that it was not enough to show that what was demanded might possibly have "an indirect, consequential and remote effect upon" the relations of employers and employees (p.84), the Court went on to quote the remarks of O'Connor J. in Clancy v. Butchers' Shop Employes Union (1904) 1 CLR 181, at p 207:

"... once we begin to introduce and include in its scope (i.e. the scope of the N.S.W. Act there under consideration) matters indirectly affecting work in the industry, it becomes very difficult to draw any line so as to prevent the power of the Arbitration Court from being extended to the regulation and control of businesses and industries in every part."

10. Kelly did not distinguish between employers' decisions which are management decisions or managerial in character and those which are not. That distinction was made by Barwick C.J. in Melbourne and Metropolitan Tramways Board (at pp.451-452) where, after acknowledging that industrial disputes and awards may consequentially have an impact on the management of an enterprise and upon otherwise unfettered managerial discretions, observed that "the management of the enterprise is not itself a subject matter of industrial dispute." A demand that no two-man tram or bus service shall be converted to a one-man operation was, according to his Honour, a demand which directly concerned only the management of the transport system. The distinction echoes in a more precise way the comment of O'Connor J. in Clancy and other early statements that industrial tribunals were not empowered to adjudicate about the manner in which an employer should conduct his business (Higgins, A New Province for Law and Order (1968 ed.), p.13).

11. The problem with the concept of management or managerial decisions standing outside the area of industrial disputes and industrial matters is that it does not provide a clear distinction. There are many decisions made by management which are capable of giving rise to an industrial matter and becoming the subject of an industrial dispute (see, for example, Melbourne and Metropolitan Tramways Board v. Horan (1967) 117 CLR 78; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia (1969) 119 CLR 529, at pp 539-540). Whether the concept of management or managerial decisions can be sustained as an absolute and independent criterion of jurisdiction, even in the context of the Conciliation and Arbitration Act, is an important question that may require future consideration. In saying this I do not underrate the importance of the comment made by O'Connor J. in Clancy. The prospect of industrial tribunals regularly reviewing business policy decisions made by employers, and thereby controlling the economy to a substantial extent, is indeed a daunting one. On the other hand, the popular understanding of an industrial dispute extends to any dispute between employees and employers that may result in the dislocation of industrial relations, for example, by the withdrawal of labour or the introduction of work or other bans. What is more, reflection on the serious impact on the community of industrial dislocation suggests that the scope and purpose of statutes regulating conciliation and arbitration and industrial relations extend to the conferment of jurisdiction on industrial tribunals in relation to industrial disputes in their broadest conception.

12. The present case does not call for a resolution of the question in the context of the Victorian Act. The provisions of cl.39 prescribe procedures for the provision of notification and information by employers to the Union and to employees who may be materially affected when technological change having that effect is contemplated and for consultation between the employers, the Union and the employees materially affected. The provisions fall into two categories: (1) those which relate to the period of feasibility study (par.(c)), and (2) those which relate to the decision to implement technological change (par.(d)). The award stops short of regulating the employer's right to decide whether it will introduce technological change except in so far as it obliges the employer to give notification and information and to consult with the Union and employees. The prescribed procedures are designed to ensure full and informed consultation. They have as their object improved industrial relations between employer and employees with respect to "material effects" of the introduction of technological change. These effects are defined by the award to include:

"... the termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retaining or transfer of employees to other work or locations."

It is well known that these are the consequences of technological change upon the employment of employees and that these consequences and the apprehension of them is a continuing and important cause of industrial disputation and disruption.

13. In these circumstances the provisions relating to both stages, feasibility study and decision to implement, are in my view "industrial matters" on the footing that award provisions requiring consultation with respect to the introduction of technological change constitute an "industrial matter" in the context of a statute dealing with the subject of industrial relations. If it were necessary to do so, I would hold that the provisions were specifically authorized by pars.(d) and (e) of s.34(1). They may be authorized by other paragraphs as well, but there is no occasion for me so to decide.

