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

[1993] HCATrans 78

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
LTD, VILLAGE ROADSHOW
DRIVE-IN (ESSENDON) PTY LTD,
VILLAGE ROADSHOW OPERATIONS

Hoyts(3)	1	17/3/93
MASON CJ BRENNAN J GAUDRON J

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

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 17 MARCH 1993, AT 3.28 PM

Copyright in the High Court of Australia

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

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

(instructed by Mark G. Caldwell)

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

second respondent, The Media Entertainment and Arts

Alliance. (instructed by Slater & Gordon)

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

the third respondents named in the application.

(instructed by Holdings Redlich)

MASON CJ: Yes, Mr Bell. The Deputy Registrar has certified

that she has received a letter from the Australian

Government Solicitor dated 4 December 1992,

advising that the first-named respondents do not
wish representations to be made on their behalf at

the hearing of this matter and will abide by any

order of the Court. Mr Merkel.

MR MERKEL:  If the Court pleases, can we hand up to

Your Honours several documents: the first is the	outline of our submissions and also a chronology;
we would also hand up a small folder of cases we
will be briefly referring to; and finally, could we
hand up a bundle of documents which constitute
dispute findings which are before the Court in another matter, but are not before the Court in
this matter.

MASON CJ: Yes.

MR MERKEL:  If Your Honours please, the prosecutors do seek

leave to file an affidavit, which in effect brings

the matter up to date, which was in a third volume

of the application book. Can I just indicate to

Your Honours that we would seek the leave although

Hoyts(3) 2 17/3/93

we do not ask that the first sentence of

paragraph 6 of the affidavit, about which I believe

there may be some point of contention, be treated

as not read. The purpose of the affidavit is to

bring proceedings in the Commission up to date and

it may be that my learned friends, as I understand

it, do not join issue with our right to relief if

we make good our submissions as a matter of law,

and it may be that these matters and the material

in this third volume, if that be the case, would

become irrelevant, but it is designed to show that

the Commission is proceeding to deal with, what has

been referred to, "the arbitral matters", in

disregard of its conciliation proceedings.	But if
I could return to that at a later point, if I
might, Your Honours.

The problems that have arisen in the present

application stem from the fact that on any view the

proceed~ngs in the Commission involving the

arbitral proceedings and what was referred to in

the materials, "the conciliation proceedings",

involve one overall contest between the same group

of interests arising out of a common set of facts.

I should indicate to Your Honours that case No 7 on

our list of authorities - - -

GAUDRON J:  But that must surely be in dispute. That

fundamental proposition must surely be in dispute.

The finding against you by the Commission at some

stage in the third volume, or elsewhere, was that the 115 agreements would not resolve the dispute,

because neither organization of employees was party

to it and because there were employees who were not

parties to the agreement, and one might also

assume, I imagine, that there might be future

employees who would not be parties to them.

MR MERKEL:	Your Honour, I will deal with each of those matters by reference to the agreements, but can I
I just used did come from a judgment of this Court just indicate to Your Honour that the wording that
in case No 7, which is the Finance Sector Union of position was confronting the Commission, where the
Commission had proceedings by a union for an award,
proceedings by, in that case, the staff association
representing not all staff, but a large number of
staff, for certification under section 115 and both
dealt with the terms and conditions of employment
and the form of regulation of that employment and what Your Honours said re Finance Sector Union of
Australia; Ex parte Illaton, 66 ALJR 583, and at
page 584 paragraph B - this is case No 7, Your
Honours.

GAUDRON J: It is in a bundle?

Hoyts(3) 3 17/3/93

MR MERKEL:  It is in a bundle of cases I have handed up,

Your Honours, and they should be in numerical

sequence. The second column page 584, the cases

should be numbered at the top.

GAUDRON J: Second column, B?

MR MERKEL:  Yes, Your Honour, at page 584, where there was a

section lll(l)(g) application - - -

GAUDRON J: But that was a different case.

MR MERKEL:  I understand that it was a different case,

Your Honour, but the same issues arose, that there

was a union seeking an award in respect of terms

and conditions of employment, staff associations

seeking certification of agreements under

section 115, which the unions were not party to and

of the ~ase. But what Your Honours did say at that

there were questions of whether the Deputy

paragraph is that the:

proceedings are, however, related proceedings
between the same interests. Indeed,
both ..... must be seen as steps in one overall

contest between the same group of interests

and arising out of a common set of facts.

And there is a reference again, just opposite D,

to:

what is, in essence, one overall contest.

Now I will make good, I would hope, the point that

when one looks at what the contest is by reference

to the agreement sought to be certified and the

provisions of the Act, particularly section 116, we

would submit that that statement there is not only

a correct one, but it holds good and is apposite to

the circumstances of the present case.

BRENNAN J: But what has that got to do with that there is

one overall contest?

MR MERKEL:  Your Honour, because the matter in issue, and we

say the sole matter in issue, between all the

parties, is whether the regulation of terms and

conditions of employment of present and future

employees, including members of the unions at the

Hoyts cinemas, should be governed by an award made

by the arbitral proceedings or should be governed

by the agreements made in the section 115

conciliation proceedings. I should indicate that

when I take Your Honours to the statutory scheme,

Your Honours will see that it is not possible to

Hoyts(3) 4 17/3/93

have both; it is a contest of one or the other and

that is way the statute has provided for it to be.

