Metal Trades & Anor, Ex parte - Re AIRC

[1994] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S181 of 1994

In the matter of -

An application for writs of mandamus, prohibition and certiorari against the AUSTRALIAN INDUSTRIAL RELATIONS  COMMISSION, The Honourable IAN JAMES KERR ROSS (a Vice-President of the said Commission), The Honourable COLIN GEORGE POLITES (A Senior Deputy President of the said Commission), ERROL RAYMOND HODDER, Esquire, (a Commissioner of the said Commission), AUTOMOTIVE FOOD METALS AND ENGINEERING UNION, CONSTRUCTION FORESTRY MINING AND ENERGY UNION NATIONAL UNION OF WORKERS, AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION, THE AWU-FIME AMALGAMATED UNION and THE AUSTRALIAN COUNCIL OF TRADE UNIONS

Respondents

Ex parte -

METAL TRADES INDUSTRY ASSOCIATION OF AUSTRALIA and ENGINEERING EMPLOYERS ASSOCIATION SOUTH AUSTRALIA

Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 19 DECEMBER 1994, AT 10.00 AM

Copyright in the High Court of Australia

________________________

MR R.V. GYLES, QC:   If Your Honour pleases, I appear with MR R.E. DUBLER for the prosecutors.  (instructed by Cutler Hughes & Harris)

MR S. CRAWSHAW:   If the Court pleases, I appear for the ACTU, the Automotive Food Metals and Engineering Union, the Construction Forestry Mining and Energy Union, the National Union of Workers, the Australian Liquor Hospitality and Miscellaneous Workers Union and the AWU-FIME Amalgamated Union, which are all of the Union respondents. (instructed by Jones Staff & Co)

MR GYLES:   Your Honour, the notice of motion is dated 12 September 1994, supported by an affidavit of Ronald Joseph Baragry.  I should indicate to Your Honour immediately that if it were not for one of the points which arises, we would not seek to argue that it should not be remitted but we say there is a particular point here which may - - -

HER HONOUR:   Before we get to remission, can we just see whether the grounds, perhaps - - -

MR GYLES:   Yes, I am not - - -

HER HONOUR:   You are not assuming that an order nisi will be made?

MR GYLES:   No, no, certainly not.  I am just indicating to Your Honour that were it not for that point we would not be troubling about remission.  That, of course, is not the initial point in the application.

HER HONOUR:   Yes.

MR GYLES:   Mr Baragry’s affidavit is also sworn 12 December.  He says he is:

the Solicitor for the Prosecutors and I am authorised to swear this affidavit.

The Prosecutors were Respondents to -

the proceedings which are there identified, Your Honour, which were applications to vary the award or awards.

A copy of the Log of Claims that gave rise to the industrial dispute upon which the application to vary the Metal Industry Award 1984 Part V depended is exhibit “A” to this, my affidavit.

And perhaps I should tender that, Your Honour.

HER HONOUR:   Yes, thank you.  Yes, it was an exhibit to the affidavit.  I in fact have that, yes.

MR GYLES:   I will tender that, Your Honour. 

HER HONOUR:   Yes, thank you.

MR GYLES:   Your Honour will see that it is in pretty much standard form.  Your Honour will see from the affidavit Mr Baragry explains he had some difficulty getting logs of claims in relation to the other matters.  I doubt if very much will turn upon that because we believe them to be in very similar form and the point we wish to argue is a very straightforward one which, I think, will not turn upon the details of the other logs in any way which does not appear from this log.

Mr Baragry then exhibits, Your Honour, the relevant applications as exhibit B and might I tender those.

HER HONOUR:   Yes, I have that, thank you.

MR GYLES:   And then Mr Baragry exhibits a copy of the decision as exhibit C, and I tender that.  May I come back to these in due course, Your Honour.

HER HONOUR:   Yes, thank you.

MR GYLES:

Following the 31 October decision, and prior to any order having been made, the Prosecutor applied to the Commission for a reference pursuant to s.46 of the Act to the Industrial Relations Court of Australia of various questions of law it submitted arose in the proceedings.  A copy of the Draft Special Case to Refer Questions of Law is exhibit “D” -

and I tender that, if Your Honour pleases.

By its proposed questions of law the Prosecutor -

I am just looking to see - I think that might be the end of the exhibits.  I am sorry, yes, I will go on -

proposes to submit that the proposed variations to the Awards as contemplated by the 31 October 1994 decision would be beyond the jurisdiction of the Commission to make as they:

(a) would not set fair and enforceable minimum wages and conditions of employment within the meaning of s.88A of the Act;

(b) could not act as a safety net of minimum wages and conditions of employment underpinning direct bargaining within the meaning of s.88A of the Act;

(c) would not be within the ambit of the logs of claims in settlement of which the purported award variations were to be made

HER HONOUR:   Yes.  Well, apart from the last question, they sound very much like questions of fact, do they not?

MR GYLES:   With respect, not on the basis of the arguments advanced below or dealt with in the - I mean, one might have a question of fact expressed in that way but not in this case, in our respectful submission.

HER HONOUR:   It sounds very much like it to me, Mr Gyles.

MR GYLES:   I will endeavour to persuade Your Honour to a contrary view.

By its proposed questions of law the Prosecutor also proposes to submit that by its decision of 31 October 1994 the Commission was proposing to act contrary to its statutory duties and beyond its power because:

(a) it was treating the word “agreements” in s 3(a) of the Act as being restricted to formal agreements meaning certified agreements under Division 2 of Part VIB of the Act or enterprise flexibility agreements under Division 3 of Part VIB - - -

HER HONOUR:   Now, is that the national wage decision that you are talking about there rather than the decision relating to the applications for variation?

MR GYLES:   It would apply to both, effectively.

HER HONOUR:   I am just not too sure about that either.  I just alert you to that as being another problem I have with your application.

MR GYLES:   Yes, thank you.

(b) it was wrongly treating the word “agreement” within the meaning of s.170LA(1)(b) of the Act as restricted to certified agreements under Division 2 of Part VIB of the Act and enterprise flexibility agreements under Division 3 of Part VIB of the Act; and

(c) it was thereby erroneously taking its duty to be to encourage the use of workplace or enterprise agreements being restricted to only formal agreements -

and they are again described -

to discourage the making of other enterprise agreements.

6.  In requesting a reference of the questions of law by the Commission pursuant to s.46 of the Act, the Prosecutor submitted that the Commission was under a statutory duty to refer the said questions of law to the Industrial Relations Court of Australia.

7.  By its decision of 22 November 1994 (Print L6766) the Commission declined to refer the said questions of law to the Industrial Relations Court of Australia and indicated it proposed to issue orders to give effect to the proposed variations to the Awards.  A copy of that decision is exhibit “E”  - - -

and I tender that, if Your Honour pleases.

HER HONOUR:   Yes, I have that here too.

MR GYLES:  

8.  The above issues justify the granting of an order nisi for the following reasons:

(a) the Prosecutor submits the Commission by its 22 November 1994 decision declining to refer the said questions of law to the Industrial Relations Court of Australia is not acting in accordance with its statutory duties so as to justify a writ of mandamus being issued out of the High Court of Australia directing it to perform its statutory duty;

(b) alternatively, if the Commission has a relevant discretion in respect of the reference of questions of law pursuant to s.46 that discretion by its decision of 22 November 1994 miscarried so as to justify a writ of mandamus being issued out of the High Court of Australia directed to the Commission to exercise its - - -

HER HONOUR:   That is a novel proposition.

