Shop Distributive and Allied EMPLOYEES' Association (SA Branch) v Industrial Relations Commission of SA - [2004] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION (SA BRANCH) v INDUSTRIAL RELATIONS COMMISSION OF SA & ORS
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Anderson)
2 July 2004
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL RELATIONS COMMISSION - POWERS - TO MAKE AWARDS
Application for judicial review of an award made on an interim basis by the Industrial Relations Commission of South Australia varying the Retail Industry (South Australia) Award – the second defendant applied to the Commission seeking variations to the Award in light of an amendment to the Shop Trading Hours Act 1977 pursuant to s 90(1) of the Industrial & Employee Relations Act 1994 and further sought certain variations by an award on an interim basis pending the final determination by the Commission of its application pursuant to s 90(5) of the Industrial & Employee Relations Act 1994 – the plaintiff opposed the making of an award on an interim basis – where the plaintiff sought an order in the nature of certiorari quashing the award made on an interim basis – whether the decision to make an award on an interim basis was beyond the jurisdiction of the Commission because such an award cannot be made before the commencement of the hearing of the substantive application or case - whether the decision to make an award on an interim basis was beyond the jurisdiction of the Commission because an award made before the Commission has heard any evidence or any submissions in relation to the substantive application or case is made in breach of the rules of natural justice – application for judicial review dismissed.
Supreme Court Rules 1987, r 98; Industrial and Employee Relations Act 1994, ss 153, 206, 90, 154, 163, 96; Shop Trading Hours Act 1977, referred to.
BHP Employees (Interim Award) Appeal Case (1972) 39 SAIR 667; Craig v South Australia (1995) 184 CLR 163; Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82, discussed.
Flinders University of South Australia Staff Association (Application for Interim Award) (1977) 44 SAIR 42; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, considered.

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION (SA BRANCH) v INDUSTRIAL RELATIONS COMMISSION OF SA & ORS
[2004] SASC 194
Full Court: Duggan, Besanko and Anderson JJ
Application for Judicial Review

DUGGAN J. In my view the plaintiff’s application for judicial review should be dismissed. I agree with the reasons of Besanko J.
BESANKO J
Introduction
This is an application for judicial review. Under the Rules of this Court applications for orders in the nature of mandamus, prohibition and certiorari are to be made by an application for judicial review (r98 Supreme Court Rules 1987).
The plaintiff to the application is the Shop Distributive and Allied Employees’ Association (South Australia Branch). The body which made the decision under challenge is the Industrial Relations Commission of South Australia (“the Commission”) and it is the first defendant in the action. The other defendants in the action are the Australian Retailers’ Association – South Australia Division (“ARA”), State Retailers’ Association of South Australia Incorporated (“SRA”) and the South Australian Chamber of Commerce and Industry Incorporated, trading as Business SA (“Business SA”). The only defendants who appeared and made submissions on the hearing of the application were the ARA and the SRA. The Commission and Business SA took no part in the proceedings before this Court.
The ARA instituted proceedings in the Commission on 18^th September 2003 seeking a variation of the Retail Industry (South Australia) Award. The ARA also sought what were described as “interim orders” involving variations to the Award. The plaintiff and Business SA were named as respondents to the proceedings. The Minister for Industrial Relations intervened in the proceedings. The SRA applied for leave to intervene in the proceedings pursuant to s 153(2) of the Industrial and Employee Relations Act 1994 (“the Act”). The plaintiff opposed the application by the SRA for leave to intervene, but the Commission granted leave to the SRA to intervene in the proceedings. That decision of the Commission was challenged by the plaintiff in the application for judicial review, but at the commencement of the hearing of the application before this Court the challenge to that decision was abandoned.
On 12^th December 2003 and in the proceedings instituted by the ARA, the Full Commission made a variation to the Award and its determination is supported by detailed reasons. The variation to the Award was expressed to operate on and from the first pay period commencing on or after 1^st January 2004 and to remain in force for a period of two calendar months. The order made by the Commission has at times been somewhat loosely referred to as the interim Award, but if it was valid, it was an Award made on an interim basis.
Under the Act the determination to make an award is final and may only be challenged, appealed against or reviewed as provided by the Act. Relevantly, the Act provides that a determination of the Commission may be challenged before the Full Supreme Court on the ground of an excess or want of jurisdiction (s 206).
