R v Isaac; Ex Parte - [1978] HCA 33

HIGH COURT OF AUSTRALIA

Gibbs, Stephen, Mason, Murphy and Aickin JJ.

THE QUEEN v. ISAAC; EX PARTE STATE ELECTRICITY COMMISSION (VICT.)

(1978) 140 CLR 615

16 August 1978

Industrial Law (Cth)

Industrial Law (Cth)—Industrial arbitration—Industrial dispute—Award in partial settlement of dispute—Application to vary—Party to dispute not bound by award or affected by application to vary—Right to appear—Conciliation and Arbitration Act 1904 (Cth), ss. 59 (2), 61.

Decisions

Aug. 16.
The following written judgments were delivered: -
GIBBS J. On or about 30th April 1970 the Municipal Officers' Association of Australia ("M.O.A.") served upon the State Electricity Commission of Victoria ("S.E.C.V."), the Electricity Trust of South Australia ("E.T.S.A.") and certain other electricity authorities a letter demanding that they should grant to their employees the salaries and conditions of service set out in a log of claims which was attached to the letter of demand. Amongst other things it was demanded that the ordinary hours of duty of persons employed in or in connexion with the operation of electricity undertakings conducted by the authorities should be thirty per week. The demands were not complied with and on 19th May 1970 M.O.A. notified the Conciliation and Arbitration Commission ("the Commission") of the existence of an industrial dispute between the M.O.A. and the authorities, including S.E.C.V. and E.T.S.A. On 8th June 1970 a Commissioner found that an industrial dispute existed in a number of States between M.O.A. and S.E.C.V. and E.T.S.A. and other authorities. On 18th October 1971, in part settlement of the dispute, a Commissioner made a consent award entitled the Electricity Trust of South Australia (Staff Conditions) Award, 1971 ("the E.T.S.A. Award") (1971) 140 CAR, pp 781 et seq . The S.E.C.V. did not appear before the Commission when this award was made and is not one of the persons on whom the award is intended to be binding (cl. 32). By cl. 5 of the award the ordinary hours of work for a day worker are to be thirty-seven and a half but there are exceptions (apparently wide in their scope) in the case of which the hours are to be forty. On 1st November 1976 M.O.A. made application for an order varying the E.T.S.A. Award, by, in effect, making the ordinary hours of work thirty-seven and a half in all cases. The application was numbered C. No. 3966 of 1976. On 14th January 1977 E.T.S.A. also made application to vary the E.T.S.A. Award; its application was numbered C. No. 5003 of 1977. (at p618)

2. On or about 23rd May 1972 the Electrical Trades Union of Australia and six other unions served on E.T.S.A. and S.E.C.V. a letter of demand and a log of claims for wages and conditions of employment in the electricity industry. One of the claims was for a thirty hour week. The demands were not met, the unions notified the Commission of the existence of an industrial dispute and on 31st May 1972 the Commission found that an industrial dispute existed between the unions and E.T.S.A. and S.E.C.V. On 26th June 1972, in part settlement of the dispute, a Commissioner certified an agreement as an award under the title the Electricity Trust of South Australia (Metal Trades) Agreement 1972 ("the agreement") (1972) 144 CAR, pp 611 et seq . It is expressed to be binding on E.T.S.A., but not on S.E.C.V. Ordinary hours of day workers were to be forty per week (cl. 15). On 28th June 1977 the unions applied for an order varying the agreement, by providing that the ordinary hours of work shall be thirty-seven and a half per week. The application was numbered C. No. 3412 of 1977. (at p618)

3. On 19th September 1977 applications C. No. 3966 of 1976, C. No. 3412 of 1977 and C. No. 5003 of 1977 and a number of other applications came on for hearing together before a Full Bench of the Commission. Counsel applied to appear for S.E.C.V. as a party in matters C. No. 3966 of 1976 and C. No. 3412 of 1977. These applications were refused by the Full Bench, although subsequently S.E.C.V. was given leave to intervene. S.E.C.V. now seeks mandamus, or alternatively prohibition, to enforce what it submits is its right to be treated as a party to those two matters. (at p618)

4. The question which is raised by these proceedings is whether a party to an industrial dispute who is not bound by an award made in partial settlement of the dispute is entitled to be heard as a party upon an application for variation of that award. On behalf of S.E.C.V. it is submitted that this question should be answered in the affirmative, because, it is said, an application to vary an award is an application to the Commission to settle a part of the original dispute which the making of the award has left unresolved, and any party to that dispute is entitled to be heard on such an application. Thus in the present case, so it is said, the matters before the Commission do not arise out of fresh disputes between E.T.S.A. and the unions concerned - which if they existed would have no interstate character - but are part of the process of arbitration for the settlement of the disputes that were originally found to exist, and to which S.E.C.V. as well as E.T.S.A. was found to be a party. (at p619)

5. It may be accepted that the Commission when seized of a dispute extending beyond the limits of one State may "dispose of the dispute wholly or piecemeal as it thinks convenient", and that if the Commission effects a partial settlement of the dispute by making awards in respect of employers in all States but one, the dispute does not thereby lose its interstate character, nor the Commission its jurisdiction: Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (1920) 28 CLR 1, at pp 9, 13-14, 18, 21 . In such a case, where the dispute has by the making of awards or by agreement been settled in all but one State, the dispute which remains is "not a new dispute but the 'undetermined' residue of the original dispute": Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia (1953) 88 CLR 125, at p 136 . When these cases were decided the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"), was in form not identical with the present Act, but it was not suggested in argument that the differences were material. (at p619)

6. It is well settled that it is incidental to the prevention and settlement of industrial disputes by arbitration to empower the Commission to vary an award "not only to correct or improve upon the provisions it contains independently of change of circumstances, but also to meet altered conditions": Reg. v. Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461, at p 474 . As was explained in that case (1953) 89 CLR, at pp 473-474 "to maintain a settlement made by award of an industrial dispute in an expedient and satisfactory form adjusted to changing conditions" is incidental to the subject described in s. 51 (xxxv.) of the Constitution. The Commission may be invested with power to make a variation whether or not a new dispute has arisen, but if there is no new dispute the variation of the award cannot go beyond the limits of the original dispute: Australian Insurance Staffs' Federation v. Atlas Assurance Co. Ltd. (1931) 45 CLR 409, at pp 422, 429, 440, 443, 448-449 ; Reg. v. Kelly; Ex parte Australian Railways Union (1953) 89 CLR, at pp 473-475, 482-484 ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1962) 108 CLR 166, at p 169 ; Reg. v. Gough; Ex parte Cairns Meat Export Co. Pty. Ltd. (1962) 108 CLR 343, at p 351 . The Parliament has exercised this power and has invested the Commission with power to vary an award "for any reason": s. 59 (2) of the Act. (at p620)

7. It follows that in a case such as the present, when an award which has been made in partial settlement of a dispute is binding on parties in one State only, the power to vary the award is referable to the original dispute; there could of course be no new interstate dispute between the parties bound by the award since all of them are within the one State. However, it does not follow that all the parties to the original dispute have a right to be heard on an application for variation. Although in such a case the Commission is proceeding within the ambit of the original dispute, and its authority to make a variation depends on the existence of that dispute, it is not correct to say that a variation will effect a new settlement of the entire original dispute, or of the residue of that dispute left undetermined by the award. The variation if made will adjust the partial settlement effected by the original award, but will not affect any other award made in partial settlement of the same dispute. The application for the variation will not reopen the entire dispute, but only so much as was settled by the award sought to be varied. (at p620)

8. It was not submitted that any express provision of the Act gave S.E.C.V. the right to be heard as a party in matters C. No. 3966 of 1976 and C. No. 3412 of 1977. On behalf of S.E.C.V. reliance was placed on Reg. v. President of the Commonwealth Conciliation and Arbitration Commission; Ex parte Victoria where I said (1977) 17 ALR 207, at p 214 :

"There can be no doubt that if the prosecutors are in truth parties to the dispute . . . they are entitled to the remedy which they seek. The members of the Commission are bound to act in accordance with the rules of natural justice . . . They must therefore afford any party to a dispute a proper opportunity to be heard before making an order that affects him."