MR GYLES:   A novel proposition, that there be a mandamus for failure to properly exercise a discretion?  It may be difficult; it is hardly novel, Your Honour, I would submit.

HER HONOUR:   Mandamus is traditionally concerned with failure to exercise jurisdiction.  You will have to go beyond mere error in - - -

MR GYLES:   Yes, I quite agree, with respect.  You can have a constructive failure to exercise jurisdiction when there is a failure to take into account a relevant factor or failure to take into account a relevant factor.

HER HONOUR:   Well, you may.

MR GYLES:   “May”, yes, quite.

(c) further, the Prosecutor submits that the decisions of the Commission of 31 October 1994 and 22 November 1994 indicate that the Commission proposes to make variations to the Awards which are beyond its jurisdiction and power to make so as to justify a writ of prohibition issuing out of the High Court of Australia directed to the Commission preventing the Commission from giving effect to the proposed award - - -

HER HONOUR:   Now, can I ask again, because I am having very great difficulty with this application, does that repeat the substance of one of the questions of law you wanted referred to the Industrial Court?

MR GYLES:   It is wrapped up in the same thing.

HER HONOUR:   The Industrial Relations Court.

MR GYLES:   Yes, it arises out of the same issue.

HER HONOUR:   Yes, and that is a jurisdiction question?

MR GYLES:   Yes, there is no separate issue.

9. The issues raise a constitutional question to the extent that if the Court holds that the proposed award variations and the 31 October 1994 decision are within the jurisdiction and power of the Commission then such statutory power as is contained within the Act is beyond the power of the Commonwealth to make consistently with s.51(xxxv) of the Constitution.

HER HONOUR:   Could I come back to what I asked earlier?  Is that entirely otiose if the questions of law are referred as requested to the Industrial Relations Court?

MR GYLES:   Yes.

HER HONOUR:   But now you seek, instead of going to the Industrial Relations Court, as was your first option on that question, to come to this Court?

MR GYLES:   No, no, our first relief we seek is that the Commission be ordered to refer the questions of law.  That is the first point.

HER HONOUR:   Yes, I see.  But your first option was to ask the Commission to refer it to the court?

MR GYLES:   Correct.

HER HONOUR:   Not to refrain from exercising jurisdiction?

MR GYLES:   That was then and still is our preferred position and we ask this Court to direct the Commission accordingly.  If it will not or cannot, then we come to this Court for prerogative relief. 

The proceedings so far as they concern the Prosecutor’s application for an order nisi to show cause why a writ of mandamus should not issue out of the High Court compelling the Commission to comply with its statutory duty under s.46 of the Act ought continue in the High Court rather than be remitted to the Industrial Relations Court of Australia.  That issue raises the proper relationship between the Co-ordinate jurisdictions of the Commission and the Industrial Relations Court of Australia under the Act.  In all of the circumstances it is desirable that the High Court of Australia decide as a matter of law the correct statutory duty of the Commission pursuant to s.46 of the Act with respect to references of questions of law to the Industrial Relations Court of Australia.  That being so, it is desirable and convenient that all issues be before the Court at the one time.

And then paragraph 11:

A draft of the rule nisi -

is exhibited, and we tender that. 

Your Honour, that is the evidentiary and formal basis of the application.  Is it convenient that I go on to indicate the argument in support of it?

HER HONOUR:   Well, yes, I think so; in particular - perhaps it might be more convenient if you proceed to argue why this Court would want to deal with the section 46 point.  I take it that that is the point ‑ ‑ ‑

MR GYLES:   Yes, that is the only point that would ‑ ‑ ‑

HER HONOUR:   The only point.  And why, if there was any arguable basis for your section 46 point, in any event, any other issue should be considered including your jurisdictional point which seems to have been comprehended in your original questions?

MR GYLES:   Your Honour, it would be fair to say, if we achieved a reference of the questions to the Industrial Court, that would be a satisfactory result from our point of view. 

Might I then perhaps take Your Honour firstly to the section 46 argument below.  Annexure C is the actual decision below which proceeds upon the footing that the questions were questions of law.

HER HONOUR:   This is truly a statutory construction point, of course.  It is not a constitutional point.

MR GYLES:   Purely statutory construction, I, with respect, agree.  Does Your Honour have the Act.

HER HONOUR:   I have what I hope is the Act.  It has been amended from time to time.

MR GYLES:   It has, indeed.  And Your Honour is well familiar with the general scheme which, in this sense, perhaps, has not changed really.  Section 46 has had an equivalent in the industrial legislation since time immemorial, or at least so far as the memories of those here are concerned and, certainly, since the Boilermakers Case, the general scheme of the division between the two arms of industrial jurisdiction are well understood.

May I draw attention to some of the sections of this Act as it now stands.  By section 10, the qualifications for appointment to the Commission do not necessarily involve any legal qualification, as Your Honour would expect.  Section  10(1)(b), 10(2)(b) and (c) so indicate.  By section 42 of the Act, legal representation is by leave or by leave and consent.  When Your Honour comes to the way in which the jurisdiction is to be exercised - I have just temporarily lost my note, but it is to be decided, as Your Honour knows, according to - - -

HER HONOUR:   Section 111, is it?

MR GYLES:   - - - equity and good conscience and so on.

HER HONOUR:   Section 111 I think it was last time I looked at the section.

MR GYLES:   Yes, thank you.  Section 110(2).

HER HONOUR:   And what about the privative clause?

MR GYLES:   Yes.  I was going to go firstly, just to remind Your Honour that section 360 and onwards deal now with the Industrial Relations Court of Australia which, as Your Honour appreciates, requires legal qualification.  The jurisdiction of the court is dealt with at sections 412 and 413 and so on.  We draw attention to section 412(1)(c) which deals precisely with section 46 references, and section 413 which gives to the court the final and conclusive decision.  It is section 413(2) as to interpretations of award.

Then if we go back to sections 45 and 46, Your Honour will see that there are two separate, what might be called, review mechanisms.  The first are appeals to the Full Bench, and Your Honour will appreciate that the Full Bench is no more a court than is a single commissioner, and then there is section 46, which provides:

The Commission may refer a question of law arising in a matter before the Commission for the opinion of the Court.

And Your Honour will see that by subsection (2):

If the question referred to the Court is not whether the Commission may exercise powers in relation to the matter, the Commission may, in spite of the reference, make an award or order in the matter.

Now, by way of example, in the present case, none of the questions that we raise suggest that the Commission does not have what might be called general jurisdiction over the matter or cause.  So even though we submit that there are some jurisdictional questions wrapped up in the answers to the questions and that the award if made in the present proposed form will be beyond power, we are not suggesting there is any defect in the commissioner’s general jurisdiction such as might exist, for example, where there is no industrial dispute or no registered organisation or some precondition.

Now, the significance of section 46(2) is that notwithstanding the reference to the court, the Commission proceeds on in the normal way to hear the matter.  Then subsection (3):

On the determination of the question by the Court:

(a) if the Commission has not made an award or order in the matter - the Commission may make an award or order not inconsistent with the opinion of the Court; or

(b) if the Commission has made an award or order in the matter - the Commission shall vary the award or order in such a way as will make it consistent with the opinion of the Court.