In this application for judicial review, the plaintiff seeks an order in the nature of certiorari quashing the Award made on an interim basis. The ground upon which it seeks the order is that in making the Award on an interim basis, the Commission acted beyond jurisdiction. It submits that the occasion for the making of an award on an interim basis did not arise and, in addition, that the Commission acted in breach of the rules of natural justice, and therefore beyond jurisdiction.
What was referred to in submissions as the ARA’s “substantive” application for an award has proceeded before the Commission whilst the application for judicial review has proceeded in this Court, and the Court was told that the hearing before the Commission of the substantive application is nearing completion. I am content to adopt this terminology in order to distinguish between the Award on an interim basis which has been made, and the substantive application for an award to operate indefinitely.
The Proceedings before the Commission
The ARA’s application sought variations to the Retail Industry (South Australia) Award. An award is defined in the Act as “an order of the Commission regulating remuneration and other industrial matters”, and there is in turn a broad definition of “industrial matters” in s 4 of the Act. It was not suggested on the appeal that there is any relevant distinction between making an award and making a variation to an award, and it is convenient to refer to the ARA’s application as an application to make an award.
The ARA’s application to make an award contained details of the award variations sought (Appendix B), the grounds of the application (Appendix A) and the interim orders sought by the applicant (Appendix C). The interim orders were said in the application to be sought “Pending the final determination by the Commission of the Award variations sought in this Application”.
The President of the Commission referred the application to the Full Commission. The application came before the Full Commission on 23^rd October 2003, and at that time the Commission dealt with, inter alia, the SRA’s application to intervene in the proceedings. In addition, the ARA asked for its application for interim orders to be dealt with as soon as possible.
The Full Commission heard the application for interim orders on 14^th November 2003. The ARA and SRA each put forward an outline of argument and a book of documents. The plaintiff put forward an outline of submissions and a book of documents. At the hearing, the first submission made by counsel for the plaintiff in opposition to the making of an award on an interim basis was that the occasion for making such an award had not arisen. Counsel for the plaintiff referred to authorities which suggested that interim orders should only be made in exceptional or abnormal circumstances, and it was submitted that the circumstances before the Commission could not be so described. The plaintiff’s submission was not put in terms of a matter going to the Commission’s jurisdiction. The point was made by counsel for the plaintiff that the Commission had not heard “substantive” argument let alone evidence.
On 2^nd December 2003, the Commission delivered reasons in relation to what is described in those reasons as interim variations to the Retail Industry (South Australia) Award. That led to making of the Award on an interim basis on 12^th December 2003. It is necessary to make brief reference to the reasons for the determination of the Commission.
The Commission noted that the variations to the Retail Industry (South Australia) Award sought by the ARA in its substantive application involved an expansion of the scope of ordinary hours of work to include weeknights and Sundays, a modification to rates paid for work on Sundays, and the implementation of shiftwork provisions. These variations were said to be appropriate in light of an amendment to the Shop Trading Hours Act 1977 which was proclaimed on 19^th June 2003.
The Commission noted that the timetable it had fixed for the provision of witness statements and documents had the effect that the hearing of evidence in relation to the ARA’s substantive application was likely to occur in February and March 2004.
The variations to the Award which were sought on an interim basis included the extension of the definition of ordinary time to include weeknight trading and work on Sundays, a reduction in the Sunday penalty rate, confirmation that work on Sunday was voluntary and certain saving provisions. It is unnecessary to set out the details because it is not suggested that the Award made on an interim basis is invalid because of the particular variations which it embodied.
The Commission referred to s 90 of the Act. Section 90 relevantly provides as follows:
“(1)The Commission may make an award about remuneration and other industrial matters.
…
(5) An award may be made on a provisional or interim basis.
…
(7) Before the Commission makes an award, it must take reasonable steps to ensure that all persons who are to be bound by the award have been given a reasonable opportunity to appear and be heard before the Commission.”
