Telstra Corp Ltd v MacBean

Case •

[2000] FCA 437

•

7 APRIL 2000

FEDERAL COURT OF AUSTRALIA

Telstra Corp Ltd v MacBean  [2000] FCA 437

INDUSTRIAL LAW – award – power to amend or vary an award – certified agreement – award previously defined to include certified agreement – definition amended to exclude certified agreement by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (“the WROLA Act”) – whether certified agreement made before the WROLA Act should nevertheless continue to be treated as an award – whether a certified agreement is an award for the purpose of Item 49 of Sch 5 of the WROLA Act – effect of saving provision

WORDS & PHRASES – “award”, “have effect”

Workplace Relations Act 1996 (Cth) s 113
Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Sch 5 Item 49

Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 referred to
Beitseen v Johnson (1989) 29 IR 336 referred to
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Australian Industrial Relations Commission (1999) 89 FCR 127, [1999] FCA 804 referred to

Cooper Brookes(Wollongong) Pty Ltd v The Commissioner of Taxationof the Commonwealth of Australia (1981) 147 CLR 297 referred to
Jones v Wrotham Park Settled Estates [1980] AC 74 referred to
Maxwell v Murphy (1956) 96 CLR 261 referred to

Transport Workers Union of Australia v Barry Hansch (Full Court of the Industrial Relations Court of Australia, Marshall, North and Madgwick JJ, 7 September 1998, unreported) referred to
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 referred to

TELSTRA CORPORATION LIMITED
v THE HONOURABLE JOHN MACBEAN, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
THE HONOURABLE IAN WATSON, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
JOHN LEWIN, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
GRAHAM HOLMES, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING and ALLIED SERVICES UNION OF AUSTRALIA;
THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS and MANAGERS AUSTRALIA;
THE AUSTRALIAN LIQUOR, HOSPITALITY and MISCELLANEOUS WORKERS UNION; THE AUTOMOTIVE FOOD, METALS, ENGINEERING, PRINTING and KINDRED INDUSTRIES UNION and

THE COMMUNITY and PUBLIC SECTOR UNION

V215 of 1999

JUDGES:      RYAN, MARSHALL & FINKELSTEIN JJ
DATE:           7 APRIL 2000

PLACE:         MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 215 OF 1999

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Prosecutor / Applicant

AND:

THE HONOURABLE JOHN MACBEAN, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
THE HONOURABLE IAN WATSON, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
JOHN LEWIN, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, and

GRAHAM HOLMES, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent

THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA
Third Respondent

THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
Fourth Respondent

THE AUTOMOTIVE FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Fifth Respondent

THE COMMUNITY AND PUBLIC SECTOR UNION
Sixth Respondent

JUDGES:

RYAN, MARSHALL and FINKELSTEIN JJ

DATE OF ORDER:

7 APRIL 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Leave to amend the draft order nisi be refused.

2.The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 215 OF 1999

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Prosecutor / Applicant

AND:

THE HONOURABLE JOHN MACBEAN, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
THE HONOURABLE IAN WATSON, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
JOHN LEWIN, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, and

GRAHAM HOLMES, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent

THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA
Third Respondent

THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
Fourth Respondent

THE AUTOMOTIVE FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Fifth Respondent

THE COMMUNITY AND PUBLIC SECTOR UNION
Sixth Respondent

JUDGES:

RYAN, MARSHALL and FINKELSTEIN JJ

DATE:

7 APRIL 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

RYAN J:

  1. There is before the Court an application for an Order Nisi for prerogative relief instituted by the prosecutor/applicant, Telstra Corporation Limited (“Telstra”) which was remitted to this Court by the High Court on 30 April 1999.  The facts which have given rise to Telstra's application can be traced to the certification by the Australian Industrial Relations Commission (“the Commission”) on 27 April 1993 of an agreement binding on predecessors of Telstra and various organisations of employees including predecessors of the second to sixth respondents to the present application (“the union respondents”).  The certified agreement was entitled “the AOTC Redundancy Agreement 1993” and is hereafter called “the Agreement”.  The Agreement was expressed to operate with effect from 4 March 1993 and to “remain in force until 31 January 1995”. 

  2. The Agreement was certified under Div 3A of Pt VI of the Industrial Relations Act 1988 (Cth) (“the IR Act”). The subsequent legislative history and the relevant facts have been traced in the separate reasons for judgment of Marshall J and Finkelstein J and I shall rehearse them in these reasons only to the extent necessary to explain why, like them, I have concluded that the application should be dismissed. I have adopted the abbreviations and acronyms used by Marshall J in referring to the various legislative enactments forming part of that history. The central question which has to be resolved in order to determine this application is whether an agreement, like the present Agreement which had been certified under Div 3A of Pt VI of the IR Act on 27 April 1993, continued to be regulated, and, in particular, to be subject to variation in accordance with the IR Act as amended from time to time as though the subsequent amendments of the definition of “award” in the IR Act had never been made. The definition of “award” in s 4 of the IR Act as in force in April 1993 was in these terms:

    ““award” means an award or order that has been reduced to writing under subsection 143(1), and includes a certified agreement;”

  3. “Certified agreement” in turn was defined to mean “an agreement certified under Division 3A of Part VI.” Division 3A of Pt VI was inserted by s 8 of Act No 109 of 1992 and constituted a code governing the making, certifying, operation, effect, variation and termination of an agreement between parties to an industrial dispute for the settlement of all or any of the matters in dispute or the prevention of further industrial disputes between the parties to the agreement. Division 3A of Pt VI was repealed by Sch 2 of the Reform Act. However, s 35 of the Reform Act provided, so far as is relevant:

    “(1)     In this section:

    "amended Act" means the Principal Act as amended by this Part;

    "commencement day" means the day on which Division 3A of Part VI of the Principal Act is repealed by this Part.

    (2)Despite the repeal of Division 3A of Part VI of the Principal Act:

    (a)an agreement made under that Division and in force (although not certified) immediately before the commencement day has effect as if it had been made under section 170MA of the amended Act;  and

    (b)an agreement certified under that Division and in force immediately before the commencement day has effect as if the Principal Act had not been amended by this Act, but may be extended under section 170MI of the amended Act; and

    (c)if an application that was made under that Division for certification of an agreement was pending immediately before the commencement day:

    (i)if subparagraph (ii) does not apply, the Commission is to deal with the application as if it had been made under section 170MA of the amended Act;  or

    (ii)if each of the applicants so requests, the Commission is to deal with the application as if that Division had not been repealed, and, if the agreement is certified, it has effect as if the Principal Act had not been amended by this Act, but may be extended under section 170MJ of the amended Act.

    (3)The Commission may permit the parties to an agreement to which paragraph (2)(a) or subparagraph (2)(c)(i) applies to vary its terms so as to accord with Division 2 of Part VIB of the amended Act.”

  4. The WROLA Act which came into force on 25 November 1996 made far-reaching amendments to the IR Act, and, incidentally, changed its name to the Workplace Relations Act 1996. Schedule 5 of the WROLA Act was concerned with awards. The same Act by Item 1 of Pt 1 of Sch11 repealed the previous definition of “award” and substituted the following:

    “award means an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA.”

  5. Subdivision B of Div 3 of Pt VIA is concerned with the power of the Commission to grant relief in respect of the termination of employment. Section 143(1) has remained unamended and provides:

    “When the Commission makes a decision or determination that, in the Commission’s opinion, is an award or an order affecting an award, the Commission shall promptly:

    (a)       reduce the decision or determination to writing that:

    (i)        expresses it to be an award

    (ii)is signed by at least one member of the Commission;  and

    (iii)      shows the day on which it is signed;  and

    (b)       give to a Registrar:

    (i)        a copy of the decision or determination;  and

    (ii)a list specifying each party who appeared at the hearing of the proceeding concerned.”