14. I would allow the appeal.

MURPHY J. The Industrial Relations Act (1979) (Vict.), s.34, empowers the Board (and on appeal the Commission, s.16(5)) "to make an award relating to any industrial matter whatsoever in relation to the trade or branch of a trade or group of trades for which that Board is appointed and in particular, without affecting the generality of the foregoing, to make an award determining all matters relating to" eleven specified subjects labelled (a) to (k). These include (c) privileges, rights and duties of employers and employees; (d) the mode, terms and conditions of employment or non-employment; (e) the relations of employers and employees; (f) industrial disputes; and (k) questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole. In regard to a similar provision in the Commonwealth Conciliation and Arbitration Act 1904, Mr Justice Higgins said in Australian Tramway Employes Association v. Prahran and Malvern Tramway Trust (1913) 17 CLR 680:

"The abundance of words in this definition, words which are not mutually exclusive or capable of rigid demarcation, would appear to be intended to prevent any such argument as is used in this case in favour of a narrow interpretation of the ruling expression - 'all matters pertaining to the relations of employers and employes'." (p.706).

2. Processes of notification and consultation about technological change which might affect the work or the employment or non-employment of persons are part of industrial relations. A demand for an alteration of existing industrial relations to include or exclude or modify those processes is an industrial matter; it is a matter relating to the privileges, rights and duties of employers and employees (s.34(c)), and perhaps of the terms and conditions of employment (s.34(d)); it is a matter affecting the relations of employers and employees (s.34(e)), and a matter relating to questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole (s.34(k)); if not acceded to, it gives rise to an industrial dispute (s.34(f)).

3. A demand for an alteration of relations of employers and employees (industrial relations) is an industrial matter. Here, the award, if valid, alters industrial relations. A demand for that alteration is an industrial matter. The expression industrial relations is not restricted to hostile relations. It extends to amicable relations, such as consultation.

4. In general, an award which requires an employer to notify employees (or their union or the union which covers the work) and to consult with them on changes in the kind of work, or the place of work, or the times at which it is to be performed, deals with industrial matters.

5. It is an error to regard managerial prerogatives and industrial matters as mutually exclusive areas. For decades, the argument has been advanced that a dispute cannot be an industrial dispute (or cannot concern an industrial matter) because it concerns management prerogatives (or management policy or functions). The argument has generally been rejected (see Melbourne and Metropolitan Tramways Board v. Horan (1967) 117 CLR 78).

6. In the history of industrial law many matters which were within the exclusive managerial prerogative of employers have been brought within the scope of industrial regulation, by the legislature or industrial tribunals. Sometimes the former prerogative has been eliminated, for example by health and safety laws which prohibit certain practices. Sometimes it has been restricted, for example by minimum wage provisions. Various privileges which were once exclusive to the employer are now shared with employees (or their organizations).

7. During this generation, there has been an accelerating trend towards concentration of economic power in fewer and fewer persons. The growth of the great national corporations, their mergers and expansion into transnationals have transformed the methods of production, distribution and exchange. The power of the greatest corporations transcends that of most governments. A reaction to the submergence of the individual worker is the demand by organized workers for some share in deciding what work is to be done, by whom and when, where, and how it is to be done. The thrust of the demand is not merely the improvement in existing pay and conditions. It extends to the protection of jobs, for themselves and other workers, but is more than that; it is a demand to be treated as more than wage-hands - to be treated as men and women who should be informed about decisions which might materially affect their future, and to be consulted on them. It is a demand to be emancipated from the industrial serfdom which will otherwise be produced by the domination of the corporations; a demand to be treated with respect and dignity.

8. Over 70 years ago this Court recognised that industrial disputes are not confined what which directly affects the work (Australian Tramway Employes Association v. Prahran and Malvern Tramway Trust). In that case Justices Isaacs and Rich observed that a worker is not "a mere instrument, a living but mechanical contrivance" recognised by the arbitration clause of the Constitution "simply as an adjunct of the work he does. ... the aim of industrial struggles is to raise the personal status and condition of the workers." (p.703). They said that "when the central idea is kept steadily in sight, that workmen's disputes are for personal welfare, be it health, or leisure, or a larger share of combined production, or the incidental consolidation of their forces so as to stand collectively instead of singly, it is manifest that any test which looks only to the amount or quality of the work done as the standard of inclusion in the constitutional provision is altogether too narrow" (p.703).

9. The challenged paragraphs of the award are valid.
The appeal should be allowed.

WILSON J. On 9 September 1982 the Industrial Relations Commission of Victoria in full session ("the Commission") made an award called the Commercial Clerks Award ("the award") which amended an earlier award by inserting a new clause reading - so far as material - as follows:

"39. Technological Change

(a) Definitions

For the purpose of this clause -

'Technological change' means the introduction, alteration or replacement of computers (including word processing machines), or work practices ancillary to the use of such equipment, which change, if implemented by an employer, may have material effects in or on the employment of persons to which this award applies.