Although it is of fundamental importance that parties affected be given a proper hearing before an award or a variation is made, neither that principle, nor the passage cited, assists S.E.C.V. in the present case. S.E.C.V. was, it is true, a party to the dispute whose existence gave jurisdiction to the Commission, but the application for variation is not made in the dispute generally or in any particular respect that directly affects S.E.C.V. It was not disputed that S.E.C.V. was not bound by the E.T.S.A. Award or by the Agreement: see s. 28 (4) of the Act. The variation sought was not intended to bind, and if made will not bind, S.E.C.V. Clearly, as a matter of law, S.E.C.V. will not be affected by any variation that may be made. I can see no reason in principle why the law should imply a duty on the Commission to hear S.E.C.V. on an application to vary an award, when it is not bound by that award and will not be bound by any variation to it. Since, for the reasons I have given, the fact that S.E.C.V. is a party to the original dispute does not make it a party to the application for variation, and any variation made will not affect it in any legal sense, it has no right to be heard on such application. (at p621)

9. S.E.C.V. no doubt fears that if the variation now sought is made to the E.T.S.A. Award, it will be more difficult to resist a claim by its own employees for a similar variation of those awards which do bind it. This may have been recognized by the Commission when it gave S.E.C.V. leave to intervene, but the understandable concern of S.E.C.V. is partly based on the fact that an intervener does not have the same rights as a party to take a full part in proceedings. The determination of disputes piecemeal gives rise to problems, particularly when an attempt is made to secure a more or less automatic flow-on of the benefits obtained in the first determination to the employees who are parties to the second determination. I adverted to problems of this kind in Reg. v. President of the Commonwealth Conciliation and Arbitration Commission; Ex parte Victoria (1977) 17 ALR, at p 215 . It becomes a question for the Commission to consider, in a case where the dispute is being or has been settled by a number of awards made one by one, how, consistently with the settlement of the dispute, the parties to the dispute who are not parties to a particular application can be given a fair and adequate opportunity to take part in proceedings the result of which may have an important, although indirect, influence upon their position. That question does not now arise for our decision. We are concerned to decide only whether S.E.C.V. had a right to be heard as a party to the proceedings in question. For the reasons which I have given I conclude that it had not. (at p621)

10. I would discharge the order nisi. (at p621)

STEPHEN J. I have had the advantage of reading the separate reasons for judgment of Gibbs J. and of Mason J. I agree with those reasons and there is nothing which I wish to add to them. (at p621)

MASON J. This is an application to make absolute an order nisi granted by Stephen J. for mandamus or alternatively prohibition directed to the Commonwealth Conciliation and Arbitration Commission and others, requiring the Commission to deal with disputes C. No. 3966 of 1976 and C. No. 3412 of 1977 as disputes to which the prosecutor is a party or prohibiting the Commission from proceeding further in hearing the two disputes without dealing with the same as disputes in which the prosecutor is a party. (at p622)

2. The material facts may be shortly stated. In 1970 the respondent Municipal Officers' Association of Australia ("M.O.A."), an organization of employees registered under the Conciliation and Arbitration Act 1904 (as amended) ("the Act") created an industrial dispute by service of letters of demand and a log of claims in relation to wages and conditions of employment in the electrical undertakings industry. The letters and the log were served on employer authorities in all States. The employers, who included the prosecutor, did not accede to the demands made. On 8th June 1970 Mr. Commissioner Matthews found that an industrial dispute within the meaning of the Act, arising out of the non-acceptance of the demands, existed in all States between M.O.A. and fifty employers, including the prosecutor. The prosecutor, we were informed, was represented in the proceedings before Mr. Commissioner Matthews. On 18th October 1971 Mr. Commissioner Gough made a consent award entitled The Electricity Trust of South Australia (Staff Conditions) Award 1971 ("the E.T.S.A. Award"). As its title implies, the E.T.S.A. Award governed the employment of employees in South Australia. The prosecutor was not named as a party to this Award; it had not been represented in the proceedings before Mr. Commissioner Gough. On 1st November 1976 M.O.A. made application (C. No. 3966 of 1976) for an order varying the E.T.S.A. Award by reducing the hours of work for which the Award provided from forty hours to thirty-seven and a half hours per week and for certain other variations which need not be mentioned. The application came before Mr. Commissioner Vosti on 18th November 1976 and, pursuant to s. 31 of the Act, in due course it came before a Full Bench of the Commission. (at p622)

3. On 14th January 1977 the respondent Electricity Trust of South Australia ("E.T.S.A.") made application for an order varying the E.T.S.A. Award (C. No. 5003 of 1977). This application also sought a variation in relation to the provisions of the E.T.S.A. Award relating to the hours of work but in terms it departed from the variation sought by M.O.A. (at p622)

4. In 1972 the respondent Electrical Trades Union of Australia and certain other organizations of employees registered under the Act created an industrial dispute by service of letters of demand and a log of claims in relation to wages and conditions of employment in the electricity industry. The letters of demand and the log of claims were served on E.T.S.A. and the prosecutor. They did not accede to the demands then made. On 29th May 1972 the unions notified the Commission of the existence of this industrial dispute. On 31st May 1972 Mr. Commissioner Lyttleton found that an industrial dispute within the meaning of the Act existed between the unions on the one hand and E.T.S.A. and the prosecutor on the other hand (C. No. 1630 of 1972). The prosecutor was represented in these proceedings but was not represented in the proceedings which subsequently came before Mr. Commissioner Lyttleton. In partial settlement of this dispute Mr. Commissioner Lyttleton on 26th June 1972 certified an agreement as an award under the title The Electricity Trust of South Australia (Metal Trades) Agreement 1972 ("the Agreement"). On 28th June 1977 the unions made application for an order varying the Agreement (C. No. 3412 of 1977). By this application it was sought to vary the Agreement so as to reduce the hours of work provided for to thirty-seven and a half hours per week. (at p623)

5. The direct or immediate effect of the variations sought to be made to the E.T.S.A. Award and the Agreement would not, if granted, extend the application of the Award and the Agreement beyond the industry in South Australia. The Award and the Agreement as varied would continue to bind E.T.S.A. in respect of its employees in that State. They would not apply to the prosecutor in respect of its employees in Victoria. However, the prosecutor asserts that once terms and conditions of employment are settled for the industry in South Australia in the proceedings for variation there will be an inevitable "flow on" which will affect the prosecutor in respect of its Victorian employees. (at p623)