  6. However, the WROLA Act substituted a new s 143(1A) in these terms:

    “For the purposes of subsection (1), none of the following is an award or an order affecting an award:

    (a)      a decision to certify an agreement under Part VIB;

    (b)      an order under section 170MX.”

  7. Item 23 of Pt 2 of Sch  8 to the WROLA Act provided, so far as is relevant:

    “(1)     Subject to this item, the amendments made by this Schedule apply to:

    (a)an agreement made after the commencement of this Schedule;  and

    (b)a bargaining period, for a proposed agreement, initiated after the commencement of this Schedule.

    New termination provisions apply to pre-commencement certified agreements.

    (2)If:

    (a)an agreement was entered into before the commencement of this Schedule and was covered by Division 2 of Part VIB of the Workplace Relations Act 1996 as then in force;  and

    (b)whether before or after the commencement of this Schedule:

    (i)the period of operation specified in the agreement;  or

    (ii)if it has been extended or further extended under section 170MJ of that Act as in force at the time - that period as extended or further extended;

    has ended;

    then , after the commencement of this Schedule, section 170MH of that Act as amended by this Schedule, instead of section 170MN of that Act as in force immediately before the commencement of this Schedule, applies to the agreement.”  (emphasis added)

  8. The words to which I have added emphasis make it clear that Item 23 did not apply to pre-1996 certified agreements which antedated the Reform Act which inserted Div 2 of Pt VIB of the IR Act.

  9. Item 49 of Pt 2 of Sch  5 of the WROLA Act provided:

    “(1)If one or more of the parties to an award apply to the Commission for a variation of the award under this item, the Commission may, during the interim period, vary the award so that it only deals with allowable award matters.

    (2)For the purposes of this item, an exceptional matters order is taken to relate wholly to allowable award matters.

    (3)Special consent provisions cannot be varied under this item before the termination time for those provisions.

    (4)The Commission may only deal with the application by arbitration if it is satisfied that the applicant or applicants have made reasonable attempts to reach agreement with the other parties to the award about how the award should be varied and the treatment of matters that are not allowable award matters.

    (5)      If:

    (a)the award provides for rates of pay that, in the opinion of the Commission:

    (i)        are not operating as minimum rates;  or

    (ii)were made on the basis that they were not intended to operate as minimum rates;  and

    (b)the application under this item seeks to have such rates of pay varied so that they are expressed as minimum rates of pay;

    the Commission may vary the award so that it provides for minimum rates of pay consistent with sections 88A and 88B of the Principal Act and the limitation on the Commission’s power in subsection 89A(3) of that Act.

    (6)If the Commission varies the award under subitem (5), it must include in the award provisions that ensure that overall entitlements to pay provided by the award are not reduced by that variation, unless the Commission considers that it would be in the public interest not to include such provisions.

    (7)The Commission must, if it considers it appropriate, review the award to determine whether or not it meets the following criteria:

    (a)it does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level;

    (b)it does not prescribe work practices or procedures that restrict or hinder the efficient performance of work;

    (c)it does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees.

    (8)The Commission must also review the award to determine whether or not it meets the following criteria:

    (a)where appropriate, it contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply;

    (b)where appropriate, it contains provisions enabling the employment of regular part-time employees;

    (c)it is expressed in plain English and is easy to understand in both structure and content;

    (d)it does not contain provisions that are obsolete or that need updating;

    (e)where appropriate, it provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities;

    (f)it does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinions, national extraction or social origin.

    (9)If the Commission determines that the award does not meet the criteria set out in subitem (7) or (8), the Commission may take whatever steps it considers appropriate to facilitate the variation of the award so that it does meet those criteria.”

  10. Item 50(1) of Pt 2 of the same Sch  provided:

    “At the end of the interim period, each award ceases to have effect to the extent that it provides for matters other than allowable award matters.”

  11. Schedule 11 of the WROLA Act dealt with consequential amendments relating to, amongst other things, certified agreements and Item 88 in Pt 4 of that Schedule provided:

    “Part 2 of Schedule 8 applies to the amendments made by this Schedule, so far as they relate to certified agreements, in the same way as that Part applies to the amendments made by Part 1 of Schedule 8.”

    In other words, the transitional provisions enacted by Item 23 of Pt 2 of Sch 8 set out in para 7 above were given the same operation in relation to the amendments in Sch 11 in their application to certified agreements as they had been given in relation to the new code governing certified agreements embodied in Pt VIB of the WR Act inserted by Pt 1 of Sch 8 of the WROLA Act. As indicated above none of those provisions applied to agreements which had been certified before 30 March 1994.

  12. It was argued on behalf of Telstra that the Agreement, having been certified at a time when the IR Act defined “award” as including a certified agreement, continued to be an “award” for the purposes of that Act as subsequently amended and so was susceptible of variation pursuant to Item 49 of Sch 5 to the WROLA Act. The difficulty with that argument is that it preserves for certified agreements coming into force before 30 March 1994, the status of “awards” as then defined but subjects the same agreements to radically different requirements imposed in an ambulatory way on “awards” quite differently defined. In my view, that consequence only follows if s 35(2) of the Reform Act is construed as providing that an agreement certified under Div 3A of Pt VI before 30 March 1994 should continue to be an “award” for all purposes of the IR Act as amended by the Reform Act, notwithstanding the repeal of Div 3A of Pt VI, certification under which had been essential for an agreement to come within the extended meaning given to “award” by the definition of that expression in s 4.

  13. I consider that the preferable construction of s 35(2) is that, except in relation to extensions of the period of their operation, it preserves the application to agreements coming into force before 30 March 1994 of the whole statutory regime embodied in the IR Act as in force immediately before 30 March 1994 as far as that regime was applicable to those certified agreements. Section 35(2)(b) is framed to take effect as a savings provision, preserving the effect of the Principal Act, notwithstanding amendments, including repeals which would otherwise, subject to s 8 of the Acts Interpretation Act 1901 (Cth), obliterate the repealed provisions; see eg. Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, per Dixon J at 105. However, a savings provision, without more, does not add to, or alter, the reach of the saved enactment. This view is supported by the Explanatory Memorandum accompanying the Bill which became the Reform Act. In relation to the clause which became s 35, that Memorandum said:

    “The existing certified agreement provisions of the Act, Division 3A of Part VI, are to be repealed by this Bill.  This clause makes transitional provisions in relation to agreements which were certified, or made with the intention of an application being made for certification, under those provisions.  ... Paragraph 2(b) deals with agreements that were certified under Division 3A of Part VI prior to its repeal - such agreements will continue to operate as if Division 3A of Part VI had not been repealed, but will be able to be extended under the new s 170.”

    The reference to “the new s 170” in that extract was clearly to s 170MJ which was inserted by the Reform Act and which, it is common ground, was mistakenly referred to in s 35(2) of that Act as “section 170MI”. That express indication of the limited way in which the new regime was to apply to pre-Reform Act certified agreements by making them susceptible to extension under s 170MJ, argues strongly for an interpretation which denies to the post-Reform Act legislation any other application to those agreements. Otherwise that sub-section only saved the regulation of those agreements by the IR Act as in force immediately 30 March 1994.

  1. This construction is also reinforced by the presence in the Reform Act of s 35(3) which extended the facility to vary a certified agreement to accord with Div 2 of Pt VIB of the IR Act as amended only to agreements to which s 35(2)(a) or s 35(2)(c)(ii) applied. The clear implication is that certified agreements in force before 30 March 1994 to which s 35(2)(b) applied were incapable of variation under Div 2 of Pt VIB.

