Hoyts Corporation Pty Limited & Ors v Media, Entertainment and Arts Alliance & Ors; Re Media Entertainment and Arts Alliance & Ors; Ex parte Arnel & Ors (M41-93,-M44-93; M42-93, M45-93; M43-93

[1993] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M42 and M45 of 1993

B e t w e e n -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD and

RAMPTON PTY LTD

Applicants

and

THE HONOURABLE JUSTICE ALAN
BOULTON, THE HONOURABLE DEPUTY

PRESIDENT COLIN GEORGE POLITES

and COMMISSIONER ADRIAN DANIEL

FOGARTY, members of THE
AUSTRALIAN INDUSTRIAL RELATIONS

COMMISSION

First Respondents

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE and THEATRE MANAGERS ASSOCIATION

Second Respondents

Hoyts(8) 41 12/8/93

THE GREATER UNION ORGANISATION

PTY LTD, VILLAGE THEATRES
TASMANIA PTY LTD, 206 BOURKE

STREET PTY LTD, VILLAGE

ROADSHOW CORPORATION LTD,

VILLAGE DRIVE-IN (ESSENDON)
PTY LTD, VILLAGE ROADSHOW
OPERATIONS LTD, VILLAGE
CINEMAS (RYRIE) PTY LTD and
GEELONG DRIVE-IN THEATRES PTY

LTD

Third Respondents

Office of the Registry

Melbourne Nos M43 and M46 of 1993

B e t w e e n -

THE HOYTS CORPORATION PTY

LIMITED. DELARENE PTY LTD and

RAMPTON PTY LTD

Applicants

and

THE HONOURABLE JUSTICE ALAN

BOULTON. THE HONOURABLE DEPUTY

PRESIDENT COLIN GEORGE POLITES

and COMMISSIONER ADRIAN DANIEL

FOGARTY. members of THE
AUSTRALIAN INDUSTRIAL RELATIONS

COMMISSION

First Respondents

MEDIA, ENTERTAINMENT AND ARTS

ALLIANCE and THEATRE MANAGERS

ASSOCIATION

Second Respondents

Hoyts(8)	42	12/8/93
Office of the Registry

Melbourne	No MS0 of 1993
In the matter of -

An application for a writ of

Prohibition and a Writ of

Mandamus and a Writ of

Certiorari against the

HONOURABLE JUSTICE ALAN

BOULTON, the HONOURABLE
DEPUTY PRESIDENT COLIN GEORGE
POLITES and COMMISSIONER

ADRIAN DANIEL FOGARTY,

members of the Australian

Industrial Relations

Commission

First Respondents

and

MEDIA ENTERTAINMENT AND ARTS
ALLIANCE and THEATRE MANAGERS

ASSOCIATION

Second Respondents

Ex parte -

DEAN ANTHONY ARNEL, CRAIG

McGRATH, JACKIE HUGHES.

ANDREW TAYLOR, MOREENA

PARKER, NORMAN NEWSTEAD,

CATHERINE SMITH, SERIN YOO,

LORNE HARVEY. JAMES GEORGES.

KATE MOON and SHAME McVAUGH

Applicants

Hoyts(8)	12/8/93
MASON CJ BRENNAN J DEANE J DAWSON J GAUDRON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY. 12 AUGUST 1993. AT 10.17 AM
(Continued from 11/8/93)
Copyright in the High Court of Australia
MASON CJ: Yes, Mr Merkel.
MR MERKEL:	If the Court pleases, we said yesterday that

overnight we would prepare a summary of the matters

before the Commission - if I could hand that up to

Your Honours.

GAUDRON J:  I presume, Mr Merkel, that there was an even

earlier log of claims than anything that is

referred to here, being the log of claims on which

the first award was made.

MR MERKEL:  Yes, that is right, Your Honour, and there were

variation applications for prior awards, and I will

what we have done - we have set out in come to those in a moment. If I could just explain	chronological sequence all the matters by reference
to their C No before the Commission with the date. We have identified the notification or finding and
given the application book reference. What, in
a Full Bench the Full Bench just heard all the
fact, happened is when the matters were referred to out where there were findings and where there were no findings.
If I could just take Your Honours to page 3 which sets out the legend which explains the
reference to a, b, c and d. The (a) legend is a
reference to the matters relied upon to found jurisdiction but in respect of which there was no

Hoyts(8) 44 12/8/93

dispute finding as such. The application book references are, first of all, at 334 where the matters are set out on the cover sheet to the

decision to make the award. In particular, at 354

to 356, where the Commission sets out the basis

upon which it is relying as to dispute findings or

application variations to found its decision to

make an award.

GAUDRON J: Can I take you back - could I interrupt you

there. There were applications for variation of

the earlier award, were there?

MR MERKEL:  Yes, Your Honour.

GAUDRON J: So, to that extent, the Unions were relying on

the earlier logs of claims?

MR MERKEL:  And the employer, Your Honour. When I say the

employer, the employer was relying on the earlier

award.

GAUDRON J:	And the logs of claims?
MR MERKEL:	And the logs of claims giving rise to them, and

they are referred to as items 11, 12 and 13 at

page 2. And there was no new dispute finding in

respect of the variation applications, nor was

there any consideration as to whether the earlier

logs provided the ambit for the variation

applications. Now, I will explain the consequence

of that in a moment, but that is why we have said

there was no dispute finding. By that we mean

there was no new dispute finding. The basis was

left to the earlier logs and the earlier dispute

finding which gave rise to those old awards.

Going back to the legend, (b) sets out where

there were dispute findings to found jurisdiction.

(c) is where there were notifications but which

were not relied upon to found jurisdiction and that

appears from the Commission's decision, and (d),

matters the subject of Hoyts' section 101

application. So that when one goes to page 281 and

looks at the first 101 application made by Hoyts,

there is a cross reference by reference to the

legend (d) to each of the C Nos which appear in the

101 application. For example, if there is no

reference, then it did not appear and was not the
subject of the 101 application.

Now the second document is a summary of the dispute findings and the only reason we have put

that in is to identify the point we made yesterday

that, after Hoyts did not renew its role in the

over award Canberra agreement, disputes did break

out and they broke out on various matters in

Hoyts(8) 45 12/8/93

various places, and they gave rise to particular

notifications of dispute on particular issues.

If I can endeavour to draw the threads together of the consequence of what occurred in the

Commission. The Commission was hearing all the

various C Nos as one matter and the contest in the

Commission took a dramatic turn in 1992. Between

March and 1992 the employees, not wishing to have the terms and conditions of their employment

governed by the Union award or the arbitral

proceedings - and in excess of 500 of them fell

into this category - entered into agreements with

the employer concerning their terms and conditions

of employment.

Between March and July 1992 progressively

C Nos were raised in the Commission as applications

for certification of those individual agreements
were matters that became proceedings in the
Commission. In May 1992 all of the three

contestants in the arbitral proceedings, subject to

a direction of the Commission, filed their proposed

awards.

The Hoyts proposed award appears at page 167

of the application book, the ME.AA proposed award is

at 207 of the application book, and the TMA

proposed award is at page 224 of the application

book. The Hoyts proposed award was in terms

relevantly identical to the certified agreements it

had entered into with its employees, the

significant difference being that if the award was

made, the Union would be a party. If the certified

agreements were made, the Union would not be a

party, although the certified agreements did give

the Union certain rights and impose certain

obligations in respect of the employer.

What we say occurred at that point of time

within the Commission and thereafter was a

tripartite contest between employees who did not

want the Union award or the Union terms and

conditions governing their employment. The

employer who took up the same position as the Union

but said as a fall-back if the certified agreements

were not to govern employment then the award that

should govern employment was identical to the

certified agreements and the two Unions - - -

DEANE J:	You said took up the same position as the Union.
MR MERKEL:	As the employee - sorry, Your Honour - and the

two Unions that put forward their proposed awards.

What we say occurred in May 1992 as that tripartite

contest proceeded was that the parties were no

longer having regard to what I will call the

Hoyts(8) 46 12/8/93

"paper" part of the contest, which, as Your Honour

Justice Gaudron rightly points out, started with

the logs with the earlier awards and finished with

the various dispute findings. But they were really

putting forward their view as to the terms and

conditions of employment at the Hoyts Cinemas
covering anything and everything that they regarded

as appropriate for resolution to prevent and settle the dispute that was real and actual and interstate

concerning the terms and conditions of employment

of Hoyts employees.

What we say arose at that point of time were

three things that differed from what I will call

the paper aspect to the prior industrial dispute.

The first was that all and any terms and conditions

of employment were the subject of the dispute, not

confined to what was identified in paper but any

terms and conditions. Secondly, there was a real

and actual dispute between the employees and the

employer on one side and the two Unions on the

other - - -

GAUDRON J:  The employees and the employer were not in dispute with the employer. I mean, there was no

dispute between the employees and Hoyts.	You were
in agreement?

MR MERKEL:	Your Honour, what we say is that the employees were in dispute with the employer as to their terms
and conditions, but that dispute was resolved by the certified agreement. So, there was a dispute
as to their terms and conditions and as to the mode
of regulation, which the certified agreement
settled. Those certified agreements resolved that
dispute and the contest in the Commission, at that point of time, evolved into a contest as to the
form of regulation and whether the employees were
disputing parties with the unions concerning - - -

GAUDRON J: But, fundamentally, that is your proposition, is

it not, that the employees were in dispute with the

unions?

MR MERKEL:	Your Honour, after they resolved their dispute with their employer - but can I put a very
important qualification about "resolve their
dispute with their employer".  The qualification
is, Your Honour, that the agreements were subject
to certification, so the resolution of the dispute
between the employees and the employer on their terms and conditions of employment were subject to
certification of the agreement.  So that it would
be wrong to say that they had resolved their
dispute prior to certification.  So we say that the
reality from certainly July 1992 onwards was the
tripartite dispute where the employees were in

Hoyts(8) 47 12/8/93

dispute until resolve with their employer and the

unions and the unions were in dispute with the

employees concerned and the employers.

Now, the three elements were: terms and

conditions; the form of regulation, that is
whether the Union would or would not be a party to
the certified agreement, or the award; and three,

whether the employees were a disputing party.

BRENNAN J:  The agreements were never certified, is that

right?

MR MERKEL:  The agreements have never been certified,

Your Honour.

BRENNAN J: What is the section that deals with

certification?

MR MERKEL:  115, Your Honour. I should say, section 115,

Your Honour, has now been repealed, but the

transitional provisions allowed section 115 to

survive in respect of applications that had been

made prior to the passing of the amending Act.	I
think His Honour Justice Toohey referred to
section 115 in His Honour's decision.

BRENNAN J: What is the effect of the certification of these

agreements now if that were to happen? Can they be

certified?

MR MERKEL: If certification occurred, Your Honour, the

certified agreements would then override any

existing award.

BRENNAN J:	What is the problem?
MR MERKEL:	The problem, Your Honour, is one, it is a moot

question as to whether there will ever be

certification. Two is the award will operate from

the 1 May which means that the terms and conditions

of employment will be changed, and will be changed

under the award in a way that is more beneficial,

or may be seen to be more beneficial or

dramatically affect terms of employment, and three,

we would say that, given the award in any real

sense, it is most unlikely that the Commission that
made the award in the public interest and rejected
the Hoyt's award which sets out the certified

agreement, would ever consider that it is in the

public interest to go back to a situation it

rejected. So we say that the award will operate

from 1 May in any event, and it is highly unlikely

that there could ever be certification in view of

the Commission's decision. But, we say

technically, the section 115 certification could

override the award, but our real complaint,

Hoyts(8) 48 12/8/93

Your Honour, is that if our submissions as to the

dispute that is the subject of the Commission's

jurisdiction are correct, we say that the

Commission had to deal with the dispute and settle

it and could not do so, in effect, inconsistently.

There is only one dispute. It purported to settle

a dispute that was narrower than that which it had

or should have had before it, had it considered the

matter as we put it.

BRENNAN J: Then your argument hinges on the proposition

that there was only one dispute?

MR MERKEL:  Our argument hinges on the proposition that it

was an entitlement of a party before the Commission

to have the Commission determine an application

that there was one dispute as I have put it, prior

to making its arbitral award settling the dispute.

In other words, it could not defer that question

until after it exercised jurisdiction. We are not

at the stage before this Court of having to argue

that there was only one dispute, because that

question has never been determined by the

Commission, and this is the contrast between the present case and Moore's case where the Court

expressed its displeasure at the fragmentation of

disputation.

And Moore's case, as Your Honours will recall,

was where the Metal Trades private sector was, in

effect, picked off by the unions and there was a

flow-on, whatever happened in the private sector to

public sector, and the public sector employers

sought to have a wider dispute finding made so they

could be parties to the dispute resolution in

respect of the private sector. They applied to the

Commission on two bases, one, that this was a

variation application to a previous dispute to

which they were parties, or alternatively, they

were parties to a wider dispute.

The difference between that situation and the

present is, there the Commission resolved prior to
making an award the dispute-finding application, or
the dispute variation application. Therefore, when

it came to this Court, the question is whether the

resolution of that matter by the Commission was

correct.

We cannot do that because we have been denied

the opportunity to have our application as to what
the dispute was, found by the Commission, and that

is the error that we say is made. Now, our case

must fail, not on whether or not there was one

dispute; our case must fail if it was open to the

Commission to determine whether there was one

dispute after it has exercised jurisdiction. We

Hoyts(8) 49 12/8/93

say it is not open to it for the reasons we put

yesterday, but we say that is the critical issue.

DAWSON J: 

What is the effect of a finding of dispute?

MR MERKEL: 

The effect of the finding of dispute in the present case, Your Honour, has two practical and

legal consequences: the first is that it requires

the Commission to determine the disputants and to
hear those disputants before exercising

jurisdiction, and that is a constitutional and a

statutory requirement.  Now, if the employees were

disputants, they must be heard before the award,

affecting their terms and conditions, is made, as

of right.  So that the first is that the definition

of "parties" determines who is to be heard and the
validity of the award depends on hearing the

parties.

The second, Your Honour, is that if the

dispute was held to go also to the form of
industrial regulation, the Union award or the Union

not being a party to a certified agreement, and

that was a matter in dispute, then when the

Commission comes to determine whether it makes an

award, it has to consider whether it does so in

preference to a certified agreement. That is not a

matter which the Commission has considered, because
it has not made a dispute finding which we say

reflects the current dispute. And we say that by

deferring over those matters until after it has

exercised jurisdiction, it has fallen into error by

not exercising its jurisdiction, but I will have to

come to back to that in conclusion, but they are

the practical consequences.

We say that it was to resolve those matters, that the application for variation and revocation of the previous dispute findings were made - ~ -

GAUDRON J:  Mr Merkel, could I ask you this in relation to

that:  I take it that you served your application

for variation of dispute finding on every one of

your employees?

MR MERKEL: That did not occur, Your Honour, because

GAUDRON J: Well, why would the Commission entertain it if

on your view they are parties and it has not been

served?

MR MERKEL:  There are two answers, Your Honour. One is that

the application was made and then we sought to have

the matter come on before the Commission for

directions as to how it would be processed.

Hoyts(8) 50 12/8/93

GAUDRON J: Would you not normally serve it before it comes

on for hearing in the Commission?

MR MERKEL:  Your Honour, at that stage I can only say that

it was served on the other employers and the two

Unions and a C No given to it, and then it came on

for hearing in the Commission.

GAUDRON J: But how could it come on for hearing if the 800

other parties to the claimed dispute were not

served?

MR MERKEL:  What Your Honour says is correct. When the

matter would have come on, the first question

before the Commission would be: when is the

hearing and which party should be notified?	No one
brought it on for hearing as such.	It was brought

on for directions to be given as to what was to

occur. But what then happened, Your Honour, was

that it was sought to be joined together and dealt

with as part of the certification proceedings to

which all of the 500 employees at least were

parties.

GAUDRON J: Is it 500 parties to the certification

agreement?

MR MERKEL:  I think there were 500 certification agreements.

GAUDRON J: Were they all given notice of hearing?

MR MERKEL:  Your Honour, the application under section 101

never came on for hearing. What happened is the

Commission refused to hear it and proceed with it,

and that was really our complaint. We never got to

the stage of determining upon whom it should be

served. What then happened is that the Commission only brought the dispute finding application on in

the section 115 proceedings. If I can just explain

that, the Commission continuously proceeded by only

dealing with matters listed before it, and it

separately listed the arbitral proceedings and the
section 115 proceedings. When the matter came on,

it only heard it in respect of the conciliation

proceedings, that is, the 115.

GAUDRON J:	Even to make the argument that you say you did not make, surely your proper proceeding is not
this; it is to serve all 800, ask the Commission to
proceed to a dispute finding in respect of all that and, if there is something amounting to a failure to do that, to proceed by way of mandamus, not this
procedure.

MR.MERKEL: But, Your Honour, in fact in November, what

happened was that that process started in the

Commission. If I can just explain, Your Honour:

Hoyts(8) 51 12/8/93

the Commission indicated that it would - it joined

by C No reference on a hearing day the section 101

application with all the certification applications
and then adjourned it off into the following year

and would not deal with the arbitral matter.

After the award was in fact determined to be

made on 1 April and the employees for whom my

learned friend, Mr Murdoch, appears ascertained

that the award affected them in the way he will

outline to Your Honours, and that was adversely,

they then sought to come before the Commission and

they sought to have the Commission hear and

determine the section 101 application. So that

whatever may have been the situation that ought to

have been back in November was overtaken by events.

Your Honour, the Commission refused to hear them

before making the award.

I will take Your Honour to what in fact

happened in the Commission, but that is why the

lll(l)(g) applications were overtaken by later

events. But we say that the Commission just
refused to get to that stage because it refused to
ever hear or even consider hearing the section 101

application prior to the making of the award, and

indeed listed it for directions and programming,

including notification of who would be involved, on

a date after the award was to be made.

Can I just conclude, if I might, from what

follows from what we have put. We say that the

Commission, to perform its function, had to prevent and settle the dispute existing in fact. We say

that the cases I took Your Honours to yesterday,

particularly Justice Murphy in Bain's case, said

that the inquiry as to the dispute existing in fact

is not circumscribed by the paper demands.

McNeil's case is authority for the proposition that

employees can generate a dispute with employers.

In R v Portus; Ex parte McNeil, 105 CLR 537,

at page 545 Their Honours considered the question

of whether individual employees, even if not

identified, could be disputants. Their Honours

said at point 8 on page 545:

All this may, for the purposes of this case,

be put on one side with perhaps the remark

that if you do get a real dispute manifesting

the desires or the demands of an indefinite

group in industry, the difficulty or even the

impossibility of identifying all the

disputants could not take the case out of the constitutional power conferred bys 5l(xxxv).

Their Honours then said:

Hoyts(S) 52 12/8/93

The reason why the argument described may be

put on one side is that in point of fact the

dispute found -

did exist. Now, Your Honours, we say that that was

the issue that confronted the Commission.

Your Honour Justice Gaudron raised with me

yesterday whether there is a constitutional

requirement for a dispute to be found and

Your Honour Justice Deane in Wooldumpers discussed

that very question as to whether there should be
such a requirement. Whilst there may be a debate

about the constitutional requirement about a

dispute finding, what we say is that if one has

regard to the Australian Railway Union case and

Moore's case there can be no argument about the

constitutional requirement about the identification

of disputants, in so far as that is able to be

achieved, because of their right to be heard.	Now,
what we say - - -

GAUDRON J: But, you could not do that, in this case, until

you served everyone and brought it before the

Court. You see, you no longer claim, in any event,

with respect to the other employers in the

industry.

MR MERKEL: That is so Your Honour. But, Your Honour, when

the - - -

GAUDRON J:  But these people might wish to say that they are not in dispute with you.

MR MERKEL: Absolutely, Your Honour.

GAUDRON J:  Or they may say that they are and there may

still be a finding that says it is not a dispute,

but each one of them, on your argument, must be

heard. I do not see how the matter could have been

called on until they were served.

MR MERKEL: Well, Your Honour, that is the question. If

section 101(1) was an application that entitled the

dispute notification to be varied then,

Your Honour, we say that it is a matter for the

Commission as to who it will hear.	It only hears
parties -

GAUDRON J:  I do not think that is right, Mr Merkel. I mean

if you are a party to a dispute - if it is alleged

that you are a party to a dispute, you must be able

to be heard on that issue.

MR MERKEL:  Your Honour, can I just say this? The Act does

not say, Your Honour, that everyone who is alleged

to be a party to a dispute must be heard on the

first application for directions and programming.

Hoyts(8) 53 12/8/93

I can accept, Your Honour, that a dispute should

not be found against a disputant without that
disputant having been given the opportunity to be
heard on the dispute-finding application, but that
is on the finding - the application to vary the
dispute. But, we never got to that stage and we

were denied ever getting to the programming stage

until after the award.

But what we say, Your Honour, is that the

second aspect is that -

GAUDRON J: But do not the rules require service of

applications and notifications of dispute?

MR MERKEL:  Would Your Honour excuse me for a minute. The

regulations do deal with service, if I can give

Your Honour the regulations in a moment. But, may

I say this, Your Honours, that by the time the last

refusal to exercise this jurisdiction - or power -

arose, the employees were represented and were

seeking to have the dispute finding -

GAUDRON J:  Some of them.

MR MERKEL: Well, many of the employees, Your Honour, and

what we have said is that at least in respect of

those employees who were represented the right to

be heard and to have a section 101 matter

determined arose. Now, that may mean that the

Commission should not, or would not, go wider than

those employees who were before it but we say that

the matter of service is a matter that goes to what

should have happened once the matter was

programmed.