Now, in our submission, as a matter of construction of that section, one can very clearly see that the court is the arbiter upon questions of law and that the Commission must abide the court’s orders in that respect, and that is common sense because one of the co-ordinate bodies is legally qualified and organised to decide questions of law and, by section 413, has the power finally to interpret awards.

On the other hand, the other body, not legally qualified and not necessarily having legal people appearing before it, must decide, according to equity and good conscience and so on.  This is not to say, of course, that the Commission ignores questions of law or does not deal with matters that arise in the course of a hearing but it does mean that the Act contemplates that the court will be the institution which decides questions of law.

Now, in the way this Act works, there is no appeal from the Industrial Commission to the Industrial Court.  There never has been certainly of recent times.  Therefore, if the court control of questions of law is to be given effect to then, in our respectful submission, section 46 is the way it is done in those cases where there is a question of law arising in a matter before the Commission, so that by a construction of section 46 and section 413 one has a comprehensive scheme for dealing with that issue, and in a fashion which does not inhibit the Commission from going about its normal task in the meantime.  So it is very much like Quarter Sessions or various other tribunals which proceed, in the absence of a true jurisdictional issue, whilst the question of law is determined by the body which the Parliament has said should decide questions of law.

HER HONOUR:   There is no provision for a stated case though of the kind that there is in the Magistrates Courts?

MR GYLES:   No, there is not.

HER HONOUR:   It is quite a different provision.

MR GYLES:   It is a different provision but none the less, in substance, remains the same, in our respectful submission, although it is a different form of words.

HER HONOUR:   Well, your argument is short, is it not?

MR GYLES:   Yes.

HER HONOUR:   Given the context that “may” means “must”.

MR GYLES:   That is right, it is a - - -

HER HONOUR:   What is your second argument.  I understand that one.

MR GYLES:   Yes.

HER HONOUR:   What is your discretionary argument?

MR GYLES:   Pardon?

HER HONOUR:   Has your discretionary argument got a different aspect?

MR GYLES:   Yes, it does.  Well, the discretionary argument assumes that - - -

HER HONOUR:   “May” means “may”.

MR GYLES:   “May” means “may”, and further assumes that none the less the scheme between the two bodies is as I have outlined, that the legislature has chosen the court as the body to decide questions of law.

Before passing from that, I take it that Your Honour does not require me to go to McGavin’s case where Chief Justice Jordan dealt with this very issue.

HER HONOUR:   I am not too sure.  I do not understand how you get to mandamus from your discretionary point.

MR GYLES:   No, no, before going to the discretionary point, on the first point.  Perhaps I should take Your Honour to Ex parte McGavin.

HER HONOUR:   This is to establish that it is arguable that “may” means “must”?

MR GYLES: Yes. Your Honour will see that this question arose under section 5B of the Criminal Appeal Act 1912 and the terms of it are set out at page 60 towards the foot:

“A court of quarter sessions may submit any question of law arising on any appeal coming before it to the Court of Criminal Appeal for determination and such submission shall be dealt with as if it were an appeal under this Act, and the Court of Criminal Appeal may make any such order or give any such direction to the Court of Quarter Sessions as it thinks fit.”

The word “may” is prima facie facultative only; but it was pointed out in Macdougall v Paterson, that when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application”.  Section 23 of the Interpretation Act of 1897 does not prevent the application of this rule, where it is necessary to give effect to the evident intention of the statute.  In my opinion, it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process.

Now, the significance of that statement by His Honour the then Chief Justice is that at that stage there was no appeal from the Quarter Sessions to the Court of Criminal Appeal and thus it was that this was the only way, Your Honour might recall, that in the Quarter Sessions in those days, you really had to stop the judge bringing his decision down because once the decision was given that was the end of the matter.  And if there was a question of law which arose, you had to be very astute to make sure that the question was raised before judgment and in a way which put the judge on notice so that the matter could be referred to the Court of Criminal Appeal, there being no general appeal.  Now, that is, in our submission, virtually identical with the situation which exists under this Act.

HER HONOUR:   They did not even have an appellate system within the Court of Quarter Sessions, did they?

MR GYLES:   No.

HER HONOUR:   But they do in the Industrial Relations Commission.  It is called the Full Bench.

MR GYLES:   Yes, but the appellate system within the Industrial Relations Commission is within the Commission.

HER HONOUR:   Yes, but you did not even have that.  It was in the Quarter Sessions structure.

MR GYLES:   True, indeed.  The Quarter Sessions judge was the Quarter Sessions judge.  But the relevant point, in our submission, is that there being no appellate right in the ordinary sense, the submission of a question of law was the method of control by the Court of Criminal Appeal and in those circumstances it was held that the statutory intent would require that a point would be submitted - not “might be submitted” but “would be submitted” - and there was no general discretion to refuse to do so.

We submit it is precisely the same situation under the present Act and other decisions dealing with tribunals where there is ultimately a right of appeal on questions of law such as the Administrative Appeals Tribunal and various other review tribunals are really not in point and that the analogy which is in point is Chief Justice Jordan in the decision to which I have just referred Your Honour.  So, that is our submission as to why that point is arguable and ought form the basis of an order nisi.

We submit that section 150 will be no barrier to that application.  If we are right, if that construction is right, then there would be a clear failure to exercise a statutory duty which would not be touched by section 150, which is the privative provision.  And, indeed, in the present case, no award has been made so it could hardly even be arguable that there was any barrier to - - -

HER HONOUR:   It includes an order, does it not?  “Award” is defined to include an order?

MR GYLES:   Can I check that, Your Honour?

HER HONOUR:   I think it is, yes.

MR GYLES:   Yes.  Not generally, I think.  It means - I do not think it means “any order”.  If there were an order varying an award, that obviously would be an award but - - -

HER HONOUR:   If there were an order refusing to refer it to the Industrial Court, it would be an award.

MR GYLES:   I would submit not.

HER HONOUR:   If it were reduced to writing under section 143.

MR GYLES:   I would submit not.

HER HONOUR:   Well, I mean, it does not matter whether the power is there or not.

MR GYLES:   No, no, section 143:

Where the Commission makes a decision or determination that, in the Commission’s opinion, is an award or an order affecting an award -

so it is, to an extent, circular, I suppose.  One thing we know from the definitions is that an award cannot be informal.  It must be reduced to writing.  But it does not mean, I would submit, that an interlocutory order or an order otherwise than an order settling a relevant industrial dispute would not be an award within the meaning of the Act.  But, in any event, as Your Honour would be well aware, section 150 cannot cure a failure to carry out a statutory duty.

HER HONOUR:   I am not too sure about that.

MR GYLES:   I must confess, Your Honour, I had not brought the authorities over on that point.

HER HONOUR:   It has certainly been held that it does not extend to cure constitutional defects.

MR GYLES:   Certainly.

HER HONOUR:   If you are right on this issue, it will not cure it.  It may cure a problem on your discretionary argument.

MR GYLES:   Yes.  Our discretionary argument must be within War Tribunal v Bott and the line of territory from there on, referred to below.  It must be a constructive failure to exercise jurisdiction because the purported jurisdiction has not in fact been exercised.

HER HONOUR:   How do you get to that point?

MR GYLES:   We get to that point by going to what they said at exhibit E and at page 6 the Commission turns to examine the question of discretion, they having rejected our argument as to the first point, and the critical passages are on page 8.

It may be this issue is best discussed when I have perhaps explained to Your Honour what the nature of the point in the case is.  I am sure Your Honour has a good idea from having a look at the papers.