  2. I also consider that the understanding of s 35(2) of the Reform Act which I favour was shared by the legislature when it enacted Item 49 of Pt 2 of Sch 5 of the WROLA Act. For example, subitem 7 of that Item would be almost unworkably circular if the reference it contains to “the award” were construed, as on Telstra’s construction it must, as including a certified agreement which came into force before 30 March 1994.

  3. There was no suggestion that Commissioner Holmes should entertain, in the alternative or at all, an application for variation of the Agreement pursuant to s 113 of the WR Act unfettered by the constraints imposed by Item 49 of Pt 2 of Sch 5 of the WROLA Act which I have concluded were inapplicable to the Agreement. I therefore agree with Marshall J and Finkelstein J that it would be an inappropriate exercise of this Court’s discretion now to order the issue of mandamus to compel the Commissioner to proceed on the basis just indicated.

  4. For these reasons I would refuse Telstra leave to amend the proposed Order Nisi and would dismiss the application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             7 April 2000


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 215 OF 1999

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Prosecutor / Applicant

AND:

THE HONOURABLE JOHN MACBEAN, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
THE HONOURABLE IAN WATSON, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
JOHN LEWIN, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,

GRAHAM HOLMES, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent

THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA
Third Respondent

THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
Fourth Respondent

THE AUTOMOTIVE FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Fifth Respondent

THE COMMUNITY AND PUBLIC SECTOR UNION
Sixth Respondent

JUDGES:

RYAN, MARSHALL and FINKELSTEIN JJ

DATE:

7 APRIL 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

MARSHALL J

  1. This proceeding was commenced in the High Court of Australia by Telstra Corporation Limited (“Telstra”) which, by notice of motion dated 1 April 1999, sought an Order Nisi for writs of certiorari and mandamus directed to four members of the Australian Industrial Relations Commission (“the Commission”) who are collectively the first respondents in the proceeding. The first three mentioned first respondents are members of the Commission who constituted a Full Bench which exercised the appellate powers of the Commission pursuant to s 45 of the Workplace Relations Act 1996 (Cth) (“the WR Act”). The fourth named first respondent, Commissioner Holmes, exercised the original jurisdiction of the Commission which was the subject of an application to the Full Bench for leave to appeal.

  2. On 30 April 1999 Hayne J ordered that further proceedings in the application be remitted to this Court. In accordance with s 415(1)(d) of the WR Act the jurisdiction of this Court in the matter remitted to it by the High Court of Australia is required to be exercised by a Full Court of this Court.

    Background

  3. On 27 April 1993 Commissioner Cox certified an agreement between Telstra and predecessors of organisations of employees registered under the Act including predecessors of the second to sixth respondents in this application (“the union respondents”). The agreement was entitled “the AOTC Redundancy Agreement 1993” (“the Agreement”).

  4. The Agreement operated with effect from 4 March 1993 and in accordance with its terms was to “remain in force until 31 January 1995”. The Agreement was certified under Div 3A of Pt VI of the Industrial Relations Act 1988 (Cth) (“the IR Act”). Section 134E(1)(f) of the IR Act then required that such an agreement specify the period of its operation.

  5. On 30 March 1994 the IR Act was amended by the Industrial Relations Reform Act 1993 (Cth) (“the Reform Act”). The Reform Act, inter alia, repealed the provisions of the IR Act which dealt with certified agreements and replaced them with a new legislative regime for certified agreements contained in Divs 2 and 3 of Pt VIB of the IR Act, as amended by the Reform Act.

  6. Section 35(2) (b) of the Reform Act provided that:

    “Despite the repeal of Division 3A of Part VI of the Principal Act:
    …

    (b)an agreement certified under that Division and in force immediately before the commencement day has effect as if the Principal Act had not been amended by this Act, but may be extended under section 170MI of the amended Act.”

  7. It should be noted that it has been accepted by counsel, and I agree, that the reference to “section 170MI” should have been a reference to “section 170MJ”.

  8. Section 170MI of the IR Act, as amended by the Reform Act, dealt with the period of operation of certified agreements made under the Reform Act. Section 170MJ of that Act provided for the parties to extend the period of operation of a certified agreement subject to approval by the Commission.

  9. After 31 January 1995 the agreement continued to operate by virtue of the provisions of ss 134J and 148 of the IR Act.

  10. On 3 September 1996 Telstra applied to the Commission to vary the agreement pursuant to s 113 of the IR Act. A further amended application to vary the agreement was lodged in the Commission by Telstra on 1 November 1996.

  11. In a decision made on 27 November 1996 Commissioner Holmes determined that the Commission had jurisdiction to amend the agreement pursuant to s 113(2) of the IR Act.

  12. On 25 November 1996 the IR Act, as amended by the Reform Act, was further amended by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (“the WROLA Act”). The WROLA Act changed the name of the IR Act to the WR Act and made various other substantive changes to the WR Act, the presently material provisions of which took effect from 1 January 1997.

  13. On 3 April 1997 Telstra applied to the Commission to vary the agreement pursuant to s 113 of the WR Act and Item 49 of Sch 5 to the WROLA Act. The later provision allowed for applications to be made by 30 June 1998 to the Commission for the deletion from awards of certain provisions which were not “allowable award matters”. The operation of Items 49 to 51 of Sch 5 to the WROLA Act is discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Australian Industrial Relations Commission (1999) 89 FCR 127, [1999] FCA 804, (“CEPU”).

  14. On 2 October 1997 Commissioner Holmes decided that the Agreement should be varied to remove from it certain non-allowable award matters. On 22 October 1997 Senior Deputy President MacBean made an order to give effect to Commissioner Holmes’ decision. In his decision of 2 October 1997 Commissioner Holmes declined to remove from the Agreement provisions dealing with a Review Board process for redundancies. His decision in that respect was subject to an appeal by Telstra to a Full Bench of the Commission. On 25 May 1998 the Full Bench upheld Telstra’s appeal. In the last paragraph of its reasons for decision the Full Bench said that:

    “It is for the reasons set out therefore that we have decided to uphold the appeal. Telstra’s application for the deletion of the relevant clauses dealing with the review board process under Item 49 of the WROLA Act is referred back to the Commissioner to deal with.”

  15. The reference back to Commissioner Holmes was made by the Full Bench pursuant to s 45(7)(c) of the WR Act, which provides that:

    “On the hearing of the appeal, the Full Bench may do one or more of the following:
    …

    (c)direct the member of the Commission whose decision or act is under appeal, or another member of the Commission, to take further action to deal with the subject matter of the decision or act in accordance with the directions of the Full Bench.”

  16. On 30 June 1998 Commissioner Holmes decided that he had no jurisdiction to vary the Agreement under Item 49 of Sch 5 to the WROLA Act. In his decision the Commissioner referred to the direction he had received from the presiding member of the Full Bench, MacBean SDP, in the following terms:

    “In accordance with the decision of the Full Bench [Print Q1006], the application by Telstra under Item 49 of the WROLA Act (C No 31413 of 1998) to delete the clauses relating to the review board processes in the Agreement is referred back to you to deal with.”

  17. Commissioner Holmes accepted a submission made by counsel for various of the union respondents that the agreement was not capable of variation pursuant to Item 49 of Sch 5 to the WROLA Act because the agreement was not an “award” for the purposes of Item 49. The Commissioner was persuaded to so hold having regard to a recently decided Full Bench matter concerning the Federal Airports Corporation (“FAC”) contained in Print P8872, given on 18 February 1998.