But the way we conclude is that the statutory

scheme under Part VI, and in particular the

supremacy given under the part, particularly in
sections 101(2) and (3) to the dispute finding, we

say result in the Commission not being entitled to

refuse to consider and determine a section 101
application until after it has made its award.	Can

I just refer to the way in which we put our right

to relief.

Your Honour, rule 16 of the regulations

appears to deal with notification, although that

deals with notification for the hearing of an

industrial dispute and notice to all parties to the dispute. I am not sure, Your Honour, that there is

a rule that makes it mandatory to present all

parties who may be affected by an application with

notice the application is made, rather than notice

that it is to be heard and determined. We say they

certainly would have had notice of the hearing and

determination had we got there. On the right to

Hoyts(8) 54 12/8/93

Your Honour said - relief, can I just refer briefly to what

DEANE J:  Mr Merkel, before you go to that, can I take you

back - not for long, I hope - simply so I can

understand the points involved because I have got

lost somewhere along the way, and can I do it by

way of simple example. Assume there are two

dispute findings, one a finding that there is a

dispute between A and B about X, and another, a

finding that there is a dispute between A, Band c

about Y and assume that A says, or claims, that the

two disputes have coalesced - seems to be the in

word - into a dispute between A, Band C about X

and Y.

I have put that in terms so I can understand

it rather than this nightmare of facts. Is your

first point that if the two individual disputes

have in fact coalesced the Commission lacks

jurisdiction to proceed on the basis that there are

still two disputes, regardless of any application

to it? Which would, of course, involve all the

problems that Justice Dawson was putting to you and

that is the dispute finding, in effect, would be a

rather meaningless thing because you would always

have to be looking beyond it.

MR MERKEL:  I think, Your Honour, that the answer we would

give is that the Commission must act and exercise

jurisdiction on what is before it, not what

hypothetically could, or would, later be before it,

and if the - - -

DEANE J:  I am not going to cut you out of your other

arguments, but if you can simply deal with the

precise points that I am raising. Is somewhere in

your submission a submission that, in those

circumstances, even though nobody says anything to

the Commission or applies to the Commission, the

Commission lacks jurisdiction because it is

proceeding on the basis that there are two

independent disputes when, in fact, there is one

coalesced dispute?

MR MERKEL:  Your Honour, we would say that if the facts

before the Commission establish that, then it would
not be exercising its jurisdiction in respect of

the dispute in fact.

DEANE J: But if the facts before the Commission, even if

nobody raised the point?

MR MERKEL:  Your Honour, we would say that must follow

but - - -

Hoyts(8) 55 12/8/93

DEANE J: Well, your answer to my question is, "Yes", that

is one of your points?

MR MERKEL:  If the facts were that before the Commission,

yes.

DEANE J: Well then, is your next point that even if that

first point be wrong and the Commission can proceed

on the basis of its existing dispute findings, if

any party applies for a variation of those dispute

findings to say that the two disputes have
coalesced into one, the Commission must deal with

that application before it goes any further?

MR MERKEL:  Can I say, before it makes an award in

settlement of the dispute, Your Honour.

DEANE J: Right. Now, is your third point that the award in

this case goes beyond the ambit of the totality of

the two individual disputes or is that not a point?

MR MERKEL:  We do not take the point in these proceedings

that that occurred, but could I put one

qualification, Your Honour, so it is not

misunderstood? We say that it would have been open

to us, in the Commission, to take the point that
the award as proposed by the various parties went

beyond the ambit of the paper dispute but, in fact,

what happened in the Commission was the parties

treated the arbitration as relating to all terms

and conditions of employment and no technical point

of that kind was taken.

DEANE J:  So that point -

MR MERKEL: I do not take that point here, Your Honour.

DEANE J: Well now, is there anything more than the two

points involved in this case? One is the point

that the Commission objectively lacked jurisdiction

because the disputes had coalesced and it purported to deal with them on the basis they had not	coalesced and two, that even if that be wrong, the
Commission was not entitled to make its award
without dealing with your application for
variation.

MR MERKEL:  I think that is correct, Your Honour; I think they are the two points. What I wanted to say,

Your Honour, if I could in relation to

Your Honour's first question, is that the statute gives certain protection to the Commission's dispute findings, such as section 101(2) and 101(3), and also it may not be open to someone to

come along and say that they lacked jurisdiction

because the facts were otherwise, by reason of many

discretionary bars that would ultimately arise. So

Hoyts(8) 56 12/8/93

that we say that the problems that might be thrown

up by the answer we gave to Your Honour on the

first question may be more theoretical than

practical or real.

DEANE J: Well now, in the context of my A, Band C, where

does your problem about individual employees not

being represented fit in?

MR MERKEL:	Your Honour, the one difference between the hypothesis Your Honour put to me in the present
case is this: Your Honour said, A and B had a
dispute over X; A, Band Chad a dispute over Y.
What we say in the present case, Your Honour, is that A and B had a dispute over X, then A, Band C
had a dispute over X, C being the employees. And
what we say is the coalescence, Your Honour, is the
addition of C having a dispute over X, which are
the terms and conditions of their employment. The
only other question that was added to X, which I
would call Y, Your Honour, is that once that
dispute arises to the mode of industrial
regulation, we say the real dispute between A and B
was, if I can call X terms and conditions of employment and Y the mode of regulation, what
happened is, A and B had a dispute over X and Y, and A, Band Chad a dispute over X and Y, and that
was the true coalescence that occurred in the present case.

DAWSON J: That is it, is it not, because from what you have

just said all the terms and conditions of

employment were in question and you do not complain

about that.

MR MERKEL:  No, Your Honour.

DAWSON J: The only point is whether the dispute is settled

by an award or by means of certified agreements.

MR MERKEL:  And, Your Honour, the employees regarded as a

disputant to the determination of that question.

It is that last point that is critical.

DAWSON J: Well, they were disputants in relation to their

seeking to have the agreement certified, were they

not?

MR MERKEL:  Yes, Your Honour, but the certified agreement

related to the terms and conditions of their

employment which were resolved by the award.

DAWSON J:  The only dispute they had was to the method.

MR MERKEL:  No, with respect not, Your Honour. The dispute

the employees had and always had was in respect of

the terms and conditions of their employment.

Hoyts(8) 57 12/8/93

DAWSON J: Exactly, but the terms and conditions of

employment were what were in dispute in relation to

the award-making process.

MR MERKEL:  And also the conciliation process, Your Honour.

DAWSON J: That may be so too.

MR MERKEL:  The conciliation process was the resolution of

that dispute by certified agreement, so that the

contest was, one, what were the terms and

conditions of employment to be and, two, was it to

be by mode of award or certified agreement and,

three, were the employees disputants, not just in
the certification process, but in the arbitral

process? It is that third element that really has given rise to all of the problems. But the second

also in part has given rise to most of the

problems.

We say that ultimately the question that

really we would pose for this Court is not so much

the first one that Your Honour put to me, because

we say the Commission has never determined that.

It is the second.

DEANE J: Can I ask you this: is the substance, if there is

any substance, of what is involved this, that

because of the procedure that was followed the

award has been made without the employees being

represented?

MR MERKEL:	Yes, Your Honour, that is the substance.
DEANE J:	Now, the award does not purport to bind the

employees, but you would say it affects them?	I am
not saying.	I am asking.

MR MERKEL:  Yes, Your Honour, it binds employees who were

members of the Unions.

DEANE J: Well, we need not worry about them, need we?

MR MERKEL: But, subject to that answer, what Your Honour

said is correct, but my learned friend, Mr Murdoch,

will explain this in his case, but it directly

affects their terms and conditions of employment,

and that is what they were in dispute about.

DEANE J: Well now, is there any suggestion, and I am

getting away from your technical argument to the

substance, is there any suggestion either that the

employees concerned did not know about the

proceedings, or did any of them apply to be heard

in relation to them with an application that was

refused.

Hoyts(8) 58 12/8/93

MR MERKEL:  Yes, Your Honour. That is my learned friend,

Mr Murdoch's, case. He comes here to the Court to

put that case. That was the consequence. My case finishes at the consequence of not finding them as

disputants. His case, in effect, picks that up and
deals with why they had a right to be heard,

Your Honour, and that is the issue on the motion.

DEANE J: Well now, can I finally divert altogether and ask

you this? It must be obvious to the parties and to

the lawyers that this Court is a completely

inappropriate forum for these matters to be

investigated.	I presume you have no problem with
that suggestion.

MR MERKEL:  No, Your Honour, that is why I said the real

issue is the second question, not the first,

because the first is a fact finding, which we say

should have been carried out at the Commission, not

here.

DEANE J: But, with any of it, I mean, we are landed with

all this material and so on, was any application

made to the Commission to vacate so that it could

be asked to refer these questions of law to the

Federal Court?

MR MERKEL:  Not in those terms, Your Honour, but an

application was made to the Commission to vacate

its decision and hear the employees, just to hear

what they had to say.

DEANE J:  Has it ever been asked to refer the questions of

law involved, and I am well aware of the past

practice and I am not criticizing you or anyone on

your side, has it ever been asked to refer these

questions of law to the Federal Court.

MR MERKEL:  Would Your Honour excuse me? I am told yes, but

I am not sure if it is this question.	I do not
believe this question was asked to be referred.	I
am told there was some earlier matter that was
asked to be referred and I will try and find the

answer to that, Your Honour, but the real point

here was that the Commission was asked - getting to

what Your Honour is putting aside - all the

technicality - the employees concerned, who were

saying they were very adversely affected by what

occurred in the Commission and what was proposed in

the award, asked to be heard on the question of

fact. Not the question of law, but the question of

fact, as to why the Commission should not make the

award in the way it proposed, and they were denied

that right. But that is Mr Murdoch's case.

GAUDRON J:  There were written submissions. The Commission

accepted written submissions on that.

Hoyts(S) 59 12/8/93

MR MERKEL:  The Commission accepted written submissions on

the question of whether they should exercise their

power under section lll(l)(g), but what was also

sought by the employees was to be heard on the

merits, but I am transcending my case really, into

my learned friend, Mr Murdoch's case, which I

should not do, but that is why I am indicating to

Your Honour that the underlying complaint here, the

real underlying complaint, whilst it has arisen

from the technical issues we have raised, goes to a

very fundamental question which Mr Murdoch will

explain to Your Honours.

DEANE J: But there may be fundamental questions but the

appropriate court for questions of law at first

instance is the Federal Court and not this Court,

and you can only be here on a question of law.

That being so, is it not relevant to know whether

an application was made to the Commission to refer

these questions of law to the Federal Court, and if

it was not, why it was not, because our

jurisdiction is discretionary.

MR MERKEL:  Your Honour, the last part of my submission was

to try and detail to Your Honour just briefly what

in fact happened in the Commission, and Your Honour

will see that from the moment the decision was

handed down, which was on 1 April - it was to

operate from 1 May - the Commission directed that

it would propose to make the award on 1 May and it

heard and determined our submissions against us on

the section 101 application. There was no

suggestion that it should not in the first instance

determine the question which involved questions of

fact.

When it determined that, there was no question

arising thereafter of a reference to the Federal

Court but, when I take Your Honour to what

happened, Your Honour will see that no

discretionary consideration could be raised against

us because what we were asking the Commission to do

was to consider our 101 application. The question

of law only arose after it handed down its

decision.

DEANE J:  But can you not apply to vacate on the basis of

your questions of law? I am not just being

difficult, because the plain fact of it is: if the

view is abroad that the Commission will not

favourably entertain applications for questions of

law to be referred to the Federal Court where the

Act makes clear that the Federal Court is the appropriate court to deal with important questions

of law, all the more reason why parties should

apply to the Commission for such reference. I do not believe it would, but, if the Commission were

Hoyts(8) 60 12/8/93

to fail to appreciate the fact that it is not a

court and the Federal Court is the proper court,

its approach in that regard could obviously be very

quickly brought before this Court.

MR MERKEL:  Your Honour, I can only say that we would be in

complete agreement with Your Honour, but I think it

is fair to say, in this matter anyway, the reality
is that such an application would have been treated

and regarded by the Commission as a delaying tactic
and could not have had any real prospect of

success, given the time frames and the reasons the Commission gave for its decision. But having said

that, Your Honour, I have no hesitation in agreeing

with Your Honour that many of these questions

should be referred and application should be made,

but I am not sure that the Commission has in effect

accepted that as a practice.

DEANE J:  I follow the problem in this case in that it is an

appeal from Justice Toohey that we are immediately

dealing with but, in terms of so much of this case

that is not such an appeal, why should we not

simply adjourn the proceedings so that the

appropriate application can be made to the

Commission?

MR MERKEL:  Your Honour, for our part we have no difficulty

with that, but the problem I apprehend on that

course being followed will be raised by our learned

friends, which will be that that application before

the Commission would be fiercely opposed unless

this Court indicated that this is how these matters

should be resolved. So that we would say,

Your Honour, that unless this Court gave a very

strong and clear direction to the Commission as to
this case, as to how this issue should be resolved,

we believe that our learned friends would fiercely

oppose any such reference and the Commission's

reasons for decision would not leave Your Honour

with any comfort that they would view such an

application with favour.

DEANE J: Well, I have delayed you long enough.

MR MERKEL:  Can I just refer Your Honours, finally, on the

right to relief, to Your Honours' decision in the

Hobart Hoyts case, 112 ALR 193. Your Honours have

that decision. Your Honours, what we say has

occurred in the present case is really what is

discussed by Your Honours at page 194, lines 30 to

45.       We say what has occurred here is identical by

reference to the issue of power.	Your Honours said
at line 30:

However, when a party makes application for an

exercise of the power -

Hoyts(8) 61 12/8/93

Now, true it is, Your Honours were talking about

section lll(l)(g)(iii) but we would say, given the framework within the Act and the Constitution of a dispute when a party seeks to vary or revoke a
dispute finding, a fortiori, that is a matter, for

the reasons we have said, the Commission is obliged

to hear. And then Your Honours said:

The Commission must afford the applicant a

reasonable opportunity to allow his or her
case to be put and, in appropriate

circumstances, mandamus will go to enforce

that obligation. This does not mean that the

Commission has no discretion to decide when it

will deal with the application. The Citicorp

case does not deny the existence of such a

discretion. Mandamus was granted in that case

because there was a refusal to exercise the

power based on the erroneous view that it

could be exercised only after a finding of
dispute.

Now, if I could interpolate there, in the present case we say there was a refusal to exercise

the power based on the erroneous view that the 101

finding could be made after the award. We say that

is the question that arises in the present case.

We say that our case for relief falls within a

refusal to embark upon the exercise of the power,

but we say that was established by Citicorp and,

indeed, Your Honours, in the Hoyt;s decision

yesterday at page 13, in effect, defined the right

to relief in much the same terms.

Could I finally go to what Your Honour

Justice Brennan put to me yesterday, and which I

accept as correct, that the right to relief must

depend upon the course in which the proceedings

took within the Commission. If I can just very

briefly take Your Honour through the relevant

documents to demonstrate that at all times the

employers have sought, properly and reasonably, to

have the Commission exercise its power and we say

that the view taken by the Commission as to why it

would not was fundamentally erroneous. We say that

no issue could or should be raised against us on

those grounds.

If I could try and take Your Honour just

briefly through the relevant references in the

application book. I have already taken Your Honour

to the application that was made on 11 November, at

page 281, which was the application under

section 101. The Commission, in rulings after

11 November, indicated that it was not proposing to

hear the section 101 application, and that led us

to seek an order nisi from Your Honour

Hoyts(8) 62 12/8/93

Justice Dawson. The proposed order nisi was at

page 289 and Your Honour's reasons appear at
page 294.

At the bottom of page 295, Your Honour, in essence, put the submission that we had made to

Your Honour. At page 296 Your Honour indicated,

after saying that Your Honour had not heard anyone

other than us, that there was force in the

submission that we had put. But then Your Honour

concluded, at page 296, by reference to what the
Commission had said, that it had not:

Refused or failed to deal with the application.

Your Honour emphasized, in the relevant passage at

the bottom of the page, that at that stage they had
not said they are refusing to do so. Your Honour

indicated that it remained open to the applicants

to renew their submission, and there is no reason

to suppose the Commission will not determine the

question, Your Honour went on to say, before it

proceeds to make an award.

The next step after that was that the

Commission handed down a decision on 24 December at

page 299. It was a complicated matter but, as I

indicated to Your Honour Justice Gaudron before,

when the section 101 application came on the

Commission treated it as only coming on in the

section 115 proceedings, not the arbitral

proceedings. The Commission indicated, amongst

other reasons - but this is referred to at

page 303, lines 9 to 14 - that for a variety of
reasons they proposed to adjourn the conciliation

proceedings into February, one of the bases of

which was that this Court may say something in

relation to the Air Pilots case that may be

relevant.

When that occurred Hoyts said, "Well, if

you're joining one set of proceedings for the 101

finding, you likewise should adjourn the arbitral

proceedings because that raises the same issue",

and this decision was a decision as to why the

Commission would not do that. In particular, what

the Commission said that is relevant for present

purposes is at lines 33 to 40 at page 304. They

indicated at lines 34 to 35:

we do not consider it necessary in dealing
with the adjournment application to make any

final ruling on this point - And that was the points raised by the 101

application. Their Honours, in the last -

Hoyts(8) 63 12/8/93

GAUDRON J: If they are right, they are right; if they are

wrong, they are wrong.

MR MERKEL:  Yes, Your Honour.

GAUDRON J: That is the point in the case.

MR MERKEL: That is the point, Your Honour.

GAUDRON J: There is no dispute that there was, in fact, a

dispute at one stage, at least, which enabled an

exercise of jurisdiction to the extent involved in the award?

MR MERKEL:	Yes, Your Honour.
GAUDRON J:	So that was in December?

MR MERKEL: That was in December, Your Honour.

GAUDRON J: And did you seek to challenge that finding?

MR MERKEL:  No, Your Honour, what they said is at line 25 to

30 at page 306, because they had not dealt with the

matter yet. They said, at line 25 at 306:

However as the question of jurisdiction has been raised and to assist the Commission in

problems of a jurisdictional nature.

its consideration, we will give the Hoyts

What happened then at 308 is that Hoyts put in a -

and this was on 24 December, it is not dated in the

book but the application by Hoyts was, in effect,

its submission:

Pursuant to the direction made by

Deputy President Polites -

as to the basis on which the jurisdictional

challenge was raised - that is set out at page 308

through to 311 - but it, in essence, puts the

matters we have put to Your Honours and at page 310

the request at the top of the page is, as we have

put it to this Court, required to occur and we said

it is a matter of duty at page 310, line 18.

GAUDRON J: Yes.

MR MERKEL:  We indicated at 311, lines 7 to 10, that until

the dispute finding is resolved, meaningful

submissions as to the merits of the proposed awards

could not be made because we say that the dispute

and the parties to it were fundamental to that

matter. The next step was on 6 January. Hoyts

wrote at page 313 to the Commission and during

Hoyts(8) 64 12/8/93

January a question of disqualification arose, and that is an application my learned friend,

Mr Goldberg, will be dealing with. On 6 January

Hoyts again sought that the Commission - and this

is set out at page 314:

take no further steps in "the arbitral"

proceedings until it has heard and determined

the application, C No. 32239 of 1992.

That is at lines 29 to 31.

We said at line 35 that if they would not do

so Hoyts would have no option but to go back -

based on what Justice Dawson said, that if they

were refusing to deal with the matter then Hoyts

could come back to this Court. Nothing then

happened. During January there was a

disqualification application and Hoyts had

indicated that it would defer putting further

submissions until Commissioner Fogarty had ruled on

his disqualification application.

Nothing happened until 29 March - and this is at appeal book page 330 - when Hoyts was concerned

that an award would be imminent and, indeed, it

was, and at page 330 Hoyts again put its position -

which had been the subject of earlier submissions -

particularly at paragraph 3 at 330 and then at
paragraph 6 at 331 it asked the Commission to view

the dispute on its narrow formulation as not

involving Village and GU, and then at paragraph 7

asked for the determination on the narrowest view

and put its application at paragraph 10 at 332 to
make a dispute finding prior to its award that

involved the employees and the form of regulation.

On 1 April, the Commission handed down two

decisions. In point of time, it handed down the

statement on the section 101 application was at 396

and that statement at 396 to 7 has all the C Nos

and the C Nos at page 396 down to the section 101

application are what I will call the arbitral C Nos

DEANE J:  Mr Merkel, did anybody ever say in all this

correspondence to the Commission that this is more

than just messing around in that what we are

concerned about is that the employees affected can

be heard?

MR MERKEL:  Yes, Your Honour.

DEANE J: Well, where was that said?

MR MERKEL:  But, can I give Your Honour the context in which

it was said? There were two sets of proceedings,

Hoyts(8) 65 12/8/93

Your Honour, the certification proceedings and the

arbitral proceedings. Constantly, Hoyts were

saying that the certification proceedings affect

the employees' rights and they must be heard and

determined together with the arbitral proceedings,

and we went to this Court, in Hobart, to seek

relief that the Court held was a procedural, not a

jurisdictional, claim. But, the underlying basis

put was that this affected the employees' rights.

In that letter that I took Your Honour to,

on 29 March, it was clear to the Commission that

what was being sought was to have the employees

heard because their certification issues were the

one overall contest with the Union -

GAUDRON J: They did not make, until the heel of the hunt,

any application to be heard in the arbitration

proceedings, did they? Many of them gave evidence.

