Re Media, Entertainment and Arts Alliance; Ex parte The Hoyts Corporation Pty Limited

[1992] HCATrans 178

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M27 of 1992
In the matter of -

An application for a writ

of prohibition and a writ

of mandamus directed to the

HONOURABLE JUSTICE ALAN

BOULTON. the HONOURABLE

DEPUTY PRESIDENT POLITES and

COMMISSIONER ADRIAN FOGARTY,

members of the AUSTRALLIAN

INDUSTRIAL RELATIONS

COMMISSION and the MEDIA,

ENTERTAINMENT AND ARTS

ALLIANCE

Respondents

Ex parte -

THE HOYTS CORPORATION PTY

LIMITED

Prosecutor

..

Hoyts 1 11/6/92

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 JUNE 1992, AT 2.16 PM

Copyright in the High Court of Australia

MR R. MERKEL, OC:  If Your Honour pleases, I appear with my

learned friend, MR L. KAUFMAN. for the applicant,

the Hoyts Corporation Pty Limited.	(instructed by
Mark G. Caldwell)

HIS HONOUR:	Yes, Mr Merkel.
MR MERKEL:	Your Honour, the application relates to

clause 31 of the proposed award. Can I just

indicate at the outset, Your Honour, we had been

informed that the award was about to be signed but

at the present time we believe that it has not been

signed and, therefore, the form of proposed order

nisi would not be applicable. As we understand

section 143(4), (5) and (6) of the Act, the award

would only be operative as an award once signed

and, in particular, under section 143, what would

be operative prior to the award being signed would
be the decision or determination to make the award.

What we have endeavoured to do, Your Honour, is to have a revised form of order nisi - could I have up a copy of that to Your Honour - which has

highlighted the changes to the form we had

originally handed up to Your Honour. We apologise

for the inconvenience, but the order nisi, if

Your Honour is disposed to grant it, would operate

on the decision or determination. That is referred to at page 2 in so far as that was to make an award in the form or to the effect of clause 31. In

fact, the Commission has been proceeding on an

application under clause 31 which is due to further

proceed or continue tomorrow.

Could I deal, Your Honour, at the outset with

the grounds on which it is sought to rely in

impugning the Commission's power to make an award

in the form or to the effect of clause 31. The

clause is all embracing in that it prohibits the

change of any condition of employment, including

the exercise of the right to terminate in respect

of any Hoyts' employee without prior leave of the Commission.

We say, Your Honour, that that runs afoul of

at least two fundamental principles and it is put

that the case law establishes that a requirement of

that kind is not a requirement that can be validly

incorporated into an award and if the Commission

does so, it would be acting in excess of the power

conferred under the Constitution, of

section Sl(xxxv), and also under the Act itself.

There are several distinct bases on which we put that matter, Your Honour, although they are

interrelated.

Hoyts 2 11/6/92

The first, Your Honour, is that the award

relates to the capacity functions and powers of the

Commission and particularly in the absence of any

criteria by which the exercise of the discretion to

grant leave may be based upon, it in effect offers

an unrestricted power to the Commission to accept

or reject any proposed change of employment

conditions of any employee.

The two cases that deal. directly with that

kind of problem, Your Honour, are firstly Reg v
Portus; ex parte City of Perth, (1973) 129 CLR 312.

If I could take Your Honour to that case in the first instance. That was a case where a log of

claims sought a right of appeal to the Commission

which was to have power to determination whether a

termination or dismissal was harsh, unjust or ·

unreasonable. The question arose at two different

levels, Your Honour: one is whether the log in so

far as it claimed the Commission to have a function

by way of appeal was really a matter that related

to the power of the Commission as such, rather than

the power to terminate; the second, which is the

second alternative bases, Your Honour, relates to

whether in fact providing a machinery for

resolution of future disputes in fact goes beyond

the constitutional power. But dealing with the

first heading, Your Honour, Mr Justice Gibbs as he

then was discussed the problem at pages 325 to 326,

particularly starting at the bottom of page 324

His Honour, about point 8 said:

In effect what was then sought was a provision

giving the Commission an arbitrary power to

order relief and leaving entirely to the

Commission the determination of the matters to

be considered in the exercise of the power.

Then at 325, in the first clear sentence,
His Honour said:

Looked at from one point of view, the dispute

may appear to be as to the employer's power to

dismiss or duty to reinstate in employment,

but since it is intended that no criteria

should be laid down by which the extent of the

power or nature of the duty could be

ascertained, it seems to me that what is in

truth sought is an extension of the powers of

the Commission.

Then further down the page at about point 8

His Honour, in the last sentence of that main

paragraph, says:

In short, a claim by employees upon their

employers that the powers, functions or

Hoyts 11/6/92

jurisdiction of the Commission should be

enlarged is not a claim as to an industrial

matter.