  18. In the concluding section of his decision of 30 June 1998 Commissioner Holmes said that:

    “…it is in my view apparent that the findings made by the Full Bench in Re Federal Airports Corporation [Print P8872] are apposite as regards the status of the AOTC Redundancy Agreement 1996. I am therefore lead (sic) inexorably to conclude that in light of that Full Bench decision delivered on 18 February 1998, my earlier decisions that the AOTC Redundancy Agreement 1996 was an award which could be the subject of an application pursuant to Item 49 of the transitional provisions of the WROLA Act 1996 were wrong as was my decision that the agreement was an award for the purposes of s.143(1) and s.113.

    I find therefore in applying the ratio of the Re F.A.C. decision that this Commission does not have jurisdiction to vary the AOTC Redundancy Agreement 1993 pursuant to Item 49 of the Transitional provisions of the WROLA Act and as a consequence I am not able to grant the application referred to me by the Full Bench in its decision [Print Q1006] of 25 May 1998.

    In light of this conclusion I do not intend to address the other aspects of the submissions placed before me regarding this application.”

  19. It is apparent that Commissioner Holmes, in dealing with the reference given to him under s 45(7)(c) of the WR Act by the Full Bench, decided that he was unable to deal with the merits of the Item 49 application for lack of jurisdiction having regard to the FAC Full Bench decision.

  20. On 15 July 1998 Telstra sought leave to appeal from the decision of Commissioner Holmes of 30 June 1998. On 4 March 1999 another Full Bench of the Commission, consisting of Senior Deputy President MacBean, Senior Deputy President Watson and Commissioner Lewin, refused Telstra leave to appeal.

  21. In its decision of 4 March 1999, contained in Print R2661, the Full Bench said as follows:

    “On 21 March 1997, Holmes C gave a decision [Print N9642] on the effect of the enactment of the WR Act in which he held that Telstra’s application for the deletion of specific clauses (said to be non-allowable), including the Review Board, from the Redundancy Agreement would need to be dealt with by an application made under Item 49 of the WROLA Act.

    Subsequently, Telstra filed applications under s.113 of the WR Act and Item 49 of the WROLA Act to vary the Redundancy Agreement by deleting the provisions concerning the Review Board process.

    In a decision on 2 October 1997 [Print P5544], Holmes C rejected [t]his application for reasons relating to merit. That decision was the subject of an appeal by Telstra on the ground that the Commissioner had failed to deal with Telstra’s application under Item 49.

    In his decision Commissioner Holmes considered whether the Redundancy Agreement was an award for the “purposes of the WR Act 1996 and the subsequent amending legislation”. In this respect the Commissioner concluded as follows:

    “Moreover I have examined the provisions of the Workplace Relations and Other Legislation Amendment Act 1996 particularly item 5 which deals with the transitional provisions which relate to agreements. A close examination of those provisions particularly clause 23(2) does not suggest to me that the view that I held in relation to the jurisdiction of this Commission to vary the AOTC Redundancy Agreement pursuant to s.113(2) needs to be altered as a consequence of the passage of the amending legislation.

    In brief therefore I am satisfied that this Commission does have jurisdiction to vary the AOTC Redundancy Agreement 1993 pursuant to s.113(2).”

    The Full Bench in the abovementioned appeal by decision of 25 May 1998 [Print Q1006] held that the Commissioner had failed to deal with Telstra’s application under Item 49 and the failure to do so was an error in respect of which leave to appeal was granted. The appeal was upheld.

    In the same decision, the Full Bench decided that the Review Board process was not an allowable matter and the application by Telstra for its deletion pursuant to Item 49 was to be referred back to the Commissioner to deal with.

    Holmes C called the matter back on in accordance with the directions of the Full Bench. In that hearing, the unions submitted that the Redundancy Agreement was not an award for the purposes of Item 49 of the WROLA Act and that, as a result, Telstra’s application to vary the Redundancy Agreement so as to delete the Review Board process on the grounds that it did not deal with an allowable matter should be dismissed. They submitted that to the extent the Commissioner had previously decided that the agreement was an award for the purposes of Item 49, such decision was wrong and should not be followed.

    On 30 June 1998 the Commissioner decided, having regard to the Full Bench decision in Re Federal Airports Corporation Award, 1991 [Print P8872] (the FAC case), that his earlier decisions that the Redundancy Agreement was an award for the purposes of Item 49 of the WROLA Act and ss. 113 and 143(1) of the WR Act were wrong. He therefore decided that no jurisdiction existed to deal with Telstra’s application under Item 49. It is this decision which is the subject of the present appeal.”

  22. The Full Bench held that the word “award” in Items 49, 50 and 51 of Sch 5 to the WROLA Act possessed the meaning defined by s 4 of the WR Act, which did not include a certified agreement. The Full Bench said that:

    “We see nothing in the legislature (sic) or, in particular, the relevant transitional provisions upon which we could base a conclusion that the use of the word “award” in and for the purposes of Item 49 means anything other than the definition which is contained in the WR Act.

    The exclusion of certified agreements from the definition of award, by reference to s.143(1), in the WR Act was a major change in the way in which such agreements have been dealt with by the legislature. For the Commission to treat the reference to “award” in Item 49 contrary to the Parliament’s manifest intention that certified agreements are not awards, for the purposes of the WROLA Act, would require a clear and unambiguous expression to that effect within the transitional provisions. As we are unable to accept that any such provision is contained within the transitional provisions we reject the submission of the appellant that the Commissioner was in error in his conclusion that the Redundancy Agreement is not an award subject to Item 49 of the WROLA Act.

    For the reasons set out, we have concluded that the Redundancy Agreement is not an award that is able to be varied under Items 49 or 51 of the WROLA Act or s.113 of the WR Act.

    The particular rights of the parties bound by the Redundancy Agreement through the operation of s.35 of the Transitional Provisions of the IR Reform Act is not a matter we need to consider. The Commissioner’s decision and the appeal was confined to the powers of the Commission under Items 49 of the WROLA Act and s.113 of the WR Act.

    For the reasons set out, we conclude that the Commissioner was correct in deciding that there was no jurisdiction to deal with Telstra’s application under Item 49 of the WROLA Act or s.113 of the WR Act. Accordingly, leave to appeal is refused and the appeal dismissed.”

  23. The Full Bench’s reference to s 113 of the WR Act in the last three paragraphs of its decision is curious given that Commissioner Holmes was not directed to deal with anything except an application under Item 49 as a result of the direction given pursuant to s 45(7)(c) of the WR Act. The Full Bench’s reference to s 113 of the WR Act is therefore surplusage given that Commissioner Holmes only decided that he did not have jurisdiction to vary the agreement “pursuant to Item 49 of the Transitional provisions of the WROLA Act”.

  24. The confusion about s 113 of the WR Act’s applicability may have been introduced by the terms of Telstra’s notice of appeal, ground 4 of which stated that:

    “The Commissioner was wrong in concluding that the said Agreement was not an award for the purposes of s143(1) and s113 of the Workplace Relations Act 1996.”

  25. The Commissioner did not make any such conclusion within the terms of the reference made to him, although he observed that the FAC decision did suggest that his earlier decision, that the agreement was an award for the purposes of ss 113 and 143(1), was wrong.

    Telstra’s Submissions

  26. Dr Jessup QC, with Mr Parry of counsel, appeared for Telstra. Dr Jessup called into question the conclusion of the Full Bench concerning whether the Agreement was an award for the purposes of s 113 of the WR Act. On the Item 49 issue, Dr Jessup submitted that the Full Bench’s conclusion that “award” in that item was to be defined by reference to the definition in s 4 of the WR Act of “award” “begged the question” and ignored the effect of Item 88 of Sch 11 to the WROLA Act, which he contended clarified that the changed definition of “award” was not to apply to a certified agreement.