The Commission referred to the reasons of Olsson J in BHP Employees (Interim Award) Appeal Case (1972) 39 SAIR 667, and in particular his comments in relation to the power at that time of the Industrial Commission to make any award or order (including an interim award or order). The relevant “principles” in relation to the making of an interim award as stated by Olsson J were summarised by the Commission, and no party before this Court suggested that the summary is inaccurate. The Commission summarised the matters as follows:
“18.       …
·     The making of an interim Award would be regarded as abnormal;
·       An interim Award should be made only where it is fairly necessary to achieve industrial justice and prevent undue hardship to the employees (or employers) in question;
·       Whilst it was not practicable to stipulate the type of circumstances in which an interim Award may be reasonably made, it will normally be resorted to pending the completion of fuller and possibly protracted proceedings and after the Commission has adequate knowledge and information to enable it to make a reasonable judgment;
·       Until the Commission is able to make a final Award, employees should be granted the greatest proportion of their equivalent entitlement which circumstances permit. Notwithstanding this approach, a cautious and conservative approach should be adopted; and
·       A two step approach is required. Firstly, to consider whether an interim Award should be made and then secondly, to consider the content of any interim Award.”
The Commission referred to the fact that in Flinders University of South Australia Staff Association (Application for Interim Award) (1977) 44 SAIR 42 Olsson J (at 45 – 46) confirmed that the relevant principles were as he had stated them in BHP Employees (Interim Award) Appeal Case (supra).
The Commission noted that those principles were developed in the context of the practice that applications were generally made by unions on behalf of employee interests and within the objects of the Act as then relevant. In the context of the application before it, the Commission considered that the relevant principles included the following:
“44.…
·       A two step approach is required. Firstly, to consider whether an interim Award should be made and then secondly, to consider the content of any interim Award;
·      The making of an interim Award is to be regarded as exceptional and should only be made where the Commission is positively satisfied that such should be made;
·      An interim Award should be made only where it is fairly necessary to achieve industrial justice and to prevent undue hardship to the parties who are subject to the application in question;
·      Whilst it is not practicable to stipulate the types of circumstances in which an interim Award may be reasonably made, it will normally be resorted to pending the completion of fuller and possibly protracted proceedings and after the Commission has adequate knowledge and information to enable it to make a reasoned and sound judgment;
·      Until the Commission is able to make a final Award, an applicant may be granted the greatest proportion of their equivalent entitlement which circumstances permit. Notwithstanding this, a cautious and conservative approach should always be adopted to ensure that the interim Award may operate without potential embarrassment to any final determination; and
·      The fact that an Award might be made on an interim basis, does not absolve the Commission from arriving at its decision in conformity with well established principles of arbitral justice.”
The Commission noted that it had the power to make an award on an interim basis, and it then said:
“50.In terms of the merit of the present application, we reiterate our earlier observations that this application has been made in the context of the major substantive case as foreshadowed by all parties. The fact that the ARA as the applicant, supported by the SRA, has sought a period of eight weeks in order to put together its substantive case for the Full Commission is indicative of the nature and complexity of the application. The fact that the interim variation now being pursued is largely the same as that ultimately being pursued by the applicant, is not of itself determinative, however it is indicative of the difficulties in persuading this Full Commission to make any substantive variations to the Award at this juncture. On the other hand, the extent of the likely delay in determining the final variations is also a factor to be considered.”
The Commission then went on to consider various other matters relevant to its consideration of whether an award on an interim basis should be made. In the result, the principal variations in the Award made on an interim basis were the inclusion of work on Sundays in ordinary time and the establishment of the penalty rate for work on Sundays.
I must briefly mention the material put before the Commission prior to the making of the Award on an interim basis. As I have said, each of the plaintiffs, the ARA and the SRA put forward an outline of argument and book of documents. The plaintiff and the ARA provided extracts of retail agreements entered into by a number of large retailers and an enterprise agreement between the plaintiff and Business SA. The plaintiff also provided a comparison between a number of retail awards and agreements. The ARA put forward extracts of retail awards applying in other States in Australia and transcript of previous proceedings before the Commission in relation to Retail Industry (South Australia) Award. The SRA put forward media releases of government, extracts of Hansard when shop trading hours were discussed, explanatory correspondence and media reports in relation to the enterprise agreement between the plaintiff and Business SA. The SRA also put forward a document produced by the Australian Chamber of Commerce and Industry in relation to investor confidence.