BRENNAN J: But the question of jurisdiction turns on the

existence of a dispute, does it not, within the

meaning of the Act?

MR MERKEL:  Yes, Your Honour.

BRENNAN J: Irrespective of whether there is more than one

dispute in one overall contest?

MR MERKEL: Well, Your Honour, when I refer to the one

overall contest, there are two aspects: there is

the dispute, which Your Honour correctly says must

exist at the time jurisdiction is commenced to be

exercised and at the time of the award, but when

there are, in effect, two interrelated claims, as
there are in the present case, we say that the

issue for the Commission, and this is the issue

that arose on the section lll(l)(g) application, is

whether the form of regulation in the public

interest should be by award or should be by

certification under section 115.

GAUDRON J: Well, that just means that there is one issue

and it is going to be determined at some stage and

that you have sought to obtain a procedural

advantage by having it determined one way rather

than the other.

MR MERKEL: Well, no, Your Honour, we would submit not; we

would say that what happened is that we were

entitled to bring an application which we did bring

under section lll(l)(g).

GAUDRON J:  To raise exactly the same issue that was an

issue in the proceedings, you say?

MR MERKEL:  We say, Your Honour, that the question

GAUDRON J:	Or do you now say they are different issues?
MR MERKEL:	No, Your Honour.  The question that arose on the

section lll(l)(g) application was whether the

Commission should decline or refuse to exercise its

artibral powers by reason of it being in the public

interest that it not do so.

GAUDRON J: Well, can I just go there to the terms of

section lll(l)(g)? Does it say "arbitral powers",

or does it say "a dispute"? It used to say,

"refrain from further hearing of a dispute" when it

was section 4l(l)(d), did it not?

MR MERKEL:  Yes, it may "dismiss a matter or part of a

matter or refrain from further hearing or from

Hoyts(3) 17/3/93

determining" industrial dispute "if it appears

that" - - -

GAUDRON J: But it is in relation to it, yes. It is in

relation to an industrial dispute.

MR MERKEL:	Yes, Your Honour, and the question of the dispute findings made it clear that the dispute
that was found and the jurisdiction that would have to be exercised in respect of that dispute at that
point of time related to what had been referred to
as the arbitral proceedings.
GAUDRON J:	So you did not want it to refrain from dealing with the dispute; you wanted it to re~ in from
dealing with it in particular proceed_

MR MERKEL:  No, Your Honour. The dispute as fourd by the

Commission related to a dispute arising from the unions' various notifications and findings in respect.of a dispute between the unions and the

employers. There had yet to be a finding that

there was an industrial dispute between the

employers and their individual employees, and the

problem that has arisen in the present case,

Your Honour, aro~e from two sources: the first is

that the Commission, accepting as it had to, that
the section 115 agreements were at least of

relevance to the arbitral proceedings, sought to in

effect short circuit the section lll(l)(g)

application by assuming that the agreements would

be certified and, proceeding on that basis, we say

that led it down a path which was impermissible and

caused anomalies.

GAUDRON J: Did you want to lead evidence to show that they

would be registered?

MR MERKEL:  We wanted to lead evidence to two matters,

Your Honour: the first was that they would or

would be likely to be registered -

GAUDRON J: Well, that was assumed for you.

MR MERKEL: That was assumed for us, Your Honour, and we say

that carries some particular consequences, but we

also wanted to lead evidence on a second aspect

which we were denied the opportunity of doing,

namely that it was positively in the public

interest that the matter proceed by resolution

under section 115. Section 115 itself merely

requires certification unless it is contrary to the

public interest.

GAUDRON J: Well, can I be quite clear. You say that there

are two distinct disputes before the Commission:

one being between the Hoyts companies and the two

Hoyts(3) 6 17/3/93

unions, being the dispute which arises out of the
various notifications going back to the

Canberra agreements and involves the service of a log of claims and the service of a counter log by

the Hoyts companies, being in all seven or eight

different matters, seven or eight different

C numbers.

MR MERKEL:	Your Honour, on the findings of dispute, yes.
GAUDRON J:	And then you say there is another dispute, quite

separate, being a dispute between the Hoyts

companies and their individual employees.

MR MERKEL:  We say, Your Honour, that that is part of the

same dispute, but we have yet to have a finding of

dispute to that effect.

GAUDRON J:  You say it is part of the same dispute? Well

then, come back to section lll(l)(g). You just

want them to refrain from determining part of the

industrial dispute?

MR MERKEL:  No, Your Honour, we have been urging the

Commission and, indeed, an order nisi was sought

before Justice Dawson just prior to Christmas on

the basis that our application to the Commission to

revoke its previous findings to treat the matter as

one industrial dispute, which would avoid all these
problems that we now have, be dealt with by the

Commission and the Commission at that stage had not

dealt with it and it had in fact adjourned it

indefinitely. His Honour declined the order nisi

on the ground that the Commission had not finally

refused to deal with our application to vary those

dispute findings, so we come to this Court in the

situation where my answers to Your Honour were

governed entirely by not what we wish to contend,

but what we are bound to abide by being the

findings to date within the Commission.