6. We were informed that so much of the original disputes as related to the terms and conditions of employment of the prosecutor's employees in Victoria was not settled by any award made in determination of these disputes. Evidently they remain unresolved. This has not been a matter of great practical significance because there are awards, made in the settlement of other industrial disputes, which govern the terms and conditions of employment of the prosecutor's employees in Victoria. (at p623)

7. On 19th September 1977 applications C. No. 3966 of 1976, C. No. 3412 of 1977 and C. No. 5003 of 1977, together with other applications, came on for hearing before a Full Bench of the Commission. The matters were joined and heard together. The prosecutor made application to appear as a party in C. No. 3966 of 1976 and C. No. 3412 of 1977. The applications were refused by the Full Bench. The prosecutor submits that the refusal by the Commission to treat it as a party to the applications to vary the two Awards constitutes a refusal by the Commission to hear and determine the disputes according to law or, alternatively, that it constitutes a denial of natural justice entitling the prosecutor to prohibition. The power to vary an award is conferred by s. 59 of the Act. The section is in these terms:

"59. (1) The Commission may, if for any reason it considers it desirable to do so, set aside an award or any of the terms of an award. (2) The Commission may, if for any reason it considers it desirable to do so, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary any of the terms of an award. (3) The provisions of this Act, so far as they are capable of application, apply in relation to applications for the variation or setting aside of awards and proceedings in respect of such applications in like manner as they apply in relation to industrial disputes and proceedings in respect of such disputes, and for that purpose such an application shall be treated as if it were the notification of an industrial dispute."

The Commission has been asked to vary the two Awards on the ground that there are reasons why it should consider it desirable to make the variations sought, that is, to exercise the power conferred by the first limb of s. 59 (2). (at p624)

8. It has long been established that Parliament may legislate so as to give the Commission power to vary its awards, even in cases where the proposed variation does not immediately or directly arise out of a fresh industrial dispute extending beyond the limits of a single State - see Federated Gas Employees' Industrial Union v. Metropolitan Gas Co. Ltd. (1919) 27 CLR 72, at pp 84-85 ; Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association (1920) 28 CLR 209, at p 225 ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte North Melbourne Electric Tramways and Lighting Co. Ltd. (1920) 29 CLR 106 ; Federated Engine-Drivers' and Firemen's Association of Australasia v. A1 Amalgamated (1924) 35 CLR 349 ; Australian Insurance Staffs' Federation v. Atlas Assurance Co. Ltd. (1931) 45 CLR 409 ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victorian Railways Commissioners (1935) 53 CLR 113 ; and Reg. v. Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461 . In these cases the Court has asserted repeatedly that the variation of awards for the purpose of maintaining and making effective the settlement of an original industrial dispute extending beyond the limits of one State is fairly incidental to the subject matter of the power conferred by s. 51 (xxxv.) of the Constitution. (at p625)

9. In this respect it is sufficient to refer to the observations of Dixon C.J. in Reg. v. Kelly; Ex parte Australian Railways Union. His Honour was there speaking of the power to vary conferred by s. 49 of the Conciliation and Arbitration Act 1904-1952, a section which is for relevant purposes indistinguishable from the power to vary contained in s. 59 (2) of the Act. His Honour said (1953) 89 CLR, at pp 473-474 :

"It is too late to deny that the legislative power derived from s. 51 (xxxv.) of the Constitution does not extend far enough to enable the legislature to give to the Arbitration Court a power of varying an award within the limits of the original industrial dispute, and that is so whether the variation is made during the period specified in the award for its operation or during the period thereafter whilst it remains in operation by virtue of s. 48 (2). The award is in operation as a settlement or determination of the dispute and, within the limits arising from the subject matter and the boundaries of the dispute, the court may revise or review the settlement it has made."

and went on to say (1953) 89 CLR, at p 474 :

"It must be incidental to the prevention and settlement of industrial disputes by arbitration to empower the arbitral tribunal to vary any of its awards so long as it is in operation, not only to correct or improve upon the provisions it contains independently of change of circumstances, but also to meet altered conditions. It is true that the power must be exercised in respect of the subject constitutionally described as conciliation and arbitration for the prevention and settlement of industrial disputes. But that subject includes all that is incidental thereto, and to maintain a settlement made by award of an industrial dispute in an expedient and satisfactory form adjusted to changed conditions must be incidental to the subject. Variations cannot go beyond what is appropriate to the general purpose of the settlement of the industrial dispute and continuing the settlement in force. That means that the limits set by the scope and nature of the original dispute cannot be transcended."

Dixon C.J. stated that the words "any reason", which appeared in s. 49 and now appear in s. 59 (2), must be understood to mean "any reason which is relevant to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State and what is incidential thereto" (1953) 89 CLR, at p 476 . (at p626)

10. Fullagar and Kitto JJ. agreed with Dixon C.J. Taylor J., in a separate judgment, expressed similar views. It is to be noticed that the constitutional foundation for the power to vary, at least in those cases when it has been unrelated to a fresh interstate industrial dispute, was and always has been squarely based on s. 51 (xxxv.) and what is incidental to the subject matter of that power, not upon the incidental power contained in s. 51 (xxxix.). There being no suggestion in the present case that there has come into existence a fresh interstate industrial dispute, the power of the Commission to vary the E.T.S.A. Award and the Agreement derives from the original interstate disputes. The prosecutor was a party to the original disputes. Does it automatically follow that it is a party to the E.T.S.A. Award and the Agreement or that it is a necessary party to the applications for variation? I do not think so and for these reasons.

11. First, the prosecutor was not named as a party to the Award or the Agreement; nor are any of their provisions expressed to apply to it. This is scarcely surprising as the Award and the Agreement evidently relate to the electrical undertakings and the electricity industries in South Australia and have no application to Victoria where the prosecutor carries on its undertaking. (at p626)

12. Secondly, the Act does not make the E.T.S.A. Award or the Agreement binding on the prosecutor. According to s. 28 (4), a consent award or order giving effect to an agreement for the settlement of all or any of the matters in dispute is binding on (a) each of the parties making a request under the section; (b) all members of an organization that is such a party; and (c) an employer who is a successor to, or an assignee or transmitter of, the business of such a party. The prosecutor does not come within these categories. (at p626)

13. Section 61 has no application to consent awards; it applies only to awards determining industrial disputes. At first glance it might seem that the author of s. 61 proceeded on the view that an interstate dispute would necessarily lend itself to resolution by the making of a single award because it does not deal explicitly with a situation in which more than one award is made in settlement of such a dispute. Neither the Act nor the regulations confer specific authority on the Commission to fragment a dispute for the purpose of determining it. It might be thought that the regulations, notably regs 19 and 20, contemplate a hearing of the entire dispute, rather than hearings of separate parts of the entire dispute. The Act itself requires the Commission to "deal with the dispute" (s. 30 (1)) and that in the context must mean the entire interstate dispute over which the Commission has jurisdiction. (at p627)