MR MERKEL:  Yes. Your Honour, the employees themselves did

not make an application till the decision was

handed down and they found that they were directly
and adversely affected by it. But, Your Honour,

what had happened is Hoyts had been making

applications which had come before this Court that

the issue is that between the tripartite interest

and the employees must be heard and, we say, that

there is much transcript, and much of it is not in

the application books, that it could not be

disputed that Hoyts had been maintaining this issue

that Your Honour has raised with me from the very

outset.

DEANE J: Well then, is there anywhere where the Commission

acknowledges that it is conscious of the fact that

what this is all about is that the employer is

saying, in effect, the employees have to be heard

on this and you are not hearing them?

MR MERKEL:  Your Honour, I will have to try and find some

precise references. The problem, Your Honour, is

that the whole essence of the submissions, which

were extensive, was to that effect, but to give

Your Honour a more precise answer I will have to

see what is in the application books but, in

essence, Your Honour, we say that occurred.

DEANE J: But I just find it difficult to comprehend that if

these pages and pages of proceedings and all these

activities are all about a real issue, namely,

whether the employees being affected are going to

be heard, that either the Commission did not say

that, "This is what it is about, that our view is

this", or someone did not say to the Commission,

"You have never faced up to this question".

Hoyts(8) 66 12/8/93

MR MERKEL:  I will see if I can give Your Honour references, but may I - - -

GAUDRON J: But may it not be though too, that the real

issue is trying to get a dispute finding, binding

all your employees so that there is a

jurisdictional foundation for the agreements under

section 115? Is that not what is really going on

and that it really does make sense to deal with the

issue in relation to the section 115 proceedings,

rather than the arbitral proceedings?

MR MERKEL:  Your Honour, we say, and we have put constantly

to the Commission - we put to this Court in Hobart,

that it was a requirement to resolve the dispute

and that the 115 proceedings and the arbitral

proceedings were the same matter.

GAUDRON J: Yes, well I know you have said that, but one has

clearly got to go first and you have a procedural

problem, do you not, with the section 115

application?

MR MERKEL:  We had a procedural problem which was resolved

against us, Your Honour, and we accept that, but we say that there is no procedural problem in relation

to the section 101 point, and that is really our

case. If the section 101 point is procedural,

because they can deal with it after making the

award, we must lose, but if it is substantive,

because they are required to deal with it before

the award, we say we should win. And can I just

remind, Your Honours - - -

GAUDRON J:	I appreciate that, but what I am asking you is really by way of counter suggestion to what was
given in answer to Justice Deane, or perhaps was
suggested by Justice Deane.  The real point, from
your point of view - leave aside the point of view
of Mr Murdoch - from your point of view, the real point is not having these 800 people brought into the proceedings and exercising their right to be
heard on every day on which an award is arbitrated.
Your business clearly does not want your 800
employees sitting in the Arbitration Commission making submissions, calling evidence and all that
sort of thing, while your movie houses are unmanned
or - - -
MR MERKEL:	Or without Hoyts executives being there to control them, Your Honour.

GAUDRON J: That is right. That is not what you want to do.

But you do want a finding that you are in dispute,

or that somebody is in dispute with at least 500 of

these employees, being the 500 people who have

signed agreements which you want certified.

Hoyts(8) 12/8/93

MR MERKEL:	Yes, Your Honour, but we wanted a dispute finding using Justice Deane's example between A, B
and C in respect of X and Y.

GAUDRON J: Yes, but not for the purposes of the arbitration

proceedings at all.	From your point of view, you
want it for the section 115 proceedings.	The
employees' interests may be different.

MR MERKEL:  Your Honour is correct, but what Your Honour

puts to me is incomplete, with respect, because we

wanted that for the purpose of the certification proceedings, and then the arbitrated award to be

made in terms which were consistent.	We say there
could not be a difference.

GAUDRON J: But it was held against you that it was within

the Commission's discretion as to procedure to

decide which of those would go first.

MR MERKEL:  Yes, Your Honour, because on the existing

dispute findings, that was a question of procedure,

and we cannot say anything about that.

GAUDRON J: And certainly you do not want your 800 employees

sitting through three years of proceedings in the

Commission with their right to make

representations, to cross-examine witnesses, and so

forth.

MR MERKEL:  Your Honour, there is no suggestion, any more

than the employees are not here today that they

would be there every day.

GAUDRON J: Well, 500 or 400 of them.

MR MERKEL:  They would no doubt have their representation,

have their rights and they would pursue them.

GAUDRON J:  But whether represented by Mr Murdoch or not,

each one has got, on your view, the right to be

present for all of these proceedings and to be

heard in respect to every aspect of it.

MR MERKEL: If they are disputants. McNeil's case, if

correct, must follow that employees are disputants,

and if they are they have a right to be heard which

it is up to them to elect to do.

MASON CJ:  Mr Merkel, leaving the question of the employees'

representations aside, can you tell me why the Full

Bench was wrong at pages 304 and 305 in coming to

the conclusion that it would proceed first with the

arbitral procedings? You are attacking that view

of the matter because you say they were under a
duty or obligation to deal with your section 101

application. They point out in the circumstances

Hoyts(8) 68 12/8/93

of the case there are strong reasons why they

should deal with the disputes as found rather than,

as it were, make a finding of an overall dispute

because, they say, it is a dispute as to the

overall terms and conditions of employment. Now,

what arguments do you have to say that there was an

absolute obligation on the Commission to deal with

the 101 application in that background?

MR MERKEL:  Your Honour, because the submissions as to law

that we put yesterday and today only entitle the

Commission to settle the dispute, as I have put to

Your Honours, as it exists in fact at the date of

jurisdiction and that, where there is an

application which is not vexatious or mala fide but

a real application which it is treating as itself

obliged to hear and deal with and intending to hear

and deal with it, that it can only do so properly

in accordance with its jurisdiction and the

statutory requirements prior to the award.

MASON CJ: But the pre-existing disputes found to exist

related to the totality of the terms and

conditions.

MR MERKEL: 

Your Honour, the dispute findings did not, but

the parties conducted the matter as if the
matter - - -

MASON CJ: But you have accepted it on that footing, have

you not?

MR MERKEL:  We have conducted the hearing on the footing

that all terms and conditions are before the

Commission; not based on the dispute findings,

Your Honour, but based on the facts.

MASON CJ:  You are not really complaining then about a

decision to arbitrate the dispute findings in the
circumstances that have occurred.

MR MERKEL:  But for our 101 application, we would not be

here, Your Honour.

MASON CJ: But for your 101 application, that is right. So

that the substance of the dispute was a dispute

about terms and conditions, and then the other two

factors: the addition of the employees as a party, you say, to the overall dispute and, in addition, a

dispute about the mode of regulation.

MR MERKEL:  Yes, Your Honour.

MASON CJ: That dispute was resolved by the Commission

ruling that it would arbitrate the existing

disputes, the ones found to exist.

Hoyts(8) 69 12/8/93

MR MERKEL:	Yes, Your Honour, it resolved the dispute involving the three aspects Your Honour has put to
me in its award. We say that it did so without
finding a dispute on the form of regulation, as
sought by us, and without finding the employees as
parties. Therefore, we say it had no jurisdiction to do that.

MASON CJ: But why did it not have power in the

circumstances to decide that it would resolve the

disputes found to exist? Why was there an

obligation to proceed to give effect to your

application?

MR MERKEL: Because, Your Honour, it did not find that that

was the dispute which was current and before it at

the time of its jurisdiction. Can I take

Your Honour to what it said at page 400, because we

believe that contains the answer to Your Honour's question. At page 400 in the statement, they set out in subparagraphs (ii) and (iii) in line 5:

In the decision relating to the arbitral matters the Commission has referred to the jurisdictional basis for the making of an

award. The issues for consideration in the

arbitral proceedings relate to matters of

substance regarding the award proposals of the
parties and appropriate wages and conditions

of employment for Hoyts' employees. Having
regard to the existing findings of dispute and
the submissions of Hoyts regarding the width

of the proposed finding in Matter C No 32239

of 1992, there is nothing to suggest that

there is any jurisdictional restraint on the

consideration by the Commission of the issues

between the parties according to the merits.

Then what they said in (iii), we say is

critical:

The listing of Matter C No 32239 of 1992

and the determination of the matters raised

therein may have implications for the dispute

findings etc which provide the jurisdictional

basis for the arbitral proceedings. If

appropriate, the Commission will give

consideration after the determination of

Matter C No 32239 of 1992 to the variation or

revocation of any of the dispute findings

relating to the arbitral proceedings in

accordance with s.101 of the Act.

And then on the last paragraph at page 401 they

then programmed that matter for 6 May. Now, the

vice in what the Commission said in paragraph (iii)

was, "We will make an award settling the dispute,

Hoyts(8) 12/8/93

but we will determine what it is we have settled

and who were the disputants at a later point of

time and then vary what we have done."	Now, the
vice of that can be - - -

BRENNAN J: That is not what it says. What it says is,

"There is no jurisdictional inhibition against us

making an award now in settlement of a dispute that

we find exists".	You accept that, so far as it
goes?

MR MERKEL: But for the 101, that is correct, Your Honour.

BRENNAN J: But for 101. And then it goes on to say, "But

if, when we come to the 101 problem, we find that

basis, then we will have to give it further	something has gone wrong with the jurisdictional
consideration".

MR MERKEL: But, Your Honour, the significance of

paragraph (iii) is twofold. One is, it

demonstrates that they were not addressing the

dispute in existence at that point of time, they

were regarding historical findings as sufficient,

when in fact, the jurisdictional basis is as to a

present dispute, but secondly - - -

BRENNAN J: 

I do not understand that, because all the

difference between the historical and the present
is the addition of the parties and the form of the

control.

MR MERKEL: That is so, Your Honour, but they are critical

matters, but can I give Your Honour the consequence of the addition of parties, why the Commission must

be wrong. Section 101 and section 33 only entitle

a party or a person bound by an award to vary it.

If they found the employees were disputants, the

employees would have no right to vary the award.

And, Your Honours' section 33 decision yesterday

makes that very clear.	So that the vice
confronting that aspect was that the employees had

no standing in respect of this award, but yet the

Commission was making an award - - -

DAWSON J: But the employees were not disputants in the

arbitral proceedings. They were applying for

certification, and the Commission was entitled to

treat the two proceedings as separate. Now, you

could argue on behalf of whoever you were appearing

for in the arbitral proceedings that those

proceedings should not be proceeded with, because

of the other proceedings, but that does not make
the employees disputants in the arbitral

proceedings.

Hoyts(8) 71 12/8/93

MR MERKEL:  Your Honour is right unless and until the 101

application is resolved.

DAWSON J:  I do not know, 115 has been taken out of my copy.

Is a dispute finding necessary for the exercise of jurisdiction under 115?

MR MERKEL:  Yes, it is, Your Honour. That is how we put

what the Commission did, but can I just, if I might

move on, because, can I just give Your Honour - - -

DAWSON J:  So that, if that is so, before the certification

proceedings could be proceeded with, the Commission

would have to find a dispute.

MR MERKEL:  Yes, Your Honour. Which is the same dispute we

were seeking to have found in the arbitral

proceedings.

DAWSON J: It is not the same dispute.

MR MERKEL:  The same dispute we were seeking to have found.

It was not the dispute as found.

DAWSON J: Yes.

MR MERKEL: That is why we are seeking to vary it. But our

short point is that the employees could be found to

be parties to the dispute in the arbitral

proceedings, but would have no right to apply to

vary the award, because it was made and they were

not parties to it. But if I could move on because

I have already - - -

DAWSON J:  I have just one further question before you move

on. If, subsequently, the agreements were

certified, they would prevail over the award?

MR MERKEL:	That is correct, Your Honour. The award -
GAUDRON J: Could they not be certified with retrospective

effect? I do not know.

MR MERKEL:  They could be certified, Your Honour; I do not

think they could be retrospective. The decision to

make the award, and I will not take Your Honours to

it, is at 334. The discussion on jurisdiction is

at pages 335 to 346 and the C Nos and the

jurisdictional basis is at 354 to 355 and there is

a particular discussion on these issues at 343 to

346.      May I say this, the Commission indicated that

Hoyts had not put jurisdictional complaints, but

what the Commission was referring to was the

complaints about why it could not make the award it

was proposing, other then in relation to the

section 101 application.

Hoyts(8) 72 12/8/93

Can I finally go to what happened after

1 April. Justice Toohey stayed the operation of the award and after 1 April decision in May, the

Hoyts and employees appeared before the Commission and the Commission - can I take Your Honours

finally to the application book in MS0 - held a

hearing on 6 May and made a statement at page 48 of

MS0, because it received letters from employees and

then made directions about filing outlines of

submissions, and that was set out at paragraphs 2

and 3 at page 49. So it was prepared to still keep

its mind open as to what course it should take.

Hoyts then put in its submissions at page 83 and I

do not need to trouble Your Honour with the detail

of it, but it indicated that it was restricting its

application under 101 solely to the employees and

not the other employers, and it asked at lines 19

to 23, at page 84, to hear the submissions on the

merits of the award.

Now, this answers directly what Your Honour

Justice Deane put to me, because at the hearing on

6 May, the employees came along and said why this

award operates adversely, and the issue then was a

hearing of the employees on the merits as well as

section l0l(l)(g) - - -

GAUDRON J:  But the two issues were really the same. By

that stage the issues were the same and when you look at the employees' submissions, they were to the merits of the award.

MR MERKEL: Sorry Your Honour, I did not catch that.

GAUDRON J:  I mean, the two issues had by that stage become

the same; the merits of the award, as it were, was

the basis of the l0l(l)(g) application, or whatever

section it is; lll(l)(g), and when you look at the

submissions from the 440 employees, what they do

challenge is the award itself, not the making of

it, not the mechanics, but the substance of the

award as it effects them.

MR MERKEL:	Your Honour, Mr Murdoch will deal with those matters, but they did seek the 101 ruling joining
them as disputants, so that they had an entitlement to be heard on the merits, as such. That was the
Hoyts submission.  The final step was the ruling of
the Commission, at page 87, and that was a refusal
to hear anything further on the matter. Under
section lll(l)(g), they refused the application,
and at page 91, lines 1 to 5, the Commission said:

In all the circumstances of the matters before

us, we have decided that it is not appropriate

or desirable in the public interest for the

Commission to refrain under s.lll(l)(g)(iii)

Hoyts(8) 73 12/8/93

of the Act from making an award or to hear any

further argument on the matters raised in the

letters from Hoyts.

They repeated those matters at page 94. We say

that they there indicated that they would not

consider hearing anything on the merits and would

not deal with the section 101 application until

after the award had been made.

That is the material upon which we rely.

criticism, with respect, we would make of
Justice Toohey's decision, and we have referred to

The

this at paragraph 10 of our outline, and his

decision appears at pages 409 to 413, is within

very narrow compass. His Honour treated our

application as raising no more than the procedural

issue and not - - -

MASON CJ: Perhaps Your Honour had the same difficulty we

are having ascertaining what really was the ground

of the application.

MR MERKEL:  Your Honours, we say that His Honour saw it as

no more than procedural and His Honour set that out

at page 413. We say that the issue is whether the

points we have sought to agitate before the

Commission, before His Honour and before this Court

are merely procedural and that there is a right to

deal with the section 101 after the making of the

award, or there is not. If there is, we must lose.

If there is no such right, we would submit that it

is appropriate that the leave be granted and the

appeal allowed. But we would submit that they are

the issues that we have sought to say, in our

submissions, are substantive, not procedural. They

are the submissions we put in respect of those

matters. If the Court pleases.

MASON CJ: Thank you, Mr Merkel.

MR J.E. MURDOCH: If the Court pleases, I appear for the

applicants on the motion which is MS0.	(instructed
by CA Sciacca & Associates)

May I hand up a written outline of our submissions and a short chronology that amplifies?

MASON CJ: Yes.

MR MURDOCH:  Your Honours, there are two principal arguments

in our case. Both of them, though, go to the right

to be heard which the employees say they were

denied. The first element in that is the

employees' assertion that they should have been

heard on the matter of whether they were parties to

Hoyts(8) 12/8/93

the dispute prior to the Commission handing down

the award.

So far as that issue is concerned, I wish to

adopt the arguments in relation to section 101 that
my learned friend, Mr Merkel, has already put to

the Court. However, on that issue we emphasize

that so far as the employees are concerned, the

question of whether they were parties to the
dispute has a bearing on their rights, both their

rights in relation to the award and their future

rights.

We have dealt with that in the outline but, to

put it briefly, if the employees are parties to the
dispute, as they assert they are, that gives them,
on the previous authorities in this Court in

relation to the Commission's obligation to give

right of audience, almost an undeniable right to be

heard. If they are parties to the dispute, we

would submit it is quite clear that the Commission

was obliged to hear them. Accordingly, we would

submit, the Commission had a duty to hear the

employees' case on why they were parties before it

handed down the award.

Secondly and in so far as the other

consequence of the Commission not hearing the

employees on why they were parties, if the

employees are parties, if and when the award is

made and they do not like the award, if they are
parties, at least they have the right to move the

Commission to vary it. Yesterday's Hoyts decision

has made it quite clear that in the view of this

Court, only parties to the dispute or parties bound

by the award can move the Commission under

section 33 for a variation.

So that is a matter of direct bearing on the

rights of the employees and it is a matter that has

to be determined, we would submit, with respect,

prior to the Commission making the award because it

is only the parties to the dispute that is settled

by the award that have rights in relation to the

award on the basis of being parties.

Can I go then to the other limb of our case,

and that is the denial of natural justice argument.

BRENNAN J: What is the line of connection between the award

and their being bound if they were not found to be

parties to the dispute?

MR MURDOCH:	If they are not found to be parties to the dispute and the award is made, the employees are in
a situation where their rights, entitlements and
obligations at the workplace are governed by the

Hoyts(8) 75 12/8/93

award but they have no rights to come to the

Commission and seek to have alterations made in any

of the award prescriptions that the employees

disapprove.

BRENNAN J:  Your argument is then that on any occasion when

an award is made, the effect of which will be to

affect the interests of employees who are not

parties to the dispute, those parties have a right

of audience before the award is made.

MR MURDOCH:  Yes, but in many instances they may not seek

it.

BRENNAN J: Well, they may not, but I just wonder whether

the Act is constructed on the footing that that is

so?

MR MURDOCH: Well, Your Honour, our submission is that it is

important to realize the circumstances of this case

in that this is an unusual case in the sense that

here we have employees who are not only non-members of the Union, but they are at odds with the Union's policy in relation to the award. Normally one

could assume that non-members of a Union would be

happy to go along with the Union agitating on their

behalf, but in the peculiar circumstances here, the

Union's agenda is different from the employees'. agenda.

DEANE J: But, I think, Justice Brennan's question was

directed to the theory of things, and on the theory of things the employees are not bound by the award, are they?

MR MURDOCH: Well, they are not bound by it.

DEANE J: And, on the theory of things, since the award only

prescribes minimum terms, they are not adversely

affected by the award. I said "on the theory of

things".

MR MURDOCH: Well, Your Honour, in this case the theory does

not hold - - -

DEANE J: Well, then that is - if I am not interrupting, I

would like you - I mean you are assuming that it

has accepted the employees are adversely affected?

MR MURDOCH:	Yes.
DEANE J:	I would like you to show me an example where, on

the theory of things, they are adversely affected?

In other words, where this award precludes them

getting something, as a matter of its operation as

an award.

Hoyts(8) 76 12/8/93

MR MURDOCH:  Would it be convenient for me to do that now?

DEANE J: Well, yes, if Justice Brennan does not object.

MR MURDOCH:  Thank you, Your Honour. The employees'

concerns are really going to one principal area.

That is the question of the entitlements under the

award of junior employees. The contest,

originally, was Hoyts saying there should be a

junior rate scale that did not give adult rates

until an employee was 21 years of age, and there

was a sliding scale. The Union said there should

be no junior rates, everyone should get adult

rates.	The Commission took a different view in
that the Commission introduced a hybrid.	The

Commission put in a sliding scale of junior rates

with rates for 17 year olds and younger,

18 year olds, 19 year olds and 20 year olds. But,

then it superimposed on that a provision that

persons 18 years of age and over, who had been

working regularly for Hoyts for 12 months, had to

get the adult rate.

The employees say that the vice of that

provision is simply this: the employees are mainly

quite young people. They are all casuals, or there

might be a handful who are not, but in the main the

employees are casuals; they are young people.

What happens is that an 18 year old who, prior to

the making of the award, is able to compete on

equal terms with other 18 year olds, finds that

once the award is made, if he or she has worked

12 months for Hoyts will be under a disadvantage in

that the 18 year old who has had the 12 months

prior employment will cost more to employ. Since

they are casuals, the employer has every right to

employ the cheaper employee.

So in the case of those 18 year olds,

19 year olds and 20 year olds who have got the

12 months past employment on a regular basis with

Hoyts, the award works against them because it

makes them less employable.

DEANE J:  So the point is that the minimum benefit which

applies in respect of non-members of the Union is

not, in fact, a benefit at all, but is a detriment.

MR MURDOCH: That is correct, Your Honour, yes.