Mr Justice Stephen discussed that particular matter

at page 328. In the last paragraph His Honour

said:

The demand no doubt contemplates that

"settlement" by the Commission may involve the

making by it of an order for reinstatement in

employment; this does not, however, mean that

rejection of the demand creates a dispute as

to the right to reinstatement. The subject

matter of the dispute must, I think, be characterized not as one concerning the

employer's duty to reinstate in employment

but, rather as a dispute as to a proposed new

function or jurisdiction to be conferred upon

the Commission.

Then the Chief Justice Sir Garfield Barwick made

the same point at page 315, Your Honour, about the

middle of the page where His Honour says:

In my opinion -

this relates to the log -

it did not claim anything which pertained to

the relationship of employer and

employee ..... The subject matter of the

demands, in my opinion, was the capacities and

functions of the Conciliation and Arbitration

Commission, a matter regulated by the Act and

not a proper subject for treatment by dispute

or award.

Mr Justice Menzies, at page 319, Your Honour, His Honour starting about four lines down, said:

Such an award would not be in settlement of an	industrial dispute; ie a dispute as to matters
pertaining to the relations of employers and
employees. It would relate to the powers to
be exercised by the Commission. Furthermore,
the power of the Commission stems from
legislation under s. Sl(xxxv) of the
Constitution and is not subject to extension
by awards made by the Commission itself. The Commission cannot add to its statutory power
to hear and determine industrial disputes. Still less can it give itself power to settle
differences which are not of that character.
Now, Your Honour, the other decision that

touches directly on that particular point and bears

Hoyts 4 11/6/92

some similarity to the problem that has arisen in

the present case is the decision of this Court in

Reg v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Melbourne and Metropolitan

Tramways Board, (1965) 113 CLR 228. I will come

back to the City of Perth case under the second

heading in a moment, Your Honour. But

Mr Justice Taylor considered the claim in that case

which was a claim that trams and buses shall be

manned by both a driver and a conductor and, in

particular, Your Honour:

That the abovementioned employers shall not without the consent of the -

union -

or by order of the -

Commission -

require an employee to operate on his own, a

bus on routes on which on or after -

a particular date -

had been operated by two or more employees.

So that, in effect, Your Honour, the existing

situation on manning was not to be changed other

than by reference to either by prior consent of the

union or an order of the Commission, which bears a

marked similarity to the problem that has arisen in

the present case.

Mr Justice Taylor considered that aspect of the matter, Your Honour, at page 247 to 248, about

io lines from the bottom of 247 - I should say,

·your Honour, His Honour's conclusion in that regard

was at about line 5 at 247 when His Honour said:

But a dispute as to whether an award should be

made requiring an employer to refrain from

operating a one-man bus on any particular
route unless he first obtains the consent of

the employees' organization, does not, in my

view, constitute a dispute as to an industrial

matter.

Then His Honour, at about 10 lines from the bottom

of the page, said:

It was simply a demand that an award should be made providing that no further one-man bus

services should be introduced unless, in each

case, the change was agreed to by the

Association or, failing agreement, pursuant to

Hoyts 5 11/6/92

an order of the Commission. The demand did not seek a specification by an award of the

circumstances in which, or the conditions upon

which, an employee might be called upon to

operate a one-man bus; it simply sought an

award which would leave it to the Association

to say yea or nay in any particular case, and

providing that in the event of disagreement

each particular dispute should be settled by

the Commission. It is true that an award in

the terms of the demand would prohibit the

operation of buses on additional routes by one

man but it would be a conditional prohibition

only and subject to relaxation, not by
reference to any condition or conditions

prescribed with respect to the relations of

employer and employees inter se, but only by

reference to the consent of the organization

which it might, as its discretion, withhold or

grant upon such conditions as it saw fit.

Then His Honour gives an example, half-way down

that paragraph, which, again, is similar to the

present case. His Honour said:

Suppose then a log is served by the employees'

organization demanding that no employee of an employer bound by the award shall be promoted

or demoted without the consent of that

organization or pursuant to an order of the

Commission. The rejection of such a demand

could not be said to give rise to a dispute as

to any matter comprised within the definition

of "industrial matters"; the substance of such

a demand would be a claim by an organization

that it shall be accorded a right, jointly

with the employer, to say in the future
whether any particular employee shall be

promoted or demoted and, to that extent, the

relations between the employer and employee

varied. A dispute as to whether an award

shall be made giving a right of this character

to an employees' organization is not, in my

view, a dispute as to a matter pertaining to

the relations of employers and employees or
otherwise within the definition of "industrial
matters"; it is a dispute as to whether

employers, not otherwise restrained by any

legal requirement, shall be at liberty, from
time to time, to vary the relations between

themselves and their employees only at the

discretion of an employees' organization.

