Re Media Entertainment and Arts Alliance & Ors; Ex Parte The Hoyts Corporation Pty Limited

[1993] HCATrans 82

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M66 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 COLIN

GEORGE POLITES and

COMMISSIONER ADRIAN DANIEL

FOGARTY, Members of the

Australian Industrial

Relations Commission

First Respondents

and -

THE MEDIA ENTERTAINMENT AND

ARTS ALLIANCE AND THEATRE

MANAGERS ASSOCIATION

Second Respondent

and -

THE GREATER UNION
ORGANISATION PTY LTD, VILLAGE

THEATRES TASMANIA PTY LTD,

206 BOURKE STREET PTY LTD,

VILLAGE ROADSHOW CORPORATION

Hoyts(3) 25 18/3/93

LTD, VILLAGE ROADSHOW

DRIVE-IN (ESSENDON) PTY LTD,

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

THEATRES PTY LTD

Third Respondents

Ex parte -

THE HOYTS CORPORATION PTY

LIMITED, DELARENE PTY LTD and

RAMPTON PTY LTD

Prosecutors

MASON CJ
BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 18 MARCH 1993, AT 11.15 AM

(Continued from 17/3/93)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Merkel.

MR MERKEL: If the Court pleases.

MASON CJ:  Do you think, after yesterday's inquisition, you

can present your argument in a succinct form that
demonstrates the grounds upon which you are

relying?

MR MERKEL:  Yes, Your Honour. Your Honour, one matter was

raised yesterday, which we did give some
consideration to overnight, and that was whether
the proposed orders for prohibition in the notice

of motion set out precisely what we wish to seek,

and could I just had up a form of amendment we

would seek to raise, the question of a writ of

certiorari and a writ of mandamus.

What, in fact, has occurred, is that the leave

to issue the motion was served prior to the

decision in fact being hand down of the Commission

and it was served in a form that did not seek to

raise the decision, or seek to quash it, although

the ground set out in ground 1 clearly was the

basis for what was set out in the writ of

prohibition in paragraph l(a) of the motion, and we

would seek to - now that the decision in fact was

handed down after the date of the motion being

issued, or the application for leave being granted,

what we in substance seek is an order of the Court

quashing the decision of the Commission and a writ

of mandamus that they hear the application under

section lll(l)(g) prior to, in effect, the

determination of the arbitral matter.

Hoyts(3) 26 18/3/93

That, we say, raises the issue in the light of the decision being handed down. That is set out in

paragraph 4(a) and (b) and there is a very minor

amendment we would seek to make to paragraph 2,

which brings it into line with section 116(l)(e).

GAUDRON J:  I was just looking at paragraph 2; that seems to

go somewhat further than I had understood the

application at page 2. Paragraph 2 seems to

proceed on the basis that the mere existence of the

agreements is a ground.

MR MERKEL:  No, Your Honour. Paragraph 2, and I need to

explain this in the course of the submission, is

premised upon the Commission proceeding to

determine the matter on the basis of assumptions it

has made. It is the anomaly I referred to

yesterday, and it arises, not on the existence of
the agreements, but on the assumptions.

Paragraph 2 would not become relevant if the orders

in paragraph 4 were made.

GAUDRON J:  I had thought yesterday the primary way on which

you put your case was that the Commission should
not proceed with what we will call the arbitrated
matters, unless the certification applications were

joined with it.

MR MERKEL:  Yes, Your Honour. I said that is the

substantive point, but there are two separate

issues before this Court.

GAUDRON J: Yes, but they are alternatives, are they not?

MR MERKEL:  They are not true alternatives, although what I

said to Your Honours yesterday is that if the

Commission deals with the section 115 proceedings,

the section lll(l)(g) application could be dealt

with as part of the total wrap up at one hearing

with one decision, and, of course, once the 115

proceedings were joined, the lll(l)(g) issue would

not stand as an issue of importance on its own

right, and that is verified by what we sought in

paragraph 4(b). We do not seek to identify when

the lll(l)(g) issue was heard, as long as it is

dealt with prior to the determination.

GAUDRON J: But except, at the time, you insisted that it be

heard then and there.

MR MERKEL:  Your Honour, what we requested and what we

us with the application under

applied for is for it to be heard because the matters, leaving

section lll(l)(g). But the Commission acceded to

that. It accepted that it was obliged to hear and

Hoyts(3) 27 18/3/93

deal with the lll(l)(g), and that has given rise to

the problem.

MASON CJ:  Mr Merkel, you would assist me if you could

actually identify the decisions in respect of which

you seek relief.

MR MERKEL:  Yes, Your Honour. We seek relief in respect of

the decision - there were two decisions,

Your Honour. There first decision was the ruling

at pages 465 to 466, which was the ruling that the

Full Bench made, refusing to allow Hoyts to call the evidence it wished to call.

GAUDRON J: That goes to paragraph 4.

MR MERKEL:  Yes, Your Honour, and it would also be

paragraph l(a). The second decision, if I can call

it that,_ is the decision of the Commission to hear

and determine the section lll(l)(g) application on

the basis of the assumption set out in paragraph 3
of our outline of submissions, and that decision,
or ruling, if I can call it that, is set out in a

number of pages, but particularly, pages 404, 429,

437 to 438, and is referred to in our outline at

the end of paragraph 3, and appears in the decision

of the Commission, which I will come to as the

third decision at page 518.

The third decision is the decision on the

section lll(l)(g) application, which is

exhibit MGC27 at page 510, which is the decision

that was made after the leave was granted by

Justice Dawson, and the assumptions that were the

subject of the second decision are set out at page

518, but they need to be read in the context of the

earlier passages to understand what those

assumptions were.

MASON CJ:  I must confess to not really understanding part

of your assertion of what the rulings are. If you

look at page 404, for example, and 405, I would not
have thought there was any decision there. There

is, in effect, an inquiry by the Deputy President seeking to ascertain elucidation of the case that

is being presented for the applicants.

MR MERKEL:  Your Honour, it started to crystallize at 404,

it then became more formalized at page 429 - it

starts at the bottom of page 428, Your Honours, but

really at the top, the first line, at page 429. It
is more clearly set out, again, in a process of

evolution at line 26 at 429; then it is formalized

at 437 to 8, particularly at 437, lines 30 to 36,

Your Honour; then, I will give Your Honours the complete references, but it is in that context that

what was set out at page 518 was referred to as the

Hoyts(3) 28 18/3/93

ruling which we say is accurately embodied in the

assumptions set out at paragraph 3. Now, we say

that the Commission treated it as a ruling because
it was on that basis that they refused to allow any

further evidence to be called.

GAUDRON J: Whatever the basis on which the Commission dealt

with it, do you not have this difficulty, that

leaving aside how the matter is resolved, whether it is by award or by agreements, or neither, or a

combination of both, the industrial issue between your clients and the unions is what should be the

rates and conditions which apply to the Hoyts

employees?

MR MERKEL:  That is one part of the issue. The second

part -

GAUDRON J:  No, no. What I am putting to you is that there

is one issue: what should be the rates and

conditions? And that is maybe not how the matter

started, but that is how the matter defined itself

when it came to the Full Bench: your draft award;

their draft award.

MR MERKEL: But, Your Honour, our draft award arose solely

as an alternative to the section 115 agreements.

The draft award, Your Honour, was modelled on the

agreements and was premised upon non-certification.

GAUDRON J:  Okay, but we are talking about terms and

conditions. Now, there is a subsidiary question

which is wrapped up in it, I suppose, but how those

terms of agreement are to be given force: by

awards, by agreements, by neither, by a combination

of both; is that not right?

MR MERKEL:  Yes, Your Honour, although I would not, with

respect, call it subsidiary, but it is an

interrelated issue.

GAUDRON J: All right, interrelated. Now, before you can

decide those interrelated questions, is it not

necessary to decide what the rates and conditions

should be?

MR MERKEL:  Your Honour, the answer must be yes, but there

is one exception to that, and that is that the

518-odd employees have determined that matter - - -

GAUDRON J: For themselves.

MR MERKEL:  - - - and have sought certification under a

section, which has unusual provisions, to it, and

that predetermines it.

GAUDRON J: It predetermines what?

Hoyts(3) 29 18/3/93

MR MERKEL:  The certification would predetermine it.

GAUDRON J: Certification would?

MR MERKEL:	Yes, Your Honour.
GAUDRON J:	But before one could even approach the

certification issue, one would have to know what

the rates and conditions should be.

MR MERKEL:  Your Honour, no. We say that the problem is

that for certification, the two questions are: is

the agreement in the interests of the parties

immediately concerned, and -

GAUDRON J: Well, that must depend on what the rates and

conditions should be.

MR MERKEL:  Your-Eonour, that obviously is a consideration, but it is not conclusive.

GAUDRON J: It is a consideration - it may not be crucial,

but it is something that must be known before

certification can take place, must it not?

MR MERKEL:  Under the umbrella of that question, that

appears to be correct, Your Honour.

GAUDRON J:  And it must be known then also before you decide

whether or not there would be an award, or there

would be certification.

MR MERKEL:  Yes, that is part of the same question.

GAUDRON J: So, the first question has always got to be what

the rates and conditions should be.

MR MERKEL: Well, Your Honour, should be as minimum rates.

If they are below minimum rates then one would

assume it is contrary to the public interest and

not in the interest of the parties.

GAUDRON J:  And that question is at the heart of the

- before the certification issue arose, and before the lll(l)(g)(iii) question arose.

arbitration matters, which were before the there

MR MERKEL: That is the issue in the arbitral proceedings.

GAUDRON J: Yes, but it was there first. It was the first issue that arose and it is an issue which must be

determined before the others can be determined.

MR MERKEL:  No, Your Honour, because they became interwoven

by reason of the agreements.

Hoyts(3) 30 18/3/93

GAUDRON J:  It does not matter whether they are interwoven,

or not. Even if they are interwoven, you accepted

that it has got to be answered first.

MR MERKEL:  I accept, Your Honour, it is the first question

that must be answered for each decision.

GAUDRON J: Yes, well then, in that case, does that not

destroy the very basis of your applications?	No
matter what the Commission did in relation to
your lll(l)(g)(iii) application, does it not

indicate that, at the very least, it must proceed

to determine the issue in the arbitration

proceedings; whether or not it then goes on to make

an aware, is another question, but it must

determine that issue before it can deal with any of

these other matters you are trying to force it to

determine in advance.

MR MERKEL:  Your-Honour, not if the evidence called on the

section lll(l)(g)(iii) proceeding showed that	the
agreements did not raise any question of even	being
arguably below what should be the conditions.	That
was the evidence that they were never allowed	to
call, Your Honour.

GAUDRON J:  The truth of the matter is, is it not, that it

is more or less the same fundamental issue in the

certifications and in the awards proceedings and

ultimately in the lll(g) proceeding: what should

be the minimum rates and conditions?

MR MERKEL:  Could I rephrase the question as we would have

it, Your Honour? The question would be: is there

any basis for contending that the conditions sought

by certification of the agreements were below what would be accepted as minimum rates and conditions?

GAUDRON J: Well, that is a mere onus of question point.

That is a mere question of where you put the

negative.

MR MERKEL: Well, Your Honour, that is now we say the issue

arose, and if I can just give you this hypothesis:

if the evidence was clear that all employees at

Hoyts wished to have the certified agreement as a

resolution of the terms and conditions of

employment, there was no question by way of

evidence that - - -

GAUDRON J: But that is not the evidence.

MR MERKEL:  Your Honour, the evidence was never allowed to

be called on why these agreements were in the

public interest.

Hoyts(3) 31 18/3/93

GAUDRON J:	But it is not the evidence that all employees have signed them.
MR MERKEL:	No, Your Honour.
GAUDRON J:	And it is not the evidence that even all the

employees who have signed them have applied for

their certification.

MR MERKEL:  No, Your Honour, but what Hoyts wished to call

in evidence was evidence to demonstrate that,

amongst management, the vast majority of employees,
this was the agreed form of regulation and terms

and conditions and that there was no dissent or

issue on that as far as any other employees were

concerned and that this was the way to resolve the

problem in the Hoyts cinemas, we would say that

that would constitute a proper basis for resolution

of the section lll(l)(g) application.

Now, the Commission could say, "We will

consider that as part of the final decision in the

matter". Our complaint is that we have been

precluded by reason of the section lll(l)(g)

hearing, in the manner in which it proceeded, from
having the Commission not make an award at all.

That is no longer an option open.

GAUDRON J: But of course it is. When I say "of course it

is", the problem seems to be, Mr Merkel, that your

applications, in substance, was an application not

to make an award - in substance. Your

lll(l)(g)(iii) application was an application not

to make an award.

MR MERKEL:  And, in the alternative, not to make an award

before you have dealt with certification; that was

an alternative.

GAUDRON J: Yes, okay, but the question whether an award

should or should not be made necessarily involved a

determination of what the minimum rates and

conditions should be.

MR MERKEL: Well, if that was an issue, Your Honour, but I

have said "yes" to Your Honour on that, in a way in

which I prefer to reformulate it.

GAUDRON J: Yes. Well now, you then force the Commission to

determine your lll(l)(g)(iii) application not to

make an award, at a time when it was not in a

position to determine that matter - to determine

all matters relevant to that issue.