DEANE J:	I understand, thank you.
MR MURDOCH:	Perhaps in that respect this award is unusual because one would normally assume that a minimum
rates award would benefit employees, but on the
material that has been put forward here by the
employees in relation to the junior rates it is a

Hoyts(8) 77 12/8/93

detriment. It is compounded, the detriment, by the

fact that the award introduces penalty rates for

Sundays and public holidays double time, and what

that does, of course, in relation to these 18, 19

and 10 year olds with the 12 months service it, in

effect, doubles up their cost disadvantage and

makes it even less likely that they will be hired

on Sundays and public holidays. Because these

people are students, they are the days on which

they wish to work, the days that they do not have

lectures, and the days on which lots of movies are

shown and the theatres are very busy. So again it gets down to the actual circumstances of the case.

I emphasize also, Your Honours, that there was no argument before the Commission in relation to

the hybrid proposition. The Commission is

entitled, of course, in law on an arbitration to
bring forward its own remedy, but in the

circumstances here the Commission did not have the

benefit of any argument from the parties, and,

indeed, from the employees, as to the consequences

of the hybrid provision. The consequences are, of
course, the employees say they are directly

adversely affected.

DEANE J:  If one accepts the validity of your proposition

that the employees were in that sense indirectly

adversely affected, why did the Commission not give

its answer to your argument in what it said on

page 92 of the application book?

MR MURDOCH:  I take it Your Honour is referring to the

Commission's comments about the arbitral

proceedings being under way for some years.

DEANE J:  The overall thing that proceedings have been

going, the employees have obviously been aware of
it, they have been aware that it covers everything,

they have had every opportunity to intervene, or to

make submissions, or what have you. Nothing is	done until right at the death knell, as it were.	In other words, what I am putting to you is that
the Commission there seems to be proposing an answer on a factual level that we have given them a
fair enough chance.

MR MURDOCH:  The employees had no warning that there was

going to be this provision that favoured one group

of 18, 19 and 20 year olds over another group.

They had no warning that any provision like that would emerge. Secondly, the fact that 37 of them were called to give evidence, we would submit, with

respect, means little because they were called to

give evidence by the employer. The other fact

about it is that the proceedings have been going on

since 1988, approximately and, without being

Hoyts(8) 78 12/8/93

flippant about it, many of these people would have

been in primary school when the proceedings

started.

DAWSON J: But was the argument which would be put on behalf

of the employees any different from the argument

which was put by the employer?

MR MURDOCH:	The argument was never put by anyone that this division of 18, 19 and 20 year olds was
discriminatory against one group.  The Commission
never heard argument by anyone on that point at any
time.

DAWSON J: What, yo~ say that the employer was denied the

opportunity to put that argument against it?

MR MURDOCH: Well, to that extent, yes, but in saying that,

Your Honour, I recognize that the Commission is an

arbitral body and it is not bound to slavishly

accept the views of either party.	However, the
facts are here that - - -

DAWSON J:  What I am putting to you is the interests, in

this instance, of the employer and the employees

were the same.

MR MURDOCH: Well, Your Honour, with respect they were not,

in that the employer, under the proposed award, has

got the option to only roster the cheaper 18, 19

and 20 year olds. So the employer, to an extent,

can work within the proposed award, whereas the

individuals who have become more expensive to

employ, have got no recourse if they are not

rostered for casual work.	The interests,
Your Honour, are different.

BRENNAN J:  Mr Murdoch, I understand the way in which you

say the employees were disadvantaged by the making

of this award, but it must be of the nature of an

award that it can affect for good or for ill the

bound by the award, albeit those employees are not	interests of any employees employed by an employer
members of a claimant union.

MR MURDOCH: That possibility is always open, Your Honour.

BRENNAN J: It seems to me, at least arguable, that the

structure of the Act is that that is the way in

which it ought to be: giving the Commission

discretion from time to time, if they see fit to entertain submissions by interested parties, but

none the less not binding them to do so in

exercising arbitral powers in settlement of a

dispute as between industrial organizations.	What
do you say about that?

Hoyts(8) 79 12/8/93

MR MURDOCH:  I disagree, with respect, Your Honour - - -

BRENNAN J: Yes.

MR MURDOCH:  - - - because the Commission is obliged to

proceed judicially and it is part of the obligation to proceed judicially that it give natural justice; in other words, that people whose rights will be

affected will be given an opportunity to have their

say if they ask to have a say, and - - -

DAWSON J: But in one sense their rights are not affected,

because the award binds the employer to pay these rates, but the only other party to the award, who can enforce it, is the Union.

MR MURDOCH:  Your Honour, that is not the case. The

variations to the Act in 1992 have now given all

employees, whether members of the Union or not, the

right to sue for benefits under the award. So, an

employee of Hoyts who was underpaid, who is a non-

unionist, can now sue. That old line of

authorities - Leonardis case was overcome by the

amendments last year.

BRENNAN J: Yes.

MR MURDOCH:  The situation is then, Your Honour, our rights

were affected by the award. If the award was

beneficial to us we could sue to recover benefits

under it, but if we do not like the award, we

cannot do anything about it. The employees cannot

do anything about it because, if they are not

parties to it, they cannot apply to vary it, and

without reiterating it too much, in our view, their

rights are affected.

May I refer the Court to Ludeke's case and to

some relevant passages in that on the right - - -

BRENNAN J:

Can I just delay you for one moment longer?

Does that not rather indicate that the approach

which the Commission would be required to take in

certification proceedings under section 115 - and I

have not got the section in my copy - are such that

the Commission is bound to consider the interests

of the individual employees who seek certification

or support an application for certification, and

why is that not a sufficient discharge of the

obligation of the Commission to grant natural

justice to an employee who otherwise would have his

interests affected by an award - made an exercise

of arbitral power?

MR MURDOCH:  Your Honour, it is not, for three reasons. The

first is that when the award becomes operative, the

detrimental effect will be immediate and will

Hoyts(8) 80 12/8/93

continue until such time as there is a favourable

result on the 115s. Secondly, the 115s may be

lost, and that is likely in the fact that they are

now having to be certified in the face of an

arbitrated award, and thirdly, the 115s only

operate anyway, for a stipulated period, and when
that period expires, there is no opportunity for a

new 115, so the employees will fall back under the award. There is a fourth reason, and that is that

the 115s only relate to the individuals who were

working at Hoyts at the time, and who signed 115

agreements. By the nature of the casual industry

in this cinema activity, new people are coming all

the time, so there are people there who are not

parties to 115s, who can never become parties to

115s because the section has been repealed.

BRENNAN J: And who have got no right to complain about

anything that has happened thus far.

MR MURDOCH:  Well no, Your Honour. They complain about the

fact that when the award comes in they are caught

by this discrimination between one group of 18, 19

and 20-year-olds and the other group, and that is

the hard core of the complaint of the employees

against the award.

GAUDRON J: You keep saying, "When the award comes in"; I

take it the award is not operating?

MR MURDOCH:  No, Your Honour, the situation was that the

Commission gave a decision and said that in four weeks time we will hand down an award that will do

all these things. It was in this period, with the

award pending, that the employees approached the

Commission and asked to be heard before the award

was handed down and they asked, if there was not

time for that, that the Commission exercise its

powers under section lll(l)(g) to refrain from

handing the award down until such time as the

Commission had had time to hear the employees on

the dispute party issue and the natural justice and

merit questions.

GAUDRON J: Justice Toohey gave a temporary stay of the

award, and why is it not now in operation?

MR MURDOCH:  There has been a further stay to enable these

proceedings to proceed.

DAWSON J: And has the Commission refused to hear the

employees?

MR MURDOCH:  Yes.

GAUDRON J: Well, not on the 115?

Hoyts(S) 81 12/8/93

MR MURDOCH:  No, but in relation to the award.

GAUDRON J: In which you canvassed the merits of the

provisions now in question.

MR MURDOCH:  Yes.

GAUDRON J: And indeed, the basis of your 111 application.

MR MURDOCH:  Yes.

GAUDRON J: The basis of your 111 application was the way in

which these provisions that you have referred to

today, operated in relation to employees.

MR MURDOCH: That is correct, Your Honour.

GAUDRON J:  So it is not - I mean, to use that dreadful word

again, the two issues, the merits, and the

lll(l)(g) application, actually coalesced into the

one issue - - -

MR MURDOCH:	They do, Your Honour, yes.
GAUDRON J:	and you have been heard on it.
MR MURDOCH:	No, Your Honour.
GAUDRON J:	You were allowed to put in written submissions.
MR MURDOCH:	We were allowed to put in an outline,

Your Honour, which was no more than an

outline -

GAUDRON J:	I see.
MR MURDOCH:	- - - and in that outline we requested a

hearing to enable us to put a case. That is

important to our case, Your Honour. It was no more than an outline. That was all the Commission asked

us to do. That is what we did, and it was on the

basis of the outline that the Commission refused
us.

DAWSON J: Sorry, I am not sure I follow this, Mr Murdoch.

The reason for not putting the award into effect

when it was, as it were, handed down, was what?

MR MURDOCH:  The reason the award is not applying now is

because it has been stayed by this Court.

DAWSON J: The Commission intended it to come into effect

immediately when they handed it down.	Is that
right?

MR MURDOCH:  No, the Commission intended it to come into

effect four weeks after their decision.

Hoyts(8) 82 12/8/93

DAWSON J: What was the purpose of the four weeks?

MR MURDOCH:	I think to settle a draft, no doubt.
DEANE J:	So your argument is that on all the facts as they

exist, if one could properly understand them

against the background of all these proceedings, an

award, if made, would be invalid in so far as it

affects your clients because of a denial of natural

justice.

MR MURDOCH: That is so, Your Honour.

DEANE J: Well now, why did you not ask the Commission to

refer that question of law to the Federal Court?

Your answer may be that you were not allowed to be

a party, but the Commission seems to have indicated

fairly strongly that if you had applied in the

right environment you would have been allowed to be

an intervener.

MR MURDOCH: That, though, Your Honour, would not have taken

us to the question of the award content which was

where we really wanted to go.

DEANE J:  It might have given you the standing to ask the

Commission to refer the question of law to the

Federal Court.

MR MURDOCH: Perhaps it might have, Your Honour, but, with

respect, by then it probably would have been too

late because when I first appeared for the

employees before the Commission and asked them to

hear us and they declined, at that stage the award

was to come into operation the following week.

Then when the written outline was submitted, at the time it was submitted there were only two or three

days before the award was due to come into effect.

DEANE J:	You follow my discontent, do you not?
MR MURDOCH: Yes, Your Honour.
DEANE J:	One hears what you say, but then you look at what the Commission says at page 92 which brings in all
the background of these proceedings since 1989 being the date they pick on, and indicates that to
make an informed view it has to be made in the context of the background going back to 1989 and what the employees have been doing since that time.
How do we deal with it?
MR MURDOCH:	Your Honour, the situation is, we would submit,

that - Mr Merkel has really summed up the reasons

why, in the particular circumstances at the time,

it would be unlikely that the Commission would have

Hoyts(8) 83 12/8/93

referred the matter and, no doubt, it would have

been very strongly opposed by - - -

DEANE J:  Do you say that somewhere in volumes 1, 2 and 3 is

all the material we need for background?

MR MURDOCH:  Your Honour, so far as our motion is concerned

for my clients, I would submit that you do not even

have to go that far because of the fact that the

factual circumstances giving rise to our being

denied natural justice really spring out of the

more recent events.

DEANE J:  So you would say we could proceed on the basis

that everything the Commission says, so far as

facts are concerned, pages 92 to 93, can be

accepted in so far as background is concerned?

MR MURDOCH:  I do not take issue with the facts that are

stated there in relation to the time the

proceedings have been on foot, the number of

employees who were called to give evidence, et

cetera. But what we do say, Your Honour, is that there are additional facts and they are the facts

that we have relied on here. It is the additional

facts that give rise to the denial of natural

justice.

GAUDRON J: Could I ask you this, Mr Murdoch? Do you make

your denial of natural justice argument by

reference to the terms of the award as outlined in

the decision, and I presume was subsequently made,

and by reference to your application under

section lll(l)(g)?

MR MURDOCH:  Both of those and also, Your Honour, the

application in relation to our contention that we

should be included in the parties to the dispute.

GAUDRON J:  No, but do you make a separate argument by

reference to the lll(l)(g) position and the award?

MR MURDOCH:  They are so interlinked, Your Honour, that it

would be - - -

GAUDRON J: Well, I can see circumstances in which they

might not be, actually. What I am asking you does

not necessarily run counter to your situation. I

mean, I can well understand that there might be a

basis quite independently of the section 101 case,

why there is a denial of natural justice in

relation to the lll(l)(g) application in the

context of the award, as indicated in the decision.

MR MURDOCH:	Yes.
Hoyts(8)	12/8/93

GAUDRON J: And I want to know if that is an argument you

put. I do not know whether you do or not.

MR MURDOCH: Well, Your Honour, in relation to the

section lll(l)(g), we sought to present a case

under section lll(l}(g) for the purpose of

persuading the Commission to delay the award until

we had had a chance to put a case on the merit

question. In rejecting the application to delay
the award, and in not giving us the opportunity to

present a case as to why they should delay the

award, the Commission have, really, in a third

sense denied us natural justice.

GAUDRON J:  No, the reason why I asked you that question is,

I mean there may be a question as to precisely what

your rights as an intervener are but, presumably,

at the very least you are entitled to have your

application for intervention run according to

natural justice considerations or whatever it is,

and that, in effect, your lll(l)(g) application

plus, in the particular context, was not dealt with

in a way that properly recognized what you were

doing. I can see an argument to that effect.

MR MURDOCH: Well, we complained that it was not,

Your Honour.

GAUDRON J: But, it was not put in your order nisi or, as I

can see it, in your - is it? It would, of course,

be restricted to the discriminatory aspect that you

speak of, which is what you seem to have attempted

to raise in the Commission, by your outline.

MR MURDOCH:  Your Honour, I would suggest that we do in the

motion raise the section lll(l)(g} matter. Though,

perhaps, in our outline we have not highlighted it.

GAUDRON J: Yes, perhaps at page 4(iii). No.

MR MURDOCH:  In the outline we have listed the lll(l)(g)

matter in paragraph l(c) as one of the things that

we complained we asked for but were refused a

hearing on.

BRENNAN J: What was your application under lll(l)(g) going

to be?

MR MURDOCH: That was, Your Honour, that the Commission

refrain from taking the step of handing down the

award until such time as we had been given an
opportunity to be heard on why the employees were
parties to the dispute and to be heard on why the

award content should not be as the Commission had

foreshadowed in their decision in relation to the

junior rates and the penalty rates.

Hoyts(8) 85 12/8/93

BRENNAN J:  Which part of lll(l)(g) were you seeking to bring yourself under?

MR MURDOCH: (iii), Your Honour, the public interest.

BRENNAN J: Is that not addressed by the Commission at

page 93? If the Commission heard you, was

conscious of lll(l)(g)(iii), and then said,

"Nothing in this outline is going to shake us about

this, for the reasons set out on page 93", it would

have been a waste of time to do anything further,

would it not?

MR MURDOCH:  Except that all the Commission had from the

employees was the very brief outline.

BRENNAN J: That may be so but you were given an opportunity

to put an outline and one can imagine that with an

outline you make it as punchy as you can and with

that outline there was nothing ~hewn of any

significance so far as the Commission was

concerned.

MR MURDOCH:  Our complaint is that the outline asked for

them to hear us to enable us to develop a case and

we were not given a hearing and we were not able to

present a case. Ludeke's case is not on our list

of authorities so I will hand up copies of that, if

I may. The passages that we wish to rely on in Reg

v Ludeke and Ors; Ex parte the Customs Officers

Association are to be found in the decision of the

Chief Justice at the time, commencing at the bottom

of page 519. Can I ask the Court to note the

contents of that last paragraph, and then, going
over the page to 520, His Honour said then near the

top of the page:

That means that a person whose rights will be

directly affected by an order made by the

Commission must be given a full and fair

opportunity to be heard before the order is

made. That requirement will not necessarily

be satisfied if the Commission relies only on the fact that the person concerned has been

heard on the same question by the same member

of the Commission on a previous occasion. In general, the rules of natural justice are not

satisfied unless the opportunity to be heard

is afforded in the proceeding in question,
although the fact that there had been an
earlier hearing would be relevant in

determining what constituted a full

opportunity to be heard.

The Court went on:

Hoyts(8) 86 12/8/93

However, natural justice does not require that

everyone who may suffer some detriment as an

indirect result of an order of the Commission

is entitled to be heard before the order is

made. Orders made by the Commission may

affect many members of the community who are

not parties to the proceedings in question but

that does not mean that any member of the

community who will be indirectly affected by an order of the Commission has a right to be

heard in those proceedings.

And then, further down that page, there is a

passage about two-thirds of the way down:

Those were cases where the person affected

sought to be heard as a party; the reasoning

in those judgments supports the view that the

rules of natural justice do not require the

Commission to allow a person who is not a

party to the proceedings in question and whose
rights will not be directly affected by them
to be heard in those proceedings, and

therefore do not require the Commission to

grant such person leave to intervene.

Then at the foot of page 520 His Honour said:

although in many cases considerations of

fairness may incline the Commission to allow

someone who is likely to be indirectly

affected by the outcome of the proceedings to

intervene in them.

DAWSON J:  You say you would be directly affected, I

suppose.

MR MURDOCH:	Yes.
MR MURDOCH:	The way in which we make that submission is that, in the case of the employees, for the reasons
I have said before, we submit that they are
directly affected because of the consequence on
their employability.  An indirect effect would be,
for example, if Hoyts, to avoid the cost of penalty
rates on Sundays, stopped exhibiting films on
Sundays, and one could say that a disappointed
prospective cinema goer would be indirectly
affected. But, we would submit that we are not in
that class because the award has immediate and
direct effect on the employees.

GAUDRON J:  Mr Murdoch, could I go back? Do I take it that

as far as you were concerned, your outlines were

directed to the question whether the Commission

should entertain an application under lll(l)(g)?

Hoyts(8) 87 12/8/93

MR MURDOCH:  Yes.

GAUDRON J: Whereas the Commission, without giving you

further hearing, decided the substantive issue that

would have been raised under section lll(l)(g) if

they had entertained the application?

MR MURDOCH:  Yes.

GAUDRON J: That is fairly clear, I think, is it not, from

page 91, that they have decided not to exercise

their powers, even though your submissions were

invited to the anterior question of whether an

application should be entertained.

MR MURDOCH:	Yes, Your Honour.
MR MURDOCH:	Yes, Your Honour.
GAUDRON J:	Is there any limitation on whom may make an

application under section lll(l)(g) of the Act?	I
mean, my recollection is that various non-parties
could make such applications in days past.

MR MURDOCH:	Your Honour, that has been the practice, but I may I say that in the light of yesterday's
decision, that practice may need to change.
GAUDRON J: Well, that was variation of the award.	My

recollection is that under what used to be the

equivalent of section lll(l)(g), which I think was

section 4l(l)(d) of the old Act, that non-parties

were applicants. I do not know if the Act has it

under that section. For example, a State would

sometimes mount an application under that section

to preserve a State award, as it were.

MR MURDOCH:  Your Honour, that has been the practice, but if

Your Honour looks at the introductory words to

section 111(1), it does say;

subject to this Act,

and, going on memory, I think the old Conciliation
and Arbitration Act may not have had those

introductory words in the previous section 41. The

significance of the "subject to this Act" phrase is

that, if the Court considers what the Commission

would do in relation to section 33, section 33 says

that:

Subject to this Act, the Commission may

perform a function or exercise a power:

(a) of its own motion; or

(b) on the application of:

Hoyts(8) 88 12/8/93

(i) a party to an industrial dispute; or

(ii) an organisation or person bound by an

award.

Now, when that is read with section 111, and when

it is read with yesterday's decision, it may well

have the consequence that to bring an application

under section lll(l)(g) that one has to come within

one of the categories in section 33(b)(i) or (ii).

GAUDRON J: There might have been a more fatal problem with

your application. So far as we look at your

section lll(l)(g) application, there may have been

a more fatal problem than we have thought.

MR MURDOCH:  But, Your Honour, what it does is to show how

important it was for our clients to get a hearing

on the question of why they were a party because,

if we had had a hearing on that, we would have been

able - - -

GAUDRON J: If you had been found to be a party.

MR MURDOCH:  Yes. If we had got a hearing, of course, we

would have endeavoured to have that ruled on by the have answered the other problems.

GAUDRON J: Not necessarily. If you had been found to be a

party to the same dispute, it would have but, if

you had not been found to be, you would be in the

same position.

MR MURDOCH: Correct, save for the complaint about denial of

natural justice or not being heard on the merits.

GAUDRON J: That must fall to the ground if you had no right

to make an application. If you had no right to

make an application at all, you had no right to

natural justice.

MR MURDOCH:  We did, Your Honour, on the authority in

Ludeke's case.

GAUDRON J: But not if you had no right at all. If we come

to the position that you have just adverted to in
relation to section lll(l)(g), and you had no right

to apply under that section, your application was a

nullity.

MR MURDOCH:  No, with respect, Your Honour. Ludeke's case

does appear to stand for a broader proposition that

says that any person who is going to be

detrimentally affected by an order of the

Commission has got the right to appear and ask to

be heard before that detriment occurs. And that is

Hoyts(8) 89 12/8/93

in line with other more recent decisions of the

Court, and I do not have this one on the list but,

for example, in Ainsworth's case, the Queensland

Criminal Justice Commission matter, the person complaining there, Mr Ainsworth, had had his

reputation affected by a report from the Criminal

Justice Commission. Could I finish quickly - - -

BRENNAN J:  Can I just ask you one other question - I am

sorry to delay you. How could you have been a

party to an industrial dispute as between Hoyts and

the Union?	How could you have become a party tc
that dispute?