14. However, it has been the practice of the Commission to fragment interstate disputes, when it is convenient to do so, by dealing with them on a State or regional basis, and by determining an entire interstate dispute by means of a series of awards one or more of which regulates the industry in a particular State or in particular States. This practice has not been thought to be at variance with the principle that an interstate dispute is one and indivisible, for this principle relates to the acquisition and retention of jurisdiction by the Commission, not to the manner in which it exercises jurisdiction once vested. Thus a dispute extending beyond the limits of a single State over which the Commission obtains jurisdiction remains such a dispute until it is finally and wholly settled. The Commission therefore retains jurisdiction to make an award having an operation in one State only when the dispute has been settled in all other States by agreements or by awards (Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (1920) 28 CLR 1 ). In Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia (1953) 88 CLR 125, at p 136 Williams A.C.J., Fullagar, Kitto and Taylor JJ. said:
"Clearly the jurisdiction of the court to determine the whole dispute was not divested by the exercise of the power of determination or by the making of agreements in relation to the dispute in all States but one. The dispute which remained was not a new dispute but the "undetermined" residue of the original dispute." (at p627)

15. For the purpose of achieving speedy settlement of an entire interstate dispute it may be expedient to fragment it, to divide it into its separate elements, the more so if it appears the dispute involves considerations which are unique or peculiar to the industry in one or more States. In such a case the settlement of the entire dispute will be more readily accomplished if the Commission proceeds by way of separate hearings to the making of particular awards each having a limited area of operation, as for example an operation which is confined to the employers in the industry in a particular State, each award being made in partial settlement of the entire dispute. (at p627)

16. The justification for the adoption by the Commission of this course in cases considered to be appropriate is to be found in the overall responsibility entrusted to it by the Act, that of preventing and settling industrial disputes (s. 18). Section 61 presents no impediment. Although the expression "industrial dispute" is defined so as to mean an industrial dispute extending beyond the limits of one State, s. 4 (2) provides that a reference to an industrial dispute shall, unless the contrary intention appears, be read as including a reference to a part of an industrial dispute. Read in the light of this provision s. 61 is to be understood as applying not only to awards which determine an entire dispute, but also to awards which determine part of a dispute. In both cases it identifies the persons who are bound by the award. The section presents obvious difficulties of interpretation as applied to awards made in partial settlement of disputes. They may be safely left for future resolution. (at p628)

17. There remains for consideration the prosecutor's contention that because it was a party to the original interstate dispute it is necessarily a party to an award made in partial settlement of that dispute, notwithstanding that it was not named as a party to the award and that the award is not expressed to be binding upon it by s. 28. The argument is that proceedings for a variation of an award or agreement made in partial settlement of a dispute necessarily reactivate the original dispute. (at p628)

18. Proceedings for a variation of a consent award made in partial settlement of an interstate dispute will throw that settlement into question but only to the extent of the variation which is proposed. The issue for the Commission is not whether the parties to the original dispute should be restored to the status quo ante but whether the award should be varied, in particular in the respects proposed. Though the Commission's jurisdiction derives from the foundational interstate dispute, in exercising its power to vary it is concerned only to inquire whether for any reason relevant to the prevention and settlement of industrial disputes extending beyond the limits of one State the award should be varied. If the award sought to be varied settles part of an interstate dispute, being so much of that dispute as relates to the relevant industry in a particular State, the Commission's responsibility is to maintain the settlement made by the award "in an expedient and satisfactory form", to use the words of Dixon C.J. in Reg. v. Kelly; Ex parte Australian Railways Union (1953) 89 CLR, at p 474 , whether that involves a correction or improvement in its initial provisions or whether it entails an adjustment of thos provisions to changed conditions. But in either event, unless the proposed variation stems from a fresh interstate industrial dispute, the Commission will in general be concerned to maintain the award as an effective settlement of that part of the original dispute which it was intended to settle. So long as the variation sought to be made does not alter the character of the award as a settlement of so much of the original dispute as affected the industry in the particular State there is no reason why an employer not engaged in the industry in that State should be considered to be a party to the award, if not named as such, or a necessary party to the proceedings for variation. The fact is that he is not bound by the provisions of the award and he has no interest which will be directly affected by its provisions. (at p629)

19. At best he has an indirect interest which flows from the likelihood that the Commission, once it decides the issue one way for the industry in a particular State, will follow and apply that decision in deciding the issue when it arises for the industry in another State. An interest of this kind has always been considered to be indirect and consequential, not such as to warrant the conclusion that the person in question is a necessary party to proceedings and this for the simple reason that he will not be bound by the order of the court or tribunal. (at p629)

20. If the variation sought to be made to an award is such as to give it an operation that would entail its imposing obligations on persons not expressed to be parties to the award, then they would be necessary parties to the proceedings for variation. The present case is not one of this kind. (at p629)

21. For these reasons the prosecutor is neither a party to the E.T.S.A. Award or the Agreement nor a necessary party to the proceedings for variation now on foot. The Commission has granted the prosecutor leave to intervene but the prosecutor has not thus far been content to accept status as an intervener. However, in the light of my conclusion it has no alternative but to accept it. (at p629)

22. In the result I would discharge the order nisi. (at p629)

MURPHY J. This order nisi for prohibition relates to applications by the Municipal Officers' Association and the Electrical Trades Union of Australia to the Australian Conciliation and Arbitration Commission for variation of an award of the Commission. (at p629)

2. The award was made in part settlement of a dispute to which the prosecutor, the State Electricity Commission of Victoria, was a party, but, as it is confined to the State of South Australia, it does not and will not, if varied as sought by this application, bind the State Electricity Commission of Victoria. (at p630)

3. Section 59 of the Conciliation and Arbitration Act 1904 provides:

"(1) The Commission may, if for any reason it considers it desirable to do so, set aside an award or any of the terms of an award. (2) The Commission may, if for any reason it considers it desirable to do so, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary any of the terms of an award.

(3) The provisions of this Act, so far as they are capable of application, apply in relation to applications for the variation or setting aside of awards and proceedings in respect of such applications in like manner as they apply in relation to industrial disputes and proceedings in respect of such disputes, and for that purpose such an application shall be treated as if it were the notification of an industrial dispute." (at p630)

4. The prosecutor contended that there is no constitutional power to vary an award, except as part of settling the original dispute (which must extend beyond one State) out of which the award arose, therefore, in order to maintain the constitutionally requisite element of arbitration, any party to the original dispute must be entitled to be a party to the proceedings on the application for variation. (at p630)

5. A variation of an award, however, is not part of the primary arbitration process. Its constitutional foundation is that it is incidental to the arbitral power referred to in s. 51 (xxxv.) of the Constitution which enables Parliament to provide for adaptation of the award to maintain its efficacy, to meet changing conditions during its currency and to prolong its operation (see Reg. v. Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461 ). It is not constitutionally necessary for a variation to concern more than one State. Therefore, the Constitution does not require that the parties to the original dispute be parties to proceedings to vary an award if they are not bound by the award and will not be bound by the variation. (at p630)

6. Similarly, the Act does not require that they be parties to proceedings to vary an award. The applications for variation are in accordance with s. 59 of the Act. They do not seek to impose any obligation on or affect any right of the prosecutor which will not be bound by the award if varied as sought (see s. 61 of the Act). The prosecutor is therefore not entitled to be a party to the application. (at p630)