And then His Honour added, and that is particular

pertinent to the present case:

Hoyts 6 11/6/92

that the circumstance that the demand added as

an alternative condition "or by order of the

Commission" in no way affects this conclusion.

We say that what His Honour has then given by way of example is the very case that clause 31

postulates, namely, that there shall be no change to the relationship and terms and conditions of a

relationship between the employer and any
particular employee except by order of the

Commission.

I should indicate, Your Honour, that the

Chief Justice Sir Garfield Barwick took a wider or more generous approach. That is at page 243 to

page 244. His Honour's judgment was concurred in

by the two dissentients in that Court,

Mr Justice Kitto and Mr Justice Owen. But

His Honour dealt with this problem at the bottom of

page 243 and said at the top of page 244, four

lines down, that:

No doubt the question whether or not an order should be made in this respect by a

Commissioner will be determined most probably,

though not necessarily, upon considerations of

a purely local character. But this does not

mean, in my opinion, that if there had existed

a dispute with a sufficient ambit to support

such an award, the Commission, in inserting a

clause in the awards preventing the

change-over to one-man operated trams or buses

without an order by the Commission, was merely

setting up machinery for the resolution of

future intra-State disputes. If the proper
view of the award was that it did not more

than this, I would think it clearly beyond the

competence of the Commission. But where there

is a dispute which will support an award

prohibiting some act without an order of the

Commission and such a provision has been

awarded, the making of an order giving the

transport authority on a State authority to

effect a change in operation of its trams or

buses, even though made after local dissension
between the members of the Union locally

employed and the transport authority the order
is not, in my opinion, the resolution of a
dispute in the relevant sense any more than
the determination by a Board of Reference

after a contest before it of a matter

committed to it by an award is relevantly the

resolution of a dispute.

His Honour took a broader view, but may I say

this, Your Honour, the distinction to be drawn

between the problem His Honour was confronting,

Hoyts 7 11/6/92

which related to, in effect, manning on a bus,

related to a general provision relating to all

contracts of employment and, His Honour, we say,

specifically accepted out of that what may be an

individual dispute relating to a particular term of

employment of an individual, and His Honour found

that that would not be within the machinery

provision merely because the Commission was given a

role in that regard. So, we say that what His

Honour was dealing with was quite different to the

problem we have in the present case.

So, Your Honour, we say that the ability of the Commission, without criteria, to give itself an

unfettered power to refuse or allow any change to

any condition of employment irrespective of the

circumstances, is covered by the principles of both

cases.

Interrelated to that, Your Honour, is the

second ground which is dealt with in the City of

Perth and also by Mr Justice Menzies in the

Tramways' case, and that is, Your Honour, that a

clause which provides the machinery for resolution

of future industrial disputes on an individual or

ad hoc basis is not an industrial matter which

extends beyond the borders of a State.

Your Honour, that was considered in the City

of Perth case. It was considered, Your Honour, by

Mr Justice Stephen at page 328. His Honour, in the

middle of the page, said:

In my view the Association's claim is not

as to any industrial matter; it is, rather, a
claim to the exercise by the Commission, in

the future, of a new jurisdiction involving the exercise of judicial power and this for the purpose of the settlement of future

industrial disputes necessarily lacking any

inter-State quality.

Now, if I can put aside the judicial power point,

it does not arise in the present case. But

His Honour returned to that, Your Honour, at

page 330, where His Honour, in the second clear

paragraph, said:

There are, moreover, narrower and more

specific grounds for denying to the claim the
character necessary to give rise to an

industrial dispute. It seeks to create

machinery for resolution of future disputes,

disputes which will inherently involve, on the

one hand, an individual ex-employee and, on

the other, his former employer. Such disputes

Hoyts 11/6/92

will not be ones extending beyond the limits

of any one State -

and His Honour then cited a passage from

Mr Justice Menzies in the Tramways' case which I

will come to in a moment.

It was also stated by Mr Justice Menzies, at

the bottom of page 318, last sentence:

Any dispute to which such a claim might give

rise is about the way in which a difference

which may happen in the future between an

employer and a dismissed worker shall be

settled. What is sought is an award by the

Commission that the Commission should itself

settle any such difference.

And then His Honour said that that:

would not be in settlement of an industrial

dispute.

The Chief Justice Sir Garfield Barwick

discussed the same matter at page 316 where

His Honour, at the top of page 316, said:

Further, I think that, unlike some award

provisions which provide machinery for the

implementation of other provisions of the

award, eg provisions for a board of reference,

the proposed provision would do no more than
provide machinery for the resolution of
disputes between individual employees and

individual employers as to the circumstances

of the dismissal of the one by the other. relevant sense to an industrial dispute, a

matter which I find no need presently to

resolve, clearly it would not be a dispute

extending beyond the limits of any one State.