MR MERKEL:  Your Honour, we would say that it is not fair to

describe our application under lll(l)(g)(iii) as

forcing the Commission -

Hoyts(3) 32 18/3/93

GAUDRON J: Well, you insisted that it be determined then.

MR MERKEL:  With respect.to Your Honour, that is not a

complete picture. We requested and sought time and

again to have both proceedings joined, so that the

matter could be dealt with as Your Honour has put

to me. It was only when the Commission refused to

join the two matters and kept treating them as
separate that we were driven to have to make an

application under section lll(l)(g)(iii), which the

Commission, in its discretion, could have dealt

with at any time, including up to the time it

handed down a final award. It listed the matter

for hearing and dealt with the matter. Now, I may

be corrected, but I do not believe there was

objection, by any of the parties or the Commission,

to the matter being dealt with as a discrete

application, and that is how it proceeded.	Now,
having ~~en put in that position -

GAUDRON J:  It was your application that it be dealt with as

a discrete application.

MR MERKEL:	It was our application that it be dealt with but, Your Honour, the way in which the
application - I have not taken Your Honours to it -
was formulated, and that is set out, if I can just
take Your Honours to it, at MGC17, at page 320, and what I was wanting to do to Your Honours is to give Your Honours the context in which this issue arose,
because we were forced into it, and it was the only
option open to us.  If there was ever to be an
alternative of not making an award - - -

GAUDRON J: But you keep saying that but, in fact, that is

not necessarily correct, is it? It is always open

to you to renew an application under

section lll(l)(g)(iii). Now, it seems to me the

sensible course of dealing with all of this would

have been to say, "Well, we will foreshadow an

application under section lll(l)(g)(iii) in the

event that the Commission comes to the conclusion

that the rates and conditions should be as set out

in our draft award and as set out in the

agreements.", and it is open to you, at any moment

up until the award is handed down, to make that

application.

MR MERKEL: But, Your Honour, that ignores the fact that the

Commission has set a timetable which leaves now the

only matter for it to resolve - evidence has

finished, submissions have finished, and it now

leaves only the question of handing down a final

award. This occurred, Your Honour, in September,

when the Commission was in the process of setting

down a timetable to deal with the whole matter. It

came up in the letter at page 320 and, Your Honour,

Hoyts(3) 33 18/3/93

that only confirms what I have said to Your Honour,
that this arose solely in the context of the

Commission refusing "to deal with the 115

applications before completing the arbitration."

That is in the first sentence of the second paragraph of the letter, and as a consequence of

those matters, the letter goes on, in the middle of
that paragraph, to say that we "hereby apply

pursuant to s.lll(l)(g)(iii)", because the arbitral

matters were about to proceed to final

determination.

Then, Your Honour, the matter went further.

There was a formal application under the section,

and that is set out after the listing, at MGC18,

and formal application is at MGC23 and that - - -

GAUDRON J:  What page?

MASON CJ: Page 352.

MR MERKEL:  Page 352, and that arose only after the

Commission gave directions as to how the section lll(l)(g) was to proceed, and those

submissions were given pursuant to those

directions, which were given at a hearing on

23 September, which is MGC22.

GAUDRON J: Could I just stop you there. If you look at

MGC23; the whole of those submission are predicated on the assumption that the lll(l)(g)(iii)

application will be dealt with before any of the

other matters are.

MR MERKEL:  Your Honour, that arises from what is set out at

pages 349 to 350, and that resulted in directions
that we had to proceed with the

section lll(l)(g)(iii) application, and what the

Commission was saying at this stage - and we have

got a schedule that goes to the rulings - "We are

going to proceed to hear and complete the arbitral

proceedings.	The section 115 proceedings are not
listed.	You must make your application in the

arbitral proceedings independently of and in

disregard of the section 115 proceedings.".

Pursuant to that direction the application was

made, and the date fixed for the hearing and

determination of that application on 5 and

6 October.

Now, what I wanted to say to Your Honour is it

is not right to say that we sought in the

section lll(l)(g) an order that the case be

dismissed only. What we sought were a number of

alternatives which are set out at pages 352 to 353,

which gave the Commission a number of alternatives.

Hoyts(3) 34 18/3/93

One was dismissal.	Two, Your Honour, was
dismissal:

insofar as it relates to persons who are

signatories to the s. 115 Agreements or whose

terms and conditions of employment are covered

by -

those agreements. Three, alternatively, the

Commission not hear the matter until the

certification had been heard and determined.

They were all options open as a matter of

discretion under section lll(l)(g), including

paragraphs 4 and 5 as alternatives, which all

sought to have identified before the Commission the

matter you have raised with me this morning,

Your Honour; that is, that both cases involve the

same isaue and that you cannot determine one

without dealing with the issue in the other.	And
that has been our central position from the
commencement of these proceedings, but it is

because the Commission refused to do it that we

were driven to this application, but even this

application gives the widest of discretion to the

Commission as to how to finally deal with the

matter.

MASON CJ: But that is one thing I do not understand about

the way you are treating this application

under lll(l)(g). It seems to me that that gives a

power to the Commission to dismiss a matter or to

refrain from hearing a matter or from determining

an industrial dispute. It does not really go to

the order in which the Commission decides that

particular proceedings will be heard. It really

looks to a non exercise of the fundamental

jurisdiction entrusted to the Commission, and that

is all.

MR MERKEL:  Yes, Your Honour, I accept that, and

paragraphs 1 and 2 fall within what Your Honour has

said. The other paragraphs may be said to be

procedural alternatives, as a way in which the
matter should be dealt with, but paragraphs 1 and 2
fall within what Your Honour has put to me and the
procedural options are matters that my not fall
within section lll(l)(g), but they are options open

to the Commission if they wished not to make

paragraphs 1 and 2. But the important point that

we want to make, and we say is indisputable, is

that upon the failure of this application, in the

circumstances of this case, it was necessary for

the Commission to make an award.

GAUDRON J: But that is not right, Mr Merkel. It is simply

not right to say that. The Commission, in the

Hoyts(3) 35 18/3/93

normal course, will issue a decision and, in the
ordinary course· of events, an award follows the
decision - gives effect to the decision - and it

may be several days after the decision that the

award is made, and it certainly is always open - it

remains open to your client, even to this minute

and up until the minute the award is handed down,

to apply in the event that the Commission should

decide that the minimum rates and conditions should

be as set out in your document, in your agreement,

that it refrain from making an award.

MR MERKEL:  Your Honour, we would say that the Commission,

given the Citicorp case that - - -

GAUDRON J:  The Citicorp case was about refusal to hear it

at a particular time. You have been heard. You

can mak~ another application.

MR MERKEL:  Your Honour, to the extent that it is said that

one can make applications at any time, there is no

final determination in the Commission of anything.

It can always review its decisions and it can

reopen awards and it can vary them. What we say,

Your Honour, is that there was an application under

section lll(l)(g) which was heard and determined.

The Commission was under a duty to act judicially

and it did not in respect of that application.

That is how we put the matter on that, Your Honour.

We say, as a practical matter, whenever this has

come up subsequently the Commission says, "Well, we

have ruled on that."

GAUDRON J: Well, it may be that the problem was in bringing

the application at that stage, in any event.

MR MERKEL:  We do emphasize what we have said, Your Honour,

that we only brought the application after the

Commission refused to accept that both proceedings

involved the same question.

GAUDRON J: Well, they refused to join them and one can well

understand why they did not want 500 individual

employees sitting in the courtroom for the duration
of the arbitration proceedings for which they had

set out the timetable. There would not have been a

person working in your theatres.	They were the
applicants in the agreements.

MR MERKEL:  Yes, but there was never any suggestion,

Your Honour, that 500 employees - - -

GAUDRON J:  No suggestion, if the matters were joined, that

they were not entitled to participate in the

proceedings?

Hoyts(3)	36	18/3/93
MR MERKEL:	No, no.	Of course they were entitled to

participate. There is no suggestion that they

would, Your Honour, come along and do that.

GAUDRON J: Yes. Well, we can assume, can we, that they

will abandon their rights.

MR MERKEL:	No, Your Honour.
MASON CJ:	Mr Merkel, can I interpolate in this discussion

that is ensuing between you and Justice Gaudron?

As I see it, the Commission has very wide

discretionary powers under section 110 and

section 111, and in the exercise of those powers it

is for the Commission, as a matter of discretion,

to decide the order in which it is going to hear

proceedings which are before it. Now, stopping

there, I do not see how an exercise of discretion
in that--field could give rise to any question of

the existence of jurisdiction such as found prerogative relief of the kind that you are claiming.

Now, when you look at section lll(l)(g), it is

not directed at all to those matters of procedure

that fall within sections 110 and 111.
Section lll(l)(g) goes to a different matter

altogether and it specifies circumstances in which

the Commission is given power to determine that it

is not going to exercise the primary jurisdiction

by way of conciliation and arbitration that the Act

entrusts it with. They seem to me to be two

entirely distinct matters and your problem, as I

see it, is that the matters of which you complain

are procedural matters falling within the

discretionary powers of the Commission under

sections 110 and 111. Now, can you meet that?

MR MERKEL:  Yes, we say we can, Your Honour. I cannot meet

the first part because I accept what Your Honour
said about the question of jurisdiction.	We .. accept

that the jurisdiction under section lll(l)(g) is a

jurisdiction to refuse to exercise jurisdiction and

we say that we are not here, Your Honour, on a

procedural matter. The way in which the procedure

has become the subject of discussion is because

Justice Gaudron has put to me that these procedures

have been of our making and what I have tried to

indicate, that we have become a victim, in effect,

of the Commission's procedures, but our point is

not procedural.

Our point, and our short point, under

section lll(l)(g) is the Commission determined

under a direction that it will hear and determine

an application on the part of Hoyts that it refrain

from exercising its jurisdiction under

Hoyts(3) 37 18/3/93

section lll(l)(g). In the course of hearing that application it was under a duty to act judicially

concerning the disposition of that matter. We say

that follows from Citicorp. In the course of the

hearing - - -

MASON CJ: But what follows from Citicorp? In Citicorp

there was a refusal to embark upon the question

whether jurisdiction under lll(l)(g) would be

entertained. Now, in Citicorp what the

Commissioner did at an early stage of the

proceedings was to indicate that the power

conferred by section lll(l)(g) did not arise for exercise before notification of a dispute. This

Court held that that was wrong so there was an

actual refusal on an erroneous ground to even

entertain the application. Now, what similarity is

there between Citicorp and this case?

MR MERKEL:  Your Honour, because Citicorp made it clear at

page 519 - and it is the statement of the duties

that we rely on Citicorp for, is that Citicorp
recognizes that there was a right to have a
section lll(l)(g) application heard and determined.

We say that in respect of - that must be so as a result of the decision of Citicorp. We say that the question then for the present case is in the hearing and determination of the right to apply not

to exercise jurisdiction, the Commission is bound

to act judicially. That is our second step. We

say when conducting a hearing to determine that

issue the Commission is bound to act judicially.

The third step is that one aspect of the duty to

act judicially is the duty to hear a party and

allow him or her a reasonable opportunity to

present his or her case.

MASON CJ: Well now, that comes down to what you say was the

refusal of the Full Bench to entertain the further

evidence that you sought to call.

MR MERKEL:	Yes, Your Honour, that was the refusal to entertain the further evidence and we say that is
what occurred, and we say that - - -
MASON CJ:	Does the whole case really turn on that,

Mr Merkel?

MR MERKEL: That is the first point, Your Honour, that we

say vitiates the decision that the Commission made.

That is the first discrete and independent ground

we say that we raise and we have always raised.

MASON CJ:  Can we look at that? Why has not the Commission

got a discretion, first of all, to determine

whether it will hear, when it will hear an

application under lll(l)(g), and secondly, why has

Hoyts(3) 38 18/3/93

it not got some discretion to decide whether in its

view the calling of evidence proposed by an

applicant is necessary, because the Commission

could inform itself in a wide variety of ways as to

facts and materials relevant to any application and

in its decision in this case it did refer to the

fact that it had considerable knowledge of the

circumstances stemming from past history.

MR MERKEL:  Your Honour asked two questions: one, does it

have a wide discretion as to when and how it will

determine the matter? The answer to that is

clearly yes.	The second is, does it have a
discretion to decline to hear evidence?	We say,

Your Honour, that really raises the question of

whether in so declining to hear evidence they are

in breach of their duty to act judicially. If the

question before them requires a determination on a

matter 9_f fact and they propose to make that

determination on a matter of fact and then refuse

to allow evidence to be called on that matter of

fact, we say that they have travelled beyond their

discretion and acted in breach of their duty.

MASON CJ:  So you are not putting it on the basis that if

there is an absolute right in a party to call

evidence whenever the party wants to call evidence.

MR MERKEL:	Oh no, I cannot say that, Your Honour.
MASON CJ:	No.
MR MERKEL:	It can only be in the confine of saying that,

"We wish to call evidence on a question of fact

which you must determine as part of our application

and you propose to determine as part of our

application." What has happened in the Commission

is very easy to describe: the Commission said, "We

will assume certain facts in your favour." But

those facts were not the facts which were

determinative or could be determinative of the

application under section lll(l)(g).