'Computer' means an electronic device (including word processing machines) which is capable of receiving facts or data, processing or performing calculations on that data and delivering answers or information in the required format for use by a person, or to control the operations of another machine or computer.

'Material effects' means the termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retraining or transfer of employees to other work or locations.

(b) Notification

When the employer instructs or commissions employees, computer consultants or suppliers or any other persons to carry out an investigation of the feasibility of technological change or where he personally commences such an investigation he shall notify -

(i) the secretary of the Federated Clerks Union of Australia, Victorian Branch ("the Union"); and

(ii) in any case where the employer is able to identify the employees who may be materially affected in their employment by the change, those employees

that the investigation is being undertaken, and specify the employer's principal objective or objectives of such investigation.

(c) Consultation during Feasibility Investigation

During the course of any feasibility investigation the employer shall:-

(i) keep the Union and the employees who have been notified informed of; and

(ii) when requested in writing by the Union or by such employees or any of them to do so, consult with them about

any technological change being considered, any material effect which might ensue and alternative proposals which might eliminate or lessen such effects.

(d) Decision to Implement

(i) If an employer decides to implement technological change he shall notify the Union and the employees, who may be materially affected in their employment by the change, as soon as possible thereafter.

(ii) After notifying the decision the employer will inform the Union, and the employees who have been notified, of the nature and extent of likely material effects, will consult with them about the proposed change, the reasons for it and any alternative proposals which, if implemented might eliminate or lessen likely material effects.

(e) Information

In providing information to the employees and the Union the employer will indicate the source thereof and provide such technical data as will allow evaluation of the likely material effects of any proposal for technological change. The information provided pursuant to this clause shall not be divulged to any other employer nor be used for any purpose other than the making of the said evaluation."

2. The Commission is established by s. 4 of the Industrial Relations Act 1979 (Vic.) as amended ("the Act"). It made the award upon an appeal brought pursuant to s. 16 of the Act by the Federated Clerks Union of Australia ("the Union") and others against the refusal of a Conciliation and Arbitration Board to accede to an application for the insertion of a clause in similar terms in the earlier award. For the purposes of such an appeal the Commission may exercise all or any of the powers of the Board (s. 16(5)), including the powers contained in s. 34(1) of the Act. The latter subsection provides as follows:

"34. (1) Every Board shall have power to make an award relating to any industrial matter whatsoever in relation to the trade or branch of a trade or group of trades for which that Board is appointed and in particular, without affecting the generality of the foregoing, to make an award determining all matters relating to -

(a) work and days and hours of work;

(b) pay, wages and reward;

(c) privileges, rights and duties of employers and employes;

(d) the mode, terms and conditions of employment or non-employment;

(e) the relations of employers and employes;

(f) industrial disputes;

(g) the employment or non-employment of persons of any particular age;

(h) the demarcation of functions and of any employes or class of employes;

(j) the issuing or giving out of any material whatsoever for the purpose of goods being wholly or partly manufactured outside a factory;

(k) questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole."

3. Following the making of the award by the Commission, the present respondents commenced proceedings in the Supreme Court of Victoria pursuant to s. 42 of the Act wherein they challenged the validity of the award on the basis that the Commission lacked the power to make it. That challenge was upheld unanimously by the Full Court of the Supreme Court (Young C.J., Anderson and Gobbo JJ.). Their Honours held that the award did not relate to "any industrial matter" within the meaning of those words in s. 34(1) or to any of the matters listed in pars (a) to (k) of the subsection. The award was quashed. Thereafter, this Court, on the application of the Union and the Registrar of the Commission, granted special leave to appeal.