GAUDRON J: Well, there is no finding yet with respect to

you and the individual employees?

MR MERKEL: That is correct, Your Honour.

GAUDRON J:  That is correct. So you want the Commission to

refrain from dealing with the dispute which

involves the six, seven or eight C numbers, pending

a proceeding which must start on the basis of

determining whether or not there is in fact any

dispute in that matter?

MR MERKEL:  Your Honour, that was one of the applications

put. The primary application put to the Commission

was that it must, as a matter of logic and

principle, deal with both matters together at the

Hoyts(3) 17/3/93

very worst, because they could not resolve the

arbitral proceedings without having disposed of the

section 115 applications, but they have declined to

do that. That has given rise to the problem.

GAUDRON J: Yes, well that is the whole point, is it not?

Does it follow that the whole of the dispute involving the six, seven or eight C numbers is

irrelevant, because you say there is a dispute

between you and different individual employees who

do not constitute the entire workforce.

MR MERKEL:  But, Your Honour, that is not what we say. What

we say, Your Honour, is that if - - -

GAUDRON J:  I know that is not what you say, but the

Commission said, even if you are right in all these

matters, it does not resolve the entire dispute.

MR MERKEL:  But, Your Honour, we say that that is not

correc~, because if the agreements are certified,

there will be no matters remaining in dispute by

reason of the provisions of section 116.

GAUDRON J: Well you want to challenge the Commission's

findings that there are 150 employees who were not

parties to the agreements?

MR MERKEL: 

No, Your Honour, we do not wish to challenge the

findings on those questions of fact; there is no
dispute about the facts.

GAUDRON J: There are 150 - - -

MR MERKEL: There are employees who are not signatories, but

the terms of the agreement, Your Honour, have two

effects. As with an award they govern the

employment of present employees and future
employees who are not parties to the agreement and

that will have the force of law and the Commission

has assumed that that is so, although without

turning its mind to the precise effect of what that

assumption contains, and it also deals with the
rights of the union, which also will have the force

of law.

So when I say to Your Honour that upon

certification of the section 115 agreement there

will be no matter remaining in dispute, that is so

and that is the result procured by section 116, the

point being that the concentration of the

Parliament is on matters in dispute and that is why

I said at the outset that ultimately what is before

the Commission is the choice of two alternatives

which do not, as a matter of reality and under the

Act, permit both to be running together; it is one

or the other. And that was the point that arose

Hoyts(3) 8 17 /3,

under the section lll(l)(g) application.	And it
was an inescapable point.	The problem that
arose - - -

GAUDRON J:  Where do we find that it regulates the terms and

conditions of persons who are not parties to the

agreement?

MR MERKEL:  Your Honour, I have to take you to the agreement

itself and I was going to do that in hopefully an

order that raised the points, but the terms of the

agreement itself are at clause 1.2(2) and the

agreement is exhibit MGC12.	It is in volume one at
page 214.

GAUDRON J: There is nothing in the repealed provisions that

gives statutory force to agreements binding persons

who are not parties to them?

MR MERKEL:	I think, Your Honour, the - - -
GAUDRON J:	I ani looking at the repealed sections.
MR MERKEL:	Yes, Your Honour, it is a little more

complicated. The repealed sections 115 and 116,

Your Honour, provide in 116(4) that:

An award constituted by a certified agreement

is binding on:

..... the parties -

all members of an organization that is a

party -

GAUDRON J: But there is no organization that is a party.

MR MERKEL:  That is so, Your Honour. So it will bind each

of the parties - - -

GAUDRON J: That is the individual employees and the Hoyts

company.

MR MERKEL:  Yes, Your Honour, but the individual employees,

Your Honour, have agreed with the terms and

conditions of employment of non-signatory employees

and future employees - - -

GAUDRON J: Well, that cannot bind then, can it?

MR MERKEL: It binds the employer, Your Honour.

GAUDRON J: But it cannot .

MR MERKEL:  It binds the employer, Your Honour. One of the

problems that - in the same way, Your Honour, as

Hoyts(3) 9 17/3/93

under the Burwood Cinema's and Metal Trades

doctrine.

GAUDRON J: Well, that is exactly - you have got a very

fundamental problem to overcome have you not,

except that it is the Graziers' position? One can well understand a dispute with the union as to the

terms and conditions to be applied to non-union

members. One wonders how you can turn that around

as you now seek to do in the agreements.

MR MERKEL: Well, Your Honour, this problem was not our

making; if the Commission had confronted that issue

rather than it assumed it in our favour and dealt

with the substantive issue on the section lll(l)(g)

application, I would not be having this discussion

with Your Honour. The problem arose because the

Commission, to take a short cut, which has caused

all these problems, made a number of assumptions in

our favour, one of which was that the agreement was

one that was capable of being certified and would

be certified, was not contrary to the public

interest and was in the interest of the parties

immediately concerned. Now, Your Honour, that has

led to all of the problems because having made that

decision, having prevented us from calling evidence

on that issue as well as the positive issue, we say

that there was only one result open and that would

be to have not proceeded in the arbitral

proceedings by reason of one of the alternatives we

raised before the Commission.