7. During the hearing, the Commission's power to make an award with effect in one State only was questioned. The prosecutor contended that the only power deriving from s. 51 (xxxv.) is for settlement of (industrial) disputes extending beyond the limits of any one State, and that the settlement contemplated by the Constitution and provided for by the Act was one award settling the entire dispute. (at p631)

8. The constitutional power is not so confined. The power is expressed widely as "power to make laws . . . with respect to . . . conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State". This empowers Parliament to authorize an arbitral body to settle disputes in the most convenient way, by partial or entire awards as it sees fit. Parliament has exercised this power by conferring a very wide discretion on the Commission to settle disputes (see s. 30 of the Act; this is extended by definition in s. 4 (2) to include parts of disputes). The Commission's authority to settle part of a dispute has long been accepted (see Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (1920) 28 CLR 1 ; Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia (1953) 88 CLR 125 ). The Commission was therefore authorized to make the award confined to one State and to make a variation confined to one State. (at p631)

9. The constitutional power to make laws with respect to arbitration for the prevention of industrial disputes extending beyond one State is repeatedly overlooked. This power authorizes laws with respect to arbitration of disputes which do not extend beyond one State in order to prevent an industrial dispute extending beyond one State. The Conciliation and Arbitration Act provides for arbitration in respect of situations which are not industrial disputes extending beyond any one State (see ss. 4 and 30). There are many industrial situations confined to one State, the consequence of which (if not prevented by conciliation or arbitration) will be an industrial dispute extending beyond one State. In any event, whenever the Commission is arbitrating to prevent or to settle an industrial dispute extending beyond one State, it has authority to confine any award to one State. (at p631)

10. The order nisi should be discharged. (at p631)

AICKIN J. On 29th September 1977 Stephen J., upon the application of the State Electricity Commission of Victoria ("the S.E.C.V."), granted an order nisi for mandamus or alternatively prohibition directed to the abovenamed members of the Conciliation and Arbitration Commission and the Municipal Officers' Association of Australia, as well as other respondents, for a writ of mandamus or alternatively prohibition requiring the Commission to deal according to law with Disputes C. No. 3966 of 1976 and C. No. 3412 of 1977 as disputes to which the S.E.C.V. was a party or alternatively prohibiting the Commonwealth Conciliation and Arbitration Commission ("the Commission") from proceeding further in hearing the two disputes without dealing with them as disputes to which the S.E.C.V. was a party. (at p632)

2. The relevant facts are not in dispute and may be summarized by saying that in 1970 the respondent Municipal Officers' Association of Australia, ("the M.O.A."), an organization of employees registered under the Conciliation and Arbitration Act 1904, as amended ("the Act") served letters of demand and a log of claims upon some fifty electricity authorities in all States, including the S.E.C.V., and the Electricity Trust of South Australia ("E.T.S.A."). Amongst other claims made in that log was a claim for a thirty hour week. The employers upon whom this log was served did not accede to the demands made and on 8th June 1970 Mr. Commissioner Matthews found that an industrial dispute within the meaning of the Act had arisen out of the non-acceptance of the demands and existed in all States. We were informed that the S.E.C.V. was represented at the hearing at which that finding was made, and this also appears from the transcript of later proceedings in 1977, which is in evidence before us. (at p632)

3. On 18th October 1971 Mr. Commissioner Gough made a consent award entitled The Electricity Trust of South Australia (Staff Conditions) Award 1971 ("the E.T.S.A. Award"). Neither the S.E.C.V. (nor any other respondent to the log of claims, save E.T.S.A.) was named as a party to that Award. The S.E.C.V. was not represented in the proceedings before Mr. Commissioner Gough. So far as appears from the record of the proceedings (1971) 140 CAR 781 no party to the dispute other than E.T.S.A. and the relevant unions was informed of the application intended to be made and certainly no other party was represented before Mr. Commissioner Gough on that occasion. On 1st November 1976 the M.O.A. made an application to the Commission pursuant to the Act for a variation of that Award in relation to hours of work (C. No. 3966). The application came before Mr. Commissioner Vosti on 18th November 1976. There is nothing to suggest that the S.E.C.V. was notified of this application and it did not appear on that day. In the result Mr. Commissioner Vosti referred the application to the President of the Commission pursuant to s. 31 (1) of the Act with a view to it being heard by a Full Bench of the Commission. (at p633)

4. On 21st May 1972 the Electrical Trades Union of Australia ("the E.T.U.") and certain other unions notified the Commission of the existence of an industrial dispute brought about by the refusal of E.T.S.A. and the S.E.C.V. to accede to a letter of demand and a log of claims served on them. On 31st May 1972 Mr. Commissioner Lyttleton found that an industrial dispute within the meaning of the Act existed between the E.T.U. on the one hand and E.T.S.A. and the S.E.C.V. on the other. The S.E.C.V. was represented in those proceedings. On 26th June 1972 in part settlement of that dispute Mr. Commissioner Lyttleton certified an Agreement as an Award under the Act under the name The Electricity Trust of South Australia (Metal Trades) Agreement 1972 ("the Agreement"). The S.E.C.V. was not represented on that occasion, and so far as appears, it was not informed that the application was to be made. On 28th June 1977 the E.T.U. and the other unions applied for an order varying the Agreement (C. No. 3412 of 1977) by reducing the hours of work to thirty-seven and a half per week. This application was likewise referred to a Full Bench. Applications C. No. 3966 of 1976 and C. No. 3412 of 1977, along with the other matters, came on for hearing before a Full Bench, comprising Mr. Deputy President Isaac, Mr. Justice Alley and Mr. Commissioner Vosti, on 19th September 1977 when applications by the Federated Engine-Drivers' and Firemen's Association of Australasia ("the F.E.D.F.A."), the E.T.U., E.T.S.A. and the M.O.A. to vary hours of work under four separate awards (including the consent Award made on 18th October 1971 by Mr. Commissioner Gough) were heard together. On that day counsel for the S.E.C.V. and certain other Victorian public authorities sought to appear on the basis that they were appearing for parties to the relevant disputes. At the same time other counsel sought to appear for the Hydro-Electric Commission of Tasmania and the State Energy Commission of Western Australia. After hearing argument the Full Bench rejected the applications by the S.E.C.V., the Hydro-Electric Commission of Tasmania and the State Energy Commission of Western Australia to be heard as parties to the proceedings, but gave no reasons for that decision. The question of leave to intervene was adverted to but adjourned. We were informed by counsel that such leave was subsequently granted. (at p634)

5. It is not to be doubted that the Act validly gives to the Commission a power to vary its awards, notwithstanding that the variation may not be for the purpose of settling a fresh industrial dispute extending beyong the limits of any one State and between the same parties or some of them. This was decided at least as long ago as 1910 in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow &Co. (1910) 11 CLR 1 and is a view which has been acted upon on many occasions by this Court. It is sufficient to add a reference to an observation made twenty-five years ago by Dixon C.J. in Reg. v. Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461, at pp 473-474 ("the A.R.U. Case") where he said:

