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 224

..

• "I

• -,~J"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M41 and M44 of 1993

B e t w e e n -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD, AND

RAMPTON PTY LTD

First Applicants

DEAN ARNELL and JAMES GEORGES

Second 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

Hoyts(8) 1 11/8/93

Second Respondents

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

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

Hoyts(8) 2 11/8/93

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)	11/8/93
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

MASON CJ
BRENNAN J
DEANE J
DAWSON J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 AUGUST 1993, AT 2.43 PM

Copyright in the High Court of Australia

Hoyts(8) 11/8/93

MR R. MERKEL, QC: If the Court pleases, I appear with my

learned friend, MR L. KAUFMAN, in those matters for

Hoyts and the companies, the applicants.

(instructed by Mark G. Caldwell)

MASON CJ: They are the first two matters listed?

MR MERKEL:  Yes, Your Honours. I was going to explain there

have been discussions between counsel as to

the - - -

MASON CJ:  I was going to ask you about that. How are these

matters to be presented in order?

MR MERKEL:  Your Honours, subject to what the Court may

indicate to counsel concerned, it was proposed that

the matters that would proceed first would be M42

and M43, which I might refer to as the section 101

proceedings by Hoyts. They would be followed by

matter MS0 which is the employees' notice of motion

which raises the section 101 point, that counsel

then for the respondents respond to the submissions
by the applicants in those two proceedings, and
that those two proceedings be taken to a

conclusion.

The other matter will not be proceeding, which

is M41 and M44 which related to the

section lll(l)(g) issues. Those matters have been

overtaken by the issues on the notice of motion so

that that application will not be proceeded with.

MASON CJ: That is M41 and M44.

MR MERKEL:  Yes, Your Honour. That was the application

before Justice Toohey for a hearing on the

section lll(l)(g) application. What, in fact,

happened, it was overtaken by a hearing in the

Commission that occurred at a later date, so those

matters will not be proceeded with.

MASON CJ:  M41 and M44 in a sense are the one matter. are dealt with in the one book. They

MR MERKEL:	Yes, Your Honour.
MASON CJ:	Is any order to be made in those matters, or

not?

MR MERKEL:  We would either seek leave to withdraw or the

application for leave to appeal and the appeal

would be dismissed.

MASON CJ: That will be by consent, will it?

MR MERKEL:	I am told yes, Your Honour.
Hoyts(8)	11/8/93
DEANE J:	Can we now get rid of this book?
MR MERKEL:	I am not sure that one gets rid of a book,

Your Honour, because I think the other order that

counsel will be seeking is that the evidence in

each of the matters be treated as evidence in the

other matters, so that there may be some material

in one volume which may still be relevant.

MASON CJ:  We will start off, at least by making some

progress, and I regard this as quite an

achievement, Mr Merkel. By consent the

applications in M41 and M44 of 1993 are dismissed.

MR MERKEL:  If the Court pleases. The final matter that was

proposed, again, subject to what Your Honours may

indicate, is that the applications raising the bias
issues, which are M43 and M46, would be argued

separately and after the other matters.

MASON CJ: Yes. We will proceed in the first instance,

then, with M42 and M43 and MS0. But after hearing

the applicants' arguments in relation to those

matters we will call on the respondents.

MR MERKEL: If Your Honours please.

MASON CJ:  And then we will proceed with the bias matters.

Yes?

MR J.W. NOLAN:  May it please the Court, : appear for the

second respondents, the Media En~ertainrnent and

Arts Alliance and the Theatre Managers'
Association. (instructed by Kyle Nomchong and

Scarfone & Co.)

MR K.H. BELL: If the Court pleases, I appear on behalf of

the Village Roadshow and Greater Union Group who

are respondents in M42.	(instructed by Holding
Redlich)

MR MERKEL:  If I could hand up to Your Honours the outline

of the submissions of the three applicants, and
could we also hand up a chronology to Your Honours.

Can I just indicate to Your Honours that because of

the complexity of the matters the outline is

sl~;htly longer than the usual outline, but I hoped

it would assist the Court to have detail of where

matters are to be found in the application books.

MASON CJ:  I must say, Mr Merkel - and these applications

are not on their own in this respect - the state of

the papers is chaotic in the sense that no attempt

has been made by the deponents to the affidavits to

set out in a succinct and comprehensible fashion what the history of the proceedings are and what

the points are that are sought to be argued. One

Hoyts(8) 6 11/8/93

is left with a morass of material and the daunting

· task of trying to make sense out of that morass.

It is a matter that I have called attention to in

the past in relation to these matters in which

applications for prerogative relief are made

directed to the Commission.

MR MERKEL:  Your Honours, I should not say we hope to avoid

that problem in the future because we are hoping

not to be back here in the future, but what

Your Honour says - I can only apologize for the way

that the matters have been set out. Hopefully the

outline will crystallize the issues that we seek to

agitate.

MASON CJ: Hopefully it will, but it still does not avoid

the daunting experience of trying to comb through

these materials in advance of the hearing.

MR MERKEL:  Yes, Your Honour. I should indicate to

Your Honours that when these matters were before

Justice Toohey, it was anticipated by the parties,

again subject to anything the Court may direct,

that if leave to appeal were to be granted and it

was necessary, that the hearing of these matters
would go through to a conclusion so that the -
because the leave application raises issues of law which would be relevant to determining the appeal, that the hearing today would dispose of the whole

matter. That became particularly relevant because the MSO matter, which is the return of the motion, would introduce and raise the section 101 point.

MASON CJ: Yes, the Court is prepared to go on with the

hearing of the appeal in the event that the Court

comes to the conclusion that leave to appeal ought

to be granted.

MR MERKEL:  If Your Honours please. Can we indicate that

even though notices of appeal were filed, it did

appear that the refusal to grant the orders nisi is

an interlocutory order and I just should indicate

to Your Honours the authorities in this Court would

suggest so, and there are two decisions in Full

Courts in Victoria and the Court of Appeal in New

South Wales that would suggest final refusal of

prerogative writ relief is interlocutory, and if I

can just give Your Honours those cases: it is

Monash University v Berg, (1984) VR 383 and Coles v

Wood, (1981) 1 NSWLR 723, and the decisions of this

Court in Hall v Incorporated Nominal Defendant and

Sanofi v Parke Davis Pty Ltd would appear to
suggest that the refusal by His Honour was an

interlocutory order and therefore leave is required

under section 34(2).

Hoyts(8) 7 11/8/93

The real issue raised on the application, and

we would say, if leave is granted, on the appeal,

can be very shortly stated, and that is whether the

Commission is bound, when it has an application

before it under section 101, to determine whether

it will vary the dispute finding prior to, rather

than after, it exercises its jurisdiction to make

an award in settlement of the dispute. That, in

our submission, is a fundamental question that goes

to the jurisdiction of the Commission and is

premised upon the significance the Act attaches to

and, indeed, a significance which the Constitution

itself requires, that the arbitration power be

exercised by reference to the dispute in existence

at the time jurisdiction is exercised.

In our submission, what has happened in the

present case, is that the Commission had before it
an application under section 101(1) to vary or

revoke the dispute findings it had made back in
1988 and 1989, based upon rejection of various logs

and applications to the Commission, on the basis

that by that time, in using the words of

Your Honours in the Hoyts decision this morning,

whatever that dispute may have been, it had changed

its form in the Commission and in the workplace and

coalesced with a dispute, certainly, that included

the Hoyts' employees and the contest was, in

effect, a tripartite one, at the very narrowest,

between the three Hoyts' employers, the employees -

certainly those that had signed individual

agreements seeking certification in the

Commission - and the two Unions concerned. And

under section 101(1), prior to exercising its

jurisdiction to make an award in settlement of the

dispute, it is incumbent upon the Commission to do
so only by reference to the parties and the matters
in dispute, as those terms have been defined by
this Court under the Conciliation and Arbitration

Act and now under the Industrial Relations Act.

In essence, what the Commission did, was issue

a statement on 1 April prior to handing down its

award which said that as the application under

section 101 may have implications for the dispute

findings which provided the jurisdictional basis

for the award, they would programme the hearing of

that application initially for 6 May, that is after

the award was to have become operative on 1 May.