HER HONOUR:   No, I have not understood the point in the case.

MR GYLES:   It may be easier to come back to discretion after that has been explained to Your Honour because it does not make much sense without it.

Now, at one level the point is a very simple and straightforward one and perhaps will always remain simple and straightforward.  Under the Act, if I could take Your Honour to some of the sections very quickly:  section 88A says that:

The objects of this Part are to ensure that:

(a) employees are protected by awards that set fair and enforceable minimum wages and conditions of employment that are maintained at a relevant level; and

(b) awards (other than paid rates awards) act as a safety net of minimum wages and conditions of employment underpinning direct bargaining.....

(e) the Commission’s functions and powers in relation to making and varying awards are performed and exercised in a way that both:

(i) gives employees prompt access to fair and enforceable minimum wages and conditions of employment, so far as they do not already have them; and

(ii) encourages the prevention and settlement of industrial disputes by the making of agreements -

et cetera, and the award provisions of 143 and so on are designed to carry out that policy.

Now, Your Honour will appreciate both from that section and from Your Honour’s own knowledge of the Act that there are two essential types of award contemplated.  The first is a minimum rates award; the second is a paid rates award.  The minimum rates are provided for now by section 170AA and following.  It is Part VIA, “Minimum Entitlements of” workers, and by 170AC:

the Commission may make an order setting:

(a) the same minimum wage for all employees in a group specified in the order; or

(b) different minimum wages for different categories of employees in a group specified in the order.

And there are a number of matters further in that section which I do not think I need trouble Your Honour with.  And then 170AF:

In setting the level of minimum wages under this Division, the Commission must have regard to the principles it would apply in setting the level of those minimum wages in performing its functions -

and so on.

May I then contrast that with section 170SA which is Part VIC, dealing with “Paid Rates Awards”.

The objects of this Part are to ensure that:

(a) in appropriate cases, employees are protected by paid rates awards that set fair and enforceable wages and conditions of employment that are maintained at a relevant level; and

(b) paid rates awards are suited to the efficient performance of work according to the needs of particular industries and enterprises, while employees’ interests are also properly taken into account.

So there is a clear statutory dichotomy between minimum wages, on the one hand, and paid rates on the other.

Now, if I could then take Your Honour to the difficulty which arises in the present case.  It is best seen by looking at the exhibit B which is the application because the Commission proposes to make an award in accordance with the application.

HER HONOUR:   And the Metal Industry award is still a minimum rates award?

MR GYLES:   Yes.  If we take the schedule A - sorry, the first application to vary happens to be the foremen and supervisors and if Your Honour goes over to schedule A Your Honour will see the variations which were sought which, as Your Honour would expect, include particular amounts which included $8 a week for a safety net adjustment.  Now, we leave aside, for the purposes of this argument, any other question than the one I am about to put.  So we have there - you arrive at an award rate per week on the right-hand column.  The safety net adjustment of the same amount is added to each.  It appears even more clearly if you go to four pages on, “Metal Industry Award 1984 - Part I”, the Automotive, Food, Metals and Engineering Union’s application where it will be seen that the safety net adjustment of $8 a week is added to the then minimum wages base rate plus supplementary payment, arriving in the right-hand column at an award rate.

Now, the difficulty appears from, going back to the original one:

By inserting a new Part E in clause 8 as follows:

PART E - SAFETY NET ADJUSTMENTS

The rates of pay in this award include the first $8 per week arbitrated safety net adjustment payable under the September 1994 decision.

So far so good.

This first $8 per week arbitrated safety net adjustment may be offset to the extent of any wage increase as a result of agreements reached at enterprise level since 1 November 1991.  Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

Now it is our argument, and was our argument and is our argument, that that is an impermissible clause to insert in a minimum rates award.

HER HONOUR:   Where is the prohibition under the Act?

MR GYLES:   It is not a prohibition - I withdraw that.  The statutory obligation is to set a minimum wage.  That is the obligation.  What the minimum wage is is a matter for the Commission, but what you must end up with at the end of the day is an award rate or an award amount which is the minimum wage.  Put another way, you cannot use a minimum wage award or convert it into a quasi paid rates award by saying what you can or cannot offset it against.  There are two problems: one is ‑ ‑ ‑

HER HONOUR:   Where is the prohibition, though, in the Act?

MR GYLES:   Your Honour, if the obligation is as I have said, you cannot - - -

HER HONOUR:   Where is the obligation?

MR GYLES:   I have taken Your Honour through the statutory provisions which provide that there shall be the minimum rates award or a paid rates award.  There is no concept of an amalgam between the two.  There are two points involved, Your Honour, if I can make them clear.  The first is that as a result of the process you must have a result which employers and employees know what is the minimum wage.  What must be paid under the award must be clear and certain.

HER HONOUR:   There is no doubt about that.

MR GYLES:   That is the first point.

HER HONOUR:   There is no difficulty about that.

MR GYLES:   And we submit that the effect of the proposed Part E is to fail to carry out that obligation and is invalid; it will make what is proposed not an award within the meaning of the Act because - - -

HER HONOUR:   Minimum wage award is not defined, is it?

MR GYLES:   No, not as such, no, it is not, but it certainly is not a paid rates award.  Minimum wages, however defined - - -

HER HONOUR:   Are not defined.

MR GYLES:   No - however defined, must be - if not defined, the ordinary English use of the word.  You set, by statutory prescription, the amount which the employee must be paid as a minimum.  It says nothing about what the employee may be paid above that rate.  It simply says that employee must be paid, in this case I think per week, a certain amount.  That is the very concept of a minimum and it assumes that there might be payments above that amount.  But it says nothing as to how that is to be satisfied.  That is another issue entirely.  It cannot go beyond saying, either constitutionally or within the meaning of this statute ‑ ‑ ‑

HER HONOUR:   I find no constitutional impediment suggested by your argument or by anything I know about industrial law to an award of this kind.  If you find a statutory one, that is another proposition.

MR GYLES:   My first leg is the statute, of course.  That is what I have endeavoured to take Your Honour to to show that you must end up - - -

HER HONOUR:   And you have a particular meaning of “paid rates award” which is new in the sense that there can only be one specified minimum rate and not one that can be worked out by calculations such as those necessarily involved in the application of clause 4.

MR GYLES:   I am putting two arguments about the minimum rates award.  The first is that it must end up with a certain clear result so that the minimum wage is known, and I submit this does not do it.  I am not saying you may not have a calculation method.  That is another issue.  Perhaps if you said “Everybody shall have an increase of 10 per cent” that might be enough, because one knows what the previous amount was.  However, we do say that this does not do it. 

But secondly, and more fundamentally as a question of power, understanding what is being done and, indeed, reading precisely what is said to be the rationale for it, it is to compel employers to pay an increase notwithstanding the fact that the adjusted minimum wage is already being paid.  Now, once that is understood ‑ ‑ ‑

HER HONOUR:   It is to prevent absorption.  It goes back to the 1966 Metal Trades case where the issue in that case was whether or not there was to be absorption of over-award payments.

MR GYLES:   Yes.  I am looking at this Act in 1994 and we respectfully submit that if you do not have a paid rates award - - -

HER HONOUR:   The question is whether you can have a minimum rates award which provides for non-absorption of increases.

MR GYLES:   Correct.  That is what it amounts to.  And we say - - -

HER HONOUR:   And you cannot find anything in the statute one way or the other.