Then His Honour agreed with Mr Justice Stephen's
reasons in respect of those matters.	Your Honour,

Mr Justice Menzies, in the Tramways Board case,

discussed the same problem by reference to the

manning dispute there at page 256. His Honour said

at the top of the page:

but when the award sought is, in reality, for the provision of machinery for the settlement of local disputes, the demand for an award

cannot, in my opinion, give rise to an industrial dispute for the purposes of s.Sl(xxxv) of the Constitution. In saying

this, I am not casting doubt upon the validity

of provisions in awards providing for boards

Hoyts 11/6/92

of reference to supervise the carrying out of

awards properly made. What I am concerned

with is whether a dispute about how local
differences should be settled is a dispute
within s.Sl(xxxv) of the Constitution, and I

think it is not. The Commission cannot, by

making an award to settle a dispute of that

character, give itself power to make orders

for the settlement of local disputes. That is

what is really attempted here. Another way of

putting the same point is to say that a demand
for an award in terms presupposing the power
of the Commission to make orders for the

settlement of industrial disputes outside its

constitutional competence cannot give rise to

a dispute within the Commission's

constitutional competence.

Your Honour, the same kind of point was really

considered by this Court again in Wooldumpers,

(1988-9) 166 CLR 311.

HIS HONOUR:  Is that going to add anything to the principles

you have already outlined?

MR MERKEL:  No, Your Honour, save that in the joint judgment

of Their Honours Justices Wilson, Dawson and Toohey

there was particular reference made to an award

which seeks reinstatement of an employee which is to be determined by the Commission, in effect, as

Their Honours put it, in an ad hoc manner in order

to meet the particular situation. That is about

eight lines down page 324. We say that the point

made very strongly there, Your Honour, is that the

individual circumstances of a particular case of

itself cannot empower the Commission to act under

the power of preventing and settling an interstate

dispute because, of itself, the individual ad hoc

'problem of a particular change of employment of an

employee does not create an interstate dispute.

Their Honours were particularly cognizant of the

fact, particularly at page 326, where Their Honours

concluded:

Both principle and authority require a

distinction to be drawn between a claim for

conditions relating to the dismissal or
reinstatement of employees generally and a
claim that a specific individual be reinstated

in employment, not by the application of any

predetermined standard, but merely to deal

with the one instance.

That is the last paragraph of Their Honours'

judgment at page 326.

Hoyts 10 11/6/92

We say that that really is the central vice of clause 31. It is a blanket prohibition,

Your Honour, on change of any condition, including

dismissal, according to the terms of the contract

itself, other than what was referred to as "instant

dismissal" which would be for misconduct. We say

that by providing for the Commission to, in effect,

have the central role of determining whether leave

would or would not be granted, what essentially is provided for, Your Honour, is an exercise of power by the Commission in relation to terms and

conditions of employment which go far beyond that
which could be conferred under section Sl(xxxv).
They may have no interstate element to them

whatsoever and those terms and conditions may not, of themselves, be an industrial matter relating to the employee and the employers as such.

So, Your Honour, they are the two main grounds

on which it is submitted that the order nisi could

be granted. There are subsidiary grounds, and the

first of the subsidiary grounds is that - - -

HIS HONOUR:  Would it be convenient to take me through the

grounds as drafted and to demonstrate how those

grounds arise?

MR MERKEL:  Yes, Your Honour. The first ground really

springs directly from the two points in City of

Perth and the Tramways' case.

HIS HONOUR:  It really does raise a problem, does it not,

because it is expressed as though an award is a law

and, as I understand your argument, it is that an

award in the terms of clause 31 is not an award

which is appropriate to the determining of an

industrial dispute.

MR MERKEL:  Yes, Your Honour.

HIS HONOUR: Well, you really pick that up in paragraph 2,

do you not, rather than - - -

MR MERKEL:  Yes, Your Honour. Paragraph 2 sets it out in

more detail and what Your Honour says is correct.

We say that it would be beyond the jurisdiction -

"or" power, it should read; it says "of"

power - - -

HIS HONOUR: This is in 2 you are speaking of?

MR MERKEL:  Yes, 2(a), Your Honour; there is a typographical

error, it should say:

is beyond the jurisdiction or power of the

Commission;

Hoyts 11 11/6/92

(b) is not within the functions conferred upon

the Commission under the Industrial Relations

Act 1988.

The functions are defined as preventing and

settling disputes.