There were subsequent applications as a result of

the stay granted by Justice Toohey that the IRC

determine the section 101 application, but in its

final ruling on the matter on 19 May, and I will

give Your Honours the places in the application

books where the applications and rulings can be found, the IRC maintained its refusal to embark upon the exercise of power under section 101. We

Hoyts(8) 11/8/93

would submit that that constitutes both a failure

to exercise its jurisdiction and able to be granted

under the Constitution and under section 101 and a

refusal to embark upon the exercise of the power

upon the application of a party to a dispute.

We say, on the authorities in this Court, we

would be entitled to prerogative relief to prohibit

them from making the award without determining the

dispute-finding applicat~on made by a party and now

joined in by the employees concerned.

BRENNAN J:  You have to prove that there was a duty first to

entertain an application for a variation of the

dispute finding.

MR MERKEL:  That is one way in which we put it, Your Honour,

but there is an alternative way in which we put it,

but it may produce the same result. If the

authorities we rely upon establish the proposition

that it is incumbent upon the Commission to

exercise its arbitral power in respect of the

dispute in the form it is in at the date of the

exercise of jurisdiction, then it has failed to
exercise that jurisdiction, because it has

exercised it by reference to a dispute in a form it

was in in 1988 and 1989 without turning its mind to

the dispute that existed at the date of the

exercise of jurisdiction, and we say, when one

examines the constitutional framework of
section Sl(xxxv) requiring arbitration in respect

of a dispute at the time of exercise of

jurisdiction, the statutory framework of the Act,

in effect, only permitting parties to a dispute to

be heard, and the requirement to accord natural

justice to parties, that it is not open to the

Commission, as a matter of law, to make an award in

settlement of the dispute, leaving open to a later
date the determination of the matters in dispute

and the parties to that dispute.

So we say that the combination of those

circumstances create a duty under the statute in

the Commission to hear and determine any such

application.

BRENNAN J: Is it inherent in your submission that the

closing words of 101(2) are ultra vires?

MR MERKEL:  Your Honour, if they accorded to the Act no more

than an operation that having made a finding of
dispute, unless there is reason before it that that

dispute no longer exists or has remained unaltered,

it is entitled to act on the basis of its original

dispute finding. But we would say, Your Honour,

that if that section operates so that they can

exercise power in respect of an original dispute

Hoyts(8) 9 11/8/93

which no longer exists, or has changed, and

therefore they are exercising their arbitral power in respect of a dispute which is different to that

which exists at the date of the exercise of

jurisdiction, the authorities of this Court, on that subject, would say it would be ultra vires.

So we would say it would be interpreted to be

within power, which is that it contains an

assumption that the dispute still exists and, prima

facie, the Commission is entitled, or obliged, to

act on that basis. But we say, in the present

case, the Commission itself, in its statement, has

recognized that it has been called upon to make a

finding in respect of the single dispute, not an
additional or different dispute, because in its

statement it indicated that the application under

section 101 may have implications for the dispute

findings which provide the jurisdictional basis for

the award it was then making. Now we say - - -

BRENNAN J:  I do not understand how you read down 101(2) to

be within the constitutional power, as you would

define it.

MR MERKEL:	I think, Your Honour, we would give particular attention to the words, "the same industrial
dispute" and we would say that that could not have
the section operate in respect of an industrial dispute that is not the same. Certainly, if that
section were to be given any other meaning,
Blackburn's case and, indeed, decisions applying it as recently as today's Hoyts' decision, would not
be correct. But, we would say the emphasis on the
words, "same industrial dispute" in effect means
that the dispute finding, together with section 101(3), would stand as valid but always
subject to the proviso that the dispute did exist
in fact. Were it otherwise it would be elevating
the paper dispute to a determination of fact which
the Constitution itself precludes and the cases
have made it clear that that cannot be the effect
of the Industrial Relations Act or its predecessor. dispute, at both times, to be the same then we
would say that it is within power. If it were given any different meaning it would be beyond power.
GAUDRON J:	In what sense are you using the word "the same"

there? I mean, you are suggesting here, unless I

have misunderstood you, that it is the same dispute

but enlarged, as it were, rather than an entirely

different dispute.

MR MERKEL: That is correct, Your Honour, but the word

"same" maybe is a word that, particularly given

Hoyts(B) 10 11/8/93

section 101(2), can give rise to problems. What we

say, ultimately - but this is the question the

Commission has not exercised its jurisdiction to

determine. Ultimately, we will say that there was

a single dispute which always related to that which

we say is now the fundamental problem and that is

the terms and conditions and the mode of industrial

regulation in Hoyts cinemas for their employees.

But the paper dispute which came up as a fragmented

manifestation of parts of it, and the dispute
findings demonstrate that, never really accurately
recorded the true dispute, in fact, existing.

Now, that dispute did change its character in the course of proceedings in the Commission by the fact that the employees, over 500 of them, entered

into individual section 115 agreements with their

employer to settle an industrial dispute that had
arisen by reason of the Unions seeking to have
different terms and conditions of their employment,

which they did not want, and a different mode of

industrial regulation that they did not not want.

So, going to the chronology: during 1992,

particularly during March and July, whatever may

have been the case concerning - that is at the

bottom of the first page - whether the employees

were disputants, certainly as the matter proceeded,

the employees became disputants and, we say, either

that, using this morning's word, coalesced, and in

that sense it would not be the same dispute for the purposes of section 101(2). Or, alternatively, the

dispute was a different one, the previous one, was no longer the same dispute because it could not be

because there were additional parties and a wider subject-matter and, we say, that it was incumbent

upon the Commissioner to determine whether there

was the one real, single, indivisible dispute which

it was exercising jurisdiction in respect of.

They may find against our submissions, but our

complaint is they have not determined that issue.
Therefore, we say that it cannot be right under the

Act that they can determine the dispute currently existing and the parties at a point of time after

they have made their award.	We say that is in
essence the point that arises.

BRENNAN J: But why is it - the finding of dispute is the

finding at page 46, is that right?

MR MERKEL:	I think, Your Honour, that was the first finding but if Your Honour goes through the chronology,
Your Honour will see - - -

BRENNAN J: Where is the current finding?

Hoyts(8)	11	11/8/93
MR MERKEL: There is not one.

BRENNAN J:	What happened to the finding at page 46?
MR MERKEL:	The finding at page 46 - I am sorry, when Your Honour said ttcurrenttt, I thought ttfindingtt in
respect of the current state of the dispute.
Your Honour is correct; the finding at page 46 was
the first finding of dispute. If I can take
Your Honour down the chronology, Your Honour will
see - - -

BRENNAN J: Just before you go on, is that the only finding

of dispute?

MR MERKEL:  No, Your Honour.

BRENNAN J: Is there a subsequent one?

MR MERKEL:  Yes, there is a subsequent one at page 49. The

easiest reference will be the chronology. If I can

take Your Honour through them, Your Honour will see

that what in fact happened is when Hoyts ceased to
be a party to the over-award Canberra agreement,

which was continued by the other two employers,

industrial disputation evolved in the Hoyts
workplace giving rise to a series of separate

incidents or separate isolated aspects, each of

which found their way into a notification to the

Commission and sometimes findings of dispute.

That is why I said to Your Honour if you go down the findings which are set out in our

chronology, during 1988 and 1989 none of them ever

purported to really identify the real underlying dispute which we say existed. This is where the

artificiality of paper, whatever it may have been

at that point of time, no longer reflected the

dispute in fact as at April 1993 when jurisdiction

was exercised.

BRENNAN J: 

Can you point me to some disparity between the

finding of dispute at page 49 and what is, in your
submission, the existing facts of the case.

MR MERKEL:  Yes, Your Honour. For example, the finding of

dispute at page 49 suffers from three basic

defects. The first is that it is not a finding in

respect of the employees. It is a finding

restricted to the Unions and the relevant employer.

BRENNAN J: Just pausing there, is there currently a dispute

between the Union and the present employer?

MR MERKEL:  Yes, Your Honour.

BRENNAN J: In these terms?

Hoyts(8) 12 11/8/93

MR MERKEL: Partly in these terms, Your Honour, and that is

the second matter. The subject-matter which was

limited to manning, rostering, rates of pay and new

contracts of employment, really only covers one

very small part of the award which covered all

aspects of employment. So those issues picked up

part of the issue that ultimately was resolved and the subject of the award, but not the whole of it.

For example, superannuation, which is dealt with

elsewhere was not in that finding. If one picks up

the various applications and dispute findings, bit

by bit the Commission almost got to what you might

call a comprehensive jurisdiction in respect of

relevant terms and conditions of employment.