The Issues raised by the Application
The plaintiff submits that the decision to make the Award on an interim basis was beyond the jurisdiction of the Commission for the following reasons:
1.An award on an interim basis cannot be made before the commencement of the hearing of the substantive application or case and this had not occurred.
2.An award made before the Commission has heard any evidence or any submissions in relation to the substantive application or case is an award made in breach of the rules of natural justice.
An order in the nature of certiorari will be made to quash an order or decision upon “one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error law on the face of the record’” (Craig v South Australia (1995) 184 CLR 163 at 175 – 176 (“Craig”)).
In Craig, the Court described jurisdictional error in the case of an inferior court in the following terms (at 177 – 178):
“Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.”

The Court referred to a distinction between what constitutes an error of law going to jurisdiction in the case of an inferior court and in the case of an administrative tribunal (at 178 – 180).
For reasons I will give, I do not think there was an error of law in this case, and therefore it is not necessary to consider whether the Commission is an inferior court or administrative tribunal for the purposes of the doctrine of jurisdictional error.
I start with the plaintiff’s first submission which was that an award made on an interim basis may only be made after the hearing of the substantive application or case has commenced, or put another way, in the course of the hearing of the application for an award (ie., not an award on a provisional or interim basis). The plaintiff seeks to make good this proposition by referring to a number of matters. First, it submits that the Commission must, by hearing evidence, equip itself with adequate knowledge and information to justify an award on an interim basis. The plaintiff refers to the principles laid down by Olsson J in BHP Employees (Interim Award) Appeal Case (supra) and in Flinders University of South Australia Staff Association (Application for Interim Award) (supra). It also submits that an award on an interim basis should only be made “pending completion of fuller and (possibly) protracted proceedings”. From these two propositions the plaintiff seeks to argue that an award on an interim basis can only be made in the course of the exercise of the wider jurisdiction of hearing the substantive application or case.
To a point both of the plaintiff’s propositions may be accepted, but they do not lead to the conclusion for which the plaintiff contends. The Commission should only proceed to make an award on an interim basis if it is satisfied on appropriate material that it is proper to do so. The Commission has very wide-ranging powers in terms of the material it may rely on. In matters of procedure and substance it is to be governed by equity, good conscience and the substantial merits of the case, without regard to technicalities, legal forms or the practice of the courts. The Commission is not bound by evidentiary rules and practices but may, subject to a requirement to observe the rules of natural justice, inform itself as it thinks appropriate (s 154). Indeed, it may dispense with evidence on a particular subject if it considers evidence on that subject is unnecessary (s 163). In this case the Commission acted on material that it was entitled to act on.
A number of observations may be made about the propositions stated by Olsson J in BHP Employees Interim Award Appeal Case (supra). First, his Honour referred to the matters which he identified as “some guidelines which ought to be taken into consideration” and that “it is undesirable and impractical to lay down principles which should or could be regarded as restrictive and immutable” (at 692). Secondly, nowhere in the guidelines is to be found a rule that an interim award, or award on an interim basis, may only be made after the commencement of the hearing of the substantive application or case. Thirdly, the guidelines do not purport to be, nor could they be, jurisdictional requirements. They are not expressly stated in the Act, nor, for reasons which I will give, can they be implied from the terms of the Act.
The plaintiff submits that its argument that the Commission had acted beyond jurisdiction was supported by a further consideration. The plaintiff points to a comparison between the words in the present Act, “an award may be made on … [an] interim basis” and the words in the former Act, the Industrial Relations Act (SA) 1972, “make an award (including … [an] interim award)”. The plaintiff submits that there is a difference between an award made on an interim basis and an interim award. An interim award was a different type of award from what might be termed a final award, whereas an award on an interim basis is in effect a subset of a final award. It is submitted that this leads to the conclusion that an award made on an interim basis is to be made as a step in the process of making a final award. I doubt that the difference in the words used in the former Act and the present Act leads to any difference in the scope of the power, but I certainly do not think that it leads to the conclusion that an award on an interim basis may only be made after the hearing of the substantive application or case has commenced.