MR GYLES:   I did not say that, Your Honour, far from it.

HER HONOUR:   You cannot find anything express on this ‑ ‑ ‑

MR GYLES:   I do not find an express statutory prohibition upon making a minimum rates award dealing with absorption, no, I do not, but what I do say is that any fair reading of the statute would indicate that that is a concept which is not permissible.  If there is to be a paid rates award, let there be so. 

HER HONOUR:   It would be interesting to think that disputes which were so well understood and issues which had been so well understood in the industrial context over many years could have been foreclosed by a side wind, without definition.

MR GYLES:   A side wind, Your Honour?

HER HONOUR:   Yes.

MR GYLES:   I submit there is no - that what I am putting is a principle which has been alive for a long while.  The High Court has not looked at it and Your Honour says to me that this is a well travelled field.  Well, I do not know about that.  Here we have a statute which provides two different types of rates which have been in the statute and concept for very many years.  The difference between what has happened is that now - there has always been a difference between paid rates awards and other awards - what has happened now is that the difference has been underlined because it is appreciated that there is a safety net notion in relation to all minimum wages, which is set out in the passage that I have addressed to Your Honour.

First of all that does have its own significance, of course, but secondly, it is interesting to see how this Commission below dealt with this issue, very interesting, because they do not say what Your Honour is saying.  If I could take Your Honour to exhibit E, at page 8, the third line:

It was submitted that it would be inconsistent with the Commission’s statutory obligation to set minimum wages and to have a safety net underpinning direct bargaining for it to award a wage increase which does not have regard to the level of wages actually paid.  At the centre of these issues is the question of whether the orders contemplated provide for an increase in actual wages or simply increase minimum wages.

That is, in a sense, one way of putting it.

This issue was the subject of earlier proceedings.....After hearing from the parties the Full Bench decided as follows:

“In relation to the first issue raised by the MTIA the form of the order associated with the granting of the first arbitrated safety net adjustment does not, in our view, preclude an employer from absorbing the $8 safety net adjustment into overaward payments.  In this respect we agree with the submission put on behalf of ACCI that the award variations arising out of the September 1994 Review decision are enabling rather than exhaustive in that while they explicitly enable absorption to take place in the defined circumstances referred to in the offsetting clauses they do not prohibit absorption in other circumstances.  In the context of a minimum rates award an order arising from the September 1994 Review decision would increase the minimum rates of pay prescribed in the award.

Correct.

In circumstances where an employee is in receipt of an overaward payment in excess of $8 the order does not, in its terms, increase actual wage rates.

Now, if Your Honour compares that with exhibit B, clause E - and that is typical of the formula used:

Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

Now, with very great respect to the Commission, they appear to have overlooked that part of their proposed award.  What they are saying to us - or what they said to us - - -

HER HONOUR:   Is this not from the National Wage decision?  Is not the Full Bench there quoting a decision from the National Wage decision?

MR GYLES:   Yes.

HER HONOUR:   Yes.

MR GYLES:   I appreciate that, but that does not solve the problem in any way.  If - and I will come to discretion later about this - but it, with very great respect, is clear that the clauses proposed here, both negatively and positively, would make it or purport to make it - to deal with the question of offsetting of the minimum wage which has been granted and they do so expressly.

HER HONOUR:   The Commission ends up saying, “We will now issue our orders in the matters before us”.

MR GYLES:   Yes.

HER HONOUR:   It does not say it is going to make them in exactly the same form as the applications.

MR GYLES:   With respect, that is what they did say.  I will pick up that - it would be in the original decision, I believe.

HER HONOUR:   Anyway, it is merely a question of conflict between two Full Benches, is it not?

MR GYLES:   A question of merely.  It is a question of we as the respondent to the award say, “You have no power to do it”, and it does not matter what a previous Full Bench has said.  That is to mistake - - -

HER HONOUR:   You say there is no power.

MR GYLES:   If there is no power, there is no power.  If you are beyond the statute - - -

HER HONOUR:   That is your question that you wanted them to refer to the Industrial Relations court.

MR GYLES:   Yes.

HER HONOUR:   And you were going to tell me why it was a constructive failure to exercise jurisdiction on the basis that there was a discretion.

MR GYLES:   That is right.  Now, that was dealt with, Your Honour, at page 8.  The discretionary consideration commenced in exhibit E at page 6 and I think what we see up to half-way down page 8 is really by way of preface.  They go on, after referring to that citation from the previous Full Bench decision:

To the extent that the MTIA disputes the views expressed above as to the effect of the orders contemplated it is open to them, once the orders have been made, to make application to the Industrial Relations Court, pursuant to s.413 of the Act, for an interpretation of the relevant provisions.  In the event that the Court determined that the effect of the orders made was inconsistent with the Commission’s intent then the MTIA could make an application to the Commission to have the awards varied accordingly.  Alternatively if any party thinks that the orders are beyond power that party may seek the appropriate relief.

Namely, prerogative relief.

We note that the availability of an alternative remedy has been relied upon in the past as a basis for refusing a reference......

A full Bench of the Commission has determined that it has jurisdiction to make the orders sought and did so in the absence of any application to refer.....In our view the appropriate course is for that Full Bench to now issue the orders.  We do not see how referring the question at this late stage would be consistent with our duty to act expeditiously nor would it be equitable to delay the issuing of the orders having regard to the very late stage at which the reference of the questions has been sought.

Now, Your Honour, the first problem which arises is that the Commission is saying, yes, we have a power to refer but there are other things which might be done.  The first of those is to let the award come into force, then seek an interpretation of it, and then have an application to vary brought back before the Commission.  We submit that the ability to do that is truly irrelevant to the question which was before them, on this hypothesis, that is a question has arisen here.  The fact that the award could be interpreted later, I submit, is truly irrelevant. 

The second alternative was to presumably come here to the High Court for prerogative relief if the orders are beyond power.

HER HONOUR:   Does your application in fact extend that far to this Court?

MR GYLES:   Yes.  What is happening is we are being caught in a sort of minium,which places us nowhere.  That is our very point here, that these orders are beyond the statutory power and we say that there is an independent basis for prerogative relief in that respect.

HER HONOUR:    That is your (c)?

MR GYLES:   Yes.  This Court, I think, has twice in reported judgments, and maybe no doubt in others, said that it will not entertain prerogative relief unless people have gone through all they can do below, including a request for references of questions of law.  Now, of course, the questions of law and jurisdictional questions are by no means the same and they will not coincide, but they overlap.

HER HONOUR:   Is the constitutional question referred to in paragraph 9 different?  I am just looking now at your affidavit.

MR GYLES:   No.  The constitutional question would only arise if the - - -

HER HONOUR:   That is an ambit question, is it?

MR GYLES:   - - - if the question of construction were decided against us and the effect of the decision would go beyond the industrial dispute which gave rise to the order.  Then that would be a constitutional question.

HER HONOUR:   We cannot tell that.

MR GYLES:   The log of claims could tell you.

HER HONOUR:   It is an ambit issue, is it?

MR GYLES:   This is not an ambit question.  They said, “We want $400 a week plus allowances”, but they did not seek any - the logs of claim did not seek any absorption question to be decided.  We say nor could it have.  So we say that the Commission are saying, as their second point, go to the High Court.  And we say that is to reverse the proper process.

HER HONOUR:   The Commission has not made its orders?