BRENNAN J: Are you saying that there was an award made

covering matters which were not the subject of a

dispute finding?

MR MERKEL:	Your Honour, one of the grounds that we raised in our proposed order nisi was that there were
three aspects which were not raised in a dispute
finding, and if I can identify them now,
Your Honour.  One is higher duties, the other is
junior rates, and the other is part-time and casual
employment.  They were all matters dealt with by
the award of the Commission, but what I want to
emphasize, Your Honours, is that those three
subject-matters and the absence of any claim in respect of them in respect of which there was a
dispute finding merely evidence what we say is a
fragmented paper war which distinguishes this case
from the usual log where there is an endeavour in a
log to create a dispute over terms and conditions of employment in general.

That is why we say that looked at historically

the dispute findings, whilst they must stand for

what they are under section 101, never really

reflected anything more than a manifestation of a

point of dispute at that point of time. But the	underlying dispute always has been the terms and
conditions of employment of Hoyts employees. It
became rapidly the mode of industrial regulation,
certainly since 1992 when individual certified
agreements were executed and sought to be certified
and swept and swept up in the course of its evolution irrespective of what may have been the case in 1988 and 1989, an active dispute between the Union concerned and the employers.

The problem, we say, is that as has been

maintained by this Court on many occasions, whether

an industrial dispute exists, its subject-matter

and the identification of the disputants is a question of fact. What we say is that if the

Commission's course be correct in the present case,

Hoyts(8) 13 11/8/93

that paper question has overtaken the real

question, which is one of fact. We say that we do

not have to establish, and we cannot establish on

this application, that the underlying dispute was

as we put it, because we must first go to the

Commission to have it rule on it and hear evidence

on whether the dispute in fact is the same as that

determined in the paper claims and the dispute

findings consequent upon them; or whether it be a
dispute that was never that reflected in the

findings; or, alternatively, has by reason of

proceedings in the Commission and events in Hoyts

Cinemas between 1989 and 1993 changed and therefore

is currently a dispute finding that involves at
least a tri-partite contest.

We say that the Commission has declined to hear that application, but has not accepted it or

treated it as vexatious or without any merit,

because it is agreed that the issue itself does

impinge upon the jurisdictional basis for the

award. Having accepted that, we say it is simply

not open to it as a matter of power to make the

award and then determine the matters under

section 101 at a later point of time. We either

make that submission good, or if we fail on it we

say we must fail on our application for leave and

any appeal.

GAUDRON J: Is there something in the Act that bars the

exercise of arbitral power until section 101(1) has

been complied with, assuming there is an underlying

dispute?

MR MERKEL:  I think, Your Honour, and I may be corrected on

this, it probably arises by implication rather than

expressly because it is the duty of the Commission

to make a dispute finding and then proceed to

conciliation and then arbitration if that dispute

is not settled and 101(3), which makes the dispute

finding final and not capable of being

questioned,together with the scheme of the Act,

would appear to require a dispute finding. I am

not sure, but I may be corrected, that there is any
express provision that they can proceed otherwise,
but we would say that they would only be proceeding

otherwise if they acted in breach of section 101.

we say that, ultimately, they can only proceed in

respect of a dispute and their power only arises
under the Act when there is, in fact, in existence
a dispute and they have determined it to be in

existence.

BRENNAN J: But what you say is that there has got to be a

hearing, a variation hearing, under 101(1) whenever

a party says, "The dispute that you found is no

longer the dispute in issue."?

Hoyts(8)	14	11/8/93
MR MERKEL:	In the absence of some special circumstance, in substance, yes, Your Honour.	The special

circumstance, Your Honour, may be that, if the

application be frivolous or not bona fide, that may

be an issue. But if there is no reason to treat it

as a vexatious or frivolous application - - -

DAWSON J: But you could frustrate the operation of the Act

by simply, at the last moment, creating a wider

dispute or serving another lot of claims.

MR MERKEL:  No, Your Honour. That has been dealt with in

this Court in cases such as Moore's case and

Isaac's case where that would be treated, or could

be treated, as a new and separate dispute, not the

same dispute. Our problem in the present case is

not a question of frustration by delivery of a log

of claims which may not be genuine, and can I take

Your Honour Justice Dawson's example. If that

circumstances arose, and that was the purpose of

the delivery of the log, the Commission may have

little difficulty in giving the log any credence at

all. It may regard it as not establishing any

facts which would suggest that there is a new

dispute. But the two reasons - - -

DAWSON J:  That may be the situation here. You may have got

your employees to enter into agreements in order to

frustrate the exercise of jurisdiction by the

Commission. I am not saying you did, but it is a

possible interpretation.

MR MERKEL:  Your Honour, the agreements, themselves, cannot

frustrate the exercise of jurisdiction. The

question is, "Was there an underlying industrial

dispute which was settled in part by the

agreements?" That is the question.

DAWSON J: Yes.

MR MERKEL:  And if that underlying dispute did not exist,

then the agreements come to nought, Your Honour.

They are pieces of paper which have operative

effect in contract law but have no recognition

under the Act, and it is only when certified under

the Act that they get the force of statutory

protection.

DAWSON J:  Why cannot the Commission, having found a

dispute, proceed to settle that dispute and to do

so by making an award, without regard to changed

circumstances in the meantime, however they are

induced? Is that not what section 101(2) says?

MR MERKEL:  We would say not, Your Honour, because it can

only do so if it is the same dispute.

Hoyts(8) 15 11/8/93

DAWSON J:  I listen to what you say about that, but it is

the industrial dispute in relation to which

findings have been made that is referred to, first,
in section 101(2):

The Cornrnission ..... may ..... in relation to the same industrial dispute -

That is the one in relation to which findings have

been made -

proceed on the basis of the findings.

MR MERKEL: But, Your Honour, there is the precondition that

that power can only be exercised in proceedings in

relation to the same industrial dispute.

DAWSON J:  The same industrial dispute is the industrial

dispute in relation to which findings were made.

MR MERKEL: But, Your Honour, it is for the purpose of

exercising power, so the jurisdiction conferred is
only in respect of the same dispute in

respect - - -

DAWSON J: That is not what it says, and for good reason,

because otherwise you would have a constantly

changing scene and you would never be able to make

an award. Parties could induce a change in the

scene.

MR MERKEL: Well I would say, with respect, Your Honour, if

section 101(2) were given a construction which

permitted or authorized the Commission to exercise

jurisdiction - and if I can take the most extreme

case - irrespective of whether the dispute still

existed at the date of the award, then it would be

unconstitutional and - - -

DAWSON J: That is another question.
MR MERKEL:	We would say - that would be right, and we would

then say, Your Honour, that if that be so then

section 101(2), when it uses the word "same

industrial dispute" should be interpreted as within

power, and it would be interpreted within power if

it meant the dispute - - -

DAWSON J: But that is another argument, whether the section

is beyond power.

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

say to Your Honours that we have sought to set out

the three steps in our reasoning in this argument

and the authority of the - - -

Hoyts(B) 16 11/8/93

DAWSON J: But first of all we have to discover the meaning

of section 101(2). Now, when it refers to an

"industrial dispute" first in that subsection, it
is the industrial dispute in relation to which

findings were made; am I not correct there?

MR MERKEL:  Yes, Your Honour,

DAWSON J: It refers later to the same industrial dispute -

that must mean the industrial dispute in relation

to which findings were made. Am I not right there?

MR MERKEL:	Yes, Your Honour.
DAWSON J:	And it can go and proceed on the basis of those findings in settlement of that dispute, and that is
what it did.
MR MERKEL:	We would seek, Your Honour, to attract possibly

some more meaning for the words "for the purpose of
exercising powers in subsequent proceedings in

relation to the same dispute". Can I just indicate to Your Honour that the steps in that reasoning are that the paper finding is never a substitute and

can never be a substitute for the industrial

dispute that in fact exists, that the power of the

Commission can only be exercised in respect of the

finding it has made in relation to an industrial

dispute and where it is the same dispute as that

found which it is exercising its power in relation

to. Now we would say that, if I can take what I

said is our strongest case, Blackburn's case makes

it clear that an initial dispute finding cannot be

relied upon where the industrial dispute no longer

exists at the date of the award and that case has

been acted upon time and again. Now if that is a

correct statement of the law, unless meaning be

given such as I have submitted to the words "for

the purpose of exercising powers in subsequent

proceedings in relation to the same dispute", then

that section would be beyond power, Your Honour.