MR MURDOCH: Well, Your Honour, perhaps if I could use an

analogy, a completely non-industrial one: if there

is a stray, unbranded calf walking along the road,

farmer A comes from his property and says, "That's

my calf"; farmer B comes from his and says, "No,

it's mine". While they are disputing the ownership

of the calf, farmer C comes round the corner and

says, "Wait a minute, you're both wrong; it's

mine". So, same subject-matter, additional person

joins the controversy, and we would say that is

what has happened here. The employees, who are in

the relationship of employer and employee with

Hoyts, enter into it and say, "We've got views on

this; we disagree with what is being said should be

the entitlements".

BRENNAN J:  I can understand two propositions: one is that

you are entitled to be heard, whatever your status

may be; the second is that the subject-matter in

which you are interested was the same
subject-matter pro tanto as that which was in

dispute between the Union and Hoyts.

MR MURDOCH:  Yes.

BRENNAN J: But if the parties to that dispute were the

Union and Hoyts, how could you become a party to

that dispute? You would have to have had - well, I

suppose "coalesce" is as good as any word, but you

would have had to say somehow that the old dispute

ran into the sands of the new one.

MR MURDOCH:  Your Honour; can I briefly approach it two

ways: in terms of the statutory scheme,

section 101 deals with dispute findings in relation

to two headings. Under 101(1) the Commission is

required to determine and make findings on two

things: firstly, the subject-matter in dispute,

and secondly, the parties.	Under section lll(l)(o)
the Commission can -

direct parties to be joined or struck out.

Hoyts(8) 90 12/8/93

The legislature seems to contemplate that the

Commission, having made findings about the parties
and the subject-matter, can alter the findings in
relation to who the parties are without necessarily

changing the findings on the subject-matter.

MASON CJ:  What section is that?

MR MURDOCH: Section 111(1)(0).

DAWSON J:  I am not sure what entitles you to be a party. I

mean, in ordinary legal proceedings it is whether

you are claiming relief or having relief claimed

against you, but that does not apply here.

MR MURDOCH: 

So far as that is concerned, Your Honour, at

least at the time that the Commission had issued
its decision and the award was pending, the

employees had entered the fray and had announced

that they disagreed with what was proposed to be

done in relation to their entitlements. At least

at that stage, we would submit, the employees were

in dispute in the sense that they were rejecting

the Union view and they were rejecting the award

that was contemplated.

DAWSON J: They say they were persons affected by the relief

claimed by the Union.

MR MURDOCH:	Yes.
MR MURDOCH:	Yes.

BRENNAN J: With whom were they in dispute?

MR MURDOCH:  They were in dispute with the Union, that was

clear, and they were potentially in dispute with

their own employer and, within the definition of
"dispute" in the Act, a threatened dispute or a

probable dispute is a dispute by definition.

GAUDRON J: But, one can well understand that you might have

a probable dispute with your employer, which might

be quite separate and distinct from what has gone

before, but could you have an industrial dispute,

as defined, between a union and people who are not

its members but who are eligible to be its members?

MR MURDOCH: Well, in our submission, yes, Your Honour. If one adopts the approach that the Court took in the Social Workers' case and looks at the pragmatic

views as to what an industrial dispute is - if you
have hundreds of employees rebelling against an

award that is sought for them by their union,

surely, that is a dispute and, surely, it is an

industrial dispute.

Hoyts(8) 91 12/8/93

GAUDRON J: Yes, but I am wondering how you bring it to be a

dispute pertaining to the relationship between

employers and employees?

MR MURDOCH: Because, Your Honour, it goes directly to what

is proposed by way of statutory minimum standards

to regulate the relationship of employer and

employee.

The Union enters the fray by asking the

Commission to introduce an award to stipulate the

minimum conditions to regulate that relationship.

If the employees disagree with that, we would

submit that the disagreement or their dispute

relates directly to the employer/employee
relationship.

The other passages in Ludeke's case that I

wanted to draw the Court's attention to were in the

decision of Justice Brennan at page 528, in the

middle of the page, where His Honour said:

There can be no universal criterion by which to determine whether a repository of a

statutory power is bound to hear a person who

is not directly involved in its proceedings

before making an order that indirectly affects

that person's interests. Regard must be had

to all the circumstances of the case - I will not go on reading, but could I take the

Court down to the passage that commences with the

word "generally". His Honour said there:

Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his

reputation ought not to be taken without first

giving him an opportunity to be heard provided

such an opportunity can be reasonably

making of the decision ..... But that is not an

given ..... even if that person is not directly involved in the proceedings which lead to the

absolute rule.

Applying that approach here, I will not repeat

what we have said about the effect on our client's

legal rights, but we would submit that within that

principle our clients should have been heard.

There is an element that His Honour observes and

that is that the opportunity has to be reasonably

given. The Commission is in the situation where it has very wide powers to give directions in relation

to the conduct of its proceedings. The Commission

would have been in a position to put stipulated

time dates to carefully regulate the way in which

we were given a hearing, so that there is no reason

Hoyts(8) 92 12/8/93

why a hearing could not have been reasonably given,

even if it was to be given at short notice and we

were put on some limits as to the time to be taken

in presenting a case.

In Justice Deane's decision, can I refer the

Court to the passages at page 530, about 8 lines

down, His Honour said:

In hearing such proceedings, the Commission is

bound to observe the rules of procedural

fairness which are commonly referred to as the

principles of natural justice:

And then the next passage is of some significance

for us. It reads:

While their precise content may vary according to the circumstances of the particular case, those rules will ordinarily require the

Commission to extend to the parties and to

others who will be directly affected by its

orders an adequate opportunity of being heard.

We rely on that because, even failing the point we have made about being a party, His Honour

did seem to recognize that non-parties affected by

the orders ought to be given a hearing. The next

10 or 12 lines are also relevant but I will not

read them.

I also draw the Court's attention to the

passages at the top of page 531 and the middle

paragraph on page 531. In that matter,

Justice Dawson agreed with the judgment of the

Chief Justice.

If the Court pleases, I have not gone through

my outline in order, but I have, in the course of

answering questions from the Bench, really

presented our case so that we would ask the Court

to give us the relief that we have sought.

DEANE J:  Mr Murdoch, you seem to have assumed that we are

fully acquainted with everything in these appeal

books and what lies behind them. I am not. Does

it appear from the material, and I am not asking

you to take us to it, that you unequivocally

applied for leave to intervene as well as if you

were not going to be allowed to be there as a

party, and that you made it clear that as an
intervener, you wanted to put submissions on these

particular aspects of the proposed award?

MR MURDOCH:  Your Honour, at no time, when I addressed the

Commission or when we put the outline in, did we

ask to be dealt with as an intervener; we asked to

Hoyts(8) 93 12/8/93

be dealt with as a party or a body of people

wishing to present a case that they were parties,

and also, a body of people complaining that they

were adversely affected and asking to be heard.	In
asking to be heard we did not say, "In the
alternative, we ask to be heard as interveners".
We would submit that if the Commission had heard
us, the Commission would have recognized that we
were adversely affected, and even if it had

rejected us as parties, it should have let us in as

interveners.

GAUDRON J: Well, whatever the decision was with respect to

the section lll(l)(g) application seems to have

proceeded on the basis of an interest other than

that of parties. I mean, the Commission seems not

to have considered it necessary that the

application was made on the basis that you were

parties to the dispute.

MR MURDOCH:	Yes.
GAUDRON J:	It seems to have proceeded on the basis that you were making application because you were affected?

MR MURDOCH: Yes. Could I refer - - -

DEANE J:  I noticed, at page 262, the Commission seemed to

be treating your application as parties and, if not

parties, as interveners. That is at page 35,

line 16, but there is nothing that takes that
further or indicates a double capacity, is that

right?

MR MURDOCH:  Yes.

DEANE J: But I suppose line 17 does take you part of the

way towards - - -

MR MURDOCH:  No, but perhaps I should say there though,

Your Honour, that that took place after we had

asked the Commission to hear us on the award merit

questions and the Commission had taken the view,

"Those matters are not listed today, we cannot and

will not hear you." If Your Honour looks back at

page 31, between 3 and 7, that is where we were

requesting the opportunity to appear and present a case in relation to the employees' complaint about

the award, and that is where, consistently through

the debate on the rest of that page, the court was

quite clear that it was not going to give the

opportunity.

GAUDRON J: But, later, it did say that you could put in an

outline?

MR MURDOCH:	Yes, that is so.	Your Honour, I may have - - -
Hoyts(8)	94	12/8/93

GIIIDIOW J:	Where did that happen?
MR MUROOCHs	About the outline?

GAUDRON J: Yes. Hoyts, I take it, had, in fact, filed a

formal application under section lll(l)(g), had it?

MR MURDOCH:  I do not think so, Your Honour.

GAUDRON J: But, a number of your clients had written

letters - - -

MR MURDOCH: That is so.

GAUDRON J:  - - - requesting the right to be heard under

section lll(l)(g)?

MR MURDOCH:  Yes, they had, Your Honour. In relation to the

question before from Your Honour about whether we

had sought to be permitted in as interveners, I

incorrectly answered that. At page 30 of the

appeal book, we had put it in the alternative,

either as a party or an intervener.

Could I also draw the Court's attention to

page 53 of the appeal book in which we set out in

the outline the basis upon which the employees

asserted they had the entitlement to appear and

present a case, and it is set out in the distinct

categories that include the various subject-matters

that we have dealt with in argument this morning.

MASON CJ: Yes, thank you, Mr Murdoch. The Court will now

adjourn until 2.15.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.21 PM:
MR MURDOCH:	Your Honour, before sitting down could I refer

the Court to one authority that is relevant to some

of the answers I gave this morning.

MASON CJ: Yes, Mr Murdoch.

MR MURDOCH:  The Amalgamated Metal Workers' Union; Ex parte

The Shell Company, 174 CLR 345. In that, the joint judgment of Your Honour the Chief Justice and

Justices Deane, Toohey and Gaudron, discussed the definition of "industrial matter" in the present

Industrial Relations Act. The relevant pages are

Hoyts(8) 95 12/8/93

page 354, 355 and 357. The Court dealt with the

change from the previous legislation, which was

worded to be "as to matters", and the present

wording which is "about matters". And, in relation

to the present wording at page 357, Their Honours said, in relation to that change of wording, what

they said, and I quote, is:

And that is satisfied by a less direct

relationship than might be necessary in the

case of a requirement that a dispute be as to

an industrial matter.

The Court in that judgment appeared to recognize

that the present wording had loosened up the

requirement necessary, so far as the requisite

relationship of employer and employee was

concerned. I raise that in the context of the

submissions that I made concerning the dispute

between the employees and the Union as to the

relationship of employer and employee.

MASON CJ: Yes, thank you, Mr Murdoch. The Court has

decided that it would be convenient to depart from

the procedure outlined by Mr Merkel at the opening

of these cases, and that is that it would be
convenient to hear Mr Goldberg presenting

applications Nos M43 and M46 at this stage, before

we call on Mr Nolan and Mr Bell to respond to the

applications that have been currently heard. Yes,

Mr Goldberg.

MR GOLDBERG:  Might I hand up, Your Honours, an outline of

our argument, and might I also hand up a chronology

that relates specifically to the issues that arise

in what I will call loosely the bias claim.

MASON CJ: Yes.

MR GOLDBERG: If the Court pleases. Your Honours, the issue

which gives rise to the application that was made

before Justice Toohey occurred on 5 October last

year at page 461 of the application book. It

occurred, if I can give Your Honours an outline

very briefly this way. It is a discrete point in

the context of what Your Honours have heard over
the last day or so, but it arose quite separately

and it arose this way, that on 25 September

Mr Weidner, who was the advocate for the Theatre

Managers Association, had concluded speaking to his

final written submissions and the proceedings were
then adjourned to Monday 5 October when Mr Douglas,

senior counsel for Hoyts, was to commence speaking

to his submissions on an application that had been

made under section lll(l)(g) of the Act. I do not

need to trouble Your Honours with that.

Hoyts(8) 96 12/8/93

But what happened on the morning of 5 October

before he started, he went back to an issue that

had been raised in the course of his final address with Deputy President Polites. It related in very general terms to a clause that had been in one of

the previous awards, or perhaps I think it was

rather the Canberra agreement. What then happened

was this, that he sought to explain what he had

said on the previous occasion and he then,

Your Honours, said this at page 461 of the appeal

book, at line 34:

at quite recent times, the Theatre Managers

Association has completed a comprehensive

agreement on conditions of employment rates of

pay with the Greater Union organization, and

that agreement has been completed and signed

by all parties, and it is for a period of two

years, and does delete that clause 4 from the

1989 agreement.

That was a clause that dealt with a ceiling of

managers' salary.

It does not contain any ceiling what so ever.

The salary package in that new agreement which

I have conveyed to Mr Caldwell -

And I interpolate, Your Honours. Mr Caldwell has

said on affidavit that nothing was ever conveyed to

him. He said it:

does contain a salary scale which relates to

managers responsibility, depending on the size

of the auditorium.

Then over the page, and I will not read it,

Your Honours, but he sets out a number of

provisions in the new agreement: "contains a 38

hour week", "salaries", et cetera, "lump sum of

$200 payment for late shows and some overtime

provisions".

Now what then happened was this, was that

Mr Douglas, at line 23, said that Mr Weidner had

spoken to this agreement:

We do not have a copy of it -

and, "Please, can we have a copy?" Mr Weidner then

said, at line 29:

Well, your Honour, I was not relying on those

provisions. All I was doing was to explain

what it contains.

Hoyts(8) 97 12/8/93

He said he did not have a copy of it, and he then

said, at line 38:

It is an agreement made between both the parties ... between the Theatre Managers

Association and the Greater Union

organisation.

Mr Douglas then pressed the matter, Your Honours,

at line 42, and said:

It is now a matter that is part of the

substantial merits in these proceedings -

and over the page:

We wish to be able to deal with it.

Mr Justice Boulton, at that stage, said:

We will consider the matter and announce any

ruling that we wish to make.

What then happened, Your Honours, was this,

that on the next day there was again a reference to it - it is not in the transcript. Mr Douglas again called for the matter and the parties were then

told, "Well, you should discuss it", but nothing

ever came of that matter.

GAUDRON J: Could I just get this clear? This was in the

course of final addresses?

MR GOLDBERG:  Yes, Your Honour.

GAUDRON J: And Mr Weidner was, in fact, addressing in

reply, was he?

MR GOLDBERG:  I am informed, Your Honour, he was speaking to his written submissions that had been filed. So,

at that stage, it was not in - - -

GAUDRON J:  Had Mr Douglas made his submissions, at this

stage?

MR GOLDBERG:  Yes, he had made his primary submissions. But

there was also outstanding, Your Honour, a section

lll(l)(g) application, but I do not need to trouble

you with that for the purpose of this application.

So what it was, was Mr Weidner speaking to his

final submissions. He referred to this agreement

and that was where the matter ended.

The next thing that occurred, Your Honours,

was this, that on 6 January 1993, Hoyts found out,

for the first time, that that agreement to which

Mr Weidner had referred on 5 October had, in fact,

Hoyts(8) 98 12/8/93

been the subject of an application for

certification under section 134E of the Act, some

18 days previously, on 17 September, in proceedings

that came before Commissioner Fogarty. If I can

take Your Honours to that proceeding, Your Honours

will find that at page 488 of the application book.

We have these documents in the application book,

Your Honours, as the result of what was discovered

on and after 6 January of this year.

Your Honours will see at line 11, it is an

application made under section 134 of the Act, at

the foot of - - -

MASON CJ:	Who is Mr Dalgleish appearing for?
MR GOLDBERG:	He appears for Greater Union, Your Honour.

Your Honour, it was an agreement between Greater
Union and the TMA. They were the only parties who
were present that day before Commissioner Fogarty.

If Your Honours then turn over the page to 489,

Your Honours will see at line 16 what is identified

as being put up to the Commission is a document

with a letter of understanding in respect of each

individual manager. It is a comprehensive document
embodying all the terms and conditions of
employment which will apply to theatre managers

employed by Greater Union.

Now, Your Honours, apparently the structure of

what was proposed and, in fact, what was certified

by Commissioner Fogarty was an agreement which had,

as it were - I am not quite sure what the right
expression is, they are called letters of
understanding, side letters, perhaps - which

incorporated, apparently, within them the actual

salaries to be paid to individual theatre managers,

and that is a matter of some significance having

regard to what had been happening in the Commission

in the Hoyts' matters.

If Your Honours turn to page 491, Your Honours

will see at the first two lines:

the letter of understanding refers to an

annual salary -

If Your Honours look at the foot page 492,

Your Honours will see that Mr Dalgleish said:

that these negotiations have been purely and

simply between the Greater Union Organisation

and Theatre Managers Association. They relate

purely and simply to the way that the company

employs theatre managers and engages theatre

managers in their duties and it is our

Hoyts(8) 99 12/8/93

submission that it can in no way impinge on

any other party -

but then they wanted to put their individual

letters in a sealed envelope.

What then happened was, after Mr Dalgleish

opened the matter that way to Commissioner Fogarty,

Mr Woods, and Mr Woods appeared for the TMA,

endorsed what Mr Dalgleish had said, and then, if

Your Honours turn to page 495, Your Honours will

see there was a short adjournment and then the

Commissioner, Commissioner Fogarty, came back and he indicated that he was:

satisfied that the requirements of division 3A

of the Industrial Relations Act have been

met -

and that he would certify the document.

GAUDRON J: What are the requirements of division 3A?

MR GOLDBERG:  He has to be satisfied, Your Honour, that -

the matter which is of particular interest is that

he has to be satisfied that the agreement does not,

in relation to the terms and conditions of

employment, disadvantage the employees who are

covered by the agreement. Your Honour, that is

section 134E(l)(a) and then there are five further

provisions. He had to be satisfied that the

agreement included procedures for preventing and

settling further disputes and other sorts of
matters that I do not want to trouble the Court

with.

So he certified the agreement that way and

there the matter rested. As I say, on 6 January of

this year - and that agreement was never produced

and it was never indicated to any of the parties by

the Full Bench, in particular by

Commissioner Fogarty, that he had been involved in

a certification of that agreement and that he had

had to have consideration of and recourse to the

terms of it.

Your Honours will see it is deposed to on

page 454 of the application book in paragraph 45 of

Mr Caldwell's affidavit, that:

the applicants -

that is Hoyts -

through their legal advisers, became aware for
the first time that the enterprise agreement

had in fact been certified -

Hoyts(8) 100 12/8/93

I do not need to take Your Honours for the moment

to the terms of that agreement. But what then

happened - and Your Honours will see this from the

chronology which I have handed up to the Court - on

8 January Hoyts' solicitor wrote to

Commissioner Fogarty requesting that he stand down

and not participate further in the consideration
and determination of the matters involving Hoyts.

A few days later on 11 January, a request was made to the Full Bench to convene for the purpose

of making the application to Commissioner Fogarty,

and in fact, Your Honours, the Full Bench sat on

25 January. On that day a submission was made to

Commissioner Fogarty, albeit in a context of

appearances before the Full Bench, that he stand

down from the proceedings on the grounds that a

party or the public, in the words of the

authorities, might entertain a reasonable

apprehension that he might not bring an impartial

and unprejudiced mind to the resolution of the

issues before him. That argument, Your Honours,

went most of the day - it was adjourned at

4 o'clock - and he reserved his decision on the

matter.

The next thing that happened was this, that on

30 March the parties were notified by the

Commission registry that the decisions in the Hoyts

matters would be handed down in Sydney at 4 pm the

following day, 1 April. What then happened was

this - and it is of some significance, having

regard to some of the matters that have been raised

subsequently - on 1 April in Sydney,

Commissioner Fogarty refused Hoyts' application

that he stand down, and immediately the Full Bench

published its decision to make an award.

Your Honours will see that it starts at page 577.

The Full Bench convened at 3.58 pm.	Your Honours
will see at the top of page 578,
Commissioner Fogarty said at line 2:

An application was made to me to stand down

from the bench in these matters. I refused that application and published my decision.

Senior Deputy President Boulton then incorporated a statement into the transcript about a request that

had been made by Hoyts in relation to other

proceedings that have occupied the Court earlier

that I will not trouble the Court with. That

statement was apparently incorporated in the

record. At the foot of page 581, Your Honours, at

line 40, the Senior Deputy President announced:

In relation to the arbitral matters we now publish our decision. In relation to -

Hoyts(8) 101 12/8/93

the outstanding matters -

these will be listed for 6 May 1993 for

programming.

What happened simultaneously, Your Honours, was in

Melbourne at 4 o'clock the Hoyts solicitor was

given a copy of the Full Bench decision to make the

award. He asked if there was a decision of

Commissioner Fogarty and he was told it would be

available shortly, and he got it at about 10 to 5.