  27. In its draft Order Nisi Telstra sought an order requiring the respondents to show cause why certiorari should not issue directed to the first respondents to quash their decisions that they had no jurisdiction under Item 49 or s 113 of the WR Act. It also sought that mandamus go to the first respondents requiring them to consider Telstra’s applications before them in accordance with law.

  28. During his submissions Dr Jessup formulated a further proposed order which asserted that Commissioner Holmes had failed in his duty to hear and determine the matter before him in accordance with the decision of the Full Bench of 25 August 1998 and the directions contained therein in the matter referred to him under s 45(7)(c) of the WR Act. Dr Jessup sought leave to amend his proposed Order Nisi to add such a paragraph. The Court reserved its judgment on that application.

  29. Dr Jessup submitted that it was not open to Commissioner Holmes, consistently with the direction given to him under s 45(7)(c) of the WR Act, to hold that he had no jurisdiction to grant the application under Item 49, it being inherent in the reference that such jurisdiction existed.

  30. The bulk of Dr Jessup’s submissions was directed at convincing the Court that jurisdiction existed in the Commission to amend the Agreement pursuant to s 113 of the WR Act by reference to the continued life given to the Agreement by s 35(2)(b) of the Reform Act.

    The submissions of the union respondents

  1. Mr Reitano, of counsel, appeared for all of the union respondents with the exception of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the fifth respondent. Mr Reitano submitted that Item 88 of Sch 11 to the WROLA Act had no application to an agreement which was certified under Div 3A of Pt VI of the IR Act.

  2. It was also contended by Mr Reitano that the matter before Commissioner Holmes was confined by the terms of the Full Bench reference to a consideration of Telstra’s application under Item 49 of Sch 5 to the WROLA Act.

    Conclusions

  3. The only matter which Commissioner Holmes was directed to deal with by the Full Bench direction was Telstra’s Item 49 application. Commissioner Holmes was careful, in his conclusions, to confine his finding as to lack of jurisdiction to the Item 49 application. To the extent that the Full Bench referred to s 113 of the WR Act it was in error in so doing. However, this error in no way affected the conclusion of the Full Bench that Commissioner Holmes was correct in deciding that he had no jurisdiction to amend the certified agreement in an application made under Item 49.

  4. In any event it is beyond doubt that both Commissioner Holmes, and the Full Bench, were correct in determining that no such jurisdiction existed. In CEPU, the Full Court held that the definition of “allowable award matters” in the WR Act should govern the interpretation of that expression in the WROLA Act. In my view, the definition of “award” in the WR Act should similarly govern the interpretation of that word in Item 49 of Sch 5 to the WROLA Act. See also s 15 of the Acts Interpretation Act 1901 (Cth) which provides that:

    “Every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof.”

  5. Section 4 of the WR Act makes no reference to certified agreements, whether made under that Act or any predecessor Act. It provides that “award”:

    “means an award or order that has been reduced to writing under subsection 143(1) but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA.”

  6. Item 23 of Pt 2 of Sch 8 to the WROLA Act applies the provisions in the WR Act concerning termination of certified agreements to an agreement made under Div 2 of Pt VIB of the IR Act (and as from 25 November 1996 until 31 December 1996 to the renamed WR Act).

  7. Part 1 of Sch 8 to the WROLA Act deals with the new regime for certified agreements which currently applies under the WR Act. Item 88 of Sch 11 to the WROLA Act provides that:

    “Part 2 of Schedule 8 applies to the amendments made by this Schedule, so far as it relates to certified agreements in the same way as that Part applies to amendments made by Part 1 of Schedule 8.”

  8. Nothing in any provision of the WROLA Act or any schedule thereto authorises the Commission to amend an agreement certified under the IR Act prior to the enactment of the IR Reform Act in an application made pursuant to Item 49.

  9. Consequently, in my view, the submissions of Telstra in this application are fundamentally misconceived. They can be categorised this way due to the fact that the only issue which was in truth before Commissioner Holmes, and consequently the Full Bench on appeal, was Telstra’s Item 49 application. It was an application which was without jurisdictional foundation. Therefore, the application as made in the originally formulated draft Order Nisi must fail.

  10. Dr Jessup’s submission, based on Telstra’s proposed amended draft Order Nisi, is also rejected. Commissioner Holmes, given the direction to him pursuant to s 45(7)(c) of the WR Act, was not bound to assume he had jurisdiction to entertain the application the subject of the reference. The Commission’s jurisdiction to entertain an Item 49 application with respect to the Agreement was previously assumed by the Full Bench to exist. It does not appear to have been the subject of any detailed consideration prior to Commissioner Holmes’ decision of 30 June 1998, which in turn was prompted by the FAC decision of another Full Bench.

  11. In my view, the reference to Commissioner Holmes made by the Full Bench did not carry with it an implied direction to consider only any question of merit as distinct from jurisdiction.

  12. It was open to Commissioner Holmes on 30 June 1998 to question the basis of the jurisdiction which he was asked by Telstra to exercise in light of the then recently decided FAC Full Bench decision.

  13. Consequently, I would refuse Telstra leave to amend the proposed draft Order Nisi given that the ground sought to be added is bound to fail. See Transport Workers Union of Australia v Barry Hansch (Full Court of the Industrial Relations Court of Australia, Marshall, North and Madgwick JJ, 7 September 1998, unreported at 11).

  14. Whether the Commission had the power to vary the Agreement under s 113 of the WR Act is not a matter which is relevant to the disposition of this application as no such matter was referred to Commissioner Holmes by the Full Bench. It would be inappropriate to give an advisory opinion on the issue of whether the Commission is entitled to amend the Agreement under s 113 of the WR Act. See Beitseen v Johnson (1989) 29 IR 336 (at 337-338) and Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 (at 413-414) especially at par 47 where the majority of the High Court of Australia said:

    “Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions.”

    Order

    I would order as follows:

    1.   Leave to amend the draft order nisi be refused.

    2.   The application be dismissed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             7 April 2000


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 215 OF 1999

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Prosecutor / Applicant

AND:

THE HONOURABLE JOHN MACBEAN, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
THE HONOURABLE IAN WATSON, A SENIOR DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION,
JOHN LEWIN, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, and

GRAHAM HOLMES, A COMMISSIONER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent

THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA
Third Respondent

THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
Fourth Respondent

THE AUTOMOTIVE FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Fifth Respondent

THE COMMUNITY AND PUBLIC SECTOR UNION
Sixth Respondent

JUDGES:

RYAN, MARSHALL & FINKELSTEIN JJ

DATE:

7 APRIL 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

FINKELSTEIN J:

  1. This appeal concerns a certified agreement made to settle an industrial dispute and an attempt by one party to vary that agreement.  The Australian Industrial Relations Commission (the Commission) can prevent and settle industrial disputes extending beyond the limits of any one State through conciliation and arbitration.  Arbitration is the process by which an industrial dispute is submitted to the Commission for its resolution.  The decision of the Commission is commonly referred to, and is referred to in the Workplace Relations Act 1996 (Cth), as an award: eg s 143(1) which confers power to make an award. Conciliation is directed to assisting the prevention or settlement of an industrial dispute by amicable agreement. Since the earliest Commonwealth legislation dealing with conciliation and arbitration, the Commonwealth Conciliation and Arbitration Act 1904 (Cth), an agreement settling an industrial dispute could be certified and on certification would have effect as an award in the same way as a compulsory award: see s 24 of the 1904 Act. This position was maintained by the Industrial Relations Act 1988 (Cth) which repealed and replaced the 1904 Act. It was, however, brought to an end by the Workplace Relations and OtherLegislation Amendment Act 1996 (Cth).