MASON CJ:  Mr Merkel, could I take you to the two disputes

that appear in the chronology, the one on 22 August

and the one on 16 September, that were found by the

Commission. Those two disputes existed

concurrently after the finding of dispute on

16 September. The 16 September finding did not

supersede the earlier finding on 22 August?

MR MERKEL:  They were made as separate findings. I think

there is an overlap in subject-matter, Your Honour.

MASON CJ: There is an overlap of subject-matter, but the

two were considered to exist contemporaneous, even

though they were overlapping?

Hoyts(B) 17 11/8/93

MR MERKEL:	Yes, Your Honour.
MASON CJ:	The parties to that dispute were the Union and

Hoyts.

MR MERKEL:  Yes, that is correct, Your Honour.

MASON CJ: Those disputes were never resolved, were they?

MR MERKEL:	No, Your Honour.
MASON CJ:	And they were still on foot as between the Union

and Hoyts?

MR MERKEL:	Yes, Your Honour.
MASON CJ:	Why could the Commission not resolve those

disputes?

MR MERKEL: Because, Your Honour - - -

MASON CJ:	The matters in contention were still in contention.
MR MERKEL:	Yes, that is correct, Your Honour, but what we

say is that that was the paper aspect of it. We

say the real dispute, the underlying dispute which

the paper really manifested from time to time but

only parts of it, related to something more than a

staffing level.

MASON CJ:  What does it matter that there were other matters

in contention between other parties and, for that

matter, these parties? Why could the Commission
not proceed to determine the disputes that it had
found, because these matters were still in

contention, were they not, between the Union and

Hoyts?

MR MERKEL:	Yes, Your Honour. Those matters remained in contention, but we say that to follow what
Your Honour has put to me is to, in effect, ignore
two principles, if what Your Honour puts is
correct, as a basis for jurisdiction. The first principle, Your Honours, is that the dispute the subject of jurisdiction must be real, single and
interstate - I am picking up the words of Sir Garfield Barwick, His Honour the Chief Justice,
in the Tramways Board case - so that one does not look at each of the fragmented aspects of it
divorced from the one indivisible dispute.

MASON CJ: But you have acknowledged they were in

contention, these matters.

MR MERKEL:  They were in contention, Your Honour, but they

were never a manifestation of the dispute which

Hoyts(8) 18 11/8/93

related - the industrial dispute as a matter of

fact, Your Honour, related to the terms and
conditions of employment wider than just a staffing

level reduction in respect of five employees. That

was in disputation or difference between employer

and employee, but the real and single dispute went

far wider than that.

I must say, Your Honour, the Commission

certainly acted not upon a separate resolution of

each dispute treating it as a separate dispute, but

it has treated all of those matters as in effect

coalescing into one dispute. But once it has done that, Your Honour, it has departed itself from the

purity of the dispute findings as separate disputes

and accepted there is one dispute that has replaced

it in fact. We say that it has not correctly

identified both the subject-matter and parties to

that dispute.

Can I say there is a second answer to what

Your Honour puts to me, and that is that this Court

in the Hoyts matter this morning accepted what

Justice Murphy said in Bain's case, that an industrial dispute - that is the single dispute -

can be diminished, enlarged or altered in the

course of proceedings or in many other respects.

Now, what we say, Your Honour, is that what

Your Honour puts is correct, and possibly the day

after the dispute finding it may have been

permissible for the Commission at that point to

arbitrate and settle that dispute as a single

dispute. But, what has happened in the Commission

is that in the three intervening years there has

been alteration, enlargement in the way mentioned
by His Honour and that has resulted in the dispute

in its present form, bearing no resemblance at all to the two matter Your Honour has taken me to, but

creating other issues and involving other parties.

DAWSON J:

No doubt the dispute can be enlarged and no doubt

the Commission could proceed on the basis of the

enlarged dispute, but what section 101(2) says, it

can, if it wishes to do so, proceed on the basis of

the findings which it has made, and not saying it

proceeded outside those findings in making the

award that it made.

MR MERKEL:  We say in three relatively minor respects, but

that is not why we are here. It in fact, did.

That is a demonstration of why the - - -

DAWSON J:  I would have thought that section 101(2) was to

prevent just the sort of argument you are putting,

or - perhaps that is not an accurate - to prevent

your doing what you are attempting to do, to

Hoyts(8) 19 11/8/93

frustrate the exercise of jurisdiction by the

Commission by a dispute that you have never pinned

down.

MR MERKEL:	If that be correct, Your Honour, many decisions of this Court would be wrong.
DAWSON J:	I do not know of any decision that says

section 101(2) says anything different.

MR MERKEL:  I am just thinking, Your Honour, of cases such

as Turbet's case, where the dispute finding was on

an intrastate dispute and the Court found that it

could not proceed on that dispute finding because

it was too narrow, it was wrong, it did not accord

with the fact.

DAWSON J:  It was wrong in ..... constitutional basis for the

award, but that is not being suggested here.

MR MERKEL:	Sorry, but it is, Your Honour. We are - - -
DAWSON J:	How?
MR MERKEL:	We are contending there is no constitutional basis for the award because - - -
DAWSON J:	Not because of lack of interstateness.
MR MERKEL:	No, not because of lack of interstateness.
DAWSON J:	Because you say that they did not deal with the dispute which was before them.
MR MERKEL:	Yes, Your Honour.

DAWSON J: But they do not have to.

MR MERKEL:	We say, and I have to make this -
DAWSON J: There was a dispute in relation to matters which

have not been settled, and are still in contention.

They made findings in relation to that and the

section says they can proceed on the basis of those

findings.

MR MERKEL: Well, Your Honours, we, as I indicated, had

three steps in our argument, but it is fundamental

to our argument - and if we are wrong on this then
our argument must fail - that the jurisdiction must

be exercised in respect of the dispute which exists

at the date of the award. Now, if section 101(2)

has the effect of not imposing that requirement on

the Commission, we would say that it is

unconstitutional.

DAWSON J:  Why?

Hoyts(8) 20 11/8/93

MR MERKEL:  Because it empowers the Commission to make an

award in disregard of the dispute that exists, in fact, and whether it exists, in fact, at the date

of the award.

BRENNAN J:  You see, you are using this term "dispute" in a

very variable sense. The finding of dispute was

made not in relation to a paper dispute, it was

made in relation to an actual dispute, which was

created by the rejection of a log of claims.	Now,
that is a real dispute.	You cannot drive a wedge

between that and a real dispute. There may be

another real dispute but the question then that you

raise is, "Can the Commission make an award in

settlement not only of the paper dispute," as you

call it, "but also in relation to the other

matters?" Now, any challenge to the Commission's

award must depend very much on the course which

events took before the Commission and the part that

was played by the parties in inviting the

Commission to make an award covering those terms,

including higher duties, junior rates and part-time

and casual employment.

MR MERKEL:  Yes, Your Honour, but -

BRENNAN J: Where is your dichotomy between the paper

dispute and the real dispute?

MR MERKEL:  What we submit, Your Honour, is that the

Commission itself has not, in the result, treated

each paper dispute as a separate dispute.

BRENNAN J: That may be because the parties invited it not

to.

MR MERKEL:  I think that is correct, Your Honour, but that

is because the parties accepted that there was a

real and genuine dispute between the two Unions and

the three employers in respect of all aspects of

the terms and conditions of employment and the mode

by which that employment was to be regulated under

the statute.

BRENNAN J:  And the parties joined in inviting the

Commission to make an award in settlement of a

dispute outside and beyond that which was in the

dispute findings.

MR MERKEL:  Yes, Your Honour, that is the way the matter

proceeded, but then it did not proceed to its

conclusion in that way because there was a

fundamental change that occurred in 1982, and that

was that because of the role of the Union, and

again the background may not matter, but this was

basically a non-unionized workplace and the Union

was seen to have had an agenda or aims that were

Hoyts(8) 21 11/8/93

inconsistent with those of the employees in the

workplace, the employees themselves saw it was

their terms and conditions that were being affected

and there was, so we would put the argument, an

industrial dispute involving the employees over the
terms and conditions that the Union was seeking in

the Commission and over the form of regulation,

that is, award as against certified agreement.