So our problem in the present case does not

require us to satisfy this Court that the scheme of

this agreement is within power and there is power

under the Act for an employer to be bound by terms

of a certified agreement which are enforcable

against it by present and future employees - the

Burwood Cinema's point in that situation - because

what we have sought from the Commission from the

outset and, if the Commission had confronted it,

this problem would not have arisen, is to have

these matters dealt with and considered as part of

what I started off describing as the one contest.

GAUDRON J: But do you want them to decide it first?

MR MERKEL:  No, Your Honour. We wanted them to deal with an

application under section lll(l)(g) - - -

GAUDRON J: First?

MR MERKEL:	But they did agree to do that, Your Honour.
GAUDRON J:	And they did and they decided it against you.

Hoyts(3) 10 17/3/93

MR MERKEL:  But they decided it against us in two

circumstances: they prevented us from calling

evidence by making assumptions; the assumptions

which they made inevitably produced the result that there could not properly be an arbritral process in

respect of the union claims. So that our primary

relief before this Court, we would say, is to

enable us to have our section lll(l)(g) application

determined in accordance with law, without the

falsity or the artificiality of assumptions which,

we said, must be in our favour, but were used

against us, and the Commission could then consider
the very point Your Honour has raised with me,

whether in fact it will resolve the dispute.

GAUDRON J:  Now, let us go back to that point. Assume it

imposes an obligation on you; it imposes only an

obligation as to minimum conditions with respect to

persons who do not enter into agreements.

MR MERKEL: It i~poses - it is a minimum rates award,

although it covers a lot more -

GAUDRON J: Well, it is not an award.

MR MERKEL:  I am sorry - an agreement which if certified

would have the effect of an award.

GAUDRON J:  And obliges you to extend the same minimum rates to persons who do not sign the agreements?

MR MERKEL: That is part of it, Your Honour, but it goes

much further; it deals with classification, it

deals with union rights of entry, it deals with a range of matters which were the matters in issue, Your Honour, but on the union log of claims; so

that in substance that the agreements are

exhaustive of all of the relevant terms and conditions that are to govern employment of

employees at Hoyts cinemas, and that is the matter

that the unions are contending in their arbitral

proceedings should be resolved by award not by

section 115 agreements.

What I was about to say before to Your Honours

was that the problems that have beset us on this

application, that led us to make it, are: one,

that the assumptions made under

section lll(l)(g)(iii) in our favour were not able

to be turned against us under the Act, and were;

two, that the Commission has refused to deal with
the section 115 applications both to ascertain

whether there is jurisdiction to certify, and if so

whether certification would occur prior to or

together with the arbitral proceedings. Had those

matters been dealt with in the way we say the Act

requires - - -

Hoyts(3) 11 17/3/93

GAUDRON J:  Does that mean that you should be bringing all

your employees here to Court for a mandamus

directing them to deal with 115 proceedings?

MR MERKEL: 

Your Honour, we are here on a mandamus asking

the Commission to deal with the section 115
proceedings.

GAUDRON J: But you have not got the parties to the 115

proceedings here.

MR MERKEL: That raises a slightly different point,

Your Honour. The employees have not, in fact,

appeared in the Commission, but that may be - - -

GAUDRON J: But if you want mandamus - I mean are their

rights under the agreement not to be - does the

agreement provide that they have no rights to be

heard in respect of matters directly affecting

them?

MR MERKEL:  No, Your Honour. That raises a slightly

different point, Your Honour. That would be the

prohibition and mandamus proceedings. The

employees have not appeared in the Commission, have

sought certification and have made application for

certification, and since that date the application

books tell Your Honours what has happened. But

what has happened primarily is that the employers

have put to the Commission that the matters we have

raised are not procedural, they are substantive,

and need to be dealt with.

But, Your Honours, I have jumped ahead a

little. What we were going to say is that the

issues today arise in two separate parts. There is
the first part that arises from the way in which

the Commission has dealt with the section lll(l)(g)

application which is a discrete matter, and we say

that that arises from the failure to allow us to

our case, and also the anomalies created by the	adduce evidence and therefore hear and deal with
assumptions made. The second part of the case
deals with the statutory scheme in the
circumstances such as a case as the present, where
we say that there is a statutory duty arising by
implication that the Commission must deal with the
conciliation proceedings either prior to or
together with the arbitral proceedings when they relate to the same matter.

GAUDRON J: They have said they will hear you with respect

to those issues in the arbitral proceedings. But

the problem is you have got quite different

parties, have you not? They may be the one overall

contest, but you have different parties.

Hoyts(3) 12 17/3/93

MR MERKEL:  We have different parties, Your Honour, but had

the Commission acceded to our request to vary - - -

GAUDRON J:  Did you have all your employers there when you

made that application?