"It is too late to deny that the legislative power derived from s. 51 (xxxv.) of the Constitution does not extend far enough to enable the legislature to give to the Arbitration Court a power of varying an award within the limits of the original industrial dispute, and that is so whether the variation is made during the period specified in the award for its operation or during the period thereafter whilst it remains in operation by virtue of s. 48 (2). The award is in operation as a settlement or determination of the dispute and, within the limits arising from the subject matter and the boundaries of the dispute, the court may revise or review the settlement it has made. Section 49 of the Act, which confers the power to set aside any terms of an award, and the power to vary it, does not distinguish between the specified period of the operation of an award and the period when it is continued in operation until a new award is made. There is nothing to necessitate such a distinction. But the reason for reviewing or revising the terms of an award may be found in changing circumstances as well as in a reconsideration of the wisdom or expediency of the provision independently of any change brought by time and the longer an award is kept in force, the greater is the likelihood of circumstances changing so as to make a variation necessary or expedient. That the provision is valid which continues the operation of an award after the expiry of its fixed term is of course well established. From that conclusion it follows almost as a corollary that the Arbitration Court may be empowered to vary the terms of the award in order to give it a reasonable application to altered conditions. It must be incidental to the prevention and settlement of industrial disputes by arbitration to empower the arbitral tribunal to vary any of its awards so long as it is in operation, not only to correct or improve upon the provisions it contains independently of change of circumstances, but also to meet altered conditions. It is true that the power must be exercised in respect of the subject constitutionally described as conciliation and arbitration for the prevention and settlement of industrial disputes. But that subject includes all that is incidental thereto, and to maintain a settlement made by award of an industrial dispute in an expedient and satisfactory form adjusted to changed conditions must be incidental to the subject. Variations cannot go beyong what is appropriate to the general purpose of the settlement of the industrial dispute and continuing the settlement in force. That means that the limits set by the scope and nature of the original dispute cannot be transcended."

All members of the Court made it clear that the power to vary an award, either during the period for which it was expressed to operate, or during the statutory extension of its operation, can operate only within the ambit of the original dispute. (at p635)

6. It is also too late to deny that the Commission has power to split up or divide interstate disputes for the purpose of settling them by a series of one or more awards, not only a series of awards dealing with different subject matters, such as wages in one case, and terms and conditions of employment in another, but also by dealing with some or all of the subject matters of the dispute in respect of one State, separately from other States, or even one party separately from others. If the matter were free of authority there might be much to be said for the view that when s. 4 (2) provides that a reference to an industrial dispute shall be read as including a reference as to "a part of an industrial dispute" it is referring to individual matters or items in dispute, but it was decided otherwise in Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (1920) 28 CLR 1 ("the F.E.D.F.A. Case"), see per Knox C.J., Gavan Duffy and Starke JJ. (1920) 28 CLR, at p 9 , Higgins J. (1920) 28 CLR, at pp 13-14 , Powers J. (1920) 28 CLR, at p 18 and Rich J. (1920) 28 CLR, at p 21 . See also Reg. v. Blackburn; Ex parte Transport Workers' Union of Australia (1953) 88 CLR 125, at p 136 , per Williams A.C.J., Fullagar, Kitto and Taylor JJ., a case where however the dispute was held to have come to an end by the withdrawal of the whole of the demands made. (at p635)

7. The present case appears to me to turn on the nature and extent of the principle involved in the decision in the F.E.D.F.A. Case because the facts of the present case involve significant differences from those in the case cited. It is necessary to note first in a little detail the circumstances dealt with in the F.E.D.F.A. Case as they appear from the case stated by Powers J. (in his capacity as a judge of the Commonwealth Court of Conciliation and Arbitration (as it was then constituted)). The log of claims had been served on respondents in Victoria, New South Wales, South Australia, Western Australia and Tasmania in 1918. Prior to 25th July 1919 Powers J. had by consent agreed to delay the making of an award against the Tasmanian respondents until the witnesses from the parties could give evidence in Melbourne, which was not then possible because of quarantine restrictions. Prior to 15th September 1919 Powers J. had found that an industrial dispute extending beyond the limits of one State existed between the F.E.D.F.A. and certain respondents in Victoria, New South Wales and South Australia, but he did not at that time make any finding as to a dispute involving respondents in Western Australia or in Tasmania. On 15th September 1919 he made an award settling the dispute as to the respondents in the States of South Australia, Victoria and New South Wales, the respondents in Western Australia having settled their dispute out of court before any award was made. At an adjourned hearing on 29th September and 31st October some of the Tasmanian respondents appeared before Powers J., others who did not appear had been duly summoned, and it was not then contended that there had not been an industrial dispute between those respondents and the F.E.D.F.A. or that there was not up to 15th September 1919 an industrial dispute extending beyond the limits of one State. Powers J. then found, on 31st October 1919, that on and prior to 15th September 1919 there was an industrial dispute extending beyong the limits of one State between the F.E.D.F.A. and respondents in Victoria, New South Wales, South Australia and Tasmania and that that dispute had not been settled by 31st October so far as many of the respondents in Tasmania were concerned, but that it had been settled as to the respondents in Victoria, South Australia and New South Wales before that date by awards and agreements. He then referred to the High Court a question of law, namely, "Can the Court of Conciliation and Arbitration make an award binding on the respondents in the State of Tasmania only, after the part of the common dispute with the respondents in all the five States, including Tasmania, had been settled by or for all the respondents in the other four States by award or by agreements?" It is to be noted that no complaint was made by the Tasmanian respondents that they had not had an opportunity to be heard at the hearing on 15th September 1919 when the award was made as to the other States. Indeed, the holding over of the making of an award against Tasmanian respondents was by consent. Moreover, as at 15th September 1919 no dispute had been found which included the respondents in Tasmania. The decision of the Court, as expressed by Knox C.J., Gavan Duffy and Starke JJ., was (1920) 28 CLR, at p 9 :
"The Court became seised of a dispute extending beyond the limits of one State, and it then became its duty to determine that dispute in so far as no agreement between the parties was arrived at (see sec. 24). The fact that the Court or the parties on the road to or in the 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. The jurisdiction of the Court having once vested is not divested, and the duty of the Court is not completely performed by the partial settlement of the matter. The contrary view is, indeed, opposed to s. 24, which provides that the Court shall determine the dispute or so much of the dispute as is not settled by agreement. The dispute here referred is the dispute over which the Court originally acquired jurisdiction. There is nothing in the Arbitration Act compelling the Court to make one award; it may dispose of the dispute wholly or piecemeal as it thinks convenient." (at p637)

8. The present case is in one respect the converse of the F.E.D.F.A. Case (1920) 28 CLR 1 , because here the first step in the sequence of events, after the finding of an industrial dispute extending beyond the limits of one State, was the settlement of that dispute in so far as it related to employers in one State only, i.e. those in the State of South Australia. That was done, so far as appears, without notice to the respondent employers in other States. It would, however, follow from the decision in the F.E.D.F.A. Case that the Commission would have jurisdiction, as much in the first stage as in the last stage in the settlement of an interstate dispute, to settle the dispute so far as it affected only respondents in one State. However it does not seem to me to follow from that decision that the Commission has power to do that in the absence of the other parties to that interstate dispute, or at least without notice being given to them of what is proposed to be done, whether it be the hearing of the dispute for purposes of settlement, or the hearing of an application to approve an agreement for registration under the Act. (at p637)