We say that that did not create a new or

different dispute because it was over the very term

of employment and each of the terms the subject of

the dispute findings for each of the employees

concerned. We would say that that, a fortiori, is

a case where very much what Justice Murphy said in

Bain's case and what Your Honours said in Hoyts this morning, was a coalescence which involved the

original dispute in being enlarged both as to

subject-matter, because it covered all aspects and
the form of regulation of employment, which was not
the way in which the dispute findings evolved, and

it also covered additional parties, being the

employees concerned.	We say to treat that as a
separate - - -

BRENNAN J:  Why is it additional parties? Why is not the

Union the representative of those parties?

MR MERKEL:  Because the Union, Your Honour, only represented

its members, and to the extent it purported to be

seeking terms for non-members, the employees who

were primarily non-members had a legitimate

interest in respect of the terms of their

employment, and they had a legitimate interest that went in a very different direction on the terms and

conditions, and really the reason why this matter
has erupted in this way is because the award in

effect imposed a penalty on employment of

fact handed down - and my learned friend,

particular categories of employees, which was a

condition of employment that they were not subject

to prior to the award.

Now, I do not want to intrude on that case, but they had a real and genuine interest which was

foreshadowed by reason of the proposed award being

made, and as a result of that led to the

application by Hoyts to vary the dispute findings,

so that what we say was, at least at the date the

application was made, which is November 1992, a

coalescence of what was, at that point, a single

dispute.

Now what we say is that Your Honour

Justice Brennan is absolutely correct; the parties

did not seek to have the Commission proceed on the

Hoyts(8) 22 11/8/93

fragmented dispute findings resolving each as a

separate dispute, because that not only was
unrealistic, but it also was inconsistent with the
underlying fact of dispute and would not have
resolved the dispute that existed, but we say that
the Commission, in being invited to act by the

parties in the way it did, and acting almost on an

assumption that there was a general dispute, we say

imposed upon itself the obligation to be satisfied,

subject to section 101(2), that its jurisdiction

was being exercised in respect of an existing

dispute.

Now, I have mentioned that a number of times;

I have not taken Your Honours to the authorities that make good the proposition, but we would say
that the authorities that we rely upon do make good
that proposition and to the extent section 101(2)

would go beyond it, we would say that is invalid, and I must say, at the outset, if that becomes an

issue in the case, we then walk into section 78B

possibly, because we have given section 78B
notices, but that was on the basis of our primary

point, which is not the constitutional validity of

BRENNAN J: But your argument now, if I understand it, is

this, that the findings of dispute at pages 46 and

49 cease to have any practical relevance, but as

the result of the proceedings before the

Commission, taken on the request of the parties,

the Commission set about the task of settling some
other dispute, namely a dispute relating to all

these matters and including a dispute between the

employer and its employees, whether unionized or

not. That is your proposition, is it not?

MR MERKEL:  Yes, Your Honour, although, can I just

substitute for what Your Honour said "practical

relevance", we would say "constitutional

relevance" .

BRENNAN J: That may be so, but it seems to me to be a very

different sort of a case from the one that you

wanted to mount. Section 101 has no application to it at all. There has never been a dispute finding.

MR MERKEL: Well, Your Honour, we started our argument on

the basis that the underlying dispute is not that

which was settled and that is why we said in

paragraph 4(a) that that must follow from what the

Commission itself did and we put it in the

alternative in 4(b) that, having a proper and

bona fide section 101 application was not entitled

to do so.

Hoyts(8) 23 11/8/93

BRENNAN J: But forget 101, forget the original dispute

findings which are not ad rem, it seems to me, on

your argument. If the Commission proceeded on the

footing that there was a wide ranging dispute, the

real underlying dispute, as you call it, and it has

made an award in settlement of that dispute without

making a dispute finding, two questions arise: one

is, can they do so without having made a dispute

finding about it; and the second is, if they can,

then have they done so? They might have done so

wrongly, but have they done so? They saw the

dispute in a particular light and they settled it

in that light.

MR MERKEL:  Yes, Your Honour. We say that the reality is

that Your Honour's first proposition that has been

put to me is an accurate reflection of what
occurred in that they regarded each separate

dispute finding ultimately as coalescing into a

wider dispute but never made the finding that was

necessary to identify what that wider dispute was

and that was one of the reasons we made the

application. We say that having had that

application made, and indeed, Your Honour

Justice Dawson in Your Honour's reasons on

dispute findings" and the apparent wisdom, without hearing anyone other than ourselves, of having a

23 December saw the problem of the, what

single dispute finding that really, in effect,

identified the dispute that was going to be

settled.

DAWSON J:  There may be difficulties with that. That

transpired in subsequent proceedings that there

were difficulties in amalgamating all the

proceedings.

MR MERKEL:	We say, Your Honour, that - - -
DAWSON J: That was what occurred in Hobart.
MR MERKEL:	What occurred in Hobart was a difficulty in

saying that merely because there are section 115

applications for certification and an award

application, that there was a jurisdictional

deficiency or defect in the Commission procedurally

determining each as it saw fit, but the Hobart

question did not raise any issue it has now raised

today, which is the dispute finding which exists in

fact.

The other matter that I was going to say to

Your Honour Justice Brennan is that there comes always at the forefront of the Act the requirement

under the Constitution that the dispute that is

settled be that which exists in fact. We say that

Hoyts(8) 24 11/8/93

when you have what has occurred in the present case

and the Commission acting as we say it has, not

treating each finding as conferring separate

jurisdiction but treating it as in effect
accumulating jurisdiction, and it is invited to
identify that accumulated jurisdiction and the

parties to the dispute in existence which it is

settling, in those circumstances we say

Your Honour's second proposition arises, and that

is that it has purported to settle a dispute

without making a finding as to the dispute it is

settling.

That is demonstrable from what it has said in

its statement which we have picked the words out

from in paragraph 3 of our outline, that they will

look to that matter after making the award because

it may have implications for the dispute findings

which it is purporting to rely on as the

jurisdictional basis for its decision.

GAUDRON J: Could I add a third question to those to you by

Justice Brennan. Assume that events occurred as

outlined in those questions. Is there a

jurisdictional error in any event? I come back to

what I said first. Let us assume there is a real

dispute but no dispute finding is made. Is it an

error of jurisdiction to proceed to settle the

dispute either by conciliation or arbitration?

MR MERKEL:  We would say, Your Honour, it must be because

the power conferred must require for its proper
exercise the identification of subject-matter and

parties, and can I just take Your Honour's example and use "parties" as an example. The dispute must be settled as between the disputants and, as was

said, in the Australian Railways Union's case a law

which enables a dispute to be settled without the

disputants cannot be a law under section Sl(xxxv),

so that as a fundamental precondition to the

exercise of jurisdiction the determination of the

disputants must occur, and that can only occur by	an express finding by the Commission, particularly
where it is asked to make a finding on that matter,
and we say that a similar argument applies to
subject-matter, that can only settle the matter in
dispute and it cannot settle an unidentified
matter.

GAUDRON J: Well, that says that the jurisdiction of the

Commission does not depend upon the existence of a

dispute but upon the existence of a dispute and a

finding of that dispute.

MR MERKEL:  The word "finding", Your Honour, comes up under

section 101.

Hoyts(8) 25 11/8/93

GAUDRON J:	Or a recording of the dispute.
MR MERKEL:	Yes.  We say it requires two thing, Your Honour,

to be a jurisdiction validly exercised. One is,
there must exist, in fact, an industrial dispute

and there must be a finding or a determination in

the process of settling that dispute by arbitration

of the subject-matter in the disputing parties.

GAUDRON J: Well, I can understand you say that there "must"

be but you, for compliance with the Act, for the

procedures laid down in the Act which may give rise

to other questions. I am talking about the

jurisdiction; on what does jurisdiction depend?

Not what does the Act require in terms of the exercise of it?

MR MERKEL:  Your Honour, my answer to Your Honour was the

requirement to meet the constitutional requirement.

That one cannot settle by arbitration an industrial

dispute without identifying the subject-matter and

the disputing parties because the constitutional

requirement would not be capable of being met.

Now, the process by which identification occurs is

not a constitutional requirement but it must occur

because there is no way one can logically relate

settlement of the dispute by arbitration without an

identification of subject-matter and parties, and

the Australian Railways Union case, in effect, said

that. But, we say, the Act gives effect, in a

mandatory way, to the constitutional requirement.