(c) directly involves the Commission in the

future management of the business of an

employer;

Your Honour, that is the first of the two

subsidiary grounds, that the contest between the

other Tramways Board case, 115 CLR, and the

discussion of this question of management in Cram's

case by this Court, we say that the - - -

HIS HONOUR:  Let us put that aside for the moment until you

take me to it.

MR MERKEL:  Yes, Your Honour, I will come back to that in a

moment.	Your Honour, (d) is covered by the first
two grounds I have identified.	(e) is the same.

The Act provides for an award to determine an

industrial dispute by providing a machinery in

respect of future industrial disputes; it does not

determine an industrial dispute. (f) should read,

"will be":

an award relating to the functions, capacity
and powers of the Commission.

Paragraph 3, Your Honour, relates to the two points which I have just raised.

HIS HONOUR: Again, however, it raises this question of "is

a law", does it not?

MR MERKEL Yes, Your Honour. That is probably embraced in

2, Your Honour.

HIS HONOUR:	The problem, it seems to me, is that awards are not laws, are they? They are provisions upon which
laws operate.
MR MERKEL:	That is right, Your Honour. Maybe if the word "award" was set there instead of - "would be a
provision of an award" which extends the powers beyond those. Clause 31 follows again from the two
main points, Your Honour; as does ground 5.

The two matters I have not addressed,

Your Honour, are the two subsidiary grounds

HIS HONOUR:  Have we got duplication thus far which is

unnecessary?

Hoyts 12 11/6/92

MR MERKEL:  I think grounds 2 and 3 and 4 would probably be

duplicated by 5, Your Honour. I think 5 really is

a spelling out, in effect, of grounds 2(c) and (d),
but it seeks to spell out the ground more
specifically by reference to the two decisions I

have taken Your Honour to. Possibly if I can just

mention to Your Honour the two specific additional

grounds: the first relates to the problem of, in

effect, management which really goes to the extent

to which the Commission by, in effect, supervising

any and every change to any employee's conditions

of employment has, in effect, superseded the role
of the employer in managing the functions and
duties of an employee on an individual basis, and

whatever may be the expression of opinion in Cram's

case, that function is not one which, of itself,

can be the subject of an award. So that accepting

as one must the moving boundary of that area of

jurisdiction, this goes beyond it and involves, in

effect, day to day supervision on an employee by

employee basis.

The second aspect which we say is raised is

one that arose in argument in the Superannuation

case before the Court on 28 May and that there are

a number of - in fact, the majority of employees -

but certainly a significant number are not union

members and this award operates to, in effect,

prevent a change to their employment conditions,
irrespective of whether on an individual basis they

are quite content for that change to occur. We say

to that extent that raises the question of whether

this power in preventing and settling an industrial

dispute, if we were otherwise wrong, is one that

goes beyond the constitutional ambit in that regard

because it can extend to impose an inhibition or
prohibition on change against a willing employee

who wishes to change, and the leave of the

Commission would be sought even in that case.

The other aspect is what is referred to in

ground 6, the eligibility aspect. That is quite

discrete from all the other grounds, Your Honour.

In fact, one of the problems is that there is a

change of function as a result of multi-skilling

with employees which involves employees who are

traditionally projectionists or ticket sellers

having other activities in relation to the sale of

confectionery, and anyone selling confectionery is

specifically excluded from the eligibility rules of

the union. The effect of the award, Your Honour,

is to prevent anyone from embarking upon a function

or activity which could result in them no longer

being eligible as a member of the union, and that

is the effect of clause 31.	It arises in that very
discrete way.

Hoyts 13 11/6/92

HIS HONOUR: 

But how does that provide some ground for attacking the jurisdiction of the Commission?

MR MERKEL: 

Your Honour, we say that it would be an improper

purpose or result for that to occur, because the
maintenance of eligibility would not, in itself, be

an industrial matter and -

HIS HONOUR: 

But if that happens to be an incidental

consequence of an award which is properly made in

settlement of an industrial dispute, would that

vitiate the award?

MR MERKEL:  If it was a purpose of the union, Your Honour,

or a purpose of the award it may, but I do not put

it as highly as that in this instance. We say it

is a consequence, and I accept the force of what

Your Honour puts in that regard.

HIS HONOUR:  I do not see any present evidence to support

this as being the purpose for which the application

was made.

MR MERKEL:	No, I would not put it that highly, Your Honour, and in that regard ground 6 may well be one that
ought not to be proceeded with.
HIS HONOUR:	Mr Merkel, there are a couple of problems that

occur to me in reading the affidavit: one is to

what extent was this clause 31 proposed to be

included in an interim award as the result of a

concession?

MR MERKEL: Yes, Your Honour. What occurred - and I think

this appears fairly clearly from the transcript -

is that the argument put on behalf of Hoyts was

that the Commission did not have power to include

this provision in an award but that Hoyts would be

prepared to undertake to the Commission not to

change employment without seeking leave and was

prepared to have that undertaking, in effect,

annexed as an appendix to the award.