As a result of that, Your Honours, Hoyts took

the view, and I will come to the details shortly,

that there was disclosed circumstances which ought

to result in Hoyts submission on

Commissioner Fogarty standing down. They took the

view that there was an apprehension of bias, that

he not bring an impartial and unprejudiced mind to

the resolution of the issues. Application was made

for an order nisi to His Honour Justice Toohey on

28 April. He dismissed the application on

30 April, published his reasons on 7 May.

There is only one other factor, Your Honours,

to which I wish to draw attention which is this,

because it has been raised in the material by the

Theatre Managers Association - I have not put that

quite correctly. It has been raised in other

proceedings. Hoyts did not seek, as it were, to

make submissions or did not take advantage of the

opportunity to make submissions in relation to this

agreement. The passage to which I wish to draw

particular attention is at page 93, Your Honours,

of the application book, the very small one, the

one from which my learned friend, Mr Murdoch, made

his submissions this morning. If Your Honours

could turn to page 93 of the application book - and

this was in the course of further proceedings on

19 May in relation to the other applications to

which reference has been made this morning. If	Your Honours note on page 93 of the application
book at line 24 - this is in the course of the
application under section lll(l)(g):

Hoyts have indicated that it is sought to

produce in evidence the certified agreement
between the TMA and Greater Union and to call

evidence and make submissions in relation

thereto. In this regard we note that the

parties and interveners were given adequate

opportunity in the course of the proceedings

and in the period before the decision was

handed down to present evidence and

submissions to the Commission. We note that

the TMA did not rely on the agreement and that

Hoyts did not seek to make submissions about

Hoyts(8) 102 12/8/93

the agreement following the handing down of

Commissioner Fogarty's decision and before the

handing down of the Full Bench's decision.

And that, Your Honours, as I have shown you in a transcript, was a space or a time period of two

minutes.

Now, Your Honours, the issues in relation to

the certified agreement arise this way - and if I

could hand to Your Honours a short summary of some

principal provisions in the certified agreement,

and let me say this to Your Honours: in the course

of the arbitral proceedings, Your Honours, the

Theatre Managers Association had propounded an award, Hoyts had propounded an award and the Commission ultimately handed down its own particular award. But what was one of the issues

in the arbitral proceedings was whether or not it

was appropriate for Hoyts to have individual

agreements with managers or whether there should be

an award that prescribed conditions. The Theatre

Managers Association was pressing very heavily for

an award that bound the managers and bound Hoyts to

pay them particular awards.

When we look at the certified agreement,

Your Honours, we find an agreement that in three

significant respects - and there are other minor

respects I will not trouble the Court with at this

time - there was a dramatic difference between what

was in the certified agreement and what had been in

the TMA, the proposed awards. And Your Honours

will see that we have listed rates of pay, penalty

rates and overtime. Perhaps, Your Honours, the

most significant part from Hoyts point of view was

that in the certified agreement - and I have taken

Your Honours to that already - the agreement

provided for there to be an individual letter of

understanding and, indeed, in those proceedings

what the parties did was to enclose them in sealed

envelopes.

Your Honours will see that in the TMA proposed

award, rates were specified. In relation to

penalty rates, for example, Your Honours, there

were no penalties for work on Sundays and public

holidays, except for Christmas Day, whereas in the
clause 17 of the proposed TMA award there were
substantial penalties for Sundays and public

holidays and, again, overtime you will see there

was no provision for overtime in a certified

agreement but there was provision for double time

in the TMA proposed award. Your Honours will also

see from that tabular comparison that the certified

agreement related more, if you like, to what Hoyts

was proposing than to what the TMA had proposed.

Hoyts(8) 103 12/8/93

Now, Your Honours, the case was put before

Commissioner Fogarty, in a sense, on two bases.

One is, here is a situation where an agreement was

referred to; a number of its provisions that
related to terms and conditions of employment were

referred to; counsel for Hoyts called for it; the

Union representative said he did not have it, and

then the matter went off the boil.

Commissioner Fogarty knew about that certified agreement; indeed, he had certified it himself some

17 days earlier. We submitted, and continue to

submit, that that fact of itself creates what we

submit is the relevant apprehension of bias within

the established authorities. We go further,

Your Honours: when you in fact look at the

certified agreement -

BRENNAN J: What gives rise to the apprehension of bias?

MR GOLDBERG:  What does, Your Honour?

BRENNAN J: Yes.

MR GOLDBERG:  The fact, Your Honour, that there is a

document which on its face is very relevant to the

proceedings. A member of the Bench has

participated in the authentication of it, but he

does not say so. He sat silent, Your Honour, at

that stage on 5 October, and when Mr Douglas said,

"This is obviously relevant, it relates to the

issues, I am calling for it, because I want to have

a look at it", and when a Union representative did

not have it, Commissioner Fogarty stayed silent.

Now, Your Honour, what is relevant is this: all

that the Union representative said on that occasion

was, "We have concluded an agreement".	He did not
say it had been certified.

Your Honour will appreciate that if he had

said on 5 October it had been certified, then Hoyts

could have gone to the registry and sought to

search for that document. But on 5 October, and it

is a significant distinction, he only said, "We

have entered into this agreement". Commissioner

Fogarty never said, "I should inform the parties

that I certified that agreement on 17 September",

and as you see, Your Honour, from the section 134E

of the statute, for the purpose of certification,

he has to be satisfied that the terms and

conditions are not detrimental to the employees.

BRENNAN J: That seems to me to lead to two observations.

One is that if you compare the certified agreement

with the three columns that you have got there, it

was closest to the Hoyts proposed award. So if you

were satisfied about the adequacy of the certified

agreement, if there was bias to be apprehended, it

Hoyts(8) 104 12/8/93

was that he would be more likely to be satisfied

about the Hoyts proposed award.

MR GOLDBERG:	Yes, Your Honour.
BRENNAN J:	Now, the second thing is that, am I wrong in

taking you to have said that when the matter was

presented for certification the parties said that

this would have no effect on any other claim?

MR GOLDBERG:  That was the observation that was made,

Your Honour. That is at the top of page 493. Is that the passage to which Your Honour was

referring?

BRENNAN J: 

I remember as you went through, you made some

comment about that but I did not have the page
reference.

MR GOLDBERG: 

It is said at the foot of page 492:

They relate purely and simply to the way that the company employs theatre managers and

engages theatre managers in their duties and

it is our submission -

said Mr Dalgleish:

that it can in no way impinge on any other

party -

The reason he said that, Your Honour, I expect, was

because he was looking at it within the context of

section 143A of the Act which refers back to

section 143(4) that requires decisions of the

Commission to be published. 143A of the statute

says that obligation to publish does not apply to

an award constituted by certified agreement that

applies only to a single business.

So the point he was making, he was saying,

"This is an agreement between the Union, the

association, and Greater Union, one business".

Presumably that was the context in which he put it.

BRENNAN J:  Why is there an apprehension of bias?

MR GOLDBERG:  The apprehension of bias goes this way, Your Honour, for two reasons. One is the fact of

the concealment, but secondly, and in a sense more
importantly, it is the fact that this agreement and

the terms of it were quite inconsistent with the

submissions which the TMA had been making. And, it

went to a number of the issues that they had

raised, and it went in particular to their bona

fides in relation to the submissions they were

making.

Hoyts(8) 105 12/8/93

When you look at the table, Your Honour, and you look at what the TMA was saying to this

Full Bench, and you look at what the TMA was then prepared to put in the certified agreement before

Commissioner Fogarty, you find quite significant

differences. As Your Honour points out, with

respect rightly, they favoured Hoyts, and they

disadvantaged, or could be used against, TMA as is
deposed to in the material.

If we had known about that agreement at the time, the opportunity would have been taken to have

brought the agreement before the Commission and

sought to raise issues with TMA witnesses, put matters to them, seek leave to recall them for cross-examination, and put to them these issues,

and I ask the question rhetorically, "Why is it

that with Greater Union you are prepared to have individual letters of agreement, but with Hoyts,

you want an award that covers managers? Why is it

you are prepared not to have overtime with

Greater Union, but you want overtime with Hoyts,

penalty rates and so on?"

DAWSON J:  Was this agreements one that was required to be

published?

MR GOLDBERG:	Under 143A, probably not, Your Honour.
DAWSON J:	Why would the Commissioner reveal them?
MR GOLDBERG:	Because they touched and concerned the very issues before him. They touched and concerned the
attitude of the TMA towards penalty rates, overtime
rates, awards applying to managers, individual
contracts with managers. Hoyts, Your Honour, had
been looking for individual contracts and the TMA were saying no, yet in this particular case what
the TMA had put before Commissioner Fogarty were
the letters of understanding. It was put, also,
that when we made the submission to Justice Toohey,
wanted to do was to raise the agreement and to and earlier in the proceedings when the matter was raised before Commissioner Fogarty, that what Hoyts
bring the certified agreement before the Full Bench
and to make it subject to analysis, criticism and
comment.

The difficulty was on 25 January we made the

submissions; Commissioner Fogarty reserved; on

1 April Commissioner Fogarty refused to disqualify
himself and virtually instantaneously within the

next minute or so the decision to make the award

was handed down and Hoyts was never given the

opportunity, between 25 January and the date of the
decision to make the award, to bring this issue on
before the Full Bench, Commissioner Fogarty having

reserved - - -

Hoyts(B) 106 12/8/93

GAUDRON J: Could I ask, what notice were you given of the

proceedings on 1 April?

MR GOLDBERG:  We were given a fax message, Your Honour, it

is exhibit 23. If I can hand that up,

Your Honours, because it was one of the exhibits

that was referred to in the appeal book, but

not -

GAUDRON J:  So you did not put in any submissions about this

in the event that Mr Commissioner Fogarty might not

accede to your request.

MR GOLDBERG:  No, Your Honour. What happened was, on

25 January he reserved. Of course, at that stage,

we had to wait until Commissioner Fogarty handed

down his decision, "Yes I do agree to disqualify

myself", "No, I do not". This was a facsimilie

message that we got from the registry the day

before and it refers, Your Honours, you will see in

the notice of listing, to all the Hoyts matters

which are going to be handed down the next day. I

might say, Your Honours, as I read the numbers, and

as I read the second sheet, there is nothing in

there that specifically refers to the application

by Commissioner Fogarty to disqualify himself.	So
we had no notice of it.

GAUDRON J: But you knew that there were going to be

decisions on all matters?

MR GOLDBERG: With respect, Your Honour, that is so. We

know what was in the listing. Now, it had been

arranged that there would be a simultaneous, if you

like, publication or decision handing down in

Sydney and Melbourne. I have taken Your Honours to

the transcript in Sydney already, page 358.

Commissioner Fogarty says, "I refuse the

application", and then immediately then the

decision is handed down.	So we were denied any
with him at all.
further opportunity there to take the matter up

Now, Your Honours, we submit that the core

issue in this is that a party or the public might

entertain a reasonable apprehension that

Commissioner Fogarty might not bring an impartial

and unprejudiced mind to the resolution of the

issues before him.

GAUDRON J:	Does that assume that a party or a member of the public would have the knowledge about the
agreements that you have put in this document that
you have handed to us?
MR GOLDBERG:	I submit I do not need to go that far,

Your Honour. I only need -

Hoyts(8) 107 12/8/93

GAUDRON J: Well, it is just this: if they simply know

there is a certified agreement - we are talking

about a member of the public - but they do not know

how it bears on the matters.

MR GOLDBERG:  I wish to take that one stage further, because

you have to start off, in my submission, with what

happened on 17 September. On 17 September the

public would know that an agreement had been

certified, it related to terms and conditions, and

they would have to know also what were the terms

and conditions that Commissioner Fogarty had to be

satisfied about that they were not detrimental to

the workers. So, to that extent, Your Honour, they

would have to know the relevant provisions in the

agreement.

They would also have to know that on

5 October, as indicated at pages 461 and 462, that

Mr Weidner, the advocate for the TMA, had laid out

before the Commission, terms and conditions which

were contained in this employment agreement. They

would also know that him having referred to them,

Mr Douglas then having called for it, they would

then wonder, in my submission, "Well, that is

curious because Commissioner Fogarty knows about

it. The terms and conditions have been addressed

to the Commission. All that Mr Douglas knows is

about the terms and conditions. There are terms

and conditions in the agreement which bear upon

these issues of rates of pay over time, a letter of

understanding, an award binding managers".

They would then believe, in my submission,

that Commissioner Fogarty would not be unbiased in

the issue because why would he keep quiet when

Mr Douglas is asking for the agreement and it is

not produced? We submit, Your Honours, that that

is the basis upon which the application is made.

DEANE J: Mr Goldberg, does it appear when your client first

became aware of the contents of the agreement?

MR GOLDBERG: Shortly after 6 January, Your Honour.

DEANE J: While I am interrupting you, on 1 April

Commissioner Fogarty said that the application had been made and he had refused it and had published

his decision.

MR GOLDBERG:	Yes, Your Honour.
DEANE J:	Does that indicate there was some earlier sitting

that you have not referred us to?

Hoyts(8)	108	12/8/93
MR GOLDBERG:	No, Your Honour.	The words at the top of

page 578 is the first Hoyts knew about it after

25 January.

GAUDRON J: It seems as though it might have been

transcribed in the past tense when the Commissioner

was speaking in the present tense.

MR GOLDBERG:  That is quite possible, Your Honour. Our

instructing solicitor was standing in the registry

at 4 o'clock in Melbourne and this was handed down

in Sydney.

DEANE J: What, he did not go to Sydney?

MR GOLDBERG:  No.

DEANE J: That seems to be the first time anybody took

account of expense in these proceedings.

MR GOLDBERG:  Because of the modern communication,

Your Honour. He was told, on my instructions, that

the documents - - -

DEANE J:  You need not trouble with the comment. I should

not have made it, Mr Goldberg.

MR GOLDBERG:	I appreciate that. With respect, Your Honour, he would have had to have been Superman to have
done something within the two minutes, too.
DEANE J:	What about "published my decision"; where is the

decision?

MR GOLDBERG:  The decision, Your Honour, is at page 565.

Just before I take Your Honour to 565, might I draw

Your Honours' attention to page 456 to put in context for Your Honour Justice Deane exactly what

happened. It starts at paragraph 53 and goes over

to the first two lines of paragraph 56 where

Mr Caldwell indicates that the decisions were to be

simultaneously available at the principal registry
in Melbourne.	He attended at 4 o'clock, obtained a

copy of the decision of the Full Bench in relation

to the making of the award.	In paragraph 55, he
asked:

whether there was also a decision of

Commissioner Fogarty in relation to the

application that he disqualify himself ..... I

was told that it was being sent by facsimile

from Sydney and would be available in

approximately ten minutes.

He in fact got it approximately 45 minutes later.

So what appears to have happened, Your Honour, was

that the decision to hand down the award had been

Hoyts(8) 109 12/8/93

transmitted to Melbourne earlier but

Commissioner Fogarty's decision had not.

I distracted Your Honours, and if Your Honours

go to page 565, although it is a matter for the

Court to determine the issue of bias, the courts

have said in the past they pay some attention to

what the relevant tribunal has said. I only need

to take Your Honours to page 573 at line 19 where, having referred to some earlier decisions, and in

particular, the reasons of Your Honour the

Chief Justice in the case of Re JRL; Ex parte CJL,

Commissioner Fogarty said:

When all is said and done, I believe the

Hoyts application to me fails the test set out

by Mr Justice Mason. It is devoted not to

public perception but to alleged adversity

suffered by Hoyts.

Then he says three lines further down:

The TMA made it very clear it did not seek to

rely in the Hoyts case on the agreement with

Greater Union I had certified. Hoyts did not

raise that agreement from 6 October 1992 until

January 1993.

The reason for that latter comment, Your Honours,

is self-evident from the material. They did not

know and had never been told it was certified. In

relation to the observation that the TMA had said

they did not seek to rely on it, there are two

observations in relation to that. One is, in fact,

the TMA representative referred to the detail of it

in the passage to which I have referred; and

secondly, whether or not the TMA wanted to rely on

it is not to the point. Hoyts wanted the

opportunity, having seen it, to come before the

Full Bench and draw attention to all these matters

which went to the detail, the particularity and the

bona fides of the TMA case seeking an award in

front of the Full Bench quite different from the

agreement it had had certified in front of

Commissioner Fogarty.

DAWSON J: When you look at page 571, what the Commissioner

says is, "Well, the matter is a matter between the

parties", and that is how it was left. What was he

supposed to do? You requested that the agreement

be produced. The other side did not produce it.

MR GOLDBERG:	But he was in a position, Your Honour, where he knew about it; he knew the detail of it.
DAWSON J:	So what? It was not a public agreement.

Hoyts(8) 110 12/8/93

MR GOLDBERG:  But with respect, Your Honour, that is not the

point. The reasonable apprehension of bias is - -

DAWSON J: But what is it supposed to say, "Well I know all

about that agreement", then it would have been

alright?

MR GOLDBERG:	No, with respect, he should have said, "I should tell the parties I certified that agreement
on 17 September". Then Mr Douglas could have said,
"I wish the opportunity to look at that agreement
and I call for it".

DAWSON J: But he said that anyway.

MR GOLDBERG:  Yes, but he was not told it was certified,

Your Honour. No one had any idea that any member

of the bench had been in any way involved with this

agreement until 6 January of this year.

DAWSON J:	No .
MR GOLDBERG:	And when they found out about it they took the

view, in our respectful submission correctly, that

there was a reasonable apprehension advice -

DAWSON J: Are you saying that failure to reveal that he

certified the agreement indicated that he was doing

something in favour of your opponent and against

you?

MR GOLDBERG: No, Your Honour.	It does not have to - - -
DAWSON J:	Or the public would have perceived he was doing

that by not mentioning it?

MR GOLDBERG:  The public would have perceived that he was

not going to - because of the fact that it was an

agreement in respect of which he did not disclose

his participation and it was an agreement that had

relevant subject-matter in it in relation to what

TMA had submitted to the Full Bench, by not

disclosing that he had been involved in relation to

that sort of agreement, there would be a feeling

that he would not be impartial or unprejudiced,

because it was matters that were relevant to what

was being put before the Full Bench, but he did not

disclose it. He knew about it; Mr Weidner knew

about it; Mr Douglas did not know about it, and

that was the difficulty.

DEANE J: Is not your answer this, that the position would

have been not as bad if he had said, "By certifying an agreement, I have expressed or indicated certain views in relation to this matter. Mr Weidner knows what those views are, because the agreement was

Hoyts(8) 111 12/8/93

something to which his client was a party, but I am

not going to tell you what they are. You can go on
without the advantage of knowing what the views I

indicated by certification are". If he had said

that, it would have been a better position, from

your clients point of view, because you would have

at least known that he had indicated views by

certifying and that Mr Weidner knew and that you

did not know what they were.

MR GOLDBERG:	Your Honour, if it had been done that way the reasonable apprehension of bias would have been
completely out in the open and exposed and overt,
in my submission.

DEANE J: Well, I am not suggesting it is right; I am just

suggesting that might be the way in which the

argument that could be approached from your point

of view.

MR GOLDBERG: Well, I understand that, Your Honour, but, in

effect, my argument gets to the same position,
albeit with me expressing it differently, because

the party or the member of the public looking on

would have known about the very process to which

Your Honour refers, would be taken, in my

submission, in the context of this principle to

know about section 134E, whI it came before

Commissioner Fogarty, would have known about him

forming that conclusion against something not known

to Mr Douglas. I am reminded by my learned junior,

Your Honours - - -

DEANE J: But, following it on, afterwards the agreement

comes out, the fact that Commissioner Fogarty had

certified it comes out and it emerges that, if

anything, the views favour your client. Well,

where does it go from there?

MR GOLDBERG:  We then go - because the views favour our

client, we can then seek to recall witnesses and

cross-examine them about these significant

differences between a certified agreement and the

award propounded by TMA and then make, we would

submit, forceful submissions to the Commission.

"Greater Union and Hoyts are in the same industry.

This is the agreement that TMA have propounded with

Greater Union by consent. It deals with letters of

understanding.	They do not want our managers to
have - - -"

DEANE J: Well, I follow that, but I am now at a loss about

where you will complain about

Commissioner Fogarty's bias has gone? Or, are we

concerned with more than that?

Hoyts(8) 112 12/8/93

MR GOLDBERG:  No, Your Honour, the reasonable apprehension

of bias always stays. No matter what comes out

thereafter, in my submission, the reasonable

apprehension of bias stays. The damage is done, in

my submission, at the close of play on 5 October.

The fact that it comes out later, Your Honour, does

not destroy that apprehension. I have only

indicated to Your Honours the sequence of events

thereafter, to show the context and to show where

we went and also to show that the situation was

exacerbated when the comment was made on, I think,

19 May later, "Well, you should have done something

between the time Commissioner Fogarty said he was

not going to disqualify himself and when we handed

down our decision." That, obviously, was not on.

But, the reasonable apprehension of bias must

exist at the end of 5 October when all the facts
then would be known in relation to what happened on

17 September with the certification; with the

exercise Commissioner Fogarty would have had to

have done acquainting himself with the details of

the agreement and, in the words of the section,

"satisfying himself that the agreement in relation

to terms and conditions does not disadvantage the

employees", and that is not insignificant,

Your Honour, because he would have had to have

turned to things like rates of pay, overtime

penalty, letter of understanding, rather than an

award across the board, and then those matters have

been raised on 5 October, some of them being raised
by Mr Weidner, albeit incorrectly when you look at the transcript, Commissioner Fogarty knowing about it, and Mr Douglas not being able to do anything

about it because he does not know. So the person looking on would say, "Commissioner Fogarty knows,

Weidner knows, Douglas does not know and is not

being told and cannot find out about that

agreement."

DEANE J:  Mr Goldberg, can I ask you one additional question

before you go back to your course. Looking at this

document you have handed up with the various terms

set out, on the face of it they would indicate that

the one aspect of the award as contrasted with the

certified agreement is that it puts Hoyts at a

competitive disadvantage with Greater Union. Is
that a fair inference? In other words, do the more
harsh terms of the award from the employers' point
of view apply to the same level of people as the

interim agreement applied to?