I should take Your Honours straight to the

authorities that we rely upon, but before doing so

can I just clarify the course in which the

proceedings took in the Commission. Can I just ask

Your Honours to note the applications which are the

subject of the application for leave and, if

successful, on the appeal.

The first application under section 101 was made on 11 November, at appeal book page 281.

There was a further letter in relation to

submissions concerning it on 24 November, at appeal

book page 308. There was a request by the

employers for the Commission to determine its

application before they put final submissions in on

the arbitration because they said their submissions

depended upon the finding of dispute and parties.

But that was not responded to by the Commission

positively - it said, "We just require

submissions". As a result of that, on

29 March 1993, at appeal book page 330, the

employers put their submission and application in
an alternative way which rejected having Greater

Union and Village as parties to the dispute finding.

Hoyts(8) 26 11/8/93

Then on 6 May, in the application book in

matter M50 at page 83, the employers sought to have
the dispute found one which did not extend to

Greater Union or Village and amended its

application, so that the matter before Your Honours

no longer is in respect of a wider dispute finding,

but it is only in respect of the three employer

companies, its employees, and the two Unions - the

tripartite contest.

Can I just indicate to Your Honour the

decisions of the Commission that bear upon the

applications, starting, if I can, with

Your Honour Justice Dawson's decision not to grant

the order nisi. It appeared by 23 December that

the Commission was refusing to exercise its

jurisdiction to consider whether there should be a

new dispute finding, and we applied to His Honour

on 23 December. His Honour declined to grant the

order nisi and His Honour's reasons are are

page 289. But His Honour, in essence, said that

whilst he had sympathy for our submission, the

Commission had not indicated that it was refusing

to exercise jurisdiction under section 101.

The Industrial Relations Commission, on

24 December, handed down reasons for refusing an

adjournment, at page 299. Just to explain that,

the Commission had adjourned the dispute finding in
respect of the conciliation proceedings, but said

it was continuing with the arbitration proceedings

and Hoyts sought to adjourn both, or adjourn

neither, and it gave reasons at page 299.

The next event was it handed down three

decisions on 1 April. It first handed down its
statement on the section 101 application, and that

is at page 397. It then handed down its award a

few moments later, and that is at page 334, and

then finally, on 19 May, it maintained its refusal to hear the application under section 101 and that

appears at the application book for M50 at page 58.

We say that within those applications and decisions

are to be found the factual basis for our
application for an order nisi and an order

absolute.

Could I indicate to Your Honours that the

basis upon which we say the law requires

jurisdiction, both as a constitutional and a

statutory requirement, to be exercised in respect

of the dispute at the date of the award is set out

at paragraphs 5, 6 and 8 of our submissions, and if

I can now take Your Honours briefly to those

decisions, the - - -

Hoyts(8) 27 11/8/93

BRENNAN J: Before you do, could I endeavour to clarify for

my own purposes, Mr Merkel, and I am sorry that I

have not grasped it entirely, but I am not sure,

having regard to the exchange that has occurred

between yourself and the Bench what the present

nature of your application is in these matters. Is it to challenge the Commission's refusal to make or

to consider a variation of the dispute finding?

MR MERKEL:  Yes, Your Honour.

BRENNAN J: With a view to the finding being made of what

you call the underlying dispute which includes the

employees of Hoyts?

MR MERKEL: Yes, Your Honour.

BRENNAN J:  And covering all the subject-matters that have

been dealt with in the award?

MR MERKEL:	Yes, Your Honour.
MASON CJ:	And they are the two findings that you have so

far identified in 1988?

MR MERKEL:  No, Your Honour, the 1988 matters went only to

some aspects of the - - -

MASON CJ:	What are the findings of dispute that you say should be varied?
MR MERKEL:	We say, Your Honour, the finding of dispute

should be that there is - and I think we have tried

to set it out, Your Honour, in the application

which is at page 281, but can I ask Your Honours to

read that application as it stands in its present

form which is to exclude any finding in respect of

the employers, Village and GU, as a result of the

May submissions that we have set - - -

BRENNAN J:  We have not got all the findings drawn to our

attention that are itemized in paragraphs 1 and 2,

have we? There is a number of findings there and

you have shown us the ones at pages 46 and 49.

MR MERKEL: All the dispute findings are set out in our

chronology, Your Honour. Your Honour will see that

on the first page of the chronology - and no doubt

we will be corrected if we have missed any, but we

believe this is accurate - in the first page of the

chronology we have set out each of the

notifications, and each of the dispute findings,

and we have also set out where there were

notifications but no findings.

MASON CJ: Well you have got three findings of dispute on

the first page of your chronology.

Hoyts(8) 28 11/8/93

MR MERKEL:  Yes, Your Honour. And then there were

applications for variation in 1989.

MASON CJ:  Now, to what findings of dispute did they relate,

those applications for variation?

MR MERKEL:  Our application for variation, Your Honour,

related to each of the dispute findings that had

been made and they identified the matters in which

there was a dispute finding.

MASON CJ: Well, are they the three on the first page of

your chronology?

DAWSON J: Actually there may be more than three, because it

depends on whether other notifications - - -

MR MERKEL:  So, Your Honour, if I may overnight try and

relate the application to the findings. What has

happened is that each time there is an application

in the Commission they give it a C number and
therefore the actual matters do not necessarily

overlap and mirror image a dispute finding, but

what we have sought in paragraph 1 of the

application is to identify the dispute findings.

Now, each of those should have been referred to.

The three in 1989 should be - the three C numbers

should accurately reflect the 1988 and 1989
findings on the first page, and there was a further

finding in 1991, which is not in our chronology,

and I will have to get that, Your Honour.

BRENNAN J: It does make it a bit hard, Mr Merkel, does it

not?

MR MERKEL:  I am sorry, Your Honour.

BRENNAN J: Really, this is the foundation of your case and

we cannot find them.

MASON CJ:  But your outline and your chronology seem to make

confusion worse confounded.

MR MERKEL:  I will find the 1991 finding, Your Honour. Can

I just say this, I think the 1991 finding - and I

will get the reference - is not relevant, because

it related to breaches of the undertaking of

clause 31 and it arose, in itself, as a discrete

matter concerning clause 31, but I will find that,

Your Honours, but I do not think it touches upon

the issues, but they are, as I understand it, the

only findings.	I will get that reference to
Your Honours in a moment, if I might.	And then,

what was sought in paragraph 2 is that all the

C matters which were before the Commission, which included the matters in respect of which it had

made findings, the matters which it was listing

Hoyts(8) 29 11/8/93

before it in respect of which it had not made

findings and the section 115 applications which had

each been given C Nos of their own, all in effect

be the subject of one dispute finding which would

accurately record the underlying dispute.

The dispute as set out - and the relevant time, we say, for the purposes of the present case,

is in subparagraph (a)(iv) on page 282, which is in

November, involved the three Hoyts employers, the

two Unions and the Hoyts employees. Then at

page 283 which set out the subject-matter of the

dispute which covered what I might describe as all
of the terms and conditions of employment.

Secondly, the question of whether the regulation

should be by award or by certified agreement, and

we say that that accurately recorded the

subject-matter and the disputing parties as at

November 1992.

Matter No 30448 of 1991, Your Honour, is a

finding at page 166 and it relates to the

Village GU aspect of the matter which Your Honours

decided this morning, and therefore is irrelevant

to today's application.

GAUDRON J:  I know this is my fault, but I cannot link up

matters 20,037 and 30,084 of 1989 either with the

chronology or your outline.

MR MERKEL:  I think, Your Honour, they - and I will check

this - should be the December 1988 roping-in claims

of Delorene and Rampton, but I will prepare a

document that sets this out with clarity, if I

might, overnight.

MASON CJ:  We have wasted a good deal of time,

Mr Merkel, on this and we do not seem to be

approaching clarity even after two hours.

MR MERKEL:	Your Honours, the real point we make is that the dispute findings have been made in this fragmented
way, and I will prepare a summary relating it to
the C Nos which we had not done in our outline and
which we should have; I am sorry for that, Your Honours.
BRENNAN J:	What is the proposition leading from that, that

the disputes that have been found do no longer

exist, or that the disputes that have been found

have coalesced in one larger dispute so that they

cease to exist?

MR MERKEL:  Yes, Your Honour, we say it is the latter, that

they cease to exist in the constitutional or

statutory sense.

Hoyts(8) 30 11/8/93

BRENNAN J: Because they coalesced in a wider dispute?

MR MERKEL:  Yes, Your Honour.