MR MERKEL:  We, Your Honour, made an application that they

vary and revoke the dispute finding and make a new dispute finding based upon identifying the parties to the dispute. What the Commission did is refuse

to deal with that application as part of the

arbitral proceedings, said it would deal with it as

part of the conciliation proceedings and then

adjourned the conciliation proceedings off to what,

in effect, amounts to an indefinite adjournment

saying that they would await the decision of this

Court in the two Hoyts matters dealt with last year before proceeding further on the conciliation

proceedings, and adjourned it over to February.

Nothing has been heard of it since. So the effect

of what-has occurred in the Commission is the

Commission rightly see their prerogative as in part

being procedural, but they have really embarked

upon using procedures in a way that has denied them

their jurisdiction.

GAUDRON J:  The two Hoyts matters from last year do not bear

on the conciliation proceedings or on this.

MR MERKEL:  Your Honour, that is correct, but the Commission

over our objection has adjourned the conciliation proceedings, including the dispute finding, which

raised a wider dispute finding of the kind that I

have mentioned to Your Honours, on the basis that

the High Court may say something useful or helpful

in its decision on the Hoyts matters. Thus, we

have, in effect, an indefinite adjournment over the

conciliation process and final submissions having

been completed pursuant to the timetable on the

arbitral process, and we say it is just not open as

complete the arbitral process in disregard of the	a matter of law to the Commission to go ahead and	section 115 agreements and whether they would be
certified. That is the problem and dilemma we have
had, Your Honour.

GAUDRON J: Well, except that there are two aspects to that.

One, whether in truth the agreements do render

everything academic when you have 150 people who

are not signatories who may well not be satisfied
with the minimum arrangements that you are obliged
to give them. There is nothing in this agreement
that prevents you giving them better arrangements

than your employees with whom you have entered

agreement, and they may well want better

arrangements. The second is whether the mere fact

that an agreement, if registered, prevails over an

Hoyts(3) 13 17/3/93

award has got anything to do with whether or not an
award should be made, having whatever effect it can

or cannot have if the agreements are thereafter

registered.

MR MERKEL:  Your Honour, those two issues certainly arise,

and they are matters that should have been

considered and were able to be the subject of

evidence, and would have been the subject of

evidence - - -

GAUDRON J:	But what evidence can you give about it?
MR MERKEL:	Your Honour, the evidence is dealt with in the

affidavit but, in substance, the Hoyts employees

and Hoyts management was to be called to

demonstrate why these agreements were in the

interests, not just of the individual employees who

signed them, but in respect of all employees and

the workplace.

GAUDRON J: 

But did you not do exactly the same thing with

respect to your draft award which reproduces the
agreements, and you did that in the arbitral

proceedings?

MR MERKEL: 

But that was only, Your Honour, on the basis of

what really was the fall back of the various

alternatives put to the Commission that if you

decline to certify the section 115 agreements, you

should make an award which is in terms of those

agreements. That is the only award that you should

and can make. But we would say if Your Honours

have regard to section 116, and particularly

section 116(l)(e), that last alternative submission

may well have been a submission that the Commission

act beyond power, because the section says:

Where a certified agreement is in force the

Commission shall not exercise arbitration

powers in relation to the matters dealt with in the agreement.

Now, Your Honour, if the assumption the Commission

made that the agreement will govern the terms and

conditions - - -

GAUDRON J: That might be a good reason why they should deal

with the arbitration matters first.

MR MERKEL:	Your Honour, that brings us back to the question of whether they should exercise their powers to
frustrate the policy of the Act or to give effect
to it.  We say that sections 115 and 116 are
inextricably interwoven with the process of
settling disputes by conciliation and arbitration.
We say it is not open as a matter of law for the

Hoyts(3) 14 17/3/93

Commission to disavow conciliation in favour of

arbitration where the parties wish to settle their

dispute.

GAUDRON J: Well, except that you keep using the word

"parties" to mean different things.

MR MERKEL:  Your Honour, we are entrapped, if I can put it,

by the Commission's refusal to, in effect, update

the dispute findings to make them current.

GAUDRON J: But that is not an issue in these proceedings.

MR MERKEL:  No, but Your Honour, it has produced the

anomalies that Your Honour is presenting to me,

which are not anomalies of our creation, and that

is why we say - - -

GAUDRON J: Well, I do not know about that. You have

create~ your fair share of them, have you not?

MR MERKEL:	Your Honour, not trying to go back into past history in dealing with the present case, we would
say not.  We would say that what the employer has
done is entered into agreements in the workplace
with a large percentage of its workforce and says,
"In the public interest this is the mode of regulation which we wish to say to the Commission
is the way in which industrial relations in this
workplace should go."  The Act says that if it is
in the interests of those immediately concerned and
not contrary to the public interest, that agreement
shall not only be certified but prevail over an
award. That is the statutory scheme, Your Honour,
and we say that all we sought to do is to present
that case to the Commission under the only section available to us in the circumstances presented by
the Commission's refusal to deal with both matters together. That was the application under
section lll(l)(g).  And that is as far as we got.