The Commission then went ahead and over the

submission that it had no power to incorporate the

undertaking into the award, made the undertaking a

provision of the award. I can show Your Honour

where the matters appear in the transcript to that

effect. The answer that we give to Your Honour is that the question of power is not affected by that

conduct. It did not amount to a concession that
there was power, but even if it did, it would not
matter. But the fact that it was volunteered as an

undertaking does not result in the consequence that

that would give the Commission power when it did

not otherwise have power.

Hoyts 14 11/6/92

We had in mind, Your Honour, the decision of

this Court directly on point in the Thomson

Publications' case, 31 ALR 66. I do not think it

has been reported in the Commonwealth Law Reports,

Your Honour. That case was a case where the

parties settled a matter under section 45 of the

Trade Practices Act by giving certain undertakings

to the court and then the court made certain

injunctions. The matter eventually came to this

Court, the issue to be considered as to whether the

parties could, in effect, give the court wider

power than that under the Act, and reliance was

placed upon the wide powers of section 23 and other
sections of the Federal Court Act. The effect of

the decision is that the court could not go beyond

its powers specifically conferred under the Trade

Practices Act, but more relevantly for present purposes, in the headnote (v), page 67:

The jurisdiction of the court to receive

undertakings was based on the same principles
which applied to the granting of the
injunctions by consent and since it lacked the
capacity to enforce them, they should not have

been accepted.

So, Your Honour, even if the case were put

more highly against us that we had in fact conceded

that there was power and that, as a result, the

undertaking became part of the award, that could
not confer jurisdiction on the Commission which it

did not otherwise have. But we say,

Your Honour - - -

HIS HONOUR:  It may none the less be relevant, may it not,

to the exercise of a discretion, if any, to grant

prerogative relief?

MR MERKEL:  Your Honour, it could be, although I would

emphasize what Your Honour said, "if any", if, in

fact, Your Honour, the award was beyond power, then

the fact that it may have been consented to would	not, we say, of itself, result in a discretionary
refusal to enable the body, such as the Industrial
Relations Commission, to exercise a power it did not have on the principle that one cannot consent
to jurisdiction if there is none, and we - - -

HIS HONOUR:  The reason why I raise it, Mr Merkel, is

because it seems to me it may be a matter upon

which some affidavit material - the respondent may
wish to place some affidavit material before the

Court and it is perhaps arguable that it would

affect the exercise of discretion, and that the

appropriate order is one under Order 55, that you

should apply on motion for the relief that you

seek.

Hoyts 15 11/6/92

MR MERKEL:	Yes, Your Honour, although - - -
HIS HONOUR:	If you think that affects particularly your

other relief that you are seeking in terms of a

stay - - -

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	- - - then perhaps it might be more convenient

if I were to get you to address me on that because

at the moment, I confess, I would find some

difficulty, unless you can convince me that this is

an extraordinary case, in granting a stay,

particularly on an ex parte application.

MR MERKEL:  Yes. Well, Your Honour, I can understand and

certainly appreciate the force of what Your Honour

puts. What we were going to propose, Your Honour,

is one of two alternatives in respect of the stay

application. The first, Your Honour, was that we

would undertake to this Court, and we are

instructed to offer such an undertaking, not to

change the conditions of employment of any employee

without giving prior notice to the union of the

proposed change so that we could not confront the

union with, in effect, a situation where it no

longer had a remedy, and that would leave it time

to go to the Commission to seek appropriate interim

award or other relief in the Commission which would

be within power if the situation could be properly

dealt with by the Commission. So that no harm

would befall the union or its members where there

was an opportunity to take appropriate action.

The other alternative, Your Honour, would be

if the matter of a stay was dealt with on notice

and came back before Your Honour or before this

Court after the union had an opportunity to be heard in that regard, so that no stay need be made

and no undertaking offered at this stage.

We would say, Your Honour, neither of those

two matters should, in effect, result in

Your Honour declining to make the order nisi. They

would go to matters of discretion as to a stay but

as far as what, in fact, occurred before the

Commission, Your Honour, that is recorded in some

detail in exhibit MGC19. Your Honour, at

page 2603, Mr Douglas, who was appearing for Hoyts

before the Commission, after referring to the

Tramways' case, indicated, at about point 3:

Now, in our submission, S44 -

which is the proposed award by the union,

Your Honour -

Hoyts 16 11/6/92

runs in conflict with that High Court

particular manner and to prevent them from

authority because it is seeking to have the

changing from time to time according to their
commercial and operational needs.