MR GOLDBERG:  Your Honour, it is very difficult to say that.

All I can say is that what the TMA proposed and

what the award was that was made gives Hoyts much

less flexibility than the certified agreement does,

because the certified agreement in its terms allows

Hoyts(8) 113 12/8/93

Greater Union to contract individually with their

managers in relation to a range of matters.

DEANE J:  Can I put it to you in a more simple form. Take

the last one. Would it have been open to you to

have said to the Commission, if you had known that

Commissioner Fogarty had certified the interim

agreement, "Look, you simply cannot do this because

you have certified an agreement that contains no
provision for overtime for our competitor, and here

you are in relation to the same level of

employment, been asked to order us to pay time and

a half and then double overtime". Or does this

document, as it were, really, not compare like with

like?

MR GOLDBERG:  I cannot compare like with like until I open

the sealed envelopes, because I do not know what is

in the letters of understanding that were sealed.

It may be, for example - and this is speculation on

my part, Your Honour - that a person might have
been given - and I pluck a figure out of the air,

because I have got no idea of parity here - he

might have been given $40,000 a year, no overtime,

no penalty rates, but had to work whenever he was

called on, which may or may not advantage him or

disadvantage him, vis-a-vis, the person at Hoyts

doing the same job but on a salary, for example, of

$32,000, plus penalty, plus overtime.

DEANE J:	You have answered my question, thank you.
MR GOLDBERG:	Your Honours, the only other point I wish to

raise in relation to the - - -

GAUDRON J:  Do we know whether Commissioner Fogarty ever saw

the contents of the envelopes, or did they just go

up to him sealed?

MR GOLDBERG:	When he saw them - - -
DEANE J: What does "sealed" mean, that somebody licked the

flap?

MR GOLDBERG: Licked, I assume, Your Honour, or suitably

sealed. At the foot of page 489, line 35,

Mr Dalgleish said this:

Mr Commissioner, what we have here this

morning is individual letters of understanding

in individual envelopes contained within a
larger envelope. At the moment, while these

proceedings are before the commission, they

have not yet been sealed in case the

commission wants to have a look at any of the

contents. But that is the situation with

those individual letters and in order to put

Hoyts(8) 114 12/8/93

before the commission the form of the letter

of understanding.

So one is entitled to assume that

Commissioner Fogarty - he certainly had access to

the contents. He would have been bound, I would

have thought, with respect, to have looked at the

contents, otherwise he could not have satisfied

himself under section 134E(l)(a).

DAWSON J:  I am probably quite wrongly troubled,

Mr Goldberg, but the object of sealing these letters or whatever they were was to keep them

secret, was it not?

MR GOLDBERG:	From whom though, Your Honour?
DAWSON J:	I do not know, but that was obviously - from

everyone.

MR GOLDBERG:  I am sorry, I should not have put that to

Your Honour that way.

DAWSON J: They were not agreements which had to be

published; that much we know.

MR GOLDBERG: Except for this, Your Honour: the agreement

that related to the letters of understanding under

section 143 - - -

DAWSON J: If 143A applies, they were not agreements that

had to be published.

MR GOLDBERG:	No, they did not have to be published but the decision had to be given, Your Honour, to the
registry under 143(4).

DAWSON J: Yes.

MR GOLDBERG:  So the decision had to go to the registry but

the - - -

DAWSON J: That is right, but I am thinking of

Commissioner Fogarty. Is it impossible that he

thought, "Well look, these agreements are not

public documents. It's up to the parties whether

they reveal them. I'm not going to jump in and do

something which is obviously not their intention,

and that is make them public"?

MR GOLDBERG: But, Your Honour, that does not diminish the

reasonable apprehension of bias.

DAWSON J:  It does in my mind. He may .have been wrong in

having that belief, but it is a belief which one

can understand him having and he does say - he

said, "This was a matter between the parties."

Hoyts(B) 115 12/8/93

MR GOLDBERG:  But the difficulty about that, Your Honour,

was this, that when you look at, if I can

take - - -

DAWSON J: Well, can I take it a little bit further. Do you

think - did you say he had a duty to tell you what
the parties to the agreement obviously intended not

to be revealed?

MR GOLDBERG:  No, he had a duty, as a minimum, on 5 October,

when Mr Weidner said, at pages 461 and 462 of the

transcript, "Look, here is this new agreement" - if

Your Honour turns to page 462, three lines from the

top of the page, he says:

The new agreement -

Now, this is the certified agreement. He says:

The new agreement contains a 38 hour week,

spread over a five day week, and it is made

for two years, and as I say, does contain

salaries which relate to the size of the

auditoria and not similar to the previous

agreement. It does also relate to a total-

lump sum of $200 payment for late shows and

some overtime provisions, and severance pay

provisions -

What is curious, the fact is it does not. Now

maybe this is something to do with the letters of

understanding in the sealed envelopes - I do not

know. But the moment Mr Weidner said to this Full

Bench, "Look, there is this new agreement we have

concluded" - and I emphasize "concluded",

Your Honour, not "certified" because he never

disclosed it was certified - he said, "This is the

agreement we have concluded and it contains all

these matters", and then Mr Douglas called for it.

Our submission is that, at that stage,

Commissioner Fogarty had a duty to inform the

parties, in particular Hoyts, because everyone else

knew about it, that the agreements referred to by

Mr Weidner had been certified by him. That would have brought it out in the open, Your Honour, and that would have allayed any reasonable apprehension

of bias, because at the first time it is referred

to before the Full Bench, and he had said, "I

certified that agreement", then, Your Honour, it

would have been open then to Hoyts to have taken

such steps as they wished. Having known it was

certified, Mr Douglas could have called for it.

DAWSON J:  He did anyway.

Hoyts(8) 116 12/8/93

MR GOLDBERG:  Yes, but he was not told it had been

certified.

DAWSON J: But that is what puzzles me. I mean, the fact

that it is certified makes no difference, it is the

contents that are important to you, and

Mr Commissioner Fogarty may have felt himself not

in a position to reveal the contents.

MR GOLDBERG:  But if so, Your Honour, then we have the

dilemma, "How about natural justice, how about the

reasonable apprehension of bias". What Your Honour

is, in effect, putting to me is that in a situation

where Commissioner Fogarty knows something which is

being communicated to him, if you like, in

confidence, but is relevant to the issues before

this Full Bench and may affect or prejudice the

other party, he cannot disclose it.

I would submit, with respect, Your Honour, the

authorities do not support that proposition. The

authorities support the proposition that where a

tribunal comes into the possession of facts which

are relevant to the issues before it, it must

disclose those facts - - -

DAWSON J:  It would be very difficult in the Industrial

Relations Commission where you have a man concerned with a whole industry -

MR GOLDBERG:  Your Honour, and I have made this clear in the

outline of submissions, that what we say here is,

we are not dealing here with an issue where a

person is using, if you like, their industry

expertise, and we make this point clear on page 4

of our submission, paragraph 6. We submit that

what was involved was more than just Commissioner

Fogarty having an expert familiarity with industry subject-matter because, as we acknowledge there,

such knowledge is insufficient to invoke the

apprehension of bias principle. I am not putting

it on that basis. I am putting it on a basis of a

specific document with specific terms in it that he

has looked at, that the industry, the Union

advocate, refers to the Full Bench, the particular

terms. Mr Douglas was only compelled to call for

it when Mr Weidner was explaining to the Full Bench

the provisions it contained in relation to spread

of hours, hours, rates et cetera.

Your Honours, the only other provision of

the - and it deals with what Your Honour

Justice Dawson was putting to me - section 143B

provides that:

A Registrar who receives a copy of a

decision ..... shall promptly ..... ensure that

Hoyts(8) 117 12/8/93

copies of the decision ..... are available for

inspection at each registry.

Now inspection, Your Honours, is different from

publication, and it is (4) that deals with the

obligation to publish and it is section 143A - - -

DAWSON J:	So it is available for inspection?
MR GOLDBERG:	Yes, and I meant to refer to that earlier, so

it is available - - -

DAWSON J: If the crucial part is sealed up, the inspection

does not tell you much.

MR GOLDBERG: Well, that is right. But at least,

Your Honour, you are on notice. And if you know

that a member of the Bench knows what is in the
sealed envelope, you then have the opportunity to

take steps to try and obtain it. It is, with

respect, Your Honour, virtually inconceivable that

if there was something in that sealed envelope that

was relevant, and we submit there was here, and

that Commissioner Fogarty knew about it, it was

relevant to the issues for the Full Bench. Hoyts

should not have the opportunity of knowing what was

in it if, after all, Commissioner Fogarty did and

the Union did.

Your Honours, we refer on pages 4 and 5 of our

outline of argument to the cases which bear on this

issue and the principles. Unless there is anything

to which the Court wishes to draw my attention,

those cases are well known to the Court, the

principle is well established. It is simply a

matter of applying the facts to the principle. We

submit, as we do in paragraph 2 of our outline of
argument, why there should be leave granted

because, after all, we need to seek leave because

this was in form an interlocutory order, and we

identify on page 2 where we submit that

Justice Toohey fell into error.

Unless there is anything further to which the

Court wishes to draw our attention, those are our submissions.

MASON CJ: Thank you, Mr Goldberg. Yes, Mr Nolan. We do

not need to trouble you in relation to Mr Merkel's

application.

MR NOLAN:  Thank you, Your Honour. I have prepared outlines

of argument, but they roll up Mr Merkel's and

Mr Murdoch's submissions.

MASON CJ:  We can disregard that.

Hoyts(8)	118	12/8/93
MR NOLAN:	I will hand those up if I may.	I have separate

outlines of argument in relation to the bias point.

MASON CJ: Yes, you can hand that up at the same time.

MR NOLAN:  Can I perhaps set the scene in relation to this

complaint about the junior rates of pay by

referring first of all back to the Commission's

1 April decision, and in particular to the passage that commences at the bottom of page 371 where the Commission deals specifically with this topic of

junior rates of pay. I contend that this is

important because the complaint put by Mr Murdoch

on behalf of some of the employees who have

apparently qrawn certain conclusions about the

award's operation is to the effect that they could

have had no notice of this particular award

provision because it was not in terms canvassed by the respective parties in the arbitral proceedings before the Commission.

Now, the contest in relation to junior rates

is dealt with at the bottom of page 371, and it can

be seen there that there were contending proposals

and the Commission says this:

The award proposed by Hoyts ..... contains

junior rates for cleaners and cinema workers

as follows -

and over at page 372, the Hoyts' proposal is set

out. So there is a sliding scale, starting at age

17, and the Commission says this -

It was submitted by Hoyts that the public

interest supports the employment of juniors on community acceptable standards such as set out

in its proposed award -

and then the Commission goes on to consider the Hoyts' submissions, including other awards to which	the Union was a party that contained junior rates -	the existence of junior rates in cinema awards
of the Queensland Commission -
and -
the employment of workers on junior rates by
Village and Greater Union in the concession area -

which was an area not at that stage covered by the

Village and Greater Union award with the Union.

So, that was the position, and there was also

expert evidence about that - - -

Hoyts(8) 119 12/8/93

GAUDRON J: But can I ask you this? The hybrid award, if I

can call it that, is not a standard feature of

industrial regulation, is it, or it used not to be?

MR NOLAN: Well, I suppose it is getting harder and harder

to say what is a standard provision; it is

certainly not this - - -

GAUDRON J: Let me tell you why I asked. If I had been

aware of these proceedings, it would not have been

readily apparent to me, as somebody interested in

the proceedings, that a hybrid decision would come

about.

MR NOLAN:  I am not so certain about that, because after

all, for a start, the Commission was arbitrating

between the two propositions.

GAUDRON J: Yes, it is not a question of what decision could

be made within the ambit of the award; it is a

question whether there was a reasonable opportunity

to deal with that particular aspect. Now, the

parties may well have considered it was something

that they should consider or not consider as the

case may be, but the question of these employees,

who then see it and come along, it is a quite

different thing to say, "Well, they might have been

aware of the proceedings", and to say, "Well, they

should have anticipated a hybrid award" - - -

MR NOLAN:  Indeed, but one needs to look at the parameters

of the contest and it could equally be said, in my
submission, that if the employee saw the Hoyts

proposal as it stood in its bare bones, they could

equally have said, "Well, if the award ends up

having a provision in it that allows Hoyts to

employ persons who are under the age of 17 for
50 per cent of the rate, that has real implications

for all of we 18 year olds because if that is

acceded to we will all become priced out of the

market if there is no restriction placed on the

award to oblige the employer to hire a certain

proportion of juniors and seniors, and there is no

such restriction." So the implications that have

been adverted to are not - - -

GAUDRON J: But the discrimination, it is said, is not only

vis-a-vis 17 year olds and younger, it is vis-a-vis

other 18 year olds - - -

MR NOLAN:	Eighteen year olds with 12 months service.
GAUDRON J:	- - - and perhaps other 19 year olds and other

20 year olds.

MR NOLAN: Well, of course, I think the 20-year-old rate

becomes the adult rate so then there is not the

Hoyts(8) 120 12/8/93

difficulty there, but the position was put that on

the one hand there was a scale that started at

50 per cent and went up to 90 per cent and on that

view would have permitted the employer to employ no

one except the 17-year-old employees at 50 per cent

of the adult rate - if it was inclined to do so.

The other side of the argument was that advanced by

the Union, namely, that the employment concerned

was of a kind that did not require junior rates and

therefore that there ought to be the single rate.

There was also a provision in the Union's

claim that allowed for trainees in the award proposal and that provided for new employees undertaking training to be paid 70 per cent of the

rate for the relevant classification for six

months, and then 90 per cent of the rate for a

further six months. But there was implicit in the

claim - that is at the bottom of page 372 - that

employees who commenced employment would become

trainees, as it were, and then there would be a

12 month period during which they would move up to

the adult rate. So the idea of the 12 month

training and accreditation period was at least

contained in the Union's claim in that way that is described at the bottom of page 372, and the Union

submitted that that was in line with certain other

provisions and government policy and so on.

So, for that reason the Union said, "no" to

junior rates per se, but, "yes" to a trainee
provision that would allow a stepped rate, up to
the adult rate, coming in, in the way indicated,

namely 70 per cent in the first six months, and

90 per cent for the further six months. So, on the

view put this morning, those employees who are

likely to be affected, could have said, "Well, if

we are going to be classified as trainees, we are

going to be in this position where, in a year's

time, we will up to the 100 per cent rate and the

same consequences will flow".

So, it was not as though there was no

indication or nothing at all in the claims that

were contemplated between the parties that provided

for some kind of stepped increase for employees in

these categories. We would say that it is not true

to say that this came like a complete bolt from the

blue, albeit it was a provision that the Commission

obviously thought was a reasonable compromise

between the Hoyts' position, which was to allow an

extended junior rates scale, and the Union

provision, which was to have trainees on the one

hand, and adult rates on the other, because they

were saying it was all about competence, not age.

So, that is the basis within which the

Commission comes to its conclusion about the

Hoyts(8) 121 Mr NOLAN 12/8/93

formula that it struck, but it does so, of course,

discussing what was put on page 372 and discussing
the considerations going from 373 over to the
middle of page 375, and they make a number of
observations. At the middle of page 374 they

commence to reach their conclusions and they talk

about:

the extensive material and evidence presented

to the Commission about the operations of

Hoyts' cinemas and the nature of work

performed ..... material regarding the

utilisation of junior employees in Hoyts'

cinemas in recent years.

They say they:

recognise that there may be other developments

which will affect the prescription of junior

rates in awards and that a special national

case may be pursued in which all relevant

issues relating to youth wages may be

addressed.

And, they say:

we are called upon to determine the present
matters at this stage and on the material
before us. This includes the developments in

the cinema industry and in the operation of

Hoyts' cinemas and the proposal by the MEAA

for trainee wage rates.

And, they say:

In the circumstances, including the absence of

junior rates in the 1983 award, we have

decided to provide junior rates for cleaners

and cinema workers in the new award as

follows:

They set it out, and then they introduce this

controversial provision about those employees who

have attained the age of 18 and who have:

worked with Hoyts on a regular basis for a

minimum period of twelve months, to be paid

the full adult rate for the relevant

classification.

And, they say that they think they are
"appropriate".

That is the background against which, at the eleventh hour when the award is handed down, the

complaint comes forward by a number of employees

which signals or contemplates certain consequences

Hoyts(8) 122 12/8/93

flowing from that decision of the Commission.

There is no evidence, of course, in any of the

material that says in any unequivocal way that

Hoyts has undertaken a radical re-rostering arrangement and a number of identified employees

are going to suffer in a particular way. Indeed,

Hoyts' submissions to the Full Bench following the

request for outlines of arguments make no mention

at all of that particular issue.

So the issue comes before the Commission after

its decision is handed down and results, as you

heard this morning, in the Commission issuing its

statement of 6 May 1993 which invited submissions

of a certain kind. It may be that there is some

confusion as between the Commission determining

precisely what standing the complaining employees

had to make the kind of submission they were
making, but my suggestion is that that is resolved,
if it can be resolved, by reference to the

directions that are made and the previous request

that is quoted in the statement and directions

document dated 6 May at page 48 of the application

book in MSO, because the Commission invites

submissions in this way: they say at page 49,

first of all, that they will treat the individual

employees who signed letters referred to as

applicants.

They have not decided whether they are interveners or parties, and perhaps it could be

said, but nevertheless it is the substance of the

complaint that the Commission is driving at, so

they are not cavilling at the status of the people

concerned to make submissions. So they say first

of all they will treat them as applicants and that

they will require them to submit by the time

stipulated an outline of their submissions, first

of all:

in support of:

(a) the Commission entertaining such an

application following the issue of a final

decision in the arbitral matters on

1 April, 1993 -

because, interpolating there, you will be aware

that the Commission was concerned that it had gone

through this long and exhaustive arbitration

process and now, at the eleventh hour, people were

coming forward saying, "You've got to hear from

us." So that was the first request.

BRENNAN J: That might be right but what is wrong with that?

If the exercise of the Commission's power was going

to affect these people adversely and they come

Hoyts(8) 123 12/8/93

along and they say, "We don't want you to exercise

that power until you've heard from us", following

the issue of the final decision, why should the

Commission say, "Oh well, we can't affect your

interests until we give you a chance to be heard"?

MR NOLAN: Because, first of all, I do not think the

sequence of events shows that the Commission closed

its mind finally to entertaining such an

application at all, but what, I think, it was saying was that, in view of the lengthy award proceedings, and in view of the fact that everyone

knew that all of these issues were in contest and

that no employee had sought to become a party to

the award proceedings to put submissions about any

matter, there had to be weighed in the balance some

consideration of finality in the proceedings,

because of the reasons I have just indicated.

BRENNAN J:  What is the case that says that you can put the

desirability of finality against natural justice?

MR NOLAN:  Of course, there is no case that I am aware of

that says that in that sort of bald way, but what I

said earlier was that the Commission did not

preclude further consideration of the nature of the

complaints, and for that reason - - -

BRENNAN J: That is right, but after they had exercised a

power which affected the interests of these people.

MR NOLAN:	Yes, and they had exercised that power before these people came along and sought to be heard, you
see. The decision came down on 1 April and they
were not approached until a much later date and
asked to revisit that decision. All that remained
to occur was that the terms of the award were to be
settled and the award to take effect from 1 May.
So the Commission had already done its job in
making the decisions on the merits and the
decision had been handed down, but admittedly
arbitration. They were approached after the
before the award came into effect, and asked to
revisit the decision.

My submission is that they - in the

circumstances, what they did was appropriate in all the circumstances because they did not foreclose an opportunity to canvass the issues, rather they

invited, by this means, submissions on the question

and they directed attention to the requests that

had been made, one of which had been reproduced at page 48 where they reproduced a letter from one of

the Hoyts' employees.	The letter said, in the
second paragraph:

Hoyts(8) 124 12/8/93

I ask the Commission not to make the award and

would like to have a case presented on my

behalf in support of this application. I

understand that this can be done under

s lll(l)(g)(iii) of the Industrial Relations

Act.

So that was plainly the request to which the

Commission was referring. Thence the matters went

forward.	The Commission said, "Make your
submissions".	Then at page 50 of the application
book the submissions came in.	The first document

details in a broad way some of the concerns. Over

in the middle of page 54 at about line 18, the

submissions say this:

The employees rely on the attached submission.
The submission has been drawn up in

consultation with the employee representatives

then one goes over to the attached submission and
the attached submission is to be found at pages 57

and 58 of the application book. That, in my

submission, canvasses what are, in effect, the

merits of the complaint.

DEANE J:	Mr Nolan, where, if anywhere, do we find what
"mployees undertaking training" means in the

context of the Union's proposal? You are treating

a 12 month reduction during a period in which an

employee is undertaking training as being identical

with a reduction for 12 months by reason of the

fact that an employee has not been employed. Are

they the same thing?

MR NOLAN:  I am not saying they are identical. I am saying

there was the same idea embodied in the training.

DEANE J: Except if your submission that this was in issue

is to be accepted, they have to be either the same
thing or pretty much.	I mean, one can fully

understand someone saying, "The fact that another

employee is getting 10 per cent less, or whatever

it is, while he is under training does not affect

me, but the fact that another employee will be

getting 10 per cent simply because he has not been

here as long as I have will affect me". I am just

wondering can you strengthen what you say in

relation to it?