4. The Court has heard considerable argument directed to the general construction of the Act. On the one hand, the appellants stressed that its passage in 1979 represented something of a landmark in the history of industrial relations in Victoria. It established an Industrial Relations Commission with far-reaching powers including the supervision of the work of Conciliation and Arbitration Boards. It introduced the notions of industrial dispute and industrial agreement and generally reflected a legislative intent to promote industrial harmony by the provision of flexible and effective procedures. On the other hand, the respondents claim that, despite the new look exhibited by the Act, the provisions of s. 34(1) which prescribe the powers available to be exercised in the making of awards are expressed substantially in traditional language such as has been used in Victoria and elsewhere for many years and has received considerable elucidation in judicial decisions. He referred in particular to the decision of the Full Court of the Supreme Court of Victoria in Reg. v. Industrial Appeals Court; Ex parte Victorian Chamber of Manufactures (1975) VR 84. Therein the Court noted the breadth of the words of s. 30 of the Labour and Industry Act 1958 (Vic.) - the predecessor (if I may so describe it) to s. 34(1) of the Act - and then at p. 95, after referring to a number of decisions based on both the Victorian Act and other Acts affirmed the proposition that the reference to "industrial matters" in s. 30 was intended to empower a Wages Board to deal with matters arising in the course of industrial relations, that is to say, in the course of relations between employers and employees as such.

5. As I have noted, the decision of the Supreme Court in the present case turned on their Honours' acceptance of this construction of the term "industrial matter" in the Act and its application to the terms of the award in question. Although the appellants argued for a broader construction of the concept, I find that for the purposes of determining this appeal I have no need to choose between the two. I am prepared to accept the construction for which the respondents contended. It accords with the view of Kitto J. in Mutual Life &Citizens' Assurance Co. Ltd. v. Attorney- General (Q.) (1961) 106 CLR 48, at p 58. Furthermore, I think it is fair to add, as an accepted corollary to that proposition, that the mere possibility of an indirect, consequential and remote effect upon the relations referred to is not enough: Reg. v. Findlay; Ex parte The Commonwealth Steamship Owners' Association (1953) 90 CLR 621, at pp 629-630.

6. Nor do I find it necessary to distinguish between the clauses of the award, notwithstanding that it might have been thought that a significant distinction was to be drawn between par. (c), dealing with information and consultation during the feasibility investigation, and par. (d), dealing with information and consultation following the decision to implement technological change. The practical implications for the workplace which follow from a decision to implement such change more readily assume an industrial character allowing for appropriate consultation than is the case with the conduct of a feasibility investigation. Nevertheless, in the final analysis I think the two clauses reflect a difference of degree rather than of basic character. Both clauses are concerned with material effects in the workplace, in the one case effects which are no more than a possibility, and in the other effects which are closer to realization. If on consideration par. (c) is found to be within power then there could be no doubt as to the validity of par. (d). I propose therefore to concentrate primarily on the former paragraph.

7. The issue may be stated as being whether the award has more than an indirect, consequential or remote effect upon the relations of employers and employees as such. I choose to concentrate on this formulation of the test rather than examining all the possibilities inherent in the detailed enumeration of the matters referred to in pars (a) to (k) in s. 34(1) because this formulation appears to me to be the one which is most relevant to the problem. If the award cannot satisfy this test then I am unable to see how it could satisfy any of the others.

8. As I have said, the Full Court answered the question in the negative. Their Honours characterized the award as requiring notification to the Union and consultation with the Union in respect of matters of managerial policy, matters which were the sole province of the employer. The Solicitor-General argued that, even though such a distinction may have been relevant in the past, the Court should now take judicial notice of the trend towards industrial democracy and he asserted that managerial decisions are no longer beyond the range of industrial relations. That proposition may have some substance in it, particularly in the context of State law which is free to develop untrammelled by the constitutional restraints that affect the exercise of Commonwealth legislative power. But I have no need to explore the proposition now, because, as will appear, I do not think the award goes so far as to usurp the employer's prerogative to make the ultimate decisions.

9. Counsel for the respondents supported the conclusion of the Full Court. He drew an analogy between the award and matters which in earlier decisions of this Court have been held to be outside the relations of employers and employees as such. For example, he referred to Clancy v. Butchers' Shop Employes Union (1904) 1 CLR 181 where the Court held that a decision by an employer with respect to his hours of trading did not raise an industrial matter. At p. 206, O'Connor J. added this:

"Now if the argument is good in regard to a butcher's business, it is good in regard to the carrying on and management of the Government Railways. It is well known that new kinds of labour-saving apparatus are continually being invented and adopted, for instance the automatic fuel feeder. The Railway Commissioners might think it right, in order to reduce expenses in the working of their furnaces, to introduce apparatus of that kind, and it is quite clear that its introduction would very largely affect the amount of work to be done by employes. Could it be contended for one moment that there was jurisdiction in the Arbitration Court to prohibit the use of such apparatus on the ground that it affected the work to be done by the employes, or that it had power to direct what kinds of machinery should be used by the Railway Commissioners in the working of the railways, or in any other of those large businesses that are included in this section."