He then put forward the alternative,

Your Honour, of an undertaking at the top of

page 2607. He there started to make a number of points about an interim award, and, Your Honour,

could I jump ahead to page 2691 where he dealt

specifically with the interim award? He suggested,

at about point 3, Your Honour, that as an appendix

to the award - he said:

I come to the appendix which is -

HIS HONOUR:  Now, which page are you on now?

MR MERKEL:  Page 2691. He proposed the undertaking as an

appendix, Your Honour. That comes at about point 3

again.

I come to the appendix which is the

undertaking -

and then he indicated that he was happy for the

appendix but that was because he had maintained his

point about power, Your Honour.	And then the
decision was - - -

HIS HONOUR:  What does it mean to be "an appendix to an

award"?

MR MERKEL:  I think it was an appendix, Your Honour, but on

the basis that there was no power to make it as a

provision of the award and it would be given as an

undertaking that, no doubt, could be acted upon by

variation of the award if the undertaking was not

adhered to to deal with the specific circumstances,

the page, where Mr Justice Boulton, announcing the	and that is referred to at page 2699, the bottom of
decision of the Full Bench, said:

we note that as part of the proposal for an
interim award put forward by Hoyts in exhibit

D140 the employers indicated that they would

be prepared to have included as an appendix to

the interim award an undertaking by them. We

have considered the terms of the proposed
undertaking and the submissions of the parties

relating to the undertaking. In all the

circumstances we have decided that the

provisions of the undertaking will be included

as a term of the interim award.

Hoyts 17 11/6/92

So that, Your Honour, we say that what has occurred

was, as I indicated, that the power point was

maintained and put but ruled against and that we

say that would not, as a matter of discretion,

Your Honour, be a factor that would operate against

the grant of the order nisi or the order nisi being

made absolute but it may be a matter, Your Honour,

that would be relevant to the question of a stay

and whether a stay should be granted.

HIS HONOUR: 

What is it that, if one were to regard the

clause 31 provisions as a mere undertaking, should
relieve the applicant from the undertaking?

MR MERKEL: 

Your Honour, what we submit is that nothing this

Court would be doing would be relieving the

applicant from the undertaking. The undertaking,

Your Honour, was an indication given to the

Commission. If the undertaking is acted upon in a

way that gives rise to a breach or gives rise to

circumstances which would persuade the Commission

that it ought to act by a further interim award or

order in respect of a particular situation, the

breach of an undertaking would no doubt be a reason

for it to so act and it may so act by dealing with

the particular problem, and nothing that this Court

would be doing would in any way preclude it from so

acting in a way that would be within power. It

could make directions, for example, in respect of

the employee concerned or the subsidiaries or Hoyts

and it could lay down criteria.

HIS HONOUR:  That ought effect this change, that in place of

an undertaking which would be binding on the party,

according to its terms, it would simply be an

undertaking which, in the event of breach, would

enliven the Commission's jurisdiction.

MR MERKEL:  I do not think the Commission would need to have

jurisdiction enlivened.

HIS HONOUR: Perhaps not.
MR MERKEL:	But it would be a substantial ground for the

Commission to exercise its jurisdiction.

HIS HONOUR:  It seems to fall very much short of what was

intended by an undertaking in terms of clause 31.

MR MERKEL: Yes. What Your Honour says is correct although

I think, Your Honour, looking back on the matter,

it is much the same as occurred in the Thomson

Publications case and this is not a matter that

does not involve third parties. Like that case, it

likewise involves third parties' rights such as

employees who do not wish to have the Commission

determine any change to their employment. But it

Hoyts 18 11/6/92

is really the same situation, that the parties, no

doubt in good faith, set up a procedure which they
thought would work and was within power - well, the

Commission thought it was within power. The Hoyts'

submissions were that it was not. In fact,

Your Honour, it has produced the opposite result

and the wide-ranging nature of, in effect, adhering to the undertaking has caused more problems than it

may solve.

HIS HONOUR:  Would that not be a ground for going back to

the Commission and asking them to amend the award

or, putting it another way, release the party from

the undertaking?

MR MERKEL:  Your Honour, at the moment there is no

undertaking.

HIS HONOUR:	I appreciate that.
MR MERKEL:	The effect of what the Commission has determined

is to substitute an award for the undertaking after

considering the very matters that have arisen.

HIS HONOUR:  But it was put in, as I understand it, because

of the undertaking that was given in those terms

and the Commission being of the view that it would

be better to put it in as an award term rather than

leave it as an undertaking.

MR MERKEL:  It started one step prior to that, Your Honour.

The union, in fact, sought it. There were

directions from the Commission and then the union

sought it and then, to try and solve that problem,

Hoyts made the offer as indicated and then the award was - provision overtook the undertaking.