BRENNAN J: What is wrong with what the Commission did was

that it did not hear the argument that it had so

coalesced?

MR MERKEL:  Yes, Your Honour.

BRENNAN J: Where does the duty come upon the Commission

having made a finding of a particular industrial

dispute that it must consider whether that

industrial dispute ever coalesces into a wider

dispute?

MR MERKEL:  The duty arises, Your Honour, from the cases

that we have set out in paragraphs 5 and 6 of our

outline.

MASON CJ: It does not seem to me that the joint judgment in

Finance Sector Union supports this proposition.

MR MERKEL:  We say, Your Honour, it does, in this sense,

that the judgment in Finance Sector Union referred

to the context of - I think the words were "in that context", which was a reference back to the context where the parties agreed to resolve part of their

dispute. That does not mean that the dispute by

reason of the resolution is necessarily other than

that which was originally found. But, Your Honour,

we say that the Finance Sector Union case concerned

whether a dispute ceased to exist at the date of

the exercise of jurisdiction and what the majority

judgment said, and we say, there was no difference

in principle between Your Honour Justice Brennan

and the majority on the underlying principle, the

difference was on a question of fact, the question

was whether the dispute had ceased to exist and

Your Honours said that a dispute does not cease to

exist merely because the parties resolve on the way

some aspect of it, or no longer wish to pursue it, in part, for a period of time. That does not mean the dispute has suddenly disappeared but we would

say that that was not a decision and should not be
taken by the Court to be a decision that said the
dispute finding can absolve the Court of its duty
to settle the dispute in existence at the date it
exercises jurisdiction.

Indeed, Your Honours' discussion in the majority is only explicable by reference to an

acceptance of the requirement that the jurisdiction

must be exercised concerning a dispute still in

existence. The question is whether it is still in

existence and that is what Your Honours were

addressing. We would say that Your Honours should

Hoyts(8) 31 11/8/93

not be taken as disagreeing with the authorities

that we rely upon at paragraphs 5 and 6.

MASON CJ: If parties to a dispute or disputes found to

exist are still maintaining the claims that were

the subject of the dispute or disputes found to

exist, how can it be said that those disputes have

ceased to exist merely because they have become

part of a larger framework of disputes?

MR MERKEL:  Your Honour, it depends, how Your Honour is

using the word "dispute". If Your Honour is saying

in a constitutional and statutory context the

dispute must be one, and there is a coalescence

principle that can apply to the one and indivisible

dispute, we say that all the single dispute
findings maybe were capable of being one dispute at
the time they were made, but they did, in fact,

coalesce, and we say that that is not a matter that

Your Honours were addressing at all in Finance

Sector Union. Your Honours were really addressing

whether a dispute ceased to exist; Your Honours

were not addressing the question of a dispute that

changed its form or parties and, we say, that that

raises quite different questions. The underlying

principle must be the same but, we say, that when one goes to the authorities - which I wish now to

do - we say, that Finance Sector Union supports the

underlying principle, namely that the jurisdiction

is to be exercised in respect of the dispute in

existence at the date of exercise of jurisdiction.

Otherwise, no question would have arisen.

DAWSON J: This is all semantics, I mean a dispute is over

various matters and if you look at each matter

separately you can have a number of disputes, and

there is no reason why you should not.

MR MERKEL:	Your Honour, that is why - - -
DAWSON J: There is nothing in the Act or the Constitution

which says that you have to lump any number of

disputes as to various matters together.

MR MERKEL:  No, Your Honour, there is nothing, except each

dispute must consist of a single dispute in respect
of which jurisdiction is to be exercised, but we

say that the Commission did not -

DAWSON J: That is the purpose of making a finding: to

group some together. But there is no obligation to

group any particular number of disputes as to

matters together and call them the one dispute.

MR MERKEL:	Your Honour, the answer we give is that the question ultimately is what the underlying dispute
in fact is.

Hoyts(8) 32 11/8/93

DAWSON J: But that is just to mask the problem. There may

be a number of underlying disputes if you like to

look at it in a particular way.

MR MERKEL:  We say, with respect, Your Honour, that the

Commission, in fact, did unmask the problem by

treating the disputes as coalescing but never made
the finding as to what they were or who the

disputants were at the relevant time. We say that

it would be masking the problem if one resorted to

the historical dispute finding which no longer bore

any relationship to what was, in fact, being

arbitrated upon when the decision was being handed

down.

BRENNAN J: That raises completely different problems. If

you look at it from the point of view of this

question - is there still a dispute between Hoyts

and the Union with respect to the subject-matters

that were found in the findings of dispute - and

the answer to that question is yes, the question of

whether or not the Commission exceeded its

jurisdiction by making an award in settlement of

some wider dispute must depend in terms of an
application for prohibition upon the part played by

the party seeking prohibition in the course which

the Commission took. If for your part you took

some part in inviting the Commission to deal with

this on a broader basis without making a finding,

so be it. It raises completely different problems

from the finding of dispute which you are now

seeking to challenge.

MR MERKEL:  We can accept what Your Honour says, but we say

we have done exactly that, because by November 1992

the matter had become - in terms of dispute finding and what was in fact being settled, they had parted

ways, and what the employers sought by their

section 101 application was to ensure that the

jurisdiction was to be exercised in respect of the

subject-matter that was before the Commission.

BRENNAN J: That is a very different question from the

question of whether or not you can attack the award because there has been no variation of the existing findings.

MR MERKEL:  But, Your Honour, we say that having raised that

issue and the Commission having proceeded in what I

can loosely describe as a coalesced dispute, we say

that the proper course for us to have undertaken was to require that dispute finding, and we say,

having had that raised before the Commission, it

was incumbent upon it to deal with it prior to its

award, not say it would consider it after its

award. It may be put against us that if it dealt

with each separate dispute finding as historically

Hoyts(8) 33 11/8/93

still in existence in fact and resolved each

separate dispute as a separate dispute, it may well

have been performing its jurisdiction and

section 101(2) may have protected it.

But that is not what in fact occurred.

Neither the Commission nor the parties pursued that
course, and therefore once those dispute findings

no longer became the source separately for each

resolution and there was being treated by the

Commission a dispute which was single and

indivisible and real, then we say the application

made must, as a matter of law, have been dealt with

in some way. How is a matter for the Commission,

but in some way before the award. That is the

essential complaint we make.

BRENNAN J:  I can understand the way you put it, but I do

not know what is the material on which you move for

prohibition.

MR MERKEL:  The material on which we move for prohibition,

Your Honour, is that the fact set out in the

affidavit and the exhibits and the decisions I have

taken Your Honour to, demonstrate that, as a matter

of fact, that that has been established, and the

decision of the Commission itself has treated all

the dispute findings as, in effect, accumulating,

not seeking to settle each dispute separately, but

seeking to resolve the whole of the dispute,
because the award certainly has treated the dispute
in the broadest possible way but has excepted from

it the employees who, in the events that occur, are

vitally concerned and wish to follow a different
course and we say that was the vice inherent in not

being prepared to make a finding as to who the

disputing parties were.

But if I could go to paragraphs 5 and 6,

because we say that those paragraphs do establish

as a matter of law the contention that we make,

namely, that if the jurisdiction can only be

exercised in relation to the disputants and matters

in dispute when the award is made, that is

something the Commission is bound to do but has not

done and has refused to consider or embark upon the

task of doing so.

The first decision is the Melbourne Tramways

Board case, 113 CLR 228. The particular passage

that we rely upon is in the decision of the

Chief Justice Sir Garfield Barwick, at pages 238 to

239. At point 8 His Honour said:

It was not suggested that the dispute claimed by the Union to exist fell within the ambit of the original dispute in settlement of which

Hoyts(8) 34 11/8/93

the awards mentioned in the letter of demand

had been made. The dispute as to the manning

of buses operating out of the North Fitzroy

and Port Melbourne depots of the Board was

itself merely a local dispute. Whilst the

time at which an "inter-State" dispute must

exist is the time the award under challenge

was made, and whilst in some circumstances

such a dispute may emerge during proceedings

under the Federal Act, in this case -

and then His Honour went on to deal with another

matter. But what His Honour said at page 239 at

point 5 is:  ·

But though it is essential to ensure that the

dispute arising out of a written demand for

agreement is real, single, and inter-State in

its nature, the language of the written demand

must be read -

and then His Honour went on to discuss a different

principle. So we say that the award can only be

made in settlement of a real, single and interstate

dispute and that which exists at the time

jurisdiction is exercised. I go next to

Blackburn's case, 88 CLR 125. In the joint

judgment at pages 135 to 137, Their Honours discuss

the requirement of the dispute having to be

settled, and in particular Their Honours at 136

point 5 commented:

The fact that the Court or the parties on the

road to or in process of settlement of the

dispute made some awards or some such

agreements, which did not together cover the

whole area of the dispute, did not dispose of

or end the dispute or change its character.