  2. On 27 April 1993 the Commission certified an agreement styled “AOTC Redundancy Agreement 1993” that had been negotiated between Australian and Overseas Telecommunications Corporation Limited (AOTC), the predecessor of the prosecutor Telstra Corporation Ltd, and fifteen unions.  It provides benefits to employees who leave Telstra through redundancy.  It was a term of the agreement that it would commence to operate upon certification and would remain in force until 31 January 1995. 

  3. Between 23 July 1992 and 30 March 1994 the certification of an agreement settling an industrial dispute was governed by the provisions in Div 3A of the Industrial Relations Act, comprising s 134A to s 134N, which were inserted into the IndustrialRelations Act by the Industrial Relations Legislation Amendment Act 1992 (Cth). To qualify for certification an agreement was required, among other things, to specify the period of its operation: s 134E(1)(f). Section 134J provided that a certified agreement came into force when it was certified and it remained in force during “the period of agreement”. “The period of agreement” was defined in s 134J(4) to be the period of operation of the agreement specified in the agreement or that period as extended by further agreement.

  4. If an agreement was in force at the end of the period of the agreement, s 148 applied to that agreement: s 134J(3). Section 148 provides that: “Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters.”

  5. Section 113 conferred power on the Commission to set aside or vary the terms of an award. In the form the section took when the redundancy agreement was certified, the Commission could vary an award for the purpose of removing ambiguity or uncertainty (s 113(2)) or to reflect certain changes that had taken place with regard to the parties to the award (s 113(3)). The section also contained a general power to set aside or vary an award (s 113(1)).

  6. Although a certified agreement is not an award, for the purposes of the Industrial Relations Act an award was defined to include a certified agreement unless the contrary intention appeared: see the definition of “award” in s 4(1). A “certified agreement” was defined to mean an agreement certified under Div 3A of Pt VI: see the definition in s 4(1). Because an award was defined to include a certified agreement, such an agreement could be set aside or varied in an application under s 113. However, there were limits imposed on the application of s 113 to a certified agreement. During the period of operation of the agreement, neither the agreement nor a term of the agreement could be set aside under s 113: s 134L(1)(c). Further, a certified agreement could not be varied under s 113(2) except to achieve one of the objects mentioned in s 134L(1)(d), namely removing ambiguity, bans clauses or stand down clauses: s 134L(1)(e).

  7. The Industrial Relations Reform Act 1993 (Cth), which came into operation on 30 March 1994, repealed Div 3A of Pt VI and replaced that division with new provisions dealing with the certification of agreements made for the purpose of settling or preventing an industrial dispute. The new provisions, comprising s 170MA to s 170MN, were now to be found in Div 2 of Pt VIB. The 1993 Act also substituted a new definition of “award” and amended the definition of “certified agreement”. The alteration to the definition of “award” is not presently material. It is important to note, however, that an award continued to include a certified agreement. The definition of certified agreement was changed to reflect the replacement of Div 3A of Pt VI by Div 2 of Pt VIB. Now a certified agreement was defined to mean “an agreement certified under Div 2 of Pt VIB”.

  8. The 1993 Act contains transitional provision dealing with the status of agreements that were certified before the commencement of that Act. Thus s 35(2)(b) provides that despite the repeal of Div 3A of Pt VI “an agreement certified under that Division and in force immediately before the [repeal of that Division] has effect as if the [Industrial Relations Act] had not been amended by this Act, but may be extended under section 170MI of the amended Act”.

  9. Section 170MI is a provision that deals with the period of operation of a certified agreement. It seems that the reference in s 35(2)(b) to s 170MI was an erroneous reference and that Parliament intended to refer to s 170MJ which provides for the extension of certified agreements. The parties have argued the case upon the assumption that there was an error in drafting. If the error is manifest then the court is entitled to read the section as it should have been drafted: see Jones v Wrotham Park Settled Estates [1980] AC 74; Cooper Brookes(Wollongong) Pty Ltd v The Commissioner of TaxationOf the Commonwealth of Australia (1981) 147 CLR 297.

  10. There is ambiguity in the stipulation that a certified agreement is to have “effect” as if the Industrial Relations Act had not been amended. On one view it means that the rights created and obligations imposed by the agreement, to the extent that they depend for their efficacy on any of the repealed provisions, are to subsist as if those provisions remain in force. A more likely meaning is that a certified agreement made under the repealed provisions is to continue to operate and that the repealed provisions will continue to apply to it. My dictionary provides various meanings for the word “effect” including “force, validity, or importance; purport, import, tenor, or general intent;”. The Explanatory Memorandum that accompanied the Bill for the 1993 Act says of the clause that became s 35:

    “The existing certified agreement provisions of the Act, Division 3A of Part VI, are to be repealed by this Bill.  This clause makes transitional provisions in relation to agreements which were certified, or made with the intention of an application being made for certification, under these provisions …

    2(b) deals with agreements that were certified under Division 3A of Part VI prior to its repeal – such agreements will continue to operate as if Division 3A of Part VI had not been repealed, but will be able to be extended under the new section 170.”

  11. The period of operation of the redundancy agreement came to an end on 31 January 1995. Nevertheless, by reason of s 170MI(3) of the Industrial Relations Act, which applied s 148 to the agreement, it continued in force. However, upon the expiry of the period of operation of the agreement, the restrictions imposed by s 134L on the ability of the Commission to set aside or vary the agreement under s 113 came to an end.

  12. On 4 September 1996 the prosecutor made application, which was later amended, to vary the redundancy agreement.  The prosecutor wished to reduce its workforce by approximately 22,000 over three years and was of opinion that the Redundancy Agreement impeded its ability to do so efficiently. 

  13. At first, the Commission, constituted by a single Commissioner, Holmes C, did not determine the application on its merits. It had to deal with an argument by the unions that one consequence of the amendment to the definition of “award” made by the 1993 Act was that an agreement certified before the commencement of that Act was no longer an award for the purposes of s 113, and could not be varied by the Commission. It was said that s 35 of the 1993 Act did not affect this position. The Commissioner rejected these arguments and found that he did have jurisdiction to entertain the application.

  14. There was then a hearing of the application after which the Commissioner reserved his decision.  In the meantime the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) had been enacted and came into force on 25 November 1996. The 1996 Act changed the name of the Industrial Relations Act to the Workplace Relations Act 1996.  It also brought about significant changes to the making and regulation of certified agreements.  These changes are found in schedules to the 1996 Act which contain amendments to various enactments including the Industrial Relations Act:  see s 3 of the 1996 Act. 

  15. Schedule 5 of the 1996 Act is concerned with awards. Part I of Sch 5 contains amendments to the Industrial Relations Act with regard to awards. The following amendments are material to this proceeding. A definition of “allowable award matters” was inserted in s 4(1). Allowable award matters are those covered by subs 89A(2): see Pt I, Item 1. Section 89A is a new section that is found in Item 11 of Pt I. It provides, in subs (1), that an industrial dispute for the purposes of arbitration, preventing or settling an industrial dispute by an award or maintaining the settlement of an industrial dispute by varying an award is to include only matters covered in subs (2) and subs (3). There is a list of matters in subs (2) ranging from classification of employees and skill-based career paths to rates of pay, allowances and the like that are proper subject matter for an award. Many matters that were previously regarded as within an industrial dispute for the purposes of arbitration, the making of an award or the varying of an award are not included in the list. Subsection (3) limits the Commission’s power to making minimum rates awards.

  16. Part II of Sch 5 contains transitional provisions.  Three are important.  Item 49(1) provides:

    “If one or more of the parties to an award apply to the Commission for a variation of the award under this item, the Commission may, during the interim period, vary the award so that it only deals with allowable award matters.”