9. No complaint is now made about the original approval of the Agreement as an Award in 1972, notwithstanding that the argument necessarily involves the conclusion that such an Agreement could not be approved as an Award in the absence of notice to the other parties to the dispute and their being heard if they so wished. Indeed that seems now to be common ground. A separate question does arise with respect to the proceedings before the Full Bench on 19th September 1977 in relation to applications C. No. 3966 of 1976, and C. No. 3412 of 1977. (at p638)

10. It does not appear to me that the F.E.D.F.A. Case touches this question at all; nor does the recent decision of this Court in Reg. v. President of the Commonwealth Conciliation and Arbitration Commission; Ex parte State of Victoria and Ors (1977) 17 ALR 207 . The latter decision was directed to a situation in which a new dispute had been created to which the State of Victoria and the State Electricity Commission were not parties at all. It was held that the award in the new dispute was not a variation of the original award and accordingly there was no basis on which an employer not a party to that new dispute could have a right to appear. The fact that such an employer feared the consequences of a "flow-on" was held to be not a sufficient reason to entitle it as of right to take part in the hearing before the Full Bench of the Commission of the new dispute to which it was not a party. (at p638)

11. In the present case the S.E.C.V. was and is a party to the dispute, but it was not a party to the Award made on 26th June 1972 in part settlement of that dispute. The position which has arisen in this case does not appear to have arisen directly or to have been discussed at all. It must, therefore, be resolved by resort to principle and to the general scheme of the Conciliation and Arbitration Act and to the inherent qualities of "arbitration" as that expression is used in s.51 (xxxv.) of the Constitution. There is undoubted jurisdiction to make a binding award which applies only to some of the respondents to a demand, the refusal of which has given rise to an industrial dispute extending beyond the limits of one State. The question is whether such an award, including a variation of such an award, may be made in the absence of other parties to the dispute who happen to be in other States or in the absence of an opportunity for such parties to be heard. The reason for their concern is not the risk of "flow-on", i.e. the indirect effect of the settlement of a dispute to which such respondents are not parties, but is the effect of part settlement in their absence of a dispute to which they are parties, and in which their interest is that of parties. (at p638)

12. It is trite law to say that the concept of arbitration necessarily requires that the parties to the dispute being arbitrated be given the opportunity to present their respective cases to the arbitral tribunal. As Gibbs J. said in Reg. v. President of the Commonwealth Conciliation and Arbitration Commission; Ex parte Victoria (1977) 17 ALR, at p 214 :

"There can be no doubt that if the prosecutors are in truth parties to the dispute which is described as C. No. 2278 of 1975, they are entitled to the remedy which they seek. The members of the Commission are bound to act in accordance with the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552 . They must therefore afford any party to a dispute a proper opportunity to be heard before making an order that affects him. Indeed it is inherent in the very notion of arbitration that there shall be a hearing of the disputants, and a procedure that produced an award without a proper hearing would be outside the constitutional power: Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319, at pp 384-385 ."

That passage stops short of the point which arises in the present case because of the use of the phrase "an order that affects him", and in any event was not directed to the present problem, which did not arise in that case. (at p639)

13. It was argued for the S.E.C.V. that once the Commission is asked to vary the E.T.S.A. Award it is back in the area of the original dispute because the award previously made did not exhaust or finally settle the original dispute, and that any variation of the part settlement concerned all parties just as much as the making of the award in part settlement concerned them. It was said that if the previous award had settled the old dispute, then the dispute to be settled by the proposed award, whether by arbitration or by a consent award, must necessarily be a new dispute. But as such it was a dispute simply between the relevant unions and E.T.S.A. and accordingly, an intrastate dispute, with which the Commission could not deal. It was argued also that, because the variation must be in an area in which the ambit has not been exhausted, then it is part of the original dispute to which the S.E.C.V. is a party and accordingly any such proceedings must be conducted upon the basis that the S.E.C.V. has a right to be present and to participate, even though what was sought by the union was expressed to relate only to one employer. (at p639)

14. Reliance was placed by the respondents on s. 40 (2) which provides that:

"The Commission may determine the periods which are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the industrial dispute or other proceedings and require that those cases be presented within the respective periods so determined."

It was said that that sub-section recognizes that there is no right to be heard, and shows that from the start of the hearing of any dispute the Commission could say to a particular party to the dispute that it would not hear that party because it had decided that, whatever relief might be granted by way of an award, would apply only to one of the other respondents to the demand. It was said that this would merely be a matter of permissible excercise of the Commission's control or discretion in relation to its own procedure. In my opinion, this argument is misconceived, both as a matter of construction and of constitutional power. I do not think that the sub-section is capable of bearing that meaning, and I think it clear that if it did it would be outside constitutional power as being in conflict with the essential requirements of arbitration. (at p640)

15. It was conceded that an application to vary an award must depend so far as jurisdiction is concerned on the original dispute and no variation can be made which is outside the ambit of the original dispute. A difference as to whether a variation should be made or not is not treated as a new "dispute" (save in immaterial procedural respects - s. 59 (3)), and, in the present case if it were so treated, there would be no jurisdiction because it would be a purely intrastate dispute. It was argued, however, that although the source of the jurisdiction is the old dispute, it does not follow that all parties to the old dispute have a right to participate because the Commission may deal with parts of the dispute separately. (at p640)

16. For E.T.S.A. it was submitted that the whole of the dispute between E.T.S.A. and the union was settled, notwithstanding that the unions did not get all that they wanted from E.T.S.A. It was also said that there was accordingly unexhausted ambit so far as the dispute with E.T.S.A. was concerned which would authorize a variation. Moreover, what remained after the making of the E.T.S.A. Award was the "undetermined residue" of the dispute to which there were originally fifty employers as respondents and that, if S.E.C.V. was a party to any dispute at all after the making of the E.T.S.A. Award, it was a party to that undetermined residue only, which was not the subject of the application to vary the E.T.S.A. Award. It was further said that the application for the variation did not involve "undoing" the settlement or "re-opening" the dispute. (at p640)

17. It was said on behalf of E.T.S.A. that the whole dispute between E.T.S.A. and the union had been settled. This argument relied upon the latter part of the passage from the judgment of Dixon C.J. which is quoted above. That passage makes it clear that the power to vary must be within the limits of the original industrial dispute, i.e. within the ambit of that dispute. It is then said that the Court may within those limits "revise or review the settlement". (at p641)

18. When an award is made the dispute is no doubt settled in one sense, but it remains available, so far as its ambit is unexhausted, as a source of possible further controversy (between the parties to the original dispute) which may be resolved by a variation of that award by the Commission. It is thus the source of the power of the Commission to vary the award where variations are sought as a means of solving such controversies, as well as the source of its power to vary the award of its own initiative. The latter power could not be exercised without notification to the parties and an opportunity for them to be heard. This may be covered by the provisions in s. 59 (3) but is an inherent requirement of the constitutional power itself. (at p641)