HIS HONOUR:	Yes.
MR MERKEL:	We would submit, Your Honour, that if

Your Honour grants the order nisi and either of the

alternatives which we have put to Your Honour,

either we give the undertaking as put, or the stay

application is to be made on notice, at any stage,

the Commission can vary the award which would have
the effect of resolving the problem, if it decided
to set up criteria to govern these matters or if it approached it in the other way. But at the moment,

Your Honour, the difficulty we have is that the

Commission, in its own mind, would have no reason,

having rejected the argument we are putting to

Your Honour, to vary the award.

HIS HONOUR:  Except that you say it is operated in a way

which was never foreseen or intended.

Hoyts 19 11/6/92

MR MERKEL:  But it is aware of that, Your Honour, because

what has happened is that matters that were
anticipated by Hoyts that were able to be resolved

instantly or expeditiously have now become full-length hearings within the Commission

themselves and each particular change of employment

itself is becoming a fully opposed and fully

fledged application and the leave provision is just

not working as Hoyts had hoped it would. But they

are matters that go to discretion rather than

power, Your Honour. ·

So that we would submit that with the

Commission, in effect, proposing to act on

clause 31, it may be appropriate for the order nisi

to be granted but for a stay application to be made

matter and it, no doubt, would act as it deemed

on notice and tomorrow, before the Commission,

fit. But, we would submit there is no basis for

expecting the Commission to do anything other than

act on the basis of the award it indicated it was

making.

HIS HONOUR:  Mr Merkel, you may be familiar with Re Griffin;

Ex parte Professional Radio and Electronics

Institute of Australia, 167 CLR 37. There I

expressed some views about the appropriateness of

interim relief in industrial matters. The problem,

it seems to me, in relation to the suggestions you

have made is that it really transfers to this Court

the function of interim supervision of the position

which, by the nature of the problem, is one that is

more appropriate to be dealt with by the Commission

itself.

Unless you have something further to say, I do

not propose to make any stay order along the lines

'that you have suggested, or make any order which

would permit of an application to be made on

notice. Obviously, the parties have whatever

relief or may have whatever relief the Rules of the

High Court provide in that respect. But, as at

present advised, unless you have something further

to add, I do not propose to make a stay order.

MR MERKEL:  No. Well, I would not wish to proceed further

with that application, Your Honour.

HIS HONOUR:  That leaves us with the question simply of order nisi or motion on notice. I imagine that not

much turns on that unless you have something

further to say.

MR MERKEL:  We would submit that it is appropriate, having

regard to the manner in which the matter has

arisen, that an order nisi be granted with the

Hoyts 20 11/6/92

grounds specified.	As it appears, Your Honour, it
will raise matters under the Constitution.	A
section 78B notice would have to be given.	We say

it is appropriate for an order nisi procedure in

such circumstances, spelling out the grounds to be

given rather than having the matter come on by a

notice of motion, Your Honour, before a Full Court.

We would say if the prima facie case as to the

basis for relief is established, an order nisi is a

preferable way of bringing the matter on,

Your Honour, but we are in Your Honour's hands as

to which is appropriate in all the circumstances.

HIS HONOUR:  I regret to have to put it in this way,

Mr Merkel, but you have just succeeded in
persuading me that it should be by way of notice of

motion.

MR MERKEL:  Yes. Well, that was not the intention,

Your Honour, but if that is the result I must

accept it.

HIS HONOUR:  If there is, as I am sure you are right in

saying, a need for a 78B notice, then perhaps the

appropriate order is an adjournment of the present

application and a direction that it be applied for

on notice, rather than the making now of an order

nisi which, after all, would be a step in the

proceeding.

So, I propose to make an order under Order 55,

that the proceeding be adjourned and that you apply

to the Full Court on notice for the relief that you

seek. But I think it would be advantageous if we

were to spare a moment to consider the drafting of

the grounds.

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	The ones that particularly concern me are

grounds 1 and 3, and it seems that there may be

some duplication between grounds 2 and the other
grounds that appear in the draft order.	I do not

think it is necessary for me to make any formal order about it except to point out that I think

grounds 1 and 3 need substantial redrafting, if not

elimination, because I am not sure that either of

them adds anything to it and the generality of them

is somewhat unsatisfactory.

As to the others, to the extent to which there

is duplication, it would be desirable to eliminate

the duplication and to reduce them to such

specificity as the nature of the problem permits.

Hoyts 21 11/6/92

MR MERKEL:  Yes, I think I am aware of what Your Honour has

in mind and we will endeavour to draft them into a

more refined form, Your Honour.

HIS HONOUR:  Yes. Well then, on a direction that that be

done, I will make the orders I have indicated.

MR MERKEL: If Your Honour pleases.

AT 3.08 PM THE MATTER WAS ADJOURNED SINE DIE

Hoyts 22 11/6/92