We had to show it was in the public interest

to refrain from exercising jurisdiction. The first

step was the section 115 agreements and their

certification, but this factual issue was why it

was in the public interest to refrain. That was

not an argument of law, it was an argument of fact

and it raises some of the very matters that

Your Honour Justice Gaudron put to me. We could

not object, and our form of relief does not object,

to when and how that matter will be determined.

All we have said to the Commission, and all we

ask from this Court, is that our application under

section lll(l)(g) be determined prior to you

Hoyts(3) 39 18/3/93

completing the exercise of your jurisdiction.

Because I accepted, as I said to Your Honour, we

cannot say you must hear this now, we cannot say

they can hear it at any time prior to their final

decision, but we can say that before their final

decision they must deal with this application.

That is all we are putting on that question. I

took Your Honours yesterday to why we say that that was denied. We say there is a fundamental error in

the approach of the Commission stemming from the

anomaly of an assumption they said we will make in

our favour.

But that is the first and discrete issue that

stands alone and we say that we have been denied

that duty, or there has been a breach of the duty.

That is the evidentiary point.

-

BRENNAN J: There are two points, are there? The first is

that evidence which you are entitled to adduce has
been rejected by the Commission - not rejected -

will not accept the evidence that you wish to

adduce on the public interest point.

MR MERKEL:  Refuse to allow us to call it, Your Honour?

BRENNAN J: Yes.

MR MERKEL:	Yes.
BRENNAN J:	The second point is that it has made a decision

on your lll(l)(g)(iii) application contrary to your

interest and without hearing you on that matter.

MR MERKEL:  Yes, Your Honour.

BRENNAN J: Those are the points that you -

MR MERKEL:	They are the two points on that duty to act judicially.
BRENNAN J:	Now, is it also involved in this that having

rejected your lll(l)(g)(iii) application, the

Commission now proposes to proceed to make an award?

MR MERKEL:  Yes. We say that that is the only matter left

for the Commission to deal with, Your Honour.	They
have set a timetable and the timetable is now
completed. They have not allowed any further
evidence to be called. They have had written

submissions in and the only matter in the light of

their section lll(l)(g) rejection is for them to

make an award.

GAUDRON J: Is for them - well, you say that.

Hoyts(3) 40 18/3/93

MR MERKEL: Well, to make a decision to make an award.

GAUDRON J: 

To make a decision as to the primary matter

before them as to what the rates and conditions
should be. Is that not right?

MR MERKEL: 

Your Honour, that will be part of their

decision, but the only decision they can make in

the light of their rejection of our application is

to exercise their jurisdiction to make an award in

settlement of the industrial dispute. I understand

what Your Honour puts, that that may take two

steps, they may hand down a decision and then

formally - - -

GAUDRON J:  And in the meantime you can make another

application, albeit conditional, if you like, that

if the decision of the Commission is that the rates

and conditions should be as set out in your award,

your draft award, that they refrain from making any

award at all in the public interest.

MR MERKEL:  Your Honour, we can always make an application

but if what Your Honour puts to me is that merely

because an application is interlocutory or of that

nature, there is no duty to act judicially.

GAUDRON J: Well, it does go to suggest, does it not, that

there is no jurisdictional error in the sense that
the issue has not been foreclosed by what has

happened.

MR MERKEL:	Your Honour, no issue can ever be foreclosed in the Commission because it can always hear an
application to change_ a decision. But we say that
does not relieve it of the duty to act judicially
in hearing and determining an application before it that it exercise or not exercise a power given to
it under the Act.

BRENNAN J:	Mr Merkel, I think I understand the basis on which you are putting the matter, but if I look at
518 to 519 it seems to me that what the
Commissioner said is that given your argument on
the central significance, if you like, of the
section 115 proceedings and the agreements that
have been reached, they still think that a
lll(l)(g)(iii) application should not succeed. Now I can understand that you might wish to attack that
decision as being one that is unreasonable in the
Wednesbury sense, but it seems to me that there is
a conscious exercise of a decision-making power
which, far from rejecting any jurisdiction, has
exercised it - perhaps wrongly - but has exercised
it.  Where do we find the failure to exercise
jurisdiction which is there, or the exercise of jurisdiction which is not there?

Hoyts(3) 41 18/3/93

MR MERKEL:  Your Honour, the attack, as I have indicated to

Your Honour - can I take Your Honour to page 520,

the last paragraph, the first sentence:

We have not been persuaded, on the basis

of the submissions or material presented by
the Hoyts Group in support of the s.lll(l)(g)

application, that we should make any orders to

dismiss or refrain from hearing the unions'

applications for the making of awards.

They are making a finding that we have not

satisfied the onus on us to establish that it is in

the public interest that they refrain from hearing the matter. We say they cannot make that finding.

We say it is a jurisdictional error to make a

finding on a question of fact against us when they

have foreclosed us from adducing evidence on that

question of fact.

BRENNAN J:  More precisely, once they make the assumptions

that they do with respect to the section 115

proceedings. What further fact could then be

material to the formation of judgment under

lll(l)(g)(iii)?

MR MERKEL:  Your Honour, the conclusions in respect of the

section 115 agreement resulted in an assumption

that the agreement was not contrary to the public

interest. We wished and had to go further and

establish that the refraining from exercising

jurisdiction was in the public interest.

BRENNAN J:	What fact would tend to show that?
MR MERKEL:	The facts that tend to show that, Your Honour, were the evidence that I had identified to
Your Honours yesterday at paragraphs 22 and 23 in
appeal book pages 18 and 19 and the submissions
that were put as to why that was relevant,
Your Honours, and I just wanted to identify those.
It was dealt with at pages 18 to 19 - sorry,
Your Honour, I have taken Your Honours to the wrong
passage. It is at appeal book pages 31 to 33. But
what I wanted to do, if I could, having described
the point, take Your Honours to the evidence we
rely on in support of it because, Your Honour, the
evidence that we wished to call was at pages 31 to
33 and that describes the categories of evidence,
not the actual evidence itself. It is also referred to at page - - -

GAUDRON J: Could I ask you there, it is really at the

bottom of page 32, is it not, because from 31

through to - - -

MASON CJ: Line 20.

Hoyts(3) 42 18/3/93

GAUDRON J: Yes. Is assumed in your favour.

MASON CJ:	Yes.
GAUDRON J:	And you come then to what appears in the lines

20 to 25.

MR MERKEL:  It is raised, Your Honour - really it starts at

line 7 or 8, I think. Your Honour, it really

starts at line 2 because it is really the whole of

the evidence, it is not just contrary to the public

interest but why it is positively in the public

interest. So it is the whole of pages 32 to 33.

GAUDRON J: Well apart from "but is in the public interest"

at line 9, all of those other matters down to

line 20 were assumed in your favour, were they not?

MR MERKEL:  Not rBally, Your Honour. For example, can I

take you to lines 4 and 5, or starting at the top,

line 2:

Employees will say that they want a final resolution of the dispute, that the s.115

Agreements are a fair and equitable regulation

of conditions in their workplace and achieve

their object of a dispute free but fair

workplace.

That is not just for them, Your Honour, in their

context, it is in respect of the whole workplace,

that all problems in this workplace are resolved by
these agreements. That is not just that they are in the interests of the employee and not contrary

to the public interest. And then they go on and

say evidence will be led as to other matters, but

that is the summary of the nature of the evidence.

The actual evidence would be as to matters that

Your Honour put to me earlier, that why these

particular terms and conditions operate in the real

world to achieve these conclusions.

GAUDRON J: But that is the issue with the arbitral

proceedings too.

MR MERKEL:  Yes, but the answer to that, Your Honour, is

simply that it is open to the Commission to say,

"We will deal with these issues including the

decision to refrain from exercising jurisdiction as

part of the one proceeding." That is why I said to

His Honour the Chief Justice earlier: we cannot

dictate when and how it is to be done, all we say

is you should not preclude us from making that

submission by denying us the opportunity to call

evidence in support of it. That is what it heard

and determined. It is that point, Your Honours.

Hoyts(3) 43 18/3/93

GAUDRON J:  It really is whether you were entitled to use

section lll(l)(g) for that purpose at all, is it

not? It is what the Chief Justice was raising with

you before.

MR MERKEL:  We say that the Act does entitle us to make an

application under section lll(l)(g).

GAUDRON J: Yes, but you suggested is that the use of that

provision in these circumstances was itself

misconceived. If for no other reason than the

jurisdiction had to be exercised to determine

certain matters which were fundamental to your

lll(l)(g) application, namely that it was a fair

and equitable regulation.

MR MERKEL:	Your Honours, can I answer that by reference to the second case in our list. It is what this Court
said in-the Queensland Electricity Commission case,
61 ALJR 393, where Your Honours discussed
section 4l(l)(d). Justice Deane described the
jurisdiction at the bottom of page 399, about the
last eight lines. His Honour put it this way:

Upon an application under s.4l(l)(d), the onus

plainly lies on the applicant to persuade the

Commission that it should, on one or other of

the specified grounds, override the prima

facie right of the party who has invoked its

jurisdiction and refrain from a hearing or

determination of the dispute. In the context

of the general legislative policy that a party

to an inter-State industrial dispute should

ordinarily be entitled to invoke the

jurisdiction of the Commission and of the
general philosophy underlying the Act that the

exercise of that jurisdiction to settle

inter-State industrial disputes will be in the

public interest, that onus is a particularly

heavy one in a case where what is sought is a

refusal to exercise jurisdiction on the

general ttpublic interest" ground -

and I emphasize these words:

and it appears that there is no other tribunal

which possesses jurisdiction fully to resolve

the dispute.

We would say those matters involve questions of

fact and we do not have the second element of

His Honour's difficulty because there is a vehicle

that fully resolves the dispute but that was a

matter of evidence and what we were endeavouring to

put to the Commission was that the section 115

agreements would fully and finally resolve the

dispute. That was a matter of evidence. It was

Hoyts(3) 44 18/3/93

not able to be said against us that evidence cannot

deal with that issue.

GAUDRON J: But the Commission said it did not because not

all employees were parties and the unions were not

parties.

MR MERKEL:  Yes, Your Honour, but it came to that conclusion

after refusing to allow us to call evidence to

indicate why that did not result in the dismissal

not being in the public interest. That is our only

point on that issue, Your Honour.

GAUDRON J: Can I take you back to page 32? Is what follows

on page 33 the evidence that goes to the fact that

certification is positively in the public interest,

and that it was in the public interest to refrain

from exercising jurisdiction? Does that go to

those two points?

MR MERKEL:  Yes, Your Honour, and it goes to the third

point, that the terms and conditions, the subject
of the agreements - and this is the critical

factual matter - are in the public interest as a

final mode of settlement of this matter at two

levels: one, in respect of the whole workplace, or

alternatively, in respect of the employees who have

elected to sign these agreements, because we put

our exercise of jurisdiction at both levels and we

say that we were denied that opportunity to call

evidence on that question of fact.

Can I just indicate, Your Honours, I think I

have said all I can usefully say on this particular

issue. Can I just give Your Honours some

references to passages that I would wish to rely on

to show why this is a point of substance, not just

a procedural point. The contest between the

parties is described in paragraphs 22 and 23 at

appeal books page 18 and 19, as being which of the

two alternative forms of regulation were to resolve

the dispute. At paragraphs 22 and 23, particularly

paragraph 23, lines 10 to 15, the evidence is given

as to why the agreements, which are

exhibit MGC12 - - -

MASON CJ:	What page is that, Mr Merkel?
MR MERKEL:	Sorry, page 19, Your Honour. Volume one,

page 19, paragraphs 22 and 23, identify what the

substantive matters that have been the major and

minor matters. Lines 13 to 15 at page 19 show why

the agreements have resolved those issues, or how
the agreements have resolved those issues. What

occurred thereafter is the unions then put their

proposed awards, which are exhibits MGCl0 and

MGCll, and MGC9 was the Hoyts proposed award which

Hoyts(3) 45 18/3/93

mirror imaged in all relevant respects the

section 115 agreements.	MGC12 is set out as the
last tab of volume one at page 210.	I just

indicate there were two clauses, or two aspects of

that apart from the clauses referred to, which I will not take Your Honours to, that resolved the particular issues in dispute.

At pages 256 through to 259 certain rights

were to be obliged to be given by the employer in

respect of the workplace in so far as the Union was

concerned, dealing with rights of entry,

recruitment and a procedure for the prevention and
resolution of employer/employee issues at page 257,

the Commission requires that there be procedures to

avoid further disputes. So that this agreement -

and also I took Your Honours yesterday to

clause 1.2(2) at page 216 to indicate, rightly or

wrongly;- within or beyond jurisdiction, this

agreement was designed to be a final resolution of

all issues arising in the workplace dealing with

terms and conditions of employment as well as union

rights and future employment.

Now, all I wish to say about that is what was

proposed to be dealt with thereafter was the true

contest, which was always MGC12 versus MGCl0 and

11. As a result of decisions by the Commission

that was not to be.

GAUDRON J:  I am sorry, can I stop you there? Why do you

say "as a result of decisions"?