MR GYLES:   No. 

MR CRAWSHAW:   Yes, they have.

MR GYLES:   They have?  They had not at this stage; they since have.

HER HONOUR:   And what form do the orders take?

MR GYLES:   I think as per the - we will see if we can get a copy to tender, Your Honour.

MR CRAWSHAW:   Your Honour, I have only one copy of each of the orders, but apart from the last sentence they do mirror the wording that Mr Gyles read out earlier.

HER HONOUR:   The application?

MR GYLES:   I wonder if I could perhaps tender ‑ ‑ ‑

HER HONOUR:   Say, for example, the Metal Industry Award has a Part E?

MR GYLES:   Yes.

HER HONOUR:   And does it - - -

MR GYLES:   Could I tender the orders, if Your Honour pleases.

HER HONOUR:   Thank you.  I will accept them.  I do not think they need to be given exhibit numbers at this stage.

MR GYLES:   Your Honour, the third point on discretion raised by the Commission is that it would not be consistent with their duty to act expeditiously to refer the questions.  Now, with respect, they appear to have overlooked section 46(2) which enabled them to go ahead and do what they wished to do, notwithstanding the fact of the existence of a reference to the court.

HER HONOUR:   How does that make it a constructive failure to exercise jurisdiction?

MR GYLES:   The jurisdiction that we are examining is not the jurisdiction to make the award; it is the ‑ ‑ ‑

HER HONOUR:   No, it is a jurisdiction or an obligation.

MR GYLES:   To refer?

HER HONOUR:   Yes.

MR GYLES:   It is an obligation to consider, according to law - - -

HER HONOUR:   In this case it is a discretion to refer.  We are talking - - -

MR GYLES:   Yes, a discretion to refer which, in other words, is a duty upon them to consider, according to law, that discretion.  Now, of course, they have a very wide - it is only in certain cases one can say that the exercise of the discretion is not according to law, but that is, I submit, a common enough concept but does not often arise or succeed.  But here, I respectfully submit that the three points to which they refer neither collectively - I would submit that the first point is truly irrelevant and immaterial and has therefore vitiated their decision.  The second, that is the power to go to the High Court, misunderstands, with respect, the statutory framework; and thirdly, the question of delay ignores the very wording of the statute, section 46(2).  There can be no delay.  They can go ahead and make their award and in due course ‑ ‑ ‑

HER HONOUR:   Except you were saying that they had no power to do it.

MR GYLES:   Yes.  The way section 46 works is that if in due course the court agree with us, then the award shall be varied under 46(3)(b) in a way which will make it consistent with the opinion of the court.

HER HONOUR:   Section 46(2) is the one that I was ‑ ‑ ‑

MR GYLES:   Section 46(2) is the critical one, and then 46 ‑ ‑ ‑

HER HONOUR:   Yes, and if you are raising the question of power, one interpretation of 46(2) is that the Commission cannot go ahead and exercise the power.

MR GYLES:   It is one analysis of 46(2), but as I submitted to Your Honour earlier, in the present case there is no suggestion that the Commission does not have general jurisdiction over this proceeding.  It is properly before them and they are dealing with it.  What they are proposing to do is to step outside the statutory power in the form of the award.  That is not ‑ section 46(2) does not say if the question referred to is whether or not the Commission - I will withdraw that.  What it says is, “may exercise powers in relation to the matter”.  It does not, I submit, pick up the question which arises in the present case.

Now, Your Honour, the other point which emerges, which I should touch on, is the question of our question 16, 17 and 19 which relate to what were called the second and third safety net adjustments.  If I could explain to Your Honour briefly what the point is, and then go back to the decisions and so on to isolate it if necessary.  The award, as Your Honour sees, both the application and the award which followed it in these particular proceedings did not seek implementation of what were called the second and third safety net adjustments for the future.

So that the orders and awards made do not include any order dealing with those issues.  However, in the decision itself it is plain that the Commission were taking the view - a particular view about absorption of those increases, a view which was said to be much more stringent than the one for stage 1.  It was said that in the meantime, until there was any award dealing with it, ad hoc disputes involving that issue would be arbitrated on the basis of the basic decision.  It was our submission, and is our submission, that it is apparent from the decision in issue and the decision which it was following that a view has been taken that it is the Commission’s task to encourage formal enterprise agreements of one sort and another and to, in effect, discourage informal agreements between employer and employee.

That is an issue of law which we wish to argue and we submit that it is appropriate to argue that issue of law.  I can indicate to Your Honour, I hope fairly briefly, how it does arise on the statute to show that the point - - -

HER HONOUR:   Did it arise in relation to these applications, that is the question?

MR GYLES:   We submit so.  However the Commission said it is hypothetical because we did not make any order about it.

HER HONOUR:   It seems reasonable to me.

MR GYLES:   We submit that it did arise.  We understand the point and we - - -

HER HONOUR:   How does that become a constructive failure to exercise jurisdiction?

MR GYLES:   If our point is right, then they misconstrued and misapplied one of the most critical parts of the Act.  Now, that, I submit, is within Connell’s case and a whole line of cases.

HER HONOUR:   The question was whether they would refer it to the Industrial Relations Court on the basis that they could say aye or nay.

MR GYLES:   Yes.

HER HONOUR:   Having regard to whatever the Act required them to have regard to.  But the question was only whether they would or would not refer.

MR GYLES:   True, and we submit that although the actual award made did not pick up the second and third stages, the point had arisen in the course of the application and should have been referred.  If I could very briefly indicate, Your Honour, what the point is, appreciating that the Commission below has said that it is hypothetical.  Our submission is that it is not, but that is a matter for Your Honour. 

Section 3 of the Act sets out the objects:

(a) encouraging and facilitating the making of agreements, between the parties involved in industrial relations, to determine matters pertaining to the relationship between employers and employees, particularly at the workplace or enterprise level.

We say that that agreement there does not mean formal arrangements within Part VIB of the Act starting at section 170.  Agreement is defined to have a meaning affected by section 170NA but there is no inclusive definition of agreement, so it has its ordinary meaning, we submit, as a piece of English.  Section 170NA deals with a particular aspect of a particular constitutional corporation which may not be picked up, we would submit, by agreement.  If Your Honour goes to section 170LA itself - - -

HER HONOUR:   Surely this is beside the point.  The question is whether it did or did not arise.

MR GYLES:   Yes, quite.

HER HONOUR:   Whether or not it did.

MR GYLES:   Yes.

HER HONOUR:   Assuming it did, how does it constitute a constructive failure to exercise jurisdiction when the decision is, “I won’t refer.  I can or I can’t and I won’t.”?

MR GYLES:   Your Honour is not - - -

HER HONOUR:   It is not sufficient to make a mistake in the exercise of the discretion to become a constructive failure to exercise jurisdiction.

MR GYLES:   No, no, I agree with respect.  It must mistake the nature of the function which is being performed.  I respectfully submit that is exactly what they have done in the respects I have mentioned.

HER HONOUR:   You say so, but you have to show that they have asked themselves the wrong question like, “Should I or should I not refer this to the High Court?”, or something of that nature.  They have asked the question, “Should we or should we not refer this to the Industrial Relations Court?”, and they have said, “This one is hypothetical; no.”

MR GYLES:   Yes.  Your Honour, I do not want to say any more about that.  I have put my submission.  All that remains, Your Honour, is to submit that so far as (c) is concerned, that is the question which would arise for this Court or the Federal Court - - -

HER HONOUR:   When you are talking (c), (c) what?  Sorry, you say (c).  I just do not understand what (c) is.