So we say that the issues that arise on that

point are within a far narrower focus than that

which Your Honour has been putting to me. The

first issue is whether we were able to present our

case, and the second issue relates to the

consequences of the assumptions the Commission made

and what consequences follow from the Act by reason

of those assumptions. The questions Your Honour

puts to me have not yet arisen, but would have

arisen had the Commission heard the lll(l)(g)

application, and we say - - -

GAUDRON J:  But it has heard the lll(l)(g) application and

it has decided it against you.

Hoyts(3) 15 17/3/93

MR MERKEL: 

Yes, but when I say "heard it", Your Honour, I

was about to complete the sentence by saying "heard
it on the basis of the evidence that we submit we

should have been entitled to call."

GAUDRON J: 

Which was the same evidence as you called in the

arbitral proceedings relating to the Hoyts draft

award.

MR MERKEL:  No, Your Honour, that is not so. The evidence

that had been called previously in the arbitral

proceedings was related to one minor issue which

was a suggestion by some of the unions that the

employees had been coerced into these agreements.

The issue of the public interest and the general

workplace issues and benefits designed to be

achieved by these agreements were never the matter

of evidence.

GAUDRON J: But are they matters of evidence?

MR MERKEL: Well, Your Honour, the answer, we would say, is

"Yes, they are matters of evidence because they

deal with real conditions in a real workplace which

was beset by enormous industrial disputation

arising from the non-accession by Hoyts to the

over-award agreements".

MASON CJ:  Where do we get a statement of the evidence that

you were proposing to call?

MR MERKEL:	Your Honour, the evidence we proposed to call is at application book pages 31 to 33, 22 at
paragraph 28, and the issues that that evidence was
directed to deal with was summarized in a number of places, but the last place in which it was
summarized is exhibit MGC26 at page 493. But I
should say those references are not exhaustive
because in the transcript there are numerous
references.
GAUDRON J: But are not all those matters foreclosed by the

assumption that the agreements would be registered?

MR MERKEL:  No, Your Honour. The only matters foreclosed by

the assumption the agreements would be registered

is the assumptions that are required to be

established to found jurisdiction under

section 115. The critical point under

section lll(l)(g) made section 115 the starting

point, but the finishing point, Your Honour is that

it was in the public interest for those agreements

to regulate employment at Hoyts cinemas, not just

not contrary to the public interest, but the

affirmative. And that is precisely the issue that

was sought to be the subject of evidence at

page 496 which was, in effect, the last cri de

Hoyts(3) 16 17/3/93

coeur of counsel for Hoyts before, in effect, being

told by the Commission, "We will not allow you to

call this evidence."

GAUDRON J: But that is a matter of argument, is it not,

rather than evidence?

MR MERKEL:  No, Your Honour. We say it is not a matter of

argument as to why the section 115 agreements are

in the public interest in resolution of past

disputation.

MASON CJ: But what sort of evidence were you going to call

to establish those propositions?

MR MERKEL:  The evidence at the pages I indicated to

Your Honour, evidence of managers, evidence of

employees, evidence of why it was that they saw

these agreements in these terms and conditions, in

this mode of regulating their future employment as

avoiding and averting the disputation problems of

the past, why they saw it as a beneficial and

appropriate way for industrial regulation to be

conducted in the workplace.

MASON CJ:  I would have thought that that was an inference

you would draw that these parties would say that

because they were parties to these agreements.

MR MERKEL:  No, but Your Honour, it goes beyond just - may I

say this: the unions had sought to suggest that

there was some coercion and that that inference

should not be drawn. That was the subject of

earlier debate or discussion in the proceedings.

But the real point, Your Honour, is that we say

that in a workplace beset by a long history of industrial disputation which is set out in the

affidavit, the way of resolving that and why that

way of resolving it will work, is and can be a

matter of evidence.

The problem is this: the Commission could

have said, "We require you to put the evidence in

statement form. We won't allow that

cross-examination by others on it." They could

have handled it in many ways, but the one way they

cannot is to presume against us that this is a

matter not capable of being elucidated or the
subject of evidence, and we say that is not

reasonably open.

BRENNAN J: Could you just identify for me, Mr Merkel, what

is the jurisdiction which is being asserted that

you say does not exist or which is not being

exercised, that you say must be exercised?

Hoyts(3) 17 17/3/93

MR MERKEL:  Your Honour, there are two jurisdictions we say

that are in issue. The first is we say that the

Commission has not exercised its jurisdiction to

hear and determine our application under

section lll(l)(g) because it has not - - -

BRENNAN J: It has not?

MR MERKEL:  It has not because it has not allowed us to

adduce our evidence and present our case, and that

is dealt with in Citicorp.

BRENNAN J: Section lll(l)(g) is not a jurisdictional

provision, is it? It is not something which deals with the jurisdiction of the Commission. It deals with the matter in which an acknowledged

jurisdiction of the Commission may be exercised.