MR MERKEL:	Because the Commission - - -
GAUDRON J:	Why is it not still the contest, whether the

rates and conditions are in as in MGC6 or MGCl0 and

11?

MR MERKEL:  Sorry, Your Honour is correct. I did not state

it as precisely as I should have. As a result of

the decisions of the Commission the certification

was not to be dealt with in the section 115

proceedings. That was all I was wishing to say.

GAUDRON J:  Was not to be dealt with in the arbitration

proceedings?

MR MERKEL:  Sorry, yes. The certification was never to be

dealt with, or will not be dealt with in the

arbitration proceedings. The section lll(l)(g)

application was first made on 1 May 1992 orally,

but because of the amending legislation repealing

section 115, that was deferred over and it was only

when there was a transitional provision in the Act,
which was Act 109 of 1992, operative from 9 July

1992, that section 115 had life breathed back into

Hoyts(3) 46 18/3/93

it. I indicated to Your Honours that the applications were then made on 2 September in

MGC17, written submissions pursuant to directions in MGC23.

Could I just give Your Honours some references

in the appeal book? I took Your Honours to the

forms of orders sought at 352 to 354, but can I

indicate that in the written submissions at 356,

359 onwards, but particularly at page 363 to 365,

the submissions were put as to why it was proposed
to adduce evidence that it would be in the public

interest that the terms and conditions in the

agreement ought to govern the workplace at Hoyts

cinemas hereafter. Again, I do not want to trouble

Your Honours with the precise detail of those

matters, but at 363 at lines 15 to 20, also 365,

there were submissions about the evidence that was

proposed to be called in support of the public

interest case.

What then occurred is the hearing commenced

and the transcript is at MGC24, which is appeal

book 369. The evolution of the assumptions

appeared in the transcript at 390 to 391, and if I

can just mention the pages to Your Honours: 398,

401, 403, 405, 406, 423, 427 and finally in 429 and

437 to 438. The hearing commenced into the second

day at MGC25 and the ruling was handed down at

pages 465 to 466, refusing to allow evidence to be

called. What then occurred was that a submission

was handed up, which is at pages 496 to 497, which

sets out the submissions that Hoyts wished to make.

What then occurred was that a submission was handed

up, which is at pages 496 to 497 which sets out the

submissions that Hoyts wished to make.

BRENNAN J: Which page is this, Mr Merkel?

MR MERKEL:  Page 493, Your Honour, but the relevant pages

were at 496 to 497 which raised the public interest

points that evidence was sought to be addressing,

particularly the second half of page 496. It is at

the back of volume two, Your Honour, starting at

line 10.

BRENNNAN J:  The proposition that was relevant under

lll(l)(g) is that which is identified in

paragraph (c) on page 496. Is that right?

MR MERKEL:	We would say that is the first, Your Honour. But the proposition that was relevant was (c), (d),
(e), and (f).  We would say all the matters
probably through to (1), Your Honour, because they
are all the positive reasons why these matters are
in the public interest.

Hoyts(3) 47 18/3/93

BRENNAN J:  I understand that, but at the end of the day the

Commission had a dispute which involved the unions and employees other than those who were parties to

the agreement, and that was the subject for the

exercise of arbitral power.

MR MERKEL:  It could be the subject, Your Honour.

BRENNAN J: It could be the subject - it was the subject of

arbitration at that time, was it not?

MR MERKEL: Subject to lll(l)(g).

BRENNAN J: Subject to lll(l)(g), and you want to say,

"Well, because there is agreement reached with a

large number of the employees, therefore it is in the public interest that the arbitral proceedings

on the dispute as found should be aborted"?

MR MERKEL:  Either entirely or in respect of the employees

who wanted to have their agreement certified.

There were the two options, Your Honour, because it

could be part of the matter that is the subject of

the order.

BRENNNAN J: Well, be it so. Now, at the end of the day,

assuming that the lll(l)(g)(iii) application is

rejected, the Commission retains its discretion

whether or not to make an award in the light of all

the circumstances.

MR MERKEL:  I think, Your Honour, that it does not have a

discretion unless it positively finds under

section lll(l)(g), but the effect of the provisions

of the Act is that they are obliged to make an

award in settlement of an industrial dispute unless

it is in the public interest or one of the grounds

does not operate. Otherwise, I do not think they

can decline to exercise jurisdiction.

BRENNAN J:  Be it so, but at all events they may or may not,

whether in the future exercising lll(l)(g)(iii)

power or in the exercise of a general discretion,

refuse to make an award.

MR MERKEL:  It is just the second part I am not sure

of, Your Honour.

BRENNAN J: Let us assume it is only under lll(l)(g)(iii).

MR MERKEL:  Can I just state it this way? As I

understand it, it is a duty to make an award,

provided there is an industrial dispute which can

be settled by an award.

BRENNAN J: If, at the end of the day, having done whatever

is going to happen with regard to the 115

Hoyts(3) 48 18/3/93

applications, the Commission decides not to make an

award, it can refuse to do so.

MR MERKEL:  Under section 111?

BRENNAN J: Yes.

MR MERKEL:	Yes, if it made that decision.
BRENNAN J:	And the fact that it has made any of the decisions thus far, does not preclude it from
forming that view at the end of the day.

MR MERKEL: Well, save and except, Your Honour, that it has

refused to allow the evidence to be called on that

point.

BRENNAN J:	I understand that.
MR MERKEL:	But,- it is open to make a decision at any time,

on any issue under the Act, as I understand it.

BRENNAN J: Well, now, where is there any refusal to

exercise its jurisdiction, as distinct from

engaging in a procedural decision, saying, "We are

not going to decide all these points at this stage,

we have got an arbitration to perform here, there

are, on the face of the documents, parties who are
not going to be bound by these agreements, and we
should press on and hear the arbitration, reserving

to ourselves throughout the power, not to make an

award under lll(l)(g)(iii), and in due course we

might find out that we will not make one.

MR MERKEL:  Your Honour, anything is possible, but that is

not how we say the point has arisen.

BRENNAN J: Well, it may not be how the point has arisen,

but in terms of jurisdiction, it does not seem to

me that you are able to demonstrate a refusal to

exercise.

MR MERKEL:  On this point, Your Honour, we do not say there

is a refusal to exercise jurisdiction. We say,

that on this point there is a jurisdiction that has

been invalidly exercised because the rule of

natural justice has been breached in its exercise.

That is how we put this evidentiary point; no more

and no less.

BRENNAN J: Well, my proposition for your consideration is

whether or not, having regard to the nature of the

proceedings, a true characterization of what has

happened, is that the Commission has made a

procedural decision, and not a decision which, in

any way, is an exercise, finally, of the

lll(l)(g)(iii) power.

Hoyts(3) 49 18/3/93

MR MERKEL:  Your Honour, the way in which we respond to that

is that it said nothing that indicated that it was

approaching its jurisdiction under

section lll(l)(g) procedurally and would reserve

itself the right to accede to our application at a

later point. It finally determined our application

based on the grounds set out in it, leaving it

required to exercise jurisdiction because there

remained an industrial dispute unsettled.

Now, we say that no one has approached it on

that basis, and we certainly could not. We say it

has made a decision not to refuse to exercise

jurisdiction on the grounds set out in our

application. We say - and we are either right or

wrong on this point, because it is the critical

point - when hearing and determining that

application, were they under a duty to act
judicially, and have they failed in that duty?

We would say that what Your Honour is putting,

carries very far reaching ramifications under the
Act, because this is an Act where the tribunal, not

exercising judicial power, may always review, even after an award, what it has done, and it can do so

of its own motion. So that we say that it would be - and, indeed, all administrative decisions, unless

the Act precludes them from being reviewed, are

capable of being reviewed in the same way that Your

Honour has put to me.

BRENNAN J: Yes.

MR MERKEL:  So we would say that, to say that in respect of

a decision of this kind, the duty to act judicially
is not attracted, we would say, would have very
far-reaching ramifications for the procedures of

the Commission.

BRENNAN J:  I appreciate that. It is precisely for that

reason that I am putting it to you because, it

seems to me, that if one regards the jurisdictional

problems as related to the arbitral and

conciliation powers and, prima facie, the decisions

which are reached in the course of the exercise of those powers are to be characterized as procedural decisions, then there may be cases, such as the

Citicorp case, where one can say that a procedural

matter has taken on a jurisdictional aspect.	But
generally speaking, the interlocutory decisions that are made, are merely matters of procedure
which lie within the discretion of 110.

MR MERKEL:	I appreciate what Your Honour puts. All I can say in response is that we have approached the
power, as described in Citicorp and the QEC case,
as a power to re.fuse to exercise jurisdiction.

Hoyts(3)	50	18/3/93
BRENNAN J: Yes.

MR MERKEL:  And when one makes an application under

section lll(l)(g) on that matter, we say it is not

a procedural matter, nor is it a procedural

decision. What is procedural is when the power

will be exercised. What is procedural, is the mode

and manner in which the power may be exercised, but

the decision to exercise or not exercise the power,

is a matter of substance which attracts the duty.

BRENNAN J: But inherent in that proposition is that the

decision thus far reached by the Commission, in

relation to lll(l)(g), is final and irrevocable.

MR MERKEL:  Your Honour, I could not say any decision of the

Commission is final and irrevocable. What we would

say, Your Honour, is it constituted a hearing and
determination of the application we made, not

leaving it really open in any practical sense, or
realistic sense, to have those matters reviewed or

for us to go back and wish to call the evidence

that they refused to call - allow us to call.

BRENNAN J: Yes. I understand what you are saying. It may

not be in legal terms, final and irrevocable, but

in practical terms that was the end of the

lll(l)(g)(iii) matter.

MR MERKEL:  Yes, Your Honour.

BRENNAN J: Well now that, with respect, does not seem to me

to correspond with the view that was expressed by
the Commission, and I am not sure that I can put my

hand on it, but I think it is at the beginning of

volume two.

MR MERKEL: It is MGC - sorry, volume two did you - - -

BRENNAN J: Yes, I think it is at the beginning of

volume two. It is an August decision, I think, where the Commission dealt with the section 110

power. Can you identify that for me?

MASON CJ:	It is around about page 314 in the second volume.
MR MERKEL:	Yes, thank you, Your Honour.

BRENNAN J: Yes.

MR MERKEL:  I think that was a decision, if I recall it

correctly, Your Honour, to deal with conciliation prior to arbitration, and they said that, "How we

deal with section 115 applications, and how we

exercise our jurisdiction in respect of arbitral

matters, are a matter for section 110."

Hoyts(3) 51 18/3/93

BRENNAN J:	The Commission then described itself as being well-advanced in the arbitral process.
MR MERKEL:	Yes.
BRENNAN J:	And at page 316, it said:

We would add that no ruling has been made

by the Bench which prevents the parties from

referring to the s.115 agreements and their

implications etc during the course of their

submissions in the present matters.

MR MERKEL:	Your Honour, that was on the question of joinder of the conciliation and arbitral proceedings. That
the decision that we say - - -

BRENNAN J: That is one of the matters that you wanted to

have considered, was it not?

MR MERKEL: 

Yes, Your Honour, but as a separate ground.

BRENNAN J: 

I see.

MR MERKEL: 

That raises a question of the implied duty of

the Commission to conciliate prior to arbitration
if matters are settled, and that is a separate

point. The only decision that we would say is
relevant to what Your Honour is putting to me was

the decision in MGC27, which is at the beginning of

volume three, which we say is a final determination

in the way in which I have put it to Your Honour.

MASON CJ: This ruling at 309 you say is a procedural ruling

which was antecedent to your application under

lll(l)(g)?

MR MERKEL:  Yes, Your Honour.

MASON CJ:  It was after you failed in relation to the

application dealt with in the ruling at 309 that

you then mounted your lll(l)(g) application.

MR MERKEL:	Yes, Your Honour. Directly, as a result of it.
GAUDRON J:	And that decision is, I think, at page 510 in

volume three, is it?

MASON CJ: That disposes of the lll(l)(g) application.

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

So, we say, again, that the decision, in our submission, at page 510, does not take the matter

any further because the Commission, we say, made

two fundamental errors. The first error was that

it indicated, or took the view that the fact of

Hoyts(3) 52 18/3/93

certification of the agreements alone does not

justify it being in the public interest that they

refuse to exercise jurisdiction, and we agree with

that.	But that was the finishing point of their
decision.	We say that is the starting point of our

case that we were not able to present.

We say, that therefore, they fell into error,

and I have already set those submissions out at

some length, and if I could now move on to what

I - - -

BRENNAN J: Could I just draw your attention finally, and I

will not continue to interrupt you:  521 to 522,

the Bench repeats the passage which I had in mind

from an earlier decision, and applies it then to

the lll(l)(g) application.

MR MERKEL:	Yes, Your Honour. That is right, Your Honour, and we would say that is the second error, that is
that a section lll(l)(g) application is an application in respect of the exercise of
jurisdiction, it is not a procedural matter.
That - - -

BRENNAN J: Well, I can understand your saying it, but it

seems to me that the way in which the Commission

approached the lll(l)(g) application was that it

was designed to achieve a certain order of dealing
with things which the Commission refused to accede

to, and that they proposed therefore, to refuse the

lll(l)(g) application, but left open the matters of

substance which you say you did not have an

opportunity to address on.