    Item 50(1) provides:

    “At the end of the interim period, each award ceases to have effect to the extent that it provides for matters other than allowable award matters.”

    Item 51 provides:

    “(1)As soon as practicable after the end of the interim period, the Commission must review each award:

    (a)       that is in force; and

    (b)       that the Commission is satisfied has been affected by item 50.

    (2)The Commission must vary the award to remove provisions that ceased to have effect under item 50.”

  17. “Interim period” is defined in Item 46 to mean the period of eighteen months beginning on the day on which s 89A of the Workplace Relations Act commences.

  18. It is also necessary to refer to Sch 8 which deals with certified agreements. Item 3 amends the definition of certified agreement in s 4(1) by omitting “Division 2” and substituting “Division 4”. The definition now reads “‘certified agreement’ means an agreement certified under Div 4 of Pt VIB”. Item 19 substitutes a new Pt VIB comprising s 170L to s 170NI. These are the provisions that now facilitate the making and certifying of an agreement settling an industrial dispute. Division 7 of new Pt VIB contains a number of provisions dealing with the extension, variation and termination of certified agreements. One effect of the changes is that s 113 is no longer a source of power to set aside or vary an agreement certified under the new part. This is recognised by s 170MD(7) which provides that a certified agreement is not able to be varied except in accordance with provisions in Div 7 or subs 113(2A) which deals with discriminatory agreements.

  19. Part II of Sch 8 contains transitional provisions. Item 23 relevantly provides:

    “(1)     Subject to this item, the amendments made by this Schedule apply to:

    (a)an agreement made after the commencement of this Schedule;

    and

    (b)       a bargaining period, for a proposed agreement, initiated after
      the commencement of this Schedule.

    (2)      If:

    (a)       an agreement was entered into before the commencement of

    this Schedule and was covered by Division 2 of Part VIB of the Workplace Relations Act 1996 as then in force; and

    (b)       whether before or after the commencement of this Schedule:

    (i)        the period of operation specified in the agreement; or

    (ii)       if it has been extended or further extended under

    section 170MJ of that Act as in force at the time – that period as extended or further extended;

    has ended;

    then, after the commencement of this Schedule, section 170MH of that Act as amended by this Schedule, instead of section 170MN of that Act as in force immediately before the commencement of this Schedule, applies to the agreement.”

    It should be noted that par (2) does not apply to the redundancy agreement, because it was not covered by Div 2 of Pt VIB.

  1. Finally reference should be made to Sch 11 where consequential amendments relating to certified and other agreements are to be found. The following items from this schedule are relevant.

  2. Item 1 repeals the definition of “award” and replaces it with a new definition which, so far as is relevant, reads:

    “An award or order that has been reduced to writing under subsection 143(1) …”

    Item 88 provides:

    “Part 2 of Schedule 8 applies to the amendments made by this Schedule, so far as they relate to certified agreements, in the same way as that Part applies to the amendments made by Part 1 of Schedule 8.”

  3. This is a sufficient summary of the relevant legislative provisions and the changes that have taken place. I can now return to the application to vary the redundancy agreement. When the 1996 Act commenced Commissioner Holmes apprehended that it might have implications for his decision on the reserved application. He requested the parties to make submissions on the effect of the changes. The parties were in agreement that the Commissioner had jurisdiction to vary the redundancy agreement notwithstanding the passage of the 1996 Act. However, the prosecutor argued that the amendments brought about by the 1996 Act applied to the redundancy agreement. It requested the Commissioner to vary the agreement so that s 89A was satisfied. For their part, the unions argued that s 89A did not apply to an agreement that had been certified before the section was introduced. They also submitted that no order of the kind sought could be made, because there was no application under Item 49.

  4. The Commissioner decided that he would not consider varying the redundancy agreement to accord with s 89A in the absence of an application under Item 49. Shortly after this ruling the prosecutor filed a further application to vary the redundancy agreement. The application stated that it was brought under s 113(1). This was an error. It was intended the application be made under s 113(2) and Item 49.

  5. The Commissioner then considered the application and, conformably with his earlier ruling, held that the Commission had jurisdiction to deal with the matter under s 113. As regards Item 49 the Commissioner said that he would consider the application to remove the non-allowable awards matters from the redundancy agreement. In the result, the Commissioner decided that certain provisions should be removed from the agreement and that others should not.

  6. Being dissatisfied with this decision, the prosecutor applied for leave to appeal to the Commission constituted by a Full Bench: the right to appeal by leave is conferred by s 45. The Full Bench granted the leave sought and, on the appeal, held that the Commissioner had wrongly failed to deal with the application to remove certain provisions from the award pursuant to the terms of Item 49. The Full Bench “referred [the matter] back to the Commissioner to deal with.” This direction was given pursuant to s 45(7)(c) of the Workplace Relations Act which provides that the Full Bench may “direct the member of the Commission whose decision or act is under appeal, or another member of the Commission, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Full Bench”.

  7. When the matter returned to Commissioner Holmes, the unions submitted that Item 49 did not give the Commission jurisdiction to amend the redundancy agreement. They argued that the redundancy agreement was not an award for the purposes of the item. The Commissioner agreed. He found that the Commission “does not have jurisdiction to vary the AOTC Redundancy Agreement 1993 pursuant to Item 49 of the Transitional provisions of the WROLA Act and as a consequence [is] not able to grant the application referred … by the Full Bench …”. He also held that his earlier ruling that the agreement could be varied under s 113 was in error.

  8. It is not clear whether the Commissioner was entitled to take the course that he did.  He had been directed by the Full Bench to consider the application to vary the award under Item 49.  On the other hand, when it appeared to the Commissioner that he might lack jurisdiction to consider the application, what was he to do?  As the Full Bench had not itself ruled on the application of Item 49 to the redundancy agreement I am of opinion that the Commissioner was obliged to determine whether he had jurisdiction over the matter, notwithstanding his earlier ruling.  Every administrative decision-maker must decide whether he or she has jurisdiction to decide a matter at least when the issue becomes apparent, unless the decision-maker is duty bound to proceed on the basis that jurisdiction does exist.  Commissioner Holmes was not in that position.

  9. Not surprisingly, the Commissioner’s decision led to a further application for leave to appeal to the Full Bench.  In its notice of appeal the prosecutor included the following grounds:

    “3.The Commissioner was in error in concluding that the said Agreement was not an award that could be subject to an application pursuant to Item 49 of the Workplace Relations and Other Legislation Act 1996.

    4.The Commissioner was wrong in concluding that the said Agreement was not an award for the purposes of s 143(1) and s 113 of the Workplace Relations Act 1996.”

  10. The Full Bench refused leave to appeal.  In error, it also dismissed the appeal.  The refusal to grant leave was not based on discretionary considerations.  The Full Bench held that Commissioner Holmes had correctly decided the jurisdictional point.  In its reasons the Full Bench said:

    “The definition of ‘Award’ under the [Workplace Relations] Act was amended by Schedule 11.  The amended definition, by reference to s 143(1), excluded certified agreements.  A ‘certified agreement’ under the [Workplace Relations] Act is defined as an agreement certified under Division 4 of Part VIB.  It follows that certified agreements made before the commencement of the [Workplace Relations] Act, including the Redundancy Agreement, are neither awards nor certified agreements within the definition of s 4 of the [Workplace Relations] Act.”

  11. The Full Bench went on to say that “the Redundancy Agreement is not an award that is able to be varied under Items 49 or 51 of the [1996] Act or s 113 of the [Workplace Relations] Act.” In the final paragraph of its reasons the Full Bench said that “the Commissioner was correct in deciding that there was no jurisdiction to deal with Telstra’s application under Item 49 of the [1996] Act or s 113 of the [Workplace Relations] Act.”