MR NOLAN:  Look, I am afraid I cannot without further mining

the material, Your Honour, but I just go back to

what I said before, that when one looks at the
Hoyts proposed junior rates, one could equally say,

"If they are awarded then Hoyts will employ no one

Hoyts(8) 125 12/8/93

but 17 year olds, I am 18 or I am 19 or 20, I will

be disadvantaged in a permanent way."

DEANE J:  I follow that but it strikes me as a somewhat

different proposition that in terms of under

20 year olds, gradations according to age are the

same thing as differentiation according to whether

or not you have been there for 12 months.

MR NOLAN: Well, I would have thought the practical impact,

if there is a fear that the employer will simply

employ according to the absolute minimum

stipulations in the award, the practical impact

would be exactly the same. Because, if you were an

18 year old and you were entitled to be paid 80 per

cent of the rate and a 16 year old was entitled to

be paid 50 per cent of the rate, you would be in no

different position vis-a-vis the 16 year old than

you would be if you were an 18 year old with 12

months service as against an 18 year old with no

service. So, I do not see any real distinction
there, if I may say so.

Can I go back to the submissions that were advanced on the merits, contained in page 57, it

said in the third paragraph:

The award has a significant impact on existing wage rates and introduces a Sunday penalty

rate. The likely effect of these changes will

be to adversely affect the employrnent(and

therefore incomes) of staff.

Can I just interpolate there. There could be no

suggestion that the Sunday penalty was not squarely

an issue because there was an arbitration on that

issue and the Commission said something about that

and - - -

GAUDRON J: Yes, but it has a different impact in the

context of the hybrid scheme, too.

MR NOLAN: Well, that may be, but in terms of the Sunday

penalty as such, there was no contest about that

being squarely raised in the arbitral proceedings.

At the bottom of the page, they go on to say

this in the fourth-last paragraph, second-last

sentence:

Those 18 years of age and over are angry that

the new award will price them out of the

casual work market at Hoyts. Those not yet 18
years of age are arguing that their 18th

birthday will make them unemployable.

Hoyts(8) 126 12/8/93

Young people within Hoyts are well aware of the employment practices of other large employers of young casual staff.

They go on, and at the bottom they talk about -

the introduction of penalty rates for Sunday

will disrupt the present employment practices

at Hoyts -

and so on. And then over the page in the middle of

the page at about line 18, they say:

Staff anticipate that, under the proposed

award, management will restrict trading hours
and reduce manning levels -

and so on. Now, it is in that context that the

Commission comes to make its decision on

19 May 1993, and we draw particular attention to

that portion of the decision that commences first

of all, at the middle of page 90, where the

Commission commences to reach its conclusions. I

am sorry, over at page 91, it sets out its reasons,

and it says in the second large paragraph:

The Commission has heard extensive

evidence and submissions relating to the rates

of pay and terms and conditions of employment

for employees in Hoyts' cinemas. this

material was considered in detail in the

Commission's decision of 1 April 1993. That
decision was made as a final decision

determining issues in dispute between the

parties to the proceedings. We do not

consider that it would be appropriate in the

exercise of the discretion conferred upon the

Commission by section lll(l)(g)(iii) of the

Act or on the grounds relied upon by the

various applicants for the Commission to

refrain from implementing or to further delay

the implementation of the decision made on

1 April 1993.

This is particularly so having regard to

the length to date of the arbitral proceedings

and the extensive material presented therein,

the opportunity given in those proceedings for

the parties and interveners to present all

relevant evidence and submissions, the

determination by the Commission of previous
applications under section lll(l)(g)(iii), the
consideration of relevant evidence and
submissions in the decision and the making by

the Commission of a decision determining the

matters in dispute. We consider that there

must be a finality to proceedings in the

Hoyts(8) 127 12/8/93

Commission and that it is not in the public

interest that the present matters be re-opened

at this stage.

MASON CJ:  So the Commission was adhering to its previous

decision without reconsidering in the light of the

submissions made to it?

MR NOLAN:  I do not believe so, Your Honour. I am just

about to go to the further consideration of the

submissions that have been made. They say - I will

skip over the next paragraph which talks about

whether or not section 111 is the vehicle for these

applications. In the middle of page 92, in the

large paragraph, about a third of the way down at

line 14, they say:

We note that the arbitral matters have been proceeding since 1989 and that award proposals of Hoyts and the unions have been the subject

of evidence and submissions over a very

lengthy period. At no stage during the

proceedings and before the Commission's

decision was made have individual employees

sought to be represented separately and apart

from the unions. If there were submissions

which such employees wished to make in

opposition to the making of an award in a

particular form, apart from the evidence given

and the submissions by Hoyts and other parties or interveners, then the employees should have

sought leave to appear or intervene in the

proceedings at an earlier stage and before a

final decision was made. Moreover, in this

regard we note that some 37 of the employees

who signed petitions gave evidence on Hoyts

behalf in the proceedings. Secondly, the

submission made by the employees deals with

some possible implications of the award

determined by the Commission.

determined by the Commission on the basis of The award was

the submissions and evidence presented in the

arbitral proceedings. As the Commission said

in the decision:

"We have sought to determine rates and

conditions of employment which are fair to the
employees concerned -

and so on. Then they continue, at about line 37:

In the course of determining the award provisions the Commission had regard to many considerations including the effect of any new

award provisions. Apart from this, we express

our concern about some of the matters referred

Hoyts(8) 128 12/8/93

to in the employees' submission. For example,
the submission refers to anticipated action by

management to restrict trading hours and
reduce manning levels and "revised" rosters to

accommodate the new award and says that "those

18 years of age and over are angry that the

new award will price them out of the casual work market at Hoyts". It seems clear that

some of the concerns of the employees are

based upon possible actions by Hoyts against

their interests following the making of the

award determined by the Commission. However

we repeat what was said in the decision of

1 April 1993, that the Commission determined

rates and conditions which are fair to the

employees concerned and which provide for the

needs of flexibility and efficiency in the

conduct of Hoyts' cinema operations. We do

not accept that the matters referred to are necessary consequences of the award we have

determined and we would be seriously concerned

about any vindictive policies adopted by

management against the interests of existing

employees based on the making of the award.

GAUDRON J: They were, in the main, casual employees, were

they not?

MR NOLAN: That is right.

GAUDRON J:	Who were employed, what, by the day, basically?
MR NOLAN:	I would have thought they would be employed by

the session, but the position, Your Honour, would
be that they would have regular notice and some of

them would do regular shifts, they would do a Tuesday or a Saturday, or so on, depending on

circumstance.

GAUDRON J: What is there said may have a particular

relevance where employment is permanent and by the

week, but not have that same relevance or same

force in a situation where employment is casual and

by the session.

MR NOLAN:  Your Honour, with respect, I would have thought

not necessarily so because many of these casual

sessions would be regularly scheduled and one could

quite readily determine, comparing rosters, the

impact of the award's introduction. I would have

thought that probably at least since this Court's

decision in Cram's case there would be no bar to

the Union to agitate a case for a casual employee

who was dropped off the roster because of the

reason connected with the implementation of the

award. Nor would it be a bar for the Union, or

indeed the employees concerned, if it was

Hoyts(8) 129 12/8/93

determined that the provision was intractable and
in practice to go back to the Commission and ask it

to vary its award.

Can I say this: it is no part of the Union's

business or intention to see anyone disadvantaged

and, certainly, if any of its members in this

category were disadvantaged or employees approached

it would be most concerned to see that the award

was implemented in a fair and equitable way and if

the provision, as I say, was intractable, then an

appropriate variation was made. I think the

Commission signals as much in what it says because,

first of all, it says the reference and the

apprehension that was raised was really to possible

actions that might take place. It was in

anticipation of the consequences that were yet to

be felt and may never be felt.

For that reason, the Commission was not

inclined to move, at this stage, but expressed the

view that I have just read out to you that it would

be seriously concerned about action taken. Now,

that is a single to the employees, to the employers

and to the Unions about the implementation of the
award, I would have thought, and if the position

was intractable the matter could be revisited and,
in this connection, that is not the only issue of

that kind. In its principal decision, and I will

not read the provisions out to you, in relation to

this issue of the penalty payments the Commission

has specifically foreshadowed discussions between

the parties, with a view to averaging penalties

across the week, to do away with the specific and

separate prescription of penalties in particular

circumstances, and that is in contemplation from

the moment the award comes into being. So, it

would be open to the employer and the Unions and

perhaps to the employees in circumstances where

those foreshadowed negotiations are not fruitful to

come back to the Commission during the course of

the award and say, "Well, look, we have endeavoured	to make some ground here in accordance with your	suggestion, the other side has just not been
helpful at all. Now, we want you to look at this
issue of penalties and determine, whether or not,
you will award an aggregate penalty or revisit it
again."

BRENNAN J: 

Mr Nolan, are you saying, in this case that

there was no obligation, under the Act, on the
Commission to accord natural justice to the

employees, by reason of the structure of the Act,
or are you saying that though there is such an

obligation in the circumstances of this case that

obligation was fulfilled?

Hoyts(8) 130 12/8/93

MR NOLAN:  I think the primary submission would be that if

the employees were not parties to the dispute that

led to the making of the award, there would be a

real question about whether the Commission was

obliged, strictly speaking, to entertain

applications.

BRENNAN J:  We are well aware that there is a real question.

My question to you is: what is your submission on

it?

MR NOLAN: 

My primary submission is that because they are

not parties to the dispute, the Commission is not
obliged to hear them and could well have said,

"We're determining this dispute.  The dispute which

exists is as between the Unions and their members

and the relevant employer and they're the disputes

that we're concerned to deal with and, not being a

party to that dispute, you're not entitled to be

heard."

But plainly what the Commission has done is,

without deciding that question, it has nevertheless

looked at the substance of what the complaint is

and done that via the section lll(l)(g) application

and it has said, "Whether an approach can be made

by this means or not, we're not foreclosing the

approach but we're looking at the substance of your

complaint and we're considering it in the context
of the overall award proceedings and what you

signalled to us as your apprehension." The

apprehension is dealt with in the way I have

indicated at the top of page 7 of the Commission's

decision.

GAUDRON J: But there is a difficulty, is there, if you go

to the circumstances of the case? There is not

much doubt that Mr Murdoch, on behalf of some

number of people whose identity now appears from

the book apparently, was asking to become an

intervener to put a submission on the merits of the

case.	To some extent that may have coalesced with
the application that was, in fact, made under

section lll(l)(g), but he never got that

opportunity to have that really considered because

the Commission said, in really what seems to have

been an exercise in playing funny games, that the

matter is not listed.	"The matter is not listed",
they said.	"You can't make that application".

That seems to me to lie at the heart of the suggestion that there is no natural justice in this

case. The employees were being channelled away

from that application into another one where it

appears, and it is implicit in what was going on,

that they wished to make an argument as to the

discriminatory impact of the award, an argument

Hoyts(8) 131 12/8/93

which it seems was never put in any event in the

proceedings, and which is not dealt with as such in

the decision. That seems to be the problem you

have to face. Surely they were entitled to have

their application to intervene to put that argument

properly considered, and the question is whether

what was done by reference to the so-called

section lll(l)(g) applications really amounted to

that.

MR NOLAN: Well, I would submit very strongly that it did

amount to that because they put the merits of their

concerns to the Commission, and the Commission then

considered the merits and in its decision really pronounced upon the merits, in particular in the conclusions reached at the top of page 7. Because

it said that, really, the concern was a

foreshadowed concern, an anticipated concern. It

was not a necessary consequence at all of the award

being made.

GAUDRON J: But were they not there saying, "We will not

entertain it because it is an anticipated concern",

not that, "We are ruling on the merits, or that we

are ruling on the intervention, as such".

MR NOLAN:  I do not know that they said they would not

entertain it. They considered it as an anticipated

concern and they said that it was not a necessary
consequence of the award provision. In any event,
as I indicated to you, that they foreshadowed the

continuing concern about it by what they said about

being seriously concerned about any policies

adopted by management against the interests of

existing employees, based on the making of the

award that were vindictive in kind. So, they have

not precluded consideration of the question, should

it become a real question.

I think the other thing that needs to be said

is that there is no application by the employer to
vary the award because of this.	The application by

the employer supporting the lll(l)(g) applications

does not canvass, at all, what might or might not flow from the junior rates clause. I have to say

that the Commission, it would appear from the

decision, took the apprehension seriously and
considered them in context, and signalled

continuing concern if, indeed, the apprehensions,

at some point, proved to be serious apprehensions

because of what happened in practice.

And, as I have indicated to you, it is no part

of the Union's approach to this that it would turn

its back on circumstances if it proved that the

junior rates' clause was intractable. But that

would be a matter to be considered, in appropriate

Hoyts(8) 132 12/8/93

circumstances, by application to vary the award, I

would suggest; not by circumstances such as these

where the Commission having gone through that long

arbitral process is asked, not just to put the
junior rates' clause on hold, but to put the whole

award on hold because of this discriminatory effect

that is said to occur to certain classes of 18 year

olds. They were not asked to go ahead with

everything else and just reserve the - - -

DEANE J: But that was implicit in it, surely. I mean, if

they are approached in relation to this, it is

obvious that they can deal with it by saying, "We

will hold that particular provision up".

MR NOLAN:  Yes.

GAUDRON J: And in effect, that was the consequence of the

Commission saying, "You cannot make an application

to intervene, because that is not listed".

MR NOLAN:  I am not sure that that is necessarily so, but it

may have been.

GAUDRON J: Because what they were saying was, then, what

the application was, because of that, "Well, will

you stay your hand, so that we can have the matters

listed and intervened and put an argument?"

MR NOLAN:  Yes, but in respect of the whole award, not in

respect of just the junior rates clause, that is

the interesting, I suppose, circumstance in which

that appeal came forward.

GAUDRON J: Well, in any event, it would not be just the

junior rates. The junior rates and penalty and

weekend work sort of march together, according to

the argument here.

MR NOLAN:  Yes, but if the junior rates - if the 12 month

qualifying period was excised from the award there

could be no complaint about the penalty rates and

the Sunday rates because those matters were fairly

and squarely dealt with in the arbitral

proceedings, there is no doubt about that. The

various proposals were put and so on, and the

Commission has handed down very considered reasons

about those issues and, indeed, the Commission

signalled the possibility of further discussions

about averaging penalties, but it said at that

stage it was not prepared to average the penalties

across the award.

So, the objection, if it went anywhere at all,

really only went to this stepped 12 month

traineeship, if you like, for the 18 year olds and

my submission would be that if this Court had any

Hoyts(8) 133 12/8/93

difficulty with that, that is a matter that could

be excised, temporarily, from the award and taken

back to the Commission. Our primary concern is to

have the award operative and, in effect, it would
not concern the Union if the matter of the

18 year old wage rates was left on hold for further

consideration at all, as long as the balance of the

award came into effect in accordance with its

terms.

BRENNAN J: This is some notion of severability in order to

give effect to natural justice, is it?

MR NOLAN:  In the circumstances I think it is appropriate,

Your Honour, because -

BRENNAN J:  You might think it is appropriate, but it would

be helpful to have some understanding of the theory

that would underlie that jurisdiction.

MR NOLAN: Perhaps if the complaint is - in reality, our

complaint is about the 18 year old rate, and that

is in essence what we have not been given an

opportunity to address, well then it flows from

that that it would be appropriate, in the

circumstances, I would suggest, to excise that from

the award and let the rest of the award come into

effect. That could be temporarily stayed, that

particular provision in the award, and I do not

think the Unions would have any difficulty with

that. That would allow the matter to be further

agitated before the Commission, further submissions

if need be put, and that precise area dealt with on
the merits, meanwhile the award could be in and

apply from 1 April subject to that reservation, and

the parties could get on with the next business.

Those are the submissions that I wish to make

on Mr Murdoch's matter. Can I next move to the

issue of bias, or alleged bias, on the part of

Commissioner Fogarty.

MASON CJ: Perhaps I might ask Mr Bell how long he thinks he

will take.

MR BELL:  I only appeared in the matter of the application

made by Mr Merkel and, therefore, I will not be

called upon and if the matter goes over tomorrow I

will not be in attendance tomorrow for that reason.

If Your Honour pleases.

MASON CJ: Yes. Thank you, Mr Bell.

GAUDRON J: Are you not directly affected by the MS0 matter?

MR BELL:  The GUO was not a respondent in those proceedings

and will not be making - - -

Hoyts(8) 134 12/8/93

GAUDRON J: I am sorry, thank you. Yes, I am sorry.

MR NOLAN:  Can I just indicate we would point out to the

Court that the Commissioner's discretion in the

certification proceedings was severely

circumscribed and reference has already been made

to section 134E and we would suggest that the

certification could not amount to any pre-judgment

of the issues between Hoyts and the Theatre

Manager's Association. We point out further that

any reliance upon the agreement was expressly

disavowed by the Theatre Manager's Association, and

we indicate there the part of the appeal book where

that occurs.

We indicate in our outline of submissions that

the Commission itself specifically stated that the

agreement was not relevant to its 1 April 1993

decision and, indeed, one section of the Act to

which you were not referred which is vital, we

would say, in the consideration of this issue is

section 95, which in its terms indicates to the

Commission that there is a severe restriction on

the flow-on of terms of any certified agreement

into awards and arbitral proceedings.

My suggestion is that the response of

Commissioner Fogarty can perhaps be explained by

the fact that he well knew the distinction between

certified agreements and awards and well knew that

anything that was contained in the certified

agreement could not - or almost anything - find its

way into an award in arbitral proceedings because

of the fence put around certified agreements in

part by section 95. The position is that certified

agreements may well contain matters that are
entirely contrary to provisions and awards, and

that is the structure of Division 3A; it allows the

parties to make their own agreements and the quid
pro quo is that they cannot then expect that those

agreement provisions will flow on to awards in

arbitral proceedings.

So, you may find that a Commission member may

be obliged to certify an agreement and later deal

with the contested issue in award proceedings,
which has been the subject of agreement and

certification in separate proceedings. And we

would say that because he or she certified the

agreement in the separate proceedings, it cannot be
contended that the arbitral issues have been
prejudged in any way.

We say that the agreement was on the public record and available to the public since, on our

view at least, 2 October 1992, and whilst there may

be an issue about the famous contents of the sealed

Hoyts(8) 135 12/8/93

envelope, as I read the material, the agreement

referred to these side agreements and so they were

perhaps not part of the agreement. But, in any

event, as we point out, the material was readily

available to Hoyts on summons and if Hoyts decided

to do so once it had got wind of the agreement, the

fact that it was certified or not would not have

been to the point in terms of the arbitral contest between Hoyts and the TMA. It was the contents of the agreement that is apparently vital and so it

would have been open to Hoyts to summons the

agreement and use it as it might in the proceedings

before the Commission. But, of course, the

Commission said, on a number of occasions, and the

TMA disavowed the relevance of the certified

agreement to the award proceedings.

And we would say, in that connection, it is

just not appropriate to compare award provisions

plucked out of agreements and claims, such as are

contained in the comparison sheet that has been

handed up, because without the necessary knowledge

of the overall rates of pay, and all the other

elements that go to make up the agreements, such a

comparison can be of no assistance at all.

The agreement was there on the public record.

Hoyts could have called for it, and we would say

that they cannot now complain that a failure on the

part of the Commission to alert them to the fact

that the agreement was certified, does not

constitute the grounds for an allegation now, that

Commissioner Fogarty ought to have disqualified

himself on the grounds of bias.

There is one other matter that was raised by

Mr Goldberg in the chronology, and that is in the last page of the chronology, there is that quote

from the May 19 decision of the Commission, where

it said:

"Hoyts did not seek to make submissions about

the agreement following the handing down of

Commissioner Fogarty's decision and before the

handing down of the Full Bench's decisions."

In my view, that cannot be read to indicate that

the Full Bench expected Hoyts to make submissions

on the day that the two decisions were handed down,

because they were handed down at the same time.

One was handed down first, and then the Full Bench

decision was handed down next, I think. That
reference was plainly a reference to the

Commissioner's decision to certify the agreement, back on 17 September. That is the relevant

decision. So, there was a decision of the

Commission certifying the agreement, the decision

Hoyts(8) 136 12/8/93

was on the public record. They could have got

access to that, and then if the whole terms of the
agreement were not sufficiently apparent from the
record, could have summonsed the Union or

Greater Union, got the material, and then deployed

it as they might be advised in the arbitral

proceedings.

The fact remains, however, that the Act places severe limits on the extent to which it could have

been relied upon. The Union said it was not

relying at all on the material in the certified

agreement, and the Commission said in its decision
on 1 April that it was not relying on the certified

agreement. So, there was no issue, we would

submit, or even colour of prejudgment in

Commissioner Fogarty's certification of the

agreement.

GAUDRON J:  Mr Nolan, I think the allegation of bias is

somewhat different. The allegation of bias, or

apprehended bias, is that Commissioner Fogarty was,

in effect, protecting the TMA from an attack that

might be made upon their case. I think that is the

allegation of bias that is made in the case.

MASON CJ:  Mr Nolan, you might consider that overnight and

deal with it tomorrow morning. Before we adjourn,

I should say that the Court is in a position to

deal with applications number M42 and M45.

In each of those applications the Court has

come to the conclusion that the proposed appeal

would not succeed, and for that reason each

application is dismissed.

The Court will now adjourn until 9.45 tomorrow

morning.

AT 4.26 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 13 AUGUST 1993

Hoyts(8) 137 12/8/93