MR MERKEL:  We would say a proper reading of those passages

indicates that what they are saying is that the

section lll(l)(g) application raises matters of

substance which we do not propose to deal with or

consider under section lll(l)(g), as if they had a

discretion to refuse to consider their jurisdiction

under section lll(l)(g). We would say the

consequence of that ruling should be that, "We will

not finally rule on section lll(l)(g), your

application, until we deal with the final hearing

of the arbitration."

BRENNAN J: It does not matter, does it? It does not matter

whether they say, "We dismiss you application now,

but we reserve the power." They have always got

the power.

MR MERKEL: But, with respect, Your Honour, the decision, on

a fair reading - and I can only take Your Honours

to the passage I took at the end - is a final

determination that the evidence and the arguments

put do not justify a ruling under

Hoyts(3) 53 18/3/93

section lll(l)(g). We say that the procedural

references are really references to why they

wished, and justify why they wished to have the

section 115 proceedings dealt with separately.

But we say, that on a fair reading, it is not

a procedural decision because the decision

ultimately made was not procedural, it was

substantive. I put those submissions, and that is

how we put the evidentiary aspect.

Can I deal with the second basis on which we

submit the Commission fell into error? We say that

the second basis of our order nisi is that the

Commission, having made the assumptions that are

set out in paragraph 3 of our outline, left

themselves in a position whereby reason of the

provisions of section 116, no matters remained in

dispute;- and the Commission would not have power to

arbitrate in respect of the matters dealt with in

the agreement.

Now, that, at first sight, may seem to be a

dramatic submission, but it is the consequence of the legislative provisions under section 116, and

it is a consequence of the way in which the

Commission sought to deal with the section 111

matter. The submission founds itself upon

section 116 which provides, in section 116(l)(a),

that:

While the certified agreement is in force:

(a) the terms of the agreement prevail over

the terms of an award or an order of the

Commission binding on the parties to the

agreement that deals with the same matters.

And the award, of course, will be binding on, under

section 149, on all members of the Union and on the

employers and the awards which are sought to be

made deal with the same matters as the agreement.

Then under section 116(l)(b), (c) and (d), the jurisdiction of the Commission, which is wide under

the Act, is limited in respect of varying or

changing any term of a certified agreement, and

finally, in section 116(l)(e):

the Commission shall not exercise arbitration

powers in relation to the matters dealt with

in the agreement.

Now, we say, "matters" takes one back to the

definition sections, and they are the

subject-matter dealt with, the subject-matter being

that which Your Honour Justice Gaudron put to me,

Hoyts(3) 54 18/3/93

will be the terms and conditions of employment in

the workplace at Hoyts cinemas. Under the

definitions, an award "includes a certified

agreement", and the definition of "industrial

dispute" deals with "matters pertaining to the

relationship between employers and employees".

We say that the legislature has been very

careful in its use of the word, "matters", and we

would say it had in mind what Justice Isaccs said

in George Hudson's case, if I can just take

Your Honours briefly to that passage. It is case

No 10, and it is 32 CLR 413. It is a passage of

Justice Isaacs at page 440 to page 441. The

argument at the bottom of the page 440 His Honour

was dealing was that the dispute is to be defined,
or:

t.he area of dispute limited by reference to the disputants, that is, limited so to speak

in superficial extent, the question is what is

the subject of their dispute, and what persons
are contemplated by that dispute to be

affected; that is to say, while preserving the superficial area of the dispute, how deep does

the dispute extend - in other words, what

persons are intended to be affected as

represented by the formal disputants, as well

as what conditions are to affect them and for
what period of time.

And in the next paragraph, His Honour relates the nature of a dispute to the conditions:

not merely for the specific individuals then
working from the specific individuals then
employing them, and not for the moment only,
but for the class of employees from the class

of employers limited by the ambit of

disturbance or dislocation of public services

which has arisen or which might arise if the

demand were not acceded to -

and Justice Starke makes similar points at page 453

at the bottom of the page.

The point we make here is that section 115 has

elevated "certified agreements" to have a special

status, and we say that the assumptions made that

the section lll(l)(g) could be dealt with on the

assumption that the agreements would be certified,

carried with it the conclusion that there was

nothing left to arbitrate because the agreements in

terms provided for all matters in dispute and

resolved those matters.

Hoyts(3) 55 18/3/93

GAUDRON J:  But that overlooks what in fact the Commission

says in its decision, and that is at page 521.	We
accept - they do not say, "we accept":

It is clear that the s.115

agreements ..... have relevance -

and they say that, and then up ahead before that,

they said - they refer to an earlier occasion:

the Bench indicated that there were a large
number of important preliminary issues which

needed to be addressed including whether

jurisdiction exists for the Commission to

certify the relevant agreements -

and they are matters that are proceeding. And then

he says on the next page, that you can again - this

is page-822 - you can, at an appropriate stage,

again ask the Commission to join the matters, and

if an application is made, the Commission will

consider and rule upon it. However, apart from

that, it is going to deal with those matters in

accordance with their responsibilities, and if they

are registered in the meantime, well then certain

consequences will happen.

Now, it does not follow at all - the decision

makes it plain that the consequences you are

asserting do not follow.

MR MERKEL:  Your Honour, there they are dealing with the

future conduct of the section 115 proceedings. The point I am dealing with is at page 518, lines 8 and 9, which is the basis on which they dealt with the

section lll(l)(g) application.

What I am saying is that they made assumptions

which ought never to have been made, because those	assumptions had the consequence of leaving nothing	left to arbitrate, and the assumptions are set out
at page 518. They said:

Although we make no ruling at this stage about

these -

that is the section 115 points -

for the purposes of this decision regarding the s.lll(l)(g) application we have assumed that the various s.115 agreements between the

Hoyts Group and employees meet the

requirements of s.115 and are capable of being

certified -

Now, the second point I make, and this is all it is

addressed to, is that it was not, in any realistic

Hoyts(3) 56 18/3/93

sense, open to them to make that assumption and

dismiss the application. That is the only point.

GAUDRON J: But is not that really what they are saying?

They have used the word "assumption" but what they

are really saying is, "Look, it is simply not in

the public interest to deal - to stop these

proceedings until we have worked out what is going

to happen to everything, until the orderly process

directed towards allowing all relevant issues,

arguments and materials to be presented, are worked

through".

MR MERKEL:	I appreciate that, Your Honour, but my only point here is that they made assumptions which they
relied on to stop the calling of evidence. Those
assumptions, if they were going to act upon them
for the purposes of the lll(l)(g) decision, had to produce __ the result that there was nothing left to
arbitrate because of section 116. In other words,
it was not permissible for them to make those
assumptions and dismiss the application. That is
the only point.  Our real problem arose because of
the procedure they took to avoid the calling of
evidence.
GAUDRON J:	But, is not what they are really saying by

reference to the assumption, and the calling of

evidence: "None of that, none of those issues, even

if you are right, decide the point, can decide this
question in your favour because, in our view, the

public interest is best served by allowing matters

to run their course, so that there is an orderly

process in which everything can be determined."

MR MERKEL:  Your Honour, that, of course, would be a

permissible decision - - -

GAUDRON J: But that is what they said.

MR MERKEL:  I know that, Your Honour, but because they made

it on the basis of the evidence that they heard and

the submissions they heard. Had they made that

decision without making assumptions in respect of

the 115 agreements, we could not be complaining about it because it would be procedural matter.

What they said is, "To avoid the calling of

evidence, we will assume section 115 agreements are

certified". The only point I make - - -

MASON CJ: But they step back from that at 518.

MR MERKEL:  Your Honour, then that is why we complain. Yes,

they did step back from it, and they stopped us

from calling evidence on the basis that we can

assume they will deal with the application on the

basis of the assumptions, and then they did not

Hoyts(3) 57 18/3/93

deal with the application on the basis of the

assumptions that they ruled they would. And we say

that that gives us a ground to say the decision is

vitiated by it.

MASON CJ:  I would have thought that the sentence identified

by Justice Gaudron at 518 is fatal to the second

ground that you are putting forward, but to the

extent that it involves some retreat from the

earlier statements that an assumption would be made

that the agreements would be certified, then it

does, perhaps, lend some colour of additional

strength to your first ground.

MR MERKEL:  It is an alternative basis on which the first

ground is put, Your Honour, or a supportive basis.

That is the substantive ground, because the relief

we seek, our primary relief, is that we be

permitted to have our application under

section"lll(l)(g)(iii) heard and determined, and we

support for our application that the decision

say these assumptions created a false basis for it.

should be quashed and we should be entitled to have

our section lll(l)(g) application heard and

determined by the Commission.

GAUDRON J:  Can I put it to you just a little more clearly

because, perhaps, I did not put it very clearly.

What I am suggesting is, even if the Commission was

wrong in the assumptions, did not appreciate the

consequences of the assumptions, even if it was

wrong in not allowing you to call evidence, none of

those matters bear on the decision, because the

decision is based on the proposition that it is not

in the public interest to stop proceedings at this

stage in circumstances where there are proceedings

on foot, where all relevant issues can be

determined.

MR MERKEL:  Your Honour, if that decision was made on the

basis that there was no evidence to be considered,

that may be right but, Your Honour, those matters

were questions of evidence, which the Commission

accepted, are questions of questions of fact.

Your Honour put to me earlier this morning

that they must be questions of fact because - the issue is not whether a person is entitled to have

arbitration, the issue is are they entitled to have

the terms and conditions they wish protected by

law. Really, all we say is that had the Commission

proceeded differently, different results or

consequences would follow, but it did not, and we

say that as a result of that, on no fair reading of

this decision could it be said that they have

Hoyts(3) 58 18/3/93

really done anything other than said we have failed

to discharge the public interest test.

Now, had we called evidence, we say we could

have discharged that test or we would have at least

had the opportunity to discharge that onus. We

have been denied that opportunity, but that really

is two bases on which we put our first point: that

the assumption should never have been made because
the Commission never appreciated the consequences
the follow from them, but they were used and relied

upon to prevent evidence being called. So that is

how we put, what I will call, the case for a

quashing and a rehearing prior to the final award

being made of an application under

section lll(l)(g).

That really only leaves over the last matter

which is_ that we say, as a matter of jurisdiction,

the scheme of the Act requires that the

conciliation power, in respect of matters in

dispute, be exercised together with, or prior to,
the final exercise of the arbitral power, and that
the Commission, in its decisions - certainly not in

its decision in August, but in its decisions since

that date - has indicated that it proposes to

complete the arbitration process without dealing

with the conciliation proceedings in section 115.

GAUDRON J: Yes, but that is not what they said at all.

They said you could make another application. That

is page 522.

MR MERKEL:  Yes, Your Honour, but can I take - it has a long

history, Your Honour, of decisions of that kind -

Your Honour to page 557, which is much later.

Page 557 in volume three is the ruling on 24
December, and I should indicate that I did not

understand it to be an issue between us based on my

volume was not relevant. It is designed to show	learned friend's statements to me that the third
that they proposed to complete the arbitral
process, and do so independently of the section 115 proceedings.

Can I just give Your Honours the context in

which this occurred. The conciliation proceedings

were listed in December and the point was raised by

the bench as to whether they should be adjourned

over, because this Court may say something of

assistance in the other two Hoyts matters. They

did adjourn them over and then an application was

made that if you do that with the conciliation

proceedings, you should do so in respect of the

arbitral proceedings, because they involve the same

matter. And the last four lines at page 557 after

discussing the arbitral proceedings, they said:

Hoyts(3) 59 18/3/93

In these circumstances we believe that it is

in public interest for the arbitral

proceedings not to be adjourned ..... but to be

completed as soon as practicable.

Then, what the remaining documents indicate,

particular tabs 37, 38, 39 and 40, is that the

Commission had laid down a schedule of completion

of all submissions, evidences now complete and they

propose to make a final determination in respect of

the arbitral proceedings, and we say that it is not

open to them as a matter law to do so without

dealing with the matters, the subject of the

section 115 proceedings.

GAUDRON J:  Why is that?

MR MERKEL: There are three reasons, Your Honours, and it

arises -f-rom an implied - we say an implication of

the duty of the Commission. The first is the

effect of section 116, that where there are

certified agreements, the certified agreements

override any award in respect of the matters dealt

with in the agreements.

GAURDON J: But we have not got certified agreements.

MR MERKEL:  No. What we have got is an application for

certification of the agreements and upon

certification they will settle the matters dealt

with by the agreements as matters in dispute at the

Hoyts workplace. The second step in the argument

is that Bain's case makes it clear that

certification of agreements is part of the

conciliation function in respect of matters in

dispute.	The third step is that Blackburn's case
and also -

GAURDON J:  You are assuming now, are you, something about a

dispute?

MR MERKEL:	No, Your Honour.
GAURDON J:	When I say, "You are assuming something about a

dispute", does this not depend on your overall
proposition that there is one big dispute which
involves the individual authorities as well as the

unions.