I do not think an interim award may only be made after the hearing of a substantive application or case has commenced. There is nothing in the words of the Act to suggest that that is the case. There is no reason in logic why the commencement of the hearing of the substantive application or case should be the jurisdictional line. In my opinion, in order to be an award on an interim basis within s 90(5) of the Act, the award must be made for a limited period and that period must be specified in the award. That condition is satisfied in this case because the Award is said to remain in force for a period of two calendar months from 1^st January 2004. I note in passing that the Court did raise with the parties whether, in view of this provision, the plaintiff’s application for judicial review was hypothetical or academic. The ARA and the SRA referred to s 96 of the Act which provides as follows:
“96—Duration of award
An award continues in operation, subject to its terms, and subject to amendment or revocation, until superseded by a later award.”
They suggested that by reason of this section the award made on an interim basis remained in force after the expiration of the two month period. It is not necessary for this Court to consider that issue because no party to the application suggested that the issue raised in the application for judicial review was hypothetical or academic, and I am content to proceed on that basis.
In my opinion, the Award made on 12^th December 2003 was an award made on an interim basis within s 90(5) of the Act. There was a substantive application in this case, and it is unnecessary for this Court to decide if an award on an interim basis could be made in proceedings in which there was no substantive application.
I turn now to the plaintiff’s second submission which I can deal with briefly. The plaintiff submits that in proceeding to make an award on an interim basis the Commission was bound to observe the rules of natural justice. That proposition is correct (ss 154(2) and 90(7)). The plaintiff submits that the Commission acted in breach of the rules of natural justice in that it made a determination before it heard any evidence or submissions, that is to say, evidence or submissions in the hearing of the substantive application or case. That proposition is not correct for reasons which I will give. If the plaintiff had been able to make good both propositions it would be necessary for the plaintiff to make good a third proposition, that is, that the breach of the rules of natural justice went to the jurisdiction of the Commission. As I have already said, this Court may only entertain a challenge to a decision of the Commission on the ground of an excess or want of jurisdiction (s 206(2)). To make good the third proposition, the plaintiff relied on the decision of the High Court in Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82. It is not necessary for me to consider that case in any detail because of my conclusion in relation to the second proposition. However, I would say that it should not be assumed that the observations of various members of the High Court made in the context of a power given by the Commonwealth Constitution in relation to the writ of prohibition will necessarily apply to a claim at common law for an order in the nature of certiorari. On the other hand, the fact that in this case the requirement to observe the rules of natural justice is prescribed in the Act (s 154(2)) might support the argument that a breach goes to jurisdiction.
I return to the plaintiff’s second proposition. The Act does not prescribe the content of the rules of natural justice in the context of a determination to make an award on an interim basis. It is well-established that the content of the common law rules of natural justice or procedural fairness is not fixed and is to be determined by reference to the particular statutory framework (Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 per Kitto J at 503 – 504; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 per Brennan J (as he then was) at 326).
In giving the Commission the power to make an award on an interim basis it is to be assumed that Parliament envisaged that the Commission may need to act in a wide variety of circumstances. There may be circumstances of urgency requiring urgent action. Couple this consideration with the fact that the Commission is not bound by evidentiary rules and practices and may inform itself as it sees appropriate and, to my mind, it is simply not possible to conclude that the rules of natural justice require that evidence be called or submissions made on the substantive application or case. It is not unusual for a body of this nature to act on the type of materials the Commission acted on in this case (J H Portus, Australian Compulsory Arbitration 2^nd ed. (1979) at 96 – 98). The ARA and the SRA point to the fact that the plaintiff did not ask the Commission for the opportunity to put further material or evidence before it, contenting itself instead with a submission that the occasion for making an award on an interim basis had not arisen. I would not be inclined to treat this particular point as decisive. The decisive facts are that the plaintiff was given the opportunity to be heard and the Commission was entitled to act on the basis of the materials put before it. The rules of natural justice in relation to the determination of the Commission did not require the taking of evidence or the making of submissions on the substantive application or case. In my opinion, there was no breach of the rules of natural justice.
In my opinion, the Award on an interim basis made by the Commission on 12^th December 2003 was not made beyond jurisdiction for either of the reasons advanced by the plaintiff.
Conclusion
The plaintiff’s application for judicial review must be dismissed.
ANDERSON J I agree that the application should be dismissed for the reasons given by Besanko J.