MR GYLES:   That is (c) in paragraph 8 of our affidavit.

HER HONOUR:   Yes, thank you.  I understand.  They have made the orders now.

MR GYLES:   Yes.

HER HONOUR:   And what you say is that the orders they have made are beyond power because they are not a minimum rates order?

MR GYLES:   Yes.

HER HONOUR:   As that expression is used in the Act.

MR GYLES:   In the Act.  So, they are our submissions, if Your Honour pleases.

HER HONOUR:   Well now, what is 9 because, so far, I have not heard any constitutional issue raised?

MR GYLES:   We say that you cannot go beyond the dispute which gave rise to the award.

HER HONOUR:   All right.  How do you say it goes beyond ‑ you have not provided me with logs of claim other than one.

MR GYLES:   Other than one.

HER HONOUR:   How do you say it goes beyond the dispute?

MR GYLES:   Can I indicate to Your Honour how we say that it goes beyond the log?  Exhibit A is the log.  I would respectfully submit that no part of that deals with the question of absorption.  It just provides, as you would expect, with a minimum rates award - - -

HER HONOUR:   I think this argument was had in 1966, was it not, on ambit?

MR GYLES:   Does Your Honour mean in relation to absorption or generally?

HER HONOUR:   Yes.

MR GYLES:   I am afraid I cannot answer Your Honour.  I am not conscious of that having been decided.

HER HONOUR:   In any event, the rates do not exceed, whatever view one takes of absorption or non‑absorption, the claim.

MR GYLES:   No, no, we are not taking that point.  It is just that it is an aspect of it - there is no dispute about absorption which is raised in this log.  That is our point, Your Honour.

HER HONOUR:   First of all, you may assume, Mr Gyles - and you may take this into account, Mr Crawshaw - the issues raised are, in my view, such that if they are to be dealt with at all they are more appropriately dealt with by the Industrial Relations Court than this Court.  You may also take the view, gentlemen, that under no circumstances would I grant a stay of this matter on any of the arguments advanced.

MR GYLES:   No, there was no stay sought.

HER HONOUR:   There is in the - - -

MR GYLES:   Is there?

HER HONOUR:   Yes.

MR GYLES:   Your Honour has a view.  I do not want to spend time - - -

HER HONOUR:   It is in your documents.

MR GYLES:   And I do not abandon it, Your Honour, but I do not want to persuade you to a contrary view.

HER HONOUR:   Now, do I have to make an order nisi to refer it to the Industrial Relations Court or can I leave it to them to decide whether, as I think is the case, your constructive failure of jurisdiction is not an arguable point?

MR GYLES:   Yes.  I am just looking at the practice direction, Your Honour, to see what - Practice Direction 1 of this Court.  It does appear that the orders in our notice of motion are the orders envisaged by the practice direction which, if correct, indicate that Your Honour issues an order nisi and that that application is then remitted to the Industrial Relations Court for hearing.  So, it is, in effect, made returnable before the Industrial Relations Commission.

HER HONOUR:   I suppose the question I am concerned with is section 44 of the Judiciary Act; whether the notice of motion or the application is a matter or whether I must make an order nisi and remit the order nisi.

MR GYLES:   I suppose there must be a matter pending in the Court, presumably.

So far as section 44 is concerned, Your Honour, it does appear, does it not, that there must be a matter in this Court which is to be remitted.

HER HONOUR:   Yes.  Is the matter simply your application or is it the order nisi?

MR GYLES:   Yes, I follow.  I would ask Your Honour that the order nisis be granted and that the - - -

HER HONOUR:   The difficulty I have with that is this - I will hear Mr Crawshaw on it - if it is possible to refer the matter without making the order nisis, I would, as such;  if not, the only order nisis I would

make would be an order nisi for mandamus for referral of the question whether there was an obligation to refer the questions of law to the Industrial Relations Court.

MR GYLES:   Yes.

HER HONOUR:   And the question whether the inclusion of a clause to the effect of (e) will be an order nisi for prohibition.

MR GYLES:   Yes, or probably certiorari also as it has been made.

HER HONOUR:   Yes, and that is....., and certiorari, with respect to clause (e) and like provisions on the ground that a minimum rates award is not one that allows for absorption, that is to say, I would not be inclined to make orders nisi with respect to the constructive value of jurisdiction or what you say is the constitutional point.

MR GYLES:   Yes.  Well, I might be better off just asking Your Honour to refer the whole lot to the court below, might I not?

HER HONOUR:   Well, it is a question - yes.  What do you say, Mr Crawshaw?  What can I refer?  I am prepared to hear you on those two issues which, provisionally, I have indicated - - -

MR CRAWSHAW:   I see, good.  I was going to ask that.  The definition of “matter” in the Judiciary Act simply includes any proceeding in a Court”, so I suppose it does not take it any further.  I suppose it is a question as to whether it is classed as a proceeding once the order is granted or not.  As I understood, in other matters - - -

HER HONOUR:   I think an order nisi has been made and then the order nisi has been referred.

MR CRAWSHAW:   I rather thought it had been the other way but - - -

HER HONOUR:   Yes, thank you, what - - -

MR GYLES:   My learned junior has just handed me Justice Dawson’s decision in Re Australian Education Union which indicates that in that case - I am sorry to interrupt my friend, but if I can hand it to Your Honour, His Honour did refer the whole proceedings.  It may be there is an alternative.

HER HONOUR:   Was there any order nisi made?

MR GYLES:   No.

HER HONOUR:   No order nisi?

MR GYLES:   Not in that case.  But I am not suggesting there are not orders nisi in other cases.  It is just that that is an example.

MR CRAWSHAW:   Your Honour remitted the matter - I think Your Honour did the first one in Re Polites, 68 ALJR 478.

HER HONOUR:   And I think I made an order nisi there, did I not?

MR CRAWSHAW:   I am just trying to see whether  - - -

HER HONOUR:   I had always thought that there was really nothing until an order nisi was made but you can refer an application to the Full Court.

MR CRAWSHAW:   It is not clear that Your Honour did make an order nisi.  Your Honour said at the end:

There will then be an order remitting the matter to the Industrial Relations Court on the usual terms as to the steps taken.

I am afraid I cannot take the matter any further.  I suppose I do not need to say anything further unless Your Honour is going to address the order nisi.

HER HONOUR:   Subject to what you have to say, it does seem to me that there are two points which come within the notion of points appropriate for the institution of proceedings for prerogative relief, but only two.

MR CRAWSHAW:   Yes, and those, I take it, are the questions of ambit - - -?

HER HONOUR:   No, I do not see that that arises at all.   The two on which I think that they are questions of a kind that are appropriately dealt with by way of prerogative relief and arise on the materials presented to this Court are whether there was an obligation on the part of the Industrial Relations Commission to refer the questions of law and, secondly, whether there is an implied prohibition on the Act in making an award with respect to the absorption in the minimum rates award.