MR MERKEL:  No, Your Honour. What we say is that the

dispute under section 115 requires a dispute

finding that the employers were in dispute with the

employees; it is not a wider dispute finding.	The
question of whether they should certify under

section 115 requires a finding of dispute and then

the exercise of conciliation power in

certification. Where the Commission has an

Hoyts(3) 60 18/3/93

application before it that part of a matter - the

matters in dispute are settled, it is under a duty

to determine whether it will or will not exercise

its certification power, including a duty to

determine whether there is a dispute.

Blackburn's case requires the Commission,

before exercising arbitral power, to determine that

the matters in dispute remain in dispute. If the

section 115 agreement is certified, that will mean

the matters are not in dispute. We say the short point is that you cannot exercise arbitral powers

in respect of a subject-matter which is sought to

be made the subject of certification before

determining whether the certification will or will

not proceed, and we say that that arises from the

scheme of the Act.

MASON CJ:  Mr Me~kel, the Court will adjourn at this stage.

AT 12.57 PM THE MATER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.25 PM:

MASON CJ: Yes, Mr Merkel.

MR MERKEL:  If Your Honours pleases, the last submission we

make concerns paragraphs 6 and 7 of our outline.

Can I say it involves three points: first, the existence of the duty, and if I can define the

duty. The duty is that when in any matter where

arbitration and conciliation proceedings under the

Act or in existence at the same time, the

Commission is under a duty to hear and determine

the conciliation proceedings prior to or together

with the arbitration proceedings. I will address

six submissions, if I might, as to why that duty

exists under the Act. The second hurdle I must

meet or point I must meet, is that the duty has

arisen in the circumstances of the present case,
and the third is that there is a breach of the

duty. Could I deal with its existence? We say

that, firstly, section 89 of the Act requires the

Commission:

to prevent and settle an industrial disputes

by conciliation or arbitration.

Second, sections 100(1), 102 and 103(1) require the

Commission, as a condition precedent to the

Hoyts(3) 61 18/3/93

exercise of arbitration powers, to exercise

conciliation powers and only when those powers are

completed, to commence to exercise arbitration

powers. Those sections deal with the situation

before the commencement of arbitration powers, but

they indicate a statutory policy that conciliation

is to be exhausted prior to arbitration commencing.

The third - - -

MASON CJ: But do they go beyond conciliation first,

arbitration second, in relation to the resolution

of a particular dispute?

MR MERKEL:  No, Your Honour, they do not go beyond that, but

what we say is in section 103(2), which is the

third leg of our submission, that the requirement

in respect of:

the exercise of conciliation powers in

relation to an industrial dispute -

can still be exercised even once -

arbitration powers have been exercised in

relation to the industrial dispute.

And that is the present case. We say that those

statutory provisions deal with the express duties

of the Commission. The fourth step in our argument

is that Monard's case, which is case No 6 on our

list of authorities, contains a discussion at

page 165 through to page 167 by Justice Isaacs and,

in particular, at page 166 at the first clear

paragraph where His Honour says:

But the point is, that conciliation,

openly preferred by the Legislature as being

the simpler, surer and happier method, and

most conducive to better understanding and

mutual goodwill - perhaps the greatest asset	in industrial operations - is not penalized,
or placed in an inferior or more
disadvantageous position than is the
compulsive process, which may prove necessary
when conciliation fails, and is the last
resort.

We say that that policy still holds good under the present Act.

The fifth step in our submission is that the

Commission is under a duty before arbitrating and making an award in prevention or settlement of a

dispute, to do so in respect of the dispute as it

exists at the time of the exercise of jurisdiction

and we rely on that on Bain's case, which is case

Hoyts(3) 62 18/3/93

No 3, the statement of the law by Mr Justice Murphy

at page 168 at point 8, where His Honours says:

Thus an industrial dispute may be diminished

or ended or enlarged or altered during the

course of the proceedings in the Commission.

And also Blackburn's case, which is case No 4, but

I do not need to take Your Honours to the passages,

but particularly Blackburn's case at pages 135

to 137, when in the joint judgment Their Honours

say that the arbitration power must be exercised in

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

time the power is exercised. That was made also

clear by Chief Justice Barwick in case No 5, which

is Reg v The Commonwealth Conciliation and

Arbitration Commission and Others; Ex parte the

Melbourne and Metropolitan Tramways Board, at page 238, where His Honour said at point 9:

Whilst the time at which an "inter-State"

dispute must exist is the time the award under

challenge was made -

His Honour goes on to talk of other matters.

So that we say that those matters make it

clear that in respect of a dispute the jurisdiction

must be exercised to conciliate and then arbitrate

in the dispute. Conciliation necessarily entails

the extent to which the dispute has shrunk by

agreement. Those matters all relate to the

industrial dispute found to exist by the

Commission.

The last step in the argument relates to the role of sections 115 and 116 and we say that, where

the Commission has before it an application for

certification, it is clear that that involves the

conciliation power and, where it relates as it does

in 116(l)(a) and (l)(e) to resolution of the

matters dealt with by the agreement, we say that

that duty to certify and to complete dispute

finding in respect of that certification, requires

the Commission, in a case where the same matters

are matters in dispute in a section 115 agreement
and in arbitration proceedings, to conciliate or

exercise its conciliation powers, either prior to

or together with the arbitration powers. Now,

those submissions are that the duty arises under
the Act.

The next matter which we must establish is that in the circumstances of the present case the

duty has arisen and we - - -

Hoyts(3) 63 18/3/93

BRENNAN J:  Your proposition, Mr Merkel, though is this, is

it, that if there is a dispute which involves A, B

and C, and A and Creach an agreement which is

capable of certification and should be certified

under section 115, then so far as Bis concerned,

is to be held out of any arbitral protection until

after the section 115 proceedings are completed?

MR MERKEL:  Your Honour, no. We say that there is one

addition to the equation, that the dispute between A, Band C must be in respect of the same matters.

When A and Creach resolution and the effect of

that resolution narrows the dispute also, insofar

as it affects B, the Commission is required to

exercise its arbitral power only in what remains of
the dispute, and that can only be done together

with the conciliation power.

We-do not say Bis shut out from arbitration,

we say that the Commission is under a duty to

define what the ambit, or what is left of the
dispute with Bas a result of the certification

that would occur, if it is to occur.

BRENNAN J: B's position, on that argument, is going to be

affected by the certification.

MR MERKEL:  If the consequence of certification is to

prevent arbitration under section 116(l)(e) of some

of these claims, that must be the result of

section 116(l)(e), Your Honour.

BRENNAN J: Well, on all of B's claims or some part of them.

MR MERKEL:  Yes, that is so, and that is the provision of

section 116(l)(e) which elevates certified

agreements beyond the role that the Act gives

awards.

BRENNAN J: That means, does it not, that B has a very real

interest in the 116 proceedings?

MR MERKEL:  Yes, Your Honour, it has a real interest because

its rights could be affected on certification.

BRENNAN J:  What does the Commission then do, particularly

in a case like this which has been so long drawn

out, in determining the public interest in relation

to B's arbitral proceedings? Does it have to deal

with the certification matters first, and say to B,

"Your award will stand over until after you have

spent a year or so debating the 115 proceedings."?

MR MERKEL:  No, Your Honour. What we say is, that if B has

a claim under the Act that should dealt with, B can

always get an interim award to protect its claim.

Then the second step is that because a necessary

Hoyts(3) 64 18/3/93

condition of this hypothesis is that the dispute in

conciliation and arbitration relate to the same

matters, the Commission can hear and determine and,

indeed, on Blackburn's case, to define the dispute

still in existence would be required to hear and

determine those proceedings in a manner that it can

expedite and deal with efficiently so that that same matter will be dealt in resolution of both proceedings at the same time.

We have never said that one has to take

precedence over the other but we say that the

arbitration cannot be determined prior to the

conciliation process. We say that that arises, not

because of the provisions that we have taken

Your Honours to dealing generally with conciliation and arbitration, but with the primacy given to

certified agreements under sections 115 and 116.

I should say that the new provisions carry

through many of those princples, but only unions

can seek certified agreements under the current

division which replaces section 115 and 116 which

removes this problem of having employees, en masse,

being able to, in effect, supplant the role of

unions.

So the legislature has addressed this problem under the present Act in that way, but we say that the point must hold good in respect of the current position for unions, as it did for employees. But that is what way say is the consequence of the

primacy given under section 116.

BRENNAN J: Which part of 116, Mr Merkel?

MR MERKEL:  We say, initially (l)(a), but ultimately (l)(e),

Your Honour, and the word "matters", we say,

is - - -

BRENNAN J:  "binding on the parties to the agreement" is the

limitation contained in (l)(a), is it not?

MR MERKEL: But, what is the limitation, Your Honour, is

that "the terms of an award ..... binding on the
parties to the agreement", and we say that an award

made against the employers would fall within that

requirement. But (l)(e) is the critical

subsection, Your Honour.

BRENNAN J: Yes. Well, I understand your argument,

Mr Merkel.

MR MERKEL:  And we say that that gives effect to that

legislative policy and that is why we say the duty exists. The duty has arisen because, we say, that

the conciliation proceedings and the arbitrations

Hoyts(3) 65 18/3/93

proceedings are in respect of the same matter.	I
have dealt with.that at some length and I do not
wish to repeat those submissions.

Finally, we say that the breach of the duty is

demonstrated by evidence, again that I took

Your Honours to, but could I just, in conclusion,

hand up to Your Honours a replacement page, 543,

which sets out an update summary having regard to

volume three of all of the rulings of the

Commission.

The old 543 had exhibit references that were

erroneous and was not completed, and we would ask

to replace that which is a summary of the other

matters. It finishes with the last line being the

conciliation proceedings have been adjourned over

and the Commission has indicated it proposes to

conclude the arbitration proceedings, so we say

that would be in breach of the duty.

The final submission we put is that the

alternative basis upon which we put that submission

is that if we are wrong in what we have stated as

being a duty, we say that it is a clear legislative
policy of the Act, and we rely on Padfield's case

to say that the Commission, by refusing to hear the
conciliation proceedings, in the rulings that I

have identified, has the effect of frustrating the

policy of the Act and we, in particular, rely on

what Lord Reid said in Padfield v the Minister of

Agriculture, which is case 9, at page 1030, to say

that if we are wrong in the duty arising, then the policy has been frustrated in the manner stated by

His Lordship at paragraphs C and D at page 1030. So, we say, that situation is one that has

arisen, and we say that it entitles us to the

relief by way of prohibition and mandamus that we

have sought in the motion. If Your Honours please.

MASON CJ: Thank you, Mr Merkel. Yes, Mr Nolan.

MR NOLAN:  May it please the Court, I hand up my outline of

argument.

MASON CJ: Yes. Mr Nolan, briefly glancing at your outline

of submission, I am not clear what you say as to

the public interest issues. Is it your submission

that those issues are foreclosed by the rulings

that have been made by the Full Bench, or not?

MR NOLAN: Well, they are foreclosed in so far as the

section lll(l)(g) application, that was the subject

of this decision is concerned, because the bench,

in its decision on 22 October 1992, dealt with what

Hoyts(3) 66 18/3/93

was put in the section lll(l)(g) argument by the

company.

Now, as we understand Mr Merkel's submissions today, his complaint about the denial of natural

justice is apparently confined to the fact that the

bench ruled against the company on its application

that in furtherance of its section lll(l)(g)

application, it should be allowed to call
additional evidence, and it was said, in part, that

that evidence was direct to these public interest

questions.

Now, our submission is that the bench was

entitled to do what it did. It can make a

decision, in the course of considering the

section lll(l)(g) submissions, as to the extent to

which, if at all, it ought to hear oral evidence,

and it must be remembered that it was said to the

bench that about another two weeks would be

required to hear a slew of witnesses, all of whom

would give evidence about how they were content

with the agreements that had been signed, and it

was said that this, somehow or other, would

persuade the bench that there were additional
public interest considerations, apparently not

illuminated already by the lengthy written

submissions made by Hoyts, that would persuade it

to agree to the section 111(1) application and therefore stop dead in its tracks the arbitral

proceedings.

Now, our submission, of course, is that the

bench was entitled to take that pragmatic
procedural decision about exactly how much

additional evidence it would hear, because, after all, and as the pages of the transcript indicate,

this matter had been proceeding since

parties, the very contest that was joined, was	November 1989, and the very issued between the	about the content of the aware that would issue from the arbitral proceedings. There were two
competing awards; one was the Union's proposal and
the other was the companies' proposals.
Now, it so happened that the companies' proposed award happened to be identical, for all
practical purposes, with the section 115
agreements. So, in effect, the application for the
section 115 matters to overtake and effectively
extinguish the award arbitral matters, was an
endeavour, in our submission, to achieve, by an
indirect route, what perhaps the company was not able to achieve by the direct route, .in the
arbitral proceedings. So it was said, effectively
by the company, "Forget about the arbitral
proceedings; put them to one side. We say that we

Hoyts(3) 67 18/3/93

are entitled to have these section 115 agreement

certified by the Commission, and indeed the

Commission is obliged to give these priority".

Indeed, the submission went further than that and

effectively said, adopting this statutory

construction argument Mr Merkel has advanced this

afternoon, that the Commission was effectively
obliged to rubber stamp the agreements.