Counsel referred also to R v. Kelly; Ex parte State of Victoria (1950) 81 CLR 64, which again concerned the trading hours of a shop. It was held not to be a matter within the sphere of the shopkeeper as employer with any person as employee and was therefore not an industrial matter. It showed only the possibility of an indirect, consequential and remote effect upon industrial relations: see, at p 84. Cf., also Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots (1971) 127 CLR 11; Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd. (1972) 127 CLR 353; Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1966) 115 CLR 443.

10. The appellants, on the other hand, distinguish these cases. They submit that the Full Court erred in its characterization of the award. In their submission the award does not trespass on the decision-making prerogative of the employer with respect to the conduct of his business. It does not allow the Union a voice in any decision at all, whether to initiate a feasibility study or to introduce the machines. The cases upon which the respondents rely were cases where the employees claimed a right to participate in the decisions themselves or to have them reviewed. That is not the object of the present award.

11. The appellants claim that the proper characterization of the award is not that it is dealing with the machinery of notification and consultation. Underlying it is the recognition that the consequences of managerial decisions are matters that may have immediate and far-reaching effects on the work force, involving perhaps a whole range of industrial matters. Its subject matter is the material effects on employment of technological change and the possible amelioration of those effects. Notification and consultation were seen by the Commission as appropriate means by which to seek that amelioration.

12. I have come to the conclusion that it was within the power of the Commission to make the award. I am not obliged to judge the wisdom or the appropriateness of the means which it has chosen to employ; indeed, if the effect of the award is to require the employer to divulge highly confidential information pertaining to the conduct of his business there could be serious practical difficulties in the way of its implementation. However, I am satisfied that, having regard to the finding of the Commission that technological change as defined in the award will significantly affect the livelihood and careers of employees engaged in clerical occupations in Victoria, any consideration by an employer which may lead to the introduction of such technology is a matter of crucial importance to those employees and hence brings into being a matter relating to the relations of that employer with his employees as such. I emphasize that it is the process of examining the feasibility and implications of a particular course of development rather than the decision to embark on that development which attracts the exercise of jurisdiction with respect to a contribution by the Union to that process. The Commission was therefore seized of an industrial matter within the meaning of s. 34(1) of the Act and empowered to make an award determining that matter. I do not think that so to recognize the existence of such a power conflicts with any received doctrine although nowadays there is probably a greater recognition of the importance and place of notification and consultation in the conduct of industrial relations. The award does not challenge the right of the employer to make decisions with respect to the introduction of technology into his business. But it does oblige him in cases where the introduction of that technology may have material effects on his employees to notify and inform the Union, and any employees who can be identified as being likely to be involved, of the steps that are being taken and to provide the opportunity for appropriate consultation.

13. I have already referred to the distinction between pars (c) and (d) of the award. The respondent argues that the industrial relationship linking an employer with his employees is not involved until the decision to introduce the technology has been made and implemented or, in other words, until the material effects are in fact about to be realized. Until then the effect on that relationship is no more than indirect, consequential and remote. But in my opinion that is to take altogether too narrow a view of the industrial relationship. The definition of material effects makes it clear that the connection between planning for technological change and the employment is anything but tenuous or remote. Those effects are defined in the award to mean:

"The termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retraining or transfer of employees to other work or locations."

These effects may be minimized by appropriate planning in advance. What the award recognizes is that while the responsibility for making decisions falls on the employer alone, he must allow for some participation by the Union and employees in the planning process. That process must he shared. This is why the machinery of notifying and supplying information is important; it is the essential prerequisite to appropriate consultation. Such consultation is a natural expression of the industrial relationship of employer and employee in the face of technological change. Viewed in this light, the award is within power. Consultation between employers and employees, preceded by the distribution of adequate information is not only sensible but essential if commerce and industry are to meet the challenge of progress in a spirit of harmony and with some regard for human dignity.

14. Nor is this aproach at all novel. In 1968, when ruling on a variation of the Clerks (Oil Companies) Award 1966, the Full Bench of the Commonwealth Conciliation and Arbitration Commission (Kirby C.J., Moore J. and Commissioner Matthews), (1968) 122 C.A.R. 339, at pp. 344-345, said:

"When employers are contemplating the introduction of computers and other automatic devices which may have serious effects on employees such as termination of employment or transfer interstate it is essential that both the employees and the union concerned should be informed of and involved in the planning as soon as possible. Many real human problems may be involved which may not be known to company executives and they, with the best will in the world, may take steps which do not help to solve them. It is our view that employees and their welfare are as important in the planning of a change of the kind we have had to consider as any other aspect of the change and that they, both individually and through their union, should be brought in at the planning stage. When brought into the planning both employees and the union should in their turn attempt to understand the problems which the employer faces and co-operate with him to try to find a reasonable solution."