  12. This brings me to the present application.  Here, the prosecutor seeks the issue of a writ of certiorari to quash the decision of the Full Bench and a writ of mandamus directing them to hear and determine the appeal (perhaps more correctly the application for leave to appeal) according to law. 

  13. The prosecutor complains that the Full Bench erred in its conclusion that the redundancy agreement was not an award that was liable to be varied under Item 49. It also says that the Full Bench erred in holding that s 113 did not apply to the redundancy agreement.

  14. To succeed in its first argument, the prosecutor must show that the redundancy agreement is an award within the meaning of Item 49.  This it sought to do by an argument which, at the risk of over simplification, can be reduced to a series of propositions:

    (1)Upon certification, the redundancy agreement became an award for the purposes of the Industrial Relations Act. The definition of “award” in s 4(1) had this effect.

    (2)An agreement certified before the commencement of the 1996 Act, which was an “award” as defined, or continued as an award, remained an award notwithstanding the amendments made by the 1996 Act. 

    (3)The amendments made by Sch 8 of the 1996 Act only apply to agreements certified after the commencement of that Act. That was said to be the effect of item 23(1) of Sch 8.

    (4)As regards an agreement made before the commencement of Sch 8, the new definition of “award” did not apply.

    (5)Accordingly, the redundancy agreement remained an award for the purpose of Sch 5, including Items 49 and 50.

  15. To understand the current status of an agreement made and certified when Div 3A was in force it is necessary to return to s 35 of the 1993 Act. That section deals with an agreement which, when certified, had the status of an award but was no longer an award because of amendments to the definition. Such an agreement has “effect” as if the Industrial Relations Act had not been amended by the 1993 Act. If those amendments had not been made, the agreement would still fall within the definition of “award” and be subject to the operation of s 113 and s 148. The power to vary a certified agreement is now to be found in s 170MD. That provision does not apply to agreements entered into before the commencement of Sch 8 of the 1996 Act: see Item 23(1) of Pt II.

  16. Is such an agreement subject to other provisions introduced by the 1996 Act? In particular, is a pre-1996 Act certified agreement subject to the new provisions dealing with awards? The answers to these questions do not, in my opinion, depend solely upon the operation of s 35. Principally what they do turn on is the field of operation of the 1996 Act. It is to that issue that I will now turn.

  17. The background against which the prosecutor’s argument is put must be understood. An important change made by the 1996 Act was to undo the previous relationship between an award and a certified agreement. An award is no longer defined to include a certified agreement. This has an important consequence. The power to prevent or resolve an industrial dispute by making or varying an award is limited to an industrial dispute about matters set out in s 89A(2) and (3): see s 89A(1). A certified agreement, however, can be utilized to resolve wider areas of industrial disputation.

  18. Further, one result of accepting the prosecutor’s argument is that certified agreements made before the commencement of the 1996 Act will be limited in their operation to allowable award matters and certified agreements made after the 1996 Act will not be limited in that way.  That is a matter to be taken into account when considering the validity of the argument.

  19. There is a general presumption that a statute deals with future acts and ought not change the character of past transactions.  In Maxwell v Murphy (1956) 96 CLR 261 at 267 Dixon CJ said: “The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.” But this is only a presumption; a prima facie rule of construction. It must yield to any sufficient indication of a contrary intention.

  20. It is clear that the new provisions relating to allowable award matters found in Sch 5 of the 1996 Act are intended to apply not only to awards coming into existence after the commencement of Sch 5 but to earlier awards.  In particular, the power to vary an award under Item 49 only applies if the award was made before the commencement of Sch 5, for an award made after that date will only include allowable award matters.

  21. But this is not to say that the awards to which Item 49 applies, and for that matter Items 50 and 51, are awards as defined according to a definition that is no longer in force.  I am of opinion that the 1996 Act shows a clear intention that Sch 5 is only to apply to an award strictly so called and not to certified agreements.

  22. When the word “award” is used in Sch 5 it means an award according to the definition introduced by Item 1 of Sch 11. Each amendment made by the 1996 Act, including the amendments made by Sch 5 and Sch 11, must be construed as part of the enactment they amend. That is, the new provisions must be treated as if they had always been in the Workplace Relations Act, save for their time of commencement. Thus the word “award” in Items 49 and 50 of Sch 5 is to be given the meaning set out in Item 1 of Sch 11. That definition does not bring in certified agreements.

  23. Moreover, s 35 of the 1993 Act does not advance the position of the prosecutor. Although a certified agreement is to be preserved as if the Industrial Relations Act had not been amended by the 1993 Act, the only consequence is that the repealed provisions continue to apply to the agreement. But it does not follow that a certified agreement is for all purposes and for all times to be regarded as an award. That is not the effect of s 35. The section preserves the past but does not carry the past into the future as if the 1993 amendments had not been made. In particular, it does not give new meaning to the word “award” as used in Item 49.

  24. Finally, I think that it is evident that Parliament did not intend to affect certified agreements in the manner contended for, if only because of the consequences that would follow from acceptance of the prosecutor’s submission.  Freely negotiated agreements resolving industrial disputes would be rewritten.  Significant disputes that have been amicably resolved will be brought back to life.  It would require very clear language to cause me to adopt a construction that would bring about these consequences.

  25. It remains to consider the prosecutor’s application to amend its claim for relief by asking for an order that a writ of mandamus issue against Commissioner Holmes requiring him to determine the reference from the Full Bench.  The prosecutor contends that the Commissioner had no right to dispose of the application on a jurisdictional ground because, so it was asserted, this was contrary to the direction that had been given.

  26. How it is that Commissioner Holmes can be directed to deal with an application that has been the subject of a successful appeal to the Full Bench, was not explained.  For my own part I doubt whether the relief sought could be granted.  If there be a complaint about what has occurred it is that the Full Bench erred in upholding the view of the Commissioner and it is against that body alone that relief should be claimed. 

  27. In any event, the Commissioner was not entitled to ignore the issue of jurisdiction once it had been raised.  This is a fortiori where the Full Bench who had directed the Commissioner to deal with the matter had not itself ruled on jurisdiction.

  28. As will be apparent, I am of opinion that the Full Bench was in error in upholding the Commissioner’s view on s 113, but was correct in affirming his decision that the redundancy agreement could not be varied under Item 49.

  29. The question whether any relief should be granted is, however, a matter that has caused me some concern.  On one view, the Full Bench was only concerned with an application for leave to appeal from a decision the one object of which was to deal with the application of Item 49 to the redundancy agreement.  On the other hand, one ground of appeal was that “the Commissioner was in error in not granting the application of Telstra”, a rather wide ground which could bring into account all manner of complaints about what has occurred.

  30. In the end I have reached the conclusion, as has Marshall J, that the s 113 point is but a distraction. The only substantive argument that was before Commissioner Holmes was the claim under Item 49. His view about s 113 was irrelevant to the matter that he was required to determine. The effect of the section need not have been considered by the Full Bench. Accordingly, nothing would be served in quashing the decision of the Full Bench.

  31. I would dismiss the application.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein .

Associate:

Dated:              7 April 2000

Counsel for the Prosecutor/Applicant:

Dr C Jessup QC with Mr F Parry

Solicitor for the Prosecutor/Applicant:

Freehill Hollingdale & Page

Counsel for the first and fifth Respondents:

No appearance

Solicitors for the first and fifth Respondents:

Australian Government Solicitor

Counsel for the second, third fourth and sixth Respondents:

Mr R Reitano

Solicitor for the second, third fourth and sixth Respondents:

R L Whyburn & Associates

Date of Hearing:

10 August 1999

Date of Judgment:

7 April 2000
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