So that submission, having been made to the Full Bench, and the Full Bench seized of the fact

that it had those very issues before it in

practically the same guise, in the arbitral

proceedings, in our submission, the Commission was

entitled to take the decision it did, and say to

Hoyts, "We are prepared to hear your submissions so

far as you have made them," and it must be

remembered there was the detailed written document

that beeame exhibit 256 in the proceedings, and

there was, what amounted to, almost two days of

argument in support of those submissions.

So all that really stood between Hoyts and the

Commission was Hoyts further application that to

pursue its section lll(l)(g) argument in the way

that it desired, the bench was obliged to accede to

an application that it hear two weeks of evidence

and, I think it was, 42 witnesses.

MASON CJ: Put to one side for the moment the calling of

further evidence, what to you say about whether the

public interest issues are still alive, having

regard to the final ruling given by the Commission,

the one that appears at 518?

MR NOLAN: Well, so far as the section lll(l)(g) argument

goes, the public interest arguments are not still

alive because that was dealt with in the October

decision that is now page 509 of volume three of the appeal books. So far as the capacity that the

company retains to go forward with its proposed

section 115 agreements and the other proceedings,

that is not extinguished at all. Rather, it is the

case, and the Full Bench determined as much, and we

would submit it is obvious, that the section 115

proceedings and possible certification of an

agreement are not at all extinguished, compromised

or precluded by the arbitral proceedings themselves

concluding, because the terms of the Act provide

that the agreement can be made and it will come in

over the award.

So to the extent that there is a public

interest argument in favour of the section 115

agreements, that is a proposition that is not

touched at all by the continuance of the arbitral proceedings in that sense. Obviously if an award

Hoyts(3) 68 18/3/93

is made, the Union would say, "Well a public

interest consideration in not making the agreement
is the fact that the award has been made", but
these are facets of the, I would have thought,

continuing contests about where the public interest

lies in the competing contentions of the parties.

It has to be always borne in mind, we would

say, that the real contest for all practical

purposes was between the Hoyts proposed award and

the Union proposed award. The Hoyts proposed

award, by process of the section 115 certification

application, was an endeavour at least, to convert

points claimed into the section 115 agreements,

then an endeavour to persuade the Commission that

the whole arbitral proceedings ought to fall over

because the Commission was somehow or other legally

obliged to certify the Hoyts award in the guise of

the sec~ion 115 agreements.

So, looked at in that light and looked at in

view of, I think almost, three years of proceedings

where these very issues about the competing awards

were litigated with great vigour, the Commission,

we would say, was entitled to make the decision it

made on 22 October to decline the section lll(l)(g)

argument and, in so doing indicate that it really

did not need to hear two weeks of evidence to make

its mind up about that.

GAUDRON J: But you do say, do you, that all the public

interest arguments which could be made by reference

to the individual employment agreements and the

applications made with respect to them under

section 115, were available to be made in the
substantive proceedings, and are issues in the

substantive proceedings?

MR NOLAN: Well, in relation to what the content of the

award was, certainly, because Hoyts were

saying - - -

GAUDRON J: Well, as to whether or not there would be an

award.

MR NOLAN: - - - this is the award - yes. Hoyts said, and

indeed, in its written submissions in the

section lll(l)(g) argument - - -

MASON CJ: They said the same issue, really.

MR NOLAN:  It postulated a list of alternatives. The last

of the alternatives was, "If you will not accede to

these other applications, make the award that we

say you should make in the arbitral proceedings.

That was the last on the list.

Hoyts(3) 69 18/3/93

MASON CJ:  So you are saying that the scope of the public

interest issue, under lll(l)(g) and under 115, are

identical?

MR NOLAN:  I think, for all practical purposes in this

context, it was, because it was hard to see, and

the bench could be excused for coming to its

decision, where there was some new or additional

element that added something to what had already

been put about the merits of the Hoyts proposed

award and, indeed, that invitation was put to

Mr Douglas by His Honour Justice Boulton in the

course of the argument, when Justice Boulton said,

"Well what is this evidence that you want to call

that illuminates this new point?", and Mr Douglas

did not particularize any evidence at all. He

said, "Evidence relevant to exhibit 256", which was

the written submissions.

So, we would say, in the circumstances, the

Commission was entitled to take the course that it

did because it was not convinced - albeit after it

made an invitation in specific terms about exactly

what this new evidence would be - that the new

evidence was such as would make any important

difference. Indeed, it was said by Hoyts, "We want

to call new evidence and what we will need is two

weeks in more than one sitting in the country to

call new evidence on this point." The bench, after

three years of exhaustive award deliberations, made

the decision they did.

MASON CJ: What, they said one expert, 40 employees and that

it would take over 40 hours?

MR NOLAN: That is right. I think it was 42. It might have

40 and an expert or something like that.	So the
bench was - - -

MASON CJ:  Was any indication given of the nature of the expert evidence that was to be called?

MR NOLAN:  Not as I read the transcript and, as I said,

His Honour Justice Boulton made that specific

inquiry when it was asked of Mr Douglas for the

company, "Well, what is this evidence that you

propose to call?", and the response that he was

given was less than illuminating because Mr Douglas

said, "Evidence relevant to the exhibit", which was

the written submissions. And viewed against the

background of the proceedings, we would say that

the bench was entirely entitled to take the

decision it did to rule against Hoyts and say, "We

will listen to your submissions. You have made

written submissions and you have had two days

before us explaining those written submissions

about why we should accede to your

Hoyts(3) 70 18/3/93

section lll(l)(g) argument, but we decline to allow

you to call two weeks of evidence on this

submission", and we would say that section 110 of

the Act plainly allows the Commission to make that kind of decision about whether or not it will hear

additional evidence. There was no unfairness

involved in what had occurred in view of the

context of the award proceedings and what the

issues were.

MASON CJ:	What section were you referring to there?
MR NOLAN:	Section 110 of the Act, which says, of course,

that governs a procedure of the Commission, and

goes on, in familiar terms, saying the Commission

will not be "bound to act in a formal manner" and

so on, and acts:

ac-0ording to equity, good conscience and the

substantial merits of the case, without regard

to technicalities and legal forms -

and so on. The Commission may also:

determine the periods that are reasonably
necessary for the fair and adequate

presentation of the respective cases of the

parties -

and so on, and it can require evidence to be put in

writing. So there was a substantial written

submission made on the section lll(l)(g) argument,

followed up by two days of argument, and at the end

of those two days, when the matter was drawing to a

close, there was an exchange between the advocate

for Hoyts and the bench, and this is where this

issue of possible misleading of Hoyts by the bench

arose, when this assumption was made - you will

recall the bench said, "We will make an assumption

about the certification about these agreements and	that assists us in disposing of this section 111
argument".

Now, what occurred was - that discussion took

place on 5 October. Perhaps the best place to pick

it up is at page 437, although there are prior

indications by the Commission that they will take

that course, and I should say this, there is quite

an extensive discussion of this. At the middle of

429, Justice Boulton says to Mr Douglas:

I think you can take it that for the

purposes - - -

MASON CJ: Well, the discussion is extensive, but it is not

very illuminating. What is the point you want to

make arising out of - - -

Hoyts(3) 71 18/3/93

MR NOLAN: Well, the point I want to make is that it cannot

be said, in our submission, that there was some

misapprehension created for Hoyts because, if one

goes to page 443, when the matter resumed on the

next day, Mr Douglas starts his submissions in the

morning by saying that they took the Commissions

ruling to mean that, "the agreements will be

certified", and he goes on to say, at line 15:

with the benefit of reflection overnight, we
welcome those rulings because they simplify

the nature of the section lll(l)(g)

application in that we are able to move

forward on the assumption that the agreements

will be certified.

And, further down the page, after there is an

exchange between Mr Douglas and Justice Boulton,

Justice--Boulton says; at line 32:

We did not make any ruling to that effect,

Mr Douglas, and I am not going to sit here and debate with you our ruling, because you know

as well as I know the ruling that we made, and

you know also that we gave you a direction

yesterday to proceed to put your

section lll(l)(g) argument, and as you said

yesterday the only matter that you had left to
put in relation to that was the question of

public interest under section lll(l)(g)(iii),

and I would be pleased if you would proceed to

put your argument if that is what you so

desire.

Then the rest of the day consists of those

arguments being put and further exchanges between

the bench and Mr Douglas for the company, and then

finally, after lunch, at page 465 of the appeal

book, the ruling is made where Justice Boulton

says: 

In these proceedings relating to the

section lll(l)(g)(iii) application the Hoyts
Corporation has sought to call further

evidence. In the proceedings on 5 October

1992 the commission ruled that for the

purposes of a section lll(l)(g) application we

did not require to hear any further evidence

in relation to various matters outlined by

counsel for the Hoyts Corporation. Those matters mainly related to the section 115

agreements and requirements of section 115.
In the proceedings this morning the Hoyts
Corporation sought to be allowed to call

further evidence in support of the

section lll(l)(g) application.  The unions

oppose this course.

Hoyts(3) 72 18/3/93

Counsel for Hoyts indicated that it was sought
to call evidence from one expert witness and

40 employees of the Hoyts Corporation, and

that this evidence would take approximately

42 hours to hear. The evidence, it was

explained, would be directed to supporting
various submissions which were outlined for

counsel for Hoyts and a number of contentions

set out in exhibit D260. To the extent that

the contentions in exhibit D260 relate to the

section 115 matters before the commission, we

consider that they are covered by earlier

rulings made by the commission and that

further evidence relating to these is not

necessary in the context of the present

application.

The other contentions in that exhibit in our

vrew relate to matters which are relevant to

the determination of the merits of the

substantive matters before the commission.	We
consider that in relations to these matters the parties have had the opportunity to present such evidence to the commission and

that it is not necessary or desirable to allow
further evidence to be called at this stage,
and in the context of a section lll(l)(g)
application. In relation to some of the
matters or submissions in relation to which

further evidence is sought to be called,

namely the history of the proceedings,

compliance with national wage principles and

the content of the award or agreements

proposed by Hoyts, we consider that there is

already sufficient material before the

commission without the need for the calling of

further evidence, or that such matters may be

adequately covered in submissions.

Finally, we note that the submissions put by

the MEAA relating to attempts by the Hoyts

Corporation to delay the proceedings before

the commission by seeking the calling of

further evidence in addition to the very

extensive evidence and material already

presented. We also note the special nature of

the power conferred by section lll(l)(g) as

referred to by the High Court, see Re

Australian Bank Employees Union ex parte
Citicorp Australian Limited, (1989) 167 CLR

513. In all the circumstances we consider

that we will not be assisted in determination

of the section lll(l)(g)(iii) by hearing any

further evidence.

That is the ruling of the commission in relation to the question concerning the

Hoyts(3) 73 18/3/93

calling of further evidence. In the

circumstances, we now provide an opportunity for Hoyts to present any further submissions in relation to the section lll(l)(g)

application. We would also indicate that

having regard to section 110 of the act we
have decided to limit the period for the

presentation of further submissions in this

matter such that the Hoyts Corporation should

complete its submissions by the finishing time

for the commission this afternoon, which will

be a quarter past four.

And then the submissions resume, and there is some

exchange, and so on, and the day ends. But the

Commission made quite clear its ruling and was

careful to refer to the fact that many of these

matters __ were before it in the substantive

proceedings had already been the subject of

evidence. So that was made, and I note that there

was no suggestion made after that ruling to the

effect that those assumptions that were said to be

made on the previous day had somehow or other

misled Hoyts; that debate having already taken

place in the morning between Mr Douglas and

Mr Boulton, where the ruling was clarified.

So, that was the way the matter proceeded and

the bench issued its decision, dated

22 October 1992, following that exchange and

dealing, as it did, with the section lll(l)(g)

application. Can I refer very briefly to aspects

of this decision? That is at page 510 of the

appeal book.	The bench first of all deals with the
orders sought.

MASON CJ: What are you trying to bring out about - - -

MR NOLAN:  I am just trying to indicate to Your Honours that

what the bench has done, in a very considered way,

is dealt with the lll(l)(g) arguments and dealt

with the decisions that it has made in the manner

in which it has dealt with the section lll(l)(g)

arguments every time it has been obliged to do so

and it has done it in a very careful way, and it cannot be said, when one reads this decision, we would submit, that the bench has acted without

jurisdiction, because it has been particularly

careful to canvass the competing contentions that

have been made by the parties and come to an

appropriate conclusion, bearing in mind its

statutory duties.

In relation to this issue of further evidence,

can I just point quickly to the middle of page 513, because there this issue of the further evidence is

Hoyts(3) 74 18/3/93

specifically raised by the bench.	They say there,
about point 3 on the page:

In the proceedings on 6 October 1992, the

Hoyts Group sought to rely on various other

grounds, additional to the grounds set out in

the written submissions tendered to the

Commission ..... In response to questions from

the Bench, counsel for Hoyts outlined the

further grounds and evidence sought to be

relied upon. The following extract from the

transcript for 6 October is relevant.