15. I would allow the appeal.

DEANE J. The issue involved in this appeal, the relevant facts and statutory provisions and the terms of the impugned award (the "Commercial Clerks' Award (No.3 of 1982)") are set out in the judgments of the Chief Justice and of Wilson J. I refrain from restating them.

2. The introduction by an employer of technological changes which may have material effects in or upon the employment of existing employees is plainly a matter of legitimate interest and concern to those employees. It is inevitable that employees should be concerned to assert an entitlement to be kept informed of the existence and implication of any proposal to introduce such changes. Indeed, it is a matter of common knowledge that the threatened or actual implementation of such changes, with or without consultation with the employees affected, constitutes one of the main causes of contemporary disputation between employers and employees both in this country and overseas. Provisions aimed at providing an existing employee with some protection against the effect of the introduction of such changes upon his or her employment or ensuring, at the least, some notification and consultation in the event that such changes are contemplated are not inappropriate to be included in the terms and conditions of employment of any employee who is concerned with the security, significance and content of his or her employment and whose existing employment is or may be thought to be vulnerable to the effects of such changes.

3. It is in the above context that one must approach the question of the power of the Industrial Relations Commission of Victoria ("the Commission") to include in the Commercial Clerks Award the provisions relating to technological change which were introduced by the award purportedly made in September 1982. Those provisions require notification and consultation by an employer to or with the potentially affected employees and the appellant union in the event that technological changes are proposed or contemplated which "may have material effects in or on the employment" of employees. If valid, they involve a significant development in the relations between the affected employers and employees in that they introduce a compulsory procedure of notification and consultation in relation to planned technological changes of a type which may involve "the termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retraining or transfer of employees to other work or locations" (see the definition of "material effects" in the Award). Those are all matters which lie at the heart of the continuation and content of future industrial relations in that they relate to the continuation and content of the employment of any affected employees. In that context, the Award was, in so far as it introduced those disputed provisions, an award relating to an "industrial matter" for the purposes of s.34(1) of the Industrial Relations Act 1979 (Vic.) ("the Victorian Act") in that it was an award determining matters relating to the "terms and conditions of employment" (s.34(1)(d)) and to the "relations of employers and employes" (s.34(1)(e)). It is unnecessary to determine whether it was, to that extent, an award relating to such an "industrial matter" for the further reason or reasons that it determined matters relating to all or any of (i) "privileges, rights and duties of employers and employes" (s.34(1)(c)), (ii) "industrial disputes" which, by definition, include "a threatened or impending or probable dispute" (s.34(1)(f) and s.3) and (iii) "questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole" (s.34(1)(k)).

4. It follows from the foregoing that the Commission's Award of September 1982 was within jurisdiction and that the appeal should be allowed. It is unnecessary to consider whether the mere fact that a genuine dispute exists between employers and employees on the question whether particular provisions should be included in an award which constitutes the standard terms and conditions of employment of the employees to whose employment it applies is, in itself, sufficient to ensure that a further award which resolves that question is within the broad provisions of s.34(1). In that regard however, I would make express what is implicit in the foregoing, namely, that one cannot approach the construction of a 1979 State Act on the basis that it reflects assumptions which might be thought to underlie parts of the outmoded patchwork that is the Conciliation and Arbitration Act 1904 (Cth). In particular, it is not to be presumed that a 1979 State Act has been framed on the basis that there is a necessary dichotomy between the interests and functions (or "prerogatives") of employers on the one hand and employees on the other or on the basis that the quality, content, importance, profitability and preservation of an employee's work and the purposes which it advances or achieves are not all matters of legitimate industrial concern both to the employee and to the industrial organization which represents him or her.

Orders

Appeal allowed with costs.

Judgment of the Full Court of the Supreme Court of

Victoria set aside and in lieu thereof order that the application to quash the Commercial Clerks Award (No. 3 of 1982) of the Industrial Relations Commission of Victoria be dismissed with costs including reserved costs.