MR MERKEL:  Your Honour, Citicorp dealt with it. That is

case No_ 1 on our list of authorities. Citicorp

related to the same kind of question, but an

anterior point to that which we raise. It was a

section 41(l)(d)(iii), the predecessor section

application. The Commission had said it could not

exercise that power to consider that matter prior

to a dispute finding being made. Your Honours

considered the nature of the jurisdiction at

page 517 point 5 referring to the Queensland

Electricity Commission case, and then dealt with

the availability of mandamus in respect of that
matter which was a mandamus to hear and determine
the application under section lll(l)(g). In fact,

this case involved both the earlier section and the

later section, and Your Honours said at point 5 on

page 519:

It is well settled that the Conciliation and

Arbitration Commission was bound to act judicially.

And at point 8: 

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.  And, of course, coupled with that duty

is the duty to consider the case put.

Then Your Honours considered the very jurisdiction

at the bottom of the page and concluded at the top

of page 520:

It is not clear whether that case was put and

not decided, or, whether the decisions of

Commissioner Laing ..... precluded Citicorp from

putting that case. If the latter, there was a

failure to afford a reasonable opportunity to

Hoyts(3) 18 17/3/93

allow the case to be put; if the former, there

was a failure to decide the case put. In

either event there was and is a duty capable

of enforcement by mandamus -

and the Court made the order for mandamus.

Now we come one stage further on, not further

behind, because here the Commission has agreed to

hear and determine an application under

section lll(l)(g) on stipulated grounds by us, and

on a stipulated basis. We say, that having

determined to do so and, in fact, proposing to rule

on the application, it is bound by the duty to act

judicially as defined in Citicorp at pages 519,

520.

BRENNAN J:	The ground in question is lll(l)(g)(iii), is it?
MR MERKEL:	Yes, Your Honour.
BRENNAN J:	And the Commission does not have to decide your

present application immediately, does it? It can

decide it after it hears other proceedings pursuant

to a procedure which it chooses to adopt under 110.

MR MERKEL:  Your Honour, there may have been many

discretionary and procedural ways in which the

Commission could have dealt with it, but it chose

to deal with it on its merits. It did not choose
to say it will be dealt with at a different point

of time, but, Your Honour, because it is an

application to exercise jurisdiction as stated in

Citicorp, it was incumbent upon the Commission to deal with it prior to making an award, because that would preclude the right conferred under the Act to

someone to make that application.

Now, Your Honour, we say that the question

Your Honour raises, does not arise, because the

Commission said, "we will hear and determine it",

and they did.

GAUDRON J: It was your insistence that they hear and

determine it, at that stage.

MR MERKEL:  Our application?

GAUDRON J: Yes.

MR MERKEL:  As it had to be.

GAUDRON J: Yes, but it was your application that it be

heard and dealt with as a preliminary issue, as

well, not as a matter to be dealt with in the final

wash up. Your first application was that they must

deal with the certified agreements first, and if

Hoyts(3) 19 17/3/93

they would not, they must deal with the lll(l)(g)

application, is that not right?

MR MERKEL:  When Your Honour says "first", our application

always was, as I understand it, that the

section 115 should be dealt with either prior to or

together with.

GAUDRON J:  And we still do not know whether that will

happen?

MR MERKEL:  No, they are refusing to do that.

GAUDRON J: Well, and is that before this Court in any

relevant way?

MR MERKEL:	Yes, Your Honour.
GAUDRON J:	Where do we find that?
MR MERKEL:	Your Honour, volume three
GAUDRON J:	What have you applied for, with respect to that?
MR MERKEL:	We have made application after application, that

they hear - - -

GAUDRON J:  No, to this Court, what have you applied for to

this Court?

MR MERKEL:  These proceedings seek a prohibition to prevent

them from determining the arbitral proceedings

without hearing and determining the conciliation

proceedings prior to or together with the arbitral
proceedings. That is, in effect, I think,
paragraphs 6 and 7 of our outline of submissions,

which is a separate point.

GAUDRON J: Well, what about the documents filed in Court,

which is usually what is taken to be the matter

before the Court?

MR MERKEL:  The motion raises that, Your Honour. The motion

seeks to deal with that. That is at page 7,

paragraph l(b) of the motion. Paragraph l(a)

relates to what I will call the section lll(l)(g)

point, paragraph l(b) relates to the point dealt

with in paragraphs 6 and 7.

GAUDRON J: Now, (a) cannot stand, can it, because, the

evidence you want to call was in relation to the

lll(l)(g) proceedings which have been concluded

against you?

MR MERKEL:  Yes, but, Your Honour, we say that if we are

right, that the duty to act judicially in respect

of that hearing was not satisfied, then the

Hoyts(3) 20 17/3/93

decision, we would say, becomes a nullity, or

voidable, it does not matter - - -

GAUDRON J: So, you want certiorari to quash that decision,

do you, and mandamus directing its hearing in

accordance with law? Is that what you want?

MR MERKEL:  Your Honour, I do not think we have actually

sought certiorari, but - - -

GAUDRON J:  No. I know, it is very doubtful what you have

sought.

MR MERKEL:  Your Honour, we say, that the prohibition

proceeds on the basis that we have not been heard,

and we are entitled to be heard - - -

GAUDRON J: Well, you are not entitled to be heard while the

matter stands concluded, are you?