And we again say that changing its character is the

coalescence principle. Then in particular, at

page 137 at point 3, the middle paragraph,

Their Honours said:

With the statement which we have

italicized we respectfully agree but that

their Honours were not speaking of a case such

as the present and that the statement was not

intended to refer to such a case is made

obvious by their comment that there was

"nothing in the nature of a withdrawal by one

party from the industrial dispute or a

retraction of his demands or refusals".

Their Honours then added:

Hoyts(8) 35 11/8/93

Indeed, it follows, we think, from their

reasons that their Honours considered that the

extent of a dispute at the time of the making
of an award was a vital matter for
consideration and, if this is so, the

existence of a dispute at the time the

jurisdiction is exercised is equally vital.

We rely very heavily on the extent of the dispute at the time of the making of an award, bearing in

mind that the real and indivisible dispute may

change its character in the course of proceedings

in the Commission.

GAUDRON J: Is there any difference in principle depending

on whether the dispute is diminished or enlarged?

MR MERKEL:	As presently advised not, Your Honour.
GAUDRON J:	The cases, if I understand it correctly, to

which you have just recently referred, are cases in which - Blackburn was a case in which it might have

been thought that the dispute was diminished.

MR MERKEL:  Yes, Your Honour, but we would find it hard to

see why there could be any different principle if

the indivisibility of the constitutional dispute is

accepted.

BRENNAN J: But that indivisibility was spoken of in terms

of the sufficiency of a log of claims to generate a

dispute.

MR MERKEL:	Yes, Your Honour, but we say that in characterizing a dispute as a question of fact, one
must confront the different matters in dispute with the matter in dispute or the dispute. We say it is
ultimately a question of characterization and that
is how we say the cases have approached it.

Could I go to the question that Your Honour

Justice Gaudron has raised with me. We say that

passage that Your Honours cited with approval this

that was the subject for consideration by

morning in the Hoyts case we say makes good, with

respect, our proposition, and that is at page 168 -

and we say this is the real issue and that is the
question of paper over fact, and His Honour made it

very clear at point 8 on page 168:

The Commission has power to determine what in

fact is the industrial dispute and is not

circumscribed by the procedures for rejection
of paper demands. Thus an industrial dispute

may be diminished or ended or enlarged or

Hoyts(8) 36 11/8/93

altered during the course of the proceedings

in the Commission.

His Honour cited examples of a practical

application of that principle.	One of them was
Justice Jacobs in Reg v Portus, 141 CLR 1.	I think

that may not have been on our list of authorities

and if I could just hand that up to Your Honours.

The case concerned a dispute over the

interpretation to be given to the log of claims and

there were differences of opinion amongst various

members of the Court as to how they should be

interpreted, but His Honour Justice Jacobs at page

24 approached the matter as one of substance and we

say this is a correct statement applicable to the

present case. What His Honour at page 24 said:

This is not a case where jurisdiction

depended upon the making and rejection of

paper demands. It must be borne in mind that

the procedures of paper demands which have

developed over the years, although in some

contexts it has allowed a considerable

extension of the jurisdiction of the

Commission in circumstances where there is no

other evidence of the existence of an

industrial dispute, does not delimit or

circumscribe the power of the Commission in

circumstances such as the present case to find

whether any, and if so, what industrial

dispute in fact exists.

Then His Honour set out a passage from the

Commission decision which had approached the whole

matter as one of interpretation but then His Honour

added at the end of page 24:

But such concessions cannot deprive the

Commissin of a jurisdiction where in fact

circumstances exist which give it

jurisdiction. Where in fact there is

jurisdiction, the Commission may exercise that

jurisdiction even if it makes an error in its

reasons for the conclusion that it has

jurisdiction or follows an erroneous line of

reasoning.

Now, His Honour approached the dispute

identification by what in fact happened and that

fell within the definition of a dipute being quite

different to that which was the subject of the

demands. In the decision Your Honours handed down

this morning, Your Honours addressed the very issue

at pages 12 and 13 where Your Honours, dealing with

part of the circumstances of the present case, at

top of page 12, third line, said:

Hoyts(8) 37 11/8/93

The same conceptual difficulties -

and that was in relation to a dispute between

employers -

do not arise in relation to the notion that

two disputes, although originally quite

separate, have coalesced -

Your Honours cited Justice Murphy in Bain's case -

into a single dispute in which the disputants

are at the federally registered union, on the

one hand, and, on the other, employers whose

employees are or are eligible to be members of

that union.

All we add to that is "and the employees

concerned", and we say that we have been denied the

opportunity and, we say, the obligation of the

Commission to determine what that single coalesced

dispute is. Your Honours said at the bottom of

page 13 that - and we say this is what has occurred

in the present case. Your Honours concluded that,

having regard to Your Honours' reasons, there was:

no basis on which it can be said that, in

failing to engage in the exercise -

and that is on the application of Hoyts -

the Commission refused to exercise

jurisdiction.

Of course, it had a discretion under lll(l)(g) in

the Citicorp case whether to consider the

application. It had a discretion in the Hoyts'

case, of this morning, as to whether it would

embark upon the exercise of jurisdiction to vary

the award.

We say that if it refuses to embark upon that

exercise of jurisdiction for a wrong basis or in

breach of its duty to do so then, we say,

prohibition does lie.

The other example we give of where a dispute

found by the Court in this instance to be wider

than that which was the paper dispute found was

Turbet's case. I do not need to take Your Honours

to it, but in Turbet's case, particularly

Justice Stephen's judgment at 342 to 343 - and the

reference to it is 144 CLR 335 - Your Honours found

that the paper definition of the dispute properly
characterized an intrastate dispute but the
underlying factual circumstances constituted an
interstate demarcation dispute. Your Honours did

not grant prohibition because the Court said that

Hoyts(8) 38 11/8/93

in view of the Court's findings you had little

doubt that the Commissioner would vary his dispute

finding but if he did not, the prosecutors could

renew the application.

So we say that that is an example of where the

Court will not be restricted by the finding of a

paper dispute. The task must always be both before the Commission and this Court as to what the actual

dispute was. We say that those authorities

established the propositions for which we have

contended. The matter can be tested as to whether

the duty exists by examining the significance of a

dispute finding in relation to subject-matter and

parties. There are three aspects to that which we

advert to in paragraph 9 of our outline.

That is why we would say that the duty in

respect of a 101 variation arises, not only by
reason of the principles which we have adverted to

in Bain's case, but also by reason of the manner in

which the Commission can comply with its duties

under the Act which give effect to its

consitutional obligations or the constitutional
obligations in respect of an industrial dispute.

We have given three examples in paragraph 9: the

first is that the powers granted and, indeed, the

duties imposed in section 89 to prevent and settle

a dispute; section 91 in respect of encouraging

settlement by, in effect, agreement and

conciliation; then, section 101 through to 104,

which is the process of conciliation and

arbitration are mandatory and can only be performed

by the Commission if it has determined the

subject-matter and the disputant parties.

A second way in which it is put, and this is

again re-emphasized by Your Honours' decision this

morning that section 33 of the Act only entitles

parties or persons bound by an award to seek to

vary an award, and the finality of a dispute

finding under section 101(3) have the consequence

that an award can never be made, or should never be

made as a matter of jurisdiction in settlement of a

dispute without the parties who are to be subject

to it, bound by it, and may apply for its variation

being determined, and non-parties cannot.

Finally, when one looks at decisions such as

Moore's case and Isaac's case, the obligation for a

valid exercise of jurisdiction is one which means

the award will be vitiated if a party to the
dispute, and we say the dispute is the factual

dispute, the dispute existing in fact, not on

paper, is not heard, and we say that - - -

Hoyts(8) 39 11/8/93

MASON CJ:  Mr Merkel, we will adjourn now and we will resume

at 10.15 tomorrow.

AT 4.27 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 12 AUGUST 1993

Hoyts(8) 11/8/93