19. It is to be remembered that all the cases in which the power of variation has been discussed have dealt with awards which have "settled" a dispute as a whole. In such circumstances the notion that the variation may be made only within the ambit of the original dispute, a dispute which was "settled" by the original award, works without significant difficulty. It is possible in such circumstances to treat the dispute as over and done with because it is "settled" and the statement that a variation "maintains" a settlement is a convenient way of describing the effect of a change in the terms of the settlement. It is settlement in the wide sense of something which may be no more than bringing a settlement up to date in the light of changing circumstances or renewed demands. The idea of maintaining a settlement by changing it indicates that both the term "settlement" and the term, "maintain" are used in a special sense. Renewal of demands not fully met, and renewed refusal, have not been regarded as creating a new dispute, because the old dispute still remains, though "settled", as a vehicle for giving effect to a renewed demand authorizing a variation of the settlement previously effected. It is only in a metaphorical sense that an award may be described as effecting a "settlement" of a dispute where "ambit" still exists for making variations which, for example, grant that which was previously refused. An award under the Act thus differs significantly from an award by an arbitrator in private arbitration pursuant to Arbitration Acts in the States. Such an award does, subject to limited rights of challenge in the courts, "settle" the dispute submitted to the arbitrator so that he becomes functus officio. (at p642)

20. The expression used in the A.R.U. Case (1953) 89 CLR 461 that the power of variation authorizes the Commission to "maintain the settlement" does not mean to "maintain" it as originally made by an award, because that would be to deny the variation. The power of variation enables the Commission to continue a state of "settlement" (in the sense of absence of dispute) by adjustment of its own initiative, or by consent to meet changed conditions, and also to restore such a state where controversy arises because one party "renews" or reiterates a demand not previously granted and the other continues or renews its refusal. (at p642)

21. The original dispute lives on as both a source of power and a limitation of such power, capable of being revived by either party renewing old demands without creating a new dispute. A consequence, however, of it being within the ambit of the old dispute, even in a case where old demands are now conceded, is that it is still a proceeding in that dispute. The continued existence of the original dispute in this sense is expressly recognized in a later passage in the judgment of Dixon C.J. in the A.R.U. Case where he said (1953) 89 CLR, at pp 476-477 :
"But does it disable the court from making a variation because to do so would be in opposition to the common desire of the parties? It is perhaps wise to limit the answer to the particular case. For in questions concerning the artificial conceptions which have promoted the growth of the jurisdiction of the Arbitration Court strange and unexpected combinations of fact are apt to present themselves. The particular cases before us possess certain features that should be noted. In the first place in none of them do the parties by any means desire that the award as a whole shall go and be replaced by their agreement. In the next place, the original claims or demands in reference to wages are not withdrawn, still less are all the demands in the log. In the third place, what the parties are in accord about is the retention in the award itself of the clause relating to wage adjustment, the award which is the instrument of the Arbitration Court resting for its force upon its authority. It appears to me that these considerations in themselves cannot exclude the court's powers over the terms of its own instrument. But the central point of the objection made by the prosecutors on this score is that their accord on the subject of retaining the wage adjustment provision shows that the Arbitration Court, in excluding wage adjustment, cannot have been exercising its power in order to arbitrate, in order to conciliate, or in order to prevent or settle an industrial dispute. For there was complete concord on the very question so far as the parties went. This may seem a striking point, but if so it is only because it leads the mind away from the consideration upon which the use of the power to vary made by the Arbitration Court depends. That consideration is that it is part of the function committed to the Arbitration Court to adjust a subsisting settlement of an old dispute maintained in operation by s. 48 (1) or (2) of the Act to changing circumstances and to do so for the purpose of continuing the settlement in force in a form it considers appropriate, not simply because it contents the parties, but because taking into account economic and other consequences, it is, whilst within the ambit of the old dispute, the form of settlement which as things stand the court considers it may most properly continue in force." (at p643)

22. Neither the language used, nor the conceptions involved in the decisions about the power of variation fit very easily the situation in which there has been a "part settlement" of a dispute, such settlement dealing only with the disputants in one particular State, leaving the "balance" of the dispute as between disputants (the same or others) in other States to continue without there having been any award in relation to those disputants. For an industrial dispute to fall within the constitutional jurisdiction of the Commission there must be a "dispute extending beyond the limits of one State", i.e. a single dispute which so extends, and it is only that dispute with which the Commission has jurisdiction to deal. Although it is settled that an award may be made in "part settlement" of a dispute, the phrase itself demonstrates that it is not "the dispute" which is "settled". Such a dispute is not a mere aggregation of a number of separate disputes capable of individual settlement. What remains unsettled is indeed the dispute itself. So in the case of a variation, what occurs is a step in the "maintenance" of the settlement of the whole; there is indeed no part which can be the subject of settlement in the true sense; there is only a step in the process of settlement. (at p643)

23. The same kind of considerations apply if an award made in "part settlement" of a dispute dealt only with certain of the items in a log of claims and reserved all the other items for future consideration. In such circumstances "the dispute" could not be regarded as having been "settled". (at p643)

24. The power to make an award which is of an interim character relating to some or all of the matters in dispute is conferred expressly by s. 41 (1) (b) although it may well be that it would otherwise have been implied in the general jurisdiction to "prevent or settle industrial disputes by conciliation or arbitration" given by s. 18, but it is nonetheless wrong, in my opinion, to regard a "part settlement", even where it covers all topics in dispute as to some only of the disputants, as being a "settlement" of the dispute in the sense in which that term is used in such cases as the A.R.U. Case (1953) 89 CLR 461 . (at p644)

25. In the case of an award in "part settlement" of a dispute, where that part concerns operations in one State only by one respondent (whose operations were confined to that State), it cannot be said that it "settles" the dispute, because what is settled is not "the dispute" at all. Moreover, any power to vary the part settlement must depend on the original interstate dispute, and its unexhausted ambit, whether in respect of parties, geographic area or subject matter of dispute, in all of which aspects all parties are directly concerned. (at p644)

26. The dispute which supports the power to vary is the original interstate dispute. The power to vary is not supported by "part of the dispute" which was dealt with by the award. If the power to vary is to be exercised it is because it is relevant to the settlement of the whole dispute, a matter which concerns all disputants. The original dispute supports the power to settle that which the Constitution requires to be a single and indivisible dispute, and authorizes "settlement" of part only of such a dispute, in circumstances where such part exists in one State only. The original dispute also supports the power to vary a settlement without there having arisen a further dispute, and in cases where the award is continued in operation by statute beyond the period specified in the award itself. (at p644)

27. It would, in my opinion, require a departure from this constitutional foundation to say that variations of part settlements, unlike part settlements themselves, may be made in the absence of an opportunity for all parties to the dispute to be heard. There is only one dispute and only one set of parties and everything done in or towards settlement of that dispute is of direct concern to all parties. To conclude otherwise is, in my opinion, to abandon the constitutional basis for settlement of industrial disputes extending beyond one State and to introduce a degree of artificiality which is neither necessary nor useful. (at p644)

28. Accordingly, the Commission does not have jurisdiction to vary an award made in "part settlement" of a dispute without giving to all parties to the original dispute an opportunity to be heard. I would therefore make the order nisi absolute. (at p644)

Orders

Order nisi discharged.