And then there is extracted the debate that took place, and I note, over the page, at about 514 point 3 there is that concession made again that the Hoyts award, which had become D137 in the

proceedings, the proposed Hoyts award that was, was

referrad to and that, of course, was exactly the

same document that had been recast as a section 115

agreement in the certification proceedings, and

when Mr Douglas was asked what evidence was

proposed to be called; he replies:

Evidence to cover the points in D260.

At the middle of the page. Now, over the page at

515 point 3, the Commission says this:

The Commission considered the submissions of the parties and ruled against allowing the

Hoyts Group to lead further evidence relating

to the s.lll(a)(g) application. The

Commission also decided pursuant to s.110 of the Act to limit the period for the presentation of further submissions by the

Hoyts Group in relation to the s.lll(l)(g)

application -

and the ruling is thereafter extracted. Then they

go on at the middle of page 517 to consider the operation of section 111 and they observe that:

This provision confers a discretion on the

commission to be exercised having regard to

the relevant facts and circumstances regarding
matters or disputes before it and the

consideration of the public interest.

And over at page 518 they make the observations

they do about the assumptions they made in the

context of coming to their decision. They say:

we make no ruling at this stage about these,

for the purposes of this decision regarding the s.lll(l)(g) application we have assumed that the various s.115 agreements between the

Hoyts(3) 75 18/3/93

Hoyts Group and employees meet the

requirements of s.115 - - -

MASON CJ:  What does that expression "meet the requirements

of section 115" mean?

MR NOLAN: Well, Your Honour, there was a debate about

whether in fact those agreements could ever meet

the requirements of section 115; whether they were capable of certification because of issues such as the absence of any relevant dispute that would give

rise to the section 115 agreements, for example.

So the bench was disposed to say - and I should

also add there, there was at that stage scheduled

and, I think, still to take place, a whole series

of issues relating to whether or not these

agreements could in fact be certified; whether they

could spring from an industrial dispute, and so on.

So that __ raft of issues, we would say, in the

Commission's decision, were really resolved for the

purposes of this exercise in favour of Hoyts so

the - - -

MASON CJ:  What about the public interest consideration

under 115(4)?

MR NOLAN:  The public interest consideration - can I say it

this way: even if the public interest

consideration was resolved in favour of Hoyts for

the purposes of an academic exercise, of course, it

would not preclude the award being made first if

later in time the section 115 agreements were to be

made.

MASON CJ:  But do you say that it was resolved by way of

assumption in favour of Hoyts at that stage?

MR NOLAN:  I think one would have to say that, reading the

words that the Commission used.	So even if all
those things were resolved, it would be our

submission that that would not necessarily lead to

the automatic conclusion that was urged on the

Commission itself that it then had to certify.	The
Commission was only making these assumptions for

the purposes of dealing with the section lll(l)(g)

argument and it said effectively, "Assume this

proposal does not have those attendant difficulties

and go on from there for the purposes of the

section lll(l)(g) application".

It goes on from there and says it was doubtful

in the bench's view that the certification of the
agreements "would resolve all the matters in

dispute which are before the Commission in the

present proceedings". They adopt that view because

the two unions involved in the proceedings are not

party to any of the agreements and the agreements

Hoyts(3) 76 18/3/93

have not been entered into by all relevant

employees of. the Hoyts Group.

MASON CJ:  The Court need not trouble you further, Mr Nolan.

Mr Bell?

MR BELL:  If Your Honour pleases, I hand to the Court my

outline of argument, a chronology and two cases

that are not on my list of authorities.

MASON CJ: 

Mr Bell, you might, as it were, consider your

submissions in the light of what was put by
Mr Nolan and the fact that the Court stopped

Mr Nolan.

MR BELL:  Yes, Your Honour. I do not desire to say anything

more than is in my written submissions, unless the

Court has any questions to ask of me in relation to

them.

MASON CJ:  The Court need not trouble you further, Mr Bell.

Mr Merkel?

MR MERKEL:  Just a few minor matters, if the Court pleases.

There was reference on a number of occasions to

exhibit D260. Can I just indicate to the Court

when the rulings were referring to that exhibit,

that was the written submission handed up which was

exhibit MGC26 at page 494 of the application book.

The second point we would make is that my

learned friend Mr Nolan in his submissions did
accept the foreclosure position that we put and
also that the issues being considered in the

arbitral and the conciliation proceedings are the

same.

The third matter is that there was some

reference by him to rulings of the Commission.

I just indicate how we would answer the question Can

Your Honour the Chief Justice asked my learned

friend about the ruling at page 518 of the

application book. What the assumption must have

been was that the agreements would be certified,

which is consistent with what

Deputy President Polites said at page 437, and we

say that ultimately what the effect of the decision

is is a departure from that assumption, for the

reasons we had set out this morning and late

yesterday. If the Court pleases.

MASON CJ: Thank you, Mr Merkel. The Court will now adjourn

to consider this matter and the Court will

reconvene at 4.15. The Court may be able to give a

decision on the matter at that stage.

AT 3.16 PM SHORT ADJOURNMENT

Hoyts(3)	77	18/3/93
UPON RESUMING AT 4.19 PM:

MASON CJ:  The Court is in a position to deal with this

matter now. The answer to the applicants' case for

relief in this Court is that the decisions of which

the applicants complain have been made in the
course of the exercise by the Full Bench of the

Australian Industrial Relations Commission ("the

Commission")of the wide discretionary powers

conferred upon it by the Industrial Relations Act

1988 (Cth) ("the Act"), particularly ss.110 and

111, with respect to the procedure to be followed

in the hearing and determination of matters before

it.

Questions relating to the joinder of

proceed±ngs with the same or related issues,

whether such proceedings should be heard together,

successively or separately, and the order in which
they are to be heard are issues which ordinarily

and frequently arise in the exercise of the

Commission's jurisdiction. They are not questions

which go to the existence of jurisdiction.

Furthermore, nothing has emerged in the present case to indicate that what the Full Bench

has done is inconsistent with the duties imposed

upon the Commission by the Act. So far as the

arbitral proceedings are concerned, they had passed

beyond the stage of conciliation. The Full Bench

was therefore entitled, if not bound, to resolve

them by recourse to arbitration in accordance with

the Act.

The Full Bench was under no duty to deal first

with the certification proceedings in which the

applicants sought certification of agreements with
certain of their employees under s.115.	As we have
already indicated, the order in which the

proceedings were to be heard was a matter for the

Full Bench to decide as a matter of discretion.

Section lll(l)(g)(iii) confers a discretion on

the Commission which is to be exercised in the

light of the relevant facts and circumstances as

they bear on the public interest. Ascertainment of
where the public interest lies is very much a

question of fact and degree, but the public

interest in the question whether further

proceedings of an arbitral kind are not necessary

or desirable is not necessarily identical with the public interest in the question whether agreements

should be certified under s.115.

Hoyts(3) 78 18/3/93

Therefore the question whether the agreements

in the present should be certified was relevant to,

but not conclusive of, the question whether the

arbitral proceedings should be continued. The

power conferred by s.lll(l)(g)(iii), if exercised,

is one which defeats a prima facie right to have

jurisdiction exercised. It is therefore a power to

be exercised with due circumspection on a proper

consideration of the relevant materials.

However, when a party makes application for an

exercise of the power, the Commission must afford
the applicant a reasonable opportunity to allow his

or her case to be put and, in appropriate

circumstances, mandamus will go to enforce that

obligation. This does not mean that the Commission

has no discretion to decide when it will deal with

the application. The Citicorp Case (1989)

167 CLR 513 does not deny the existence of such a

discret-~on. Mandamus was granted in that case

because there was a refusal to exercise the power
based on the erroneous view that it could be

exercised only after a finding of dispute.

The case for relief here falls far short of a

refusal to embark upon an exercise of the power.

The Full Bench recognized the existence of the

power and gave comprehensive consideration to the

arguments telling in favour of and against the

exercise of the power, concluding ultimately that the Commission should not refrain from exercising the principal jurisdiction conferred by the Act.

Accordingly, there was no actual or constructive

refusal to exercise jurisdiction under

s.lll(l)(g)(iii).

The decision not to allow the applicants to

call further evidence did not, in the circumstances

of this case, amount either to a refusal to

exercise jurisdiction or to a denial of natural

determine, in the light of the knowledge which it	justice. It was, we think, for the Full Bench to
already had of the history and facts of the relevant proceedings, whether the evidence which the applicants sought to tender would throw light
on the issues which fell for decision.

In that respect, the Full Bench was prepared

to make certain assumptions in favour of the

applicants for the purpose of dealing with the

application under s.lll(l)(g)(iii). They were:

(1) that jurisdiction existed under s.115 to make

the certification order sought; and (2) that the

agreements were capable of being certified. In its

decision on the s.lll(l)(g)(iii) application, the

Full Bench said:

Hoyts(3) 79 18/3/93

In the course of the present proceedings,

the Commission indicated that for the purposes
of the s.lll(l)(g) application we did not

require to hear further submissions or

evidence from the Hoyts Group in relation to

the question of jurisdiction concerning the

s.115 agreements or matters relating to
compliance with the requirements of s.115.

Although we make no ruling at this stage about

these, for the purposes of this decision

regarding the s.lll(l)(g) application we have

assumed that the various s.115 agreements

between the Hoyts Group and employees meet the

requirements of s.115 and are capable of being

certified by the Commission under that

section.

On the basis of the Full Bench's willingness

to make_ these assumptions as a foundation for its

consider-ation of the application, we conclude that

the Full Bench's decision not to receive the

evidence did not amount to a denial of natural

justice or a refusal to exercise jurisdiction. In

reaching that conclusion, we are mindful of what
the Full Bench said in giving its reasons for

refusing the application under s.lll(l)(g)(iii).

The Full Bench observed:

It is doubtful, in our view, that the

certification of the s.115 agreements will

resolve all the matters in dispute which are

before the Commission in the present

proceedings. We adopt this view because the

two unions involved in the proceedings are not

party to any of the agreements and the

agreements have not been entered into by all

relevant employees of the Hoyts Group.

The Full Bench went on to say:

Despite what has been put (by] the Hoyts Group

we do not consider, having regard to the
history of the present matters and disputes
before the Commission, that all the matters in
dispute between the parties to the proceedings
will be resolved by the certification of the

s.115 agreements. We believe it would not be

appropriate, as a matter of discretion based

on public interest considerations, to make any

of the orders sought by the Hoyts Group to
stay part of the present proceedings on the
basis of developments regarding the s.115

agreements.

Later, it said:

Hoyts(3) 80 18/3/93

We have not been persuaded, on the basis

of the submissions or material presented by

the Hoyts Group in support of the s.lll(l)(g)

application, that we should make any orders to

dismiss or refrain from hearing the unions'

applications for the making of awards.

However, apart from this, we do not consider

that the public interest would be served in

the circumstances of the present matters and
disputes by allowing one party to overturn the

orderly process established by the Commission

directed towards allowing relevant issues,

arguments and material in relation to the

present matters and disputes to be presented

by all parties and considered by the

Commission.

The Full Bench then referred to its earlier

decisiQn in which it said:

We would add that no ruling has been made by

the Bench which prevents the parties from

referring to the s.115 agreements and their

implications etc. during the course of their

submissions in the present matters. Indeed we

note that the agreements have been raised in

the examination and cross-examination of

witnesses called in these proceedings

and went on to say that it would be open to the

Hoyts Group to raise the question of joinder again

and, if it did, the Commission would consider and

rule upon it.

Although the effect of the statements quoted

above is not altogether clear, we consider that the

Full Bench was stating that the public interest

issues, including those arising out of the

applications made under s.115(4) and the issues

advanced in relation to the respondents' claims,

remain for determination before the Commission

proceeds to make final awards.

It is, of course, open to the Commission even

now to give consideration to the exercise of its

power under s.lll(l)(g)(iii) on the basis of

appropriate public interest considerations. If we

have misinterpreted the Full Bench's statements and

it does, in fact, regard public interest issues as

foreclosed by the rulings that it has already made,

the applicants will be able to take appropriate

steps with a view to rectifying that situation.

There is one remaining issue concerning the

application under s.lll(l)(g)(iii). The applicants

contend that, having regard to the assumptions made

by the Full Bench when it rejected the application

Hoyts(3) 81 18/3/93

to call further evidence, nothing remains to be

determined in the arbitral proceedings. This

submission is based on the effect which is given to

a certified agreement by s.116. However, in the

light of the matters which remain open for

determination and which were identified in the Full

Bench's ruling on the application under

s.lll(l)(g)(iii), we do not think that the

applicants' contention can be sustained.

Finally, it is said that, as a matter of

implication, s.116 of the Act has the effect that applications for certification must be dealt with before the Commission exercises arbitral powers

with respect to the matters dealt with in the

agreement. Section 116 relevantly provided:

(1) While a certified agreement is in force:

(a) the terms of the agreement prevail over

the terms of an award or an order of the

Commission binding on the parties to the

agreement that deals with the same

matters;

(e) the Commission shall not exercise

arbitration powers in relation to the matters

dealt with in the agreement.

The argument with respect to s.116 must fail.

There is no basis for an implication extending the

operation of the section beyond its clear terms.

The applicants' motion is therefore dismissed.

AT 4.30 PM THE MATTER WAS ADJOURNED SINE DIE

Hoyts(3) 82 18/3/93