MR CRAWSHAW:   If I could address that but perhaps before doing so I would just say if there is an alternative as to whether Your Honour makes the order or not which, I think, on a reasonable reading of the Judiciary Act there may be, Your Honour has heard it now for one and a half hours and perhaps in that situation Your Honour should decide it, that is the issue of whether there should be an order nisi.  But on those two issues, can I first say in relation to the question of section 46, we would submit that there is little doubt that in the context of section 46 the word “may” is discretionary and not mandatory and we refer particularly to the decision which is exhibit E and to that part of the decision at page 4 point 7 and going on to page 5 and, in particular, the distinguishing point for Ex parte McGavin; Re Berne being that it concerned the rights of parties in criminal proceedings, and the matter raised by Your Honour, that in the Commission there is an appellate procedure.

The only reason the appellate procedure was not available in this particular case was because the prosecutors referred the matter to a Full Bench of the Commission, so that the normal process was not carried out.  I refer particularly to page 5 of the decision and the comments of the Full Bench of the Commission as to the practical effects.  Mr Gyles raised, in another context, “Well, the provisions of section 46 allowing for awards to be made despite a reference.”  Now, in practical terms that would not occur where the question of power to make the specific award provisions is in doubt and has gone off to the court.  The Commission, in my submission, would, in those circumstances, be asked by people like the prosecutors not to proceed to make an award where their power was in doubt and they would be unlikely to do so.

So, in my submission, the practical considerations raised about the interpretation of section 46 are relevant and if that interpretation was correct, the Commission’s proceedings would grind to a halt.  I also refer Your Honour particularly to the comments of the High Court in the Citicorp case which are found at the bottom of page 5 where the - - -

HER HONOUR:   The Act was somewhat different at that stage, was it not?  There was no Industrial Relations Court for a start although there were provision for reference to the Federal Court?

MR CRAWSHAW:   There were reference provisions.  You could ask for a reference of a question of law to the Federal Court.  I cannot tell Your Honour whether there has been any change in those procedures.  I think they were somewhat similar.

Now, in relation to the second point that Your Honour is considering or says you will consider, that relied on the assertion that the statutory obligation is restricted to the setting of paid rates under awards or minimum rates under the awards.  In my submission, the statutory obligation is to be found in section 111 of the Act rather than in any reading of the objects in section 88A.  The particular powers of the Commission under section 111(1) are:

Subject to this Act, the Commission may, in relation to an industrial dispute -

and you will see in (b):

make an award or order, including one by consent of the parties, in relation to all or any of the matters in dispute, including:

(i)  a provisional award or order; or

(ii) an interim award or order.

And also in (e):

make an award or order including, or vary an award or order so as to include, a provision to the effect that engaging in conduct -

well, that is probably more directed at bans clause - - -

HER HONOUR:   But your problem is “subject to this Act”.

MR CRAWSHAW:   Yes.  Well, in my submission, “subject to this Act” does not mean subject to only one of a number of objects set out in section 88A which is effectively the argument that is put.  Section 88A has a number of objects for a start and although it talks about, in subsection (a):

enforceable minimum wages and conditions of employment -

and safety nets for minimum wages, in subparagraph (c) it talks about ensuring that:

awards are suited to the efficient performance of work according to the needs of particular industries and enterprises, while employees’ interests are also properly taken into account -

and bear in mind, in relation to the first $8 increase, we are talking about employees who have not had a wage increase since November 1991, so one could say it was properly within that object, and also within subparagraph (d) which talks about “relativities based on skill, responsibility” and matters of that kind, well, it can reasonably be said that relativities could be disturbed if those on over-award payments did not get the $8 increase.

The more important point is that these are really matters for judgment of the Industrial Relations Commission based on their being objects of the Act.  They are not jurisdictional questions, in our submission.

HER HONOUR:   But what is put against you, be it that it is put by implication only or put as a matter of implication only, that the Commission has power to make a minimum rates award or a paid rates award and a minimum rates award is one that does not provide for absorption; does not make any provision for absorption.

MR CRAWSHAW:   What we say in relation to that is that the power is to make an award - - -

HER HONOUR:   Subject to the Act.

MR CRAWSHAW:   - - - subject to the Act and there is nothing in those - one cannot read into the objects clause or some of the object clauses of section 88A an implication that those awards must either be paid rates awards or minimum rates awards.

HER HONOUR:   I think the implication is read into the Act as a whole by reference to the - it is a tenuous argument, I would have thought, but that is the argument and the question is is it arguable.

MR CRAWSHAW:   Yes, but the starting point for reading that implication into the Act as a whole is section 88A.  In other words, the starting point is merely the objects of the Act and, in our submission, they are no more than a guide to the interpretation of the substantive provisions of the Act and there is nothing in the substantive provisions that gives rise to that implication.  They are my submissions.

HER HONOUR:   Yes, thank you.  Anything you wish to say in reply to those matters, Mr Gyles?

MR GYLES:   Only these two things:  Your Honour will appreciate that it is not just the objects of the Act.  If you go to Part VI of the Act and just go to the table at the beginning, the point emerges, VIA deals with “Minimum Entitlements of Employees” with various divisions:  minimum wages equal remuneration; termination of employment and orders and proceedings.  So there is a substantive division dealing with minimum entitlements of employees which goes from section 170AA to section 170KAA.

HER HONOUR:   I am not too sure that that is not talking about minimum pay which used to be called the minimum award rate.

MR GYLES:   Yes.  Well, Division 1 may be that, Your Honour.

HER HONOUR:   Seems to be talking about what used to be called the minimum rate.

MR GYLES:   Yes.  Then you have got Part VIB which is “Promoting Bargaining and Facilitating Agreements” which starts at section 170LA, and then you have got Part VIC, “Paid Rates Awards”, section 170SA, so it is a great deal more than just the objects of the Act.  You have got three arms to it:  minimum, bargaining and paid rates.

MR CRAWSHAW:   I do not want to get into the business of replies but Part VIA is totally to enact into legislation the minimum wages, the ILO Minimum Wages Convention and the other conventions.

HER HONOUR:   Yes.  It does seem to be that, Mr Gyles.  It does not seem to have anything to do with minimum rates awards.

MR GYLES:   Yes.  I do not want to reargue it, Your Honour.  We submit that the question is clearly arguable as to the type of award we have here.

We would, under all the circumstances, not disagree with my learned friend’s submission that having spent some time and money, Your Honour may as well decide whether to grant an order nisi or not.

HER HONOUR:   In that case I would grant an order nisi for mandamus and certiorari with respect to the question under section 46 on the question whether it was the obligation of the Industrial Relations Commission to refer the questions of law to the Full Court.  Otherwise, I would simply refer the application to the Industrial Relations Court.  If it takes the view that there is merit - if the other questions are before it, it can proceed with it.  There would be no stay. 

The only other thing would be to make an order on terms that further proceedings be in the Industrial Relations Court and the steps already taken in this Court be taken into account in that court.  And the papers to be forwarded to the proper officer of the court in due course. 

There will be a necessity for the order nisi to be taken out in the Registry.  Is there anything else, gentlemen?

MR GYLES:   Just to be clear, Your Honour, the absorption point - - -

HER HONOUR:   It has gone.  Well, it is for the Federal Court to decide whether it wants to take it up.  It will arise on the referred questions if they consider them.  Otherwise, you can renew your application before the Federal Court, if it gets beyond - - -

MR GYLES:   Question - yes.

HER HONOUR:   It may all get dealt with in one issue in any event, but maybe not.

MR GYLES:   I suppose if the section 46 is successful, then one would not come to the next question.

HER HONOUR:   That is right.  We will now adjourn.

AT 11.42 AM THE MATTER WAS ADJOURNED SINE DIE