MR MERKEL:  We would have to seek certiorari, Your Honour,

to quash that decision, if that - - -

GAUDRON J: All right, and then what do you seek: mandamus

to hear the lll(l)(g) application in accordance

with law?

MR MERKEL:  We would say that is correct, Your Honour, or

alternatively, a prohibition from proceeding

further until they have afforded us the opportunity

to deal with that matter if the decision is

quashed.

GAUDRON J:  You see, the lll(l)(g) matter is part of all

these C numbers, in any event, is it not?

MR MERKEL:  I will have to check whether it was given a

separate C number, Your Honour, I am not sure. I

am told it may not have been given - it may be the

only one that was not given a C number.

GAUDRON J: No, it is part of it. It is an

application - - -

MR MERKEL:  Yes, Your Honour, and it is in the material.

GAUDRON J: All right. Now, let us assume that your true

making of an award pending the resolution of the

relief is for a mandamus to hear the lll(l)(g)

proceedings. Let us just assume, for the moment.

lll(l)(g).

MR MERKEL:  Yes, Your Honour.

Hoyts(3) 21 17/3/93

GAUDRON J: That is an alternative to what you have got in

(b), is it not, with respect to the agreements?

You cannot have both.

MR MERKEL:  I think that is correct, Your Honour. If we

receive (b), then - - -

GAUDRON J:	You cannot have (a).
MR MERKEL:	Then the issue under (a) - I would not say,

Your Honour, we cannot have it, but the issue

under (a) would not assume the importance it

otherwise has.

GAUDRON J: Well, if you have (b), (a) is

MR MERKEL: Unnecessary.

GAUDRON J: Unnecessary, and academic.

MR MERKEL: That seems to be so, Your Honours. Can I just

consider that overnight, but it seems to be so.

GAUDRON J: Well now, do you genuinely assert that there is

jurisdictional error in failing to~ well, in

proceeding - well, not in proceeding, in failing to

determine the agreements before the Commission does

anything else, because, that is really what you

have got to go to in (b), I think?

MR MERKEL:  We would say, in failing to determine them prior to, or together with. We do not say they cannot,

and we say, indeed they should, as a matter of

logic, deal with both together.

GAUDRON J:  And where is their decision that they will not

determine them together?

MR MERKEL:  Your Honour, exhibit 32 in volume three, sets

out all the decisions that were made to that

effect, although I had been told by my learned

friends, and I may stand corrected, that the

matters in volume three were unnecessary, because

there was no contention that if we succeed on our

major submission, that we would not be entitled to

relief.

GAUDRON J: Well, what is your major contention?

MR MERKEL:  That there is an obligation in law arising from

the facts, that the Commission must hear and

determine -

GAUDRON J: Well, it is a major - yes.

MR MERKEL:  The conciliation proceedings. The matter

Your Honour has raised with me.

Hoyts(3) 22 17/3/93

GAUDRON J:  The major contention is that it is a

jurisdictional error to proceed with the arbitral

matters without ruling on the agreement or,

alternatively, without deciding that the matters

will be determined together.

MR MERKEL:  Yes, Your Honour. That is the way that

alternative ground is put.

GAUDRON J: That is your basic premise, is it? That is your

first premise, in this case?

MR MERKEL: Well, Your Honour, I can put it either way, but

it is our basic - looking at it as a matter of

substance, it is our basic premise. The section

lll(l)(g) problem arose because that premise was

not acceded to by the Commission.

GAUDRON J: But you do not seek mandamus, with respect to

those agreements?

MR MERKEL:  We had hoped, Your Honour, that the form of

relief sought did prevent prohibition against
proceeding with the arbitral proceedings, without

dealing with the section 115 agreements.

GAUDRON J:  What if we were confronted with the situation

where the - well, if somebody were confronted by

the situation where these 400 or so employees said,

"No, we don't want you to actually proceed with the

agreements until we know what it is you would

arbitrate for us."

MR MERKEL: But, Your Honour, there is just nothing - - -

GAUDRON J: There is just nothing to tell us what they think

about it.

MR MERKEL:  Your Honour, that is one reason why the

section 115 agreements may not be certified. At

the moment the Commission has a duty to deal with

that application under section 115, because it is	an application by all employees who signed the
agreements. Now, in dealing with that application,
if it were contended that it is adverse to the
interests of other employees, then that is a good
reason why they would not be certified.

GAUDRON J:	No, it is not that it is contrary to their interests, it is just that, as a matter of timing,
they prefer to await the outcome of the arbitral matters.
MR MERKEL:	Your Honour, what we say is that because of the

central proposition I have put to Your Honours,

that the scheme of the Act does not permit both in

the circumstances of a case such as the present, it

Hoyts(3) 23 17/3/93

is a choice between one and the other. That is why

we say, as a matter of law, the Commission has to

deal with them at the same time.

MASON CJ:  Mr Merkel, we will adjourn now. You can give

attention to these matters that have been raised,

before we resume tomorrow.

AT 4.25 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 18 MARCH 1993

Hoyts(3) 24 17/3/93