Sensis Pty Ltd v Members of the Full Bench of the Industrial Relations Commission [2005] FCAFC 74 (12 May 2005)

Last Updated: 12 May 2005

FEDERAL COURT OF AUSTRALIA

Sensis Pty Ltd v Members of the Full Bench of the Industrial Relations Commission [2005] FCAFC 74

INDUSTRIAL LAW – Application for prerogative relief in relation to a decision of the Full Bench of the Australian Industrial Relations Commission – Full Bench dealt with an appeal against a decision of Commissioner Smith concerning an application by a union for directions in relation to union representation at negotiations for a certified agreement under s 170LK of Workplace Relations Act - Whether the Commission has power to issue directions when exercising conciliation powers under Part VIB of Act – Whether Commission had power to make the particular directions sought in this case – Proper manner of exercise of discretion of Commission.


Workplace Relations Act 1996 (Cth) ss 3(e), 111, 112, 170L, 170LA, 170LJ, 170LK, 170NA

Asahi Diamond Industrial Australia Pty Limited v Automotive, Food, Metals and Engineering Union (1995) 59 IR 385 cited
CPSU, the Community and Public Sector Union v Telstra Corporation Limited (Print S7179, 20 June 2000) discussed
CSR Humes Pty Ltd v Construction, Forestry, Mining and Energy Union (1997) 76 IR 121 not followed
Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 cited
R v Whitehead [1982] QB 1272 cited



A Code, Statutory Interpretation (4^th ed, 2002)
Craies on Legislation (8^th ed, 2004)



SENSIS PTY LTD v THE HONOURABLE PRESIDENT JUSTICE GEOFFREY M GIUDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT JEANETTE I MARSH AND COMMISSIONER GARETH S G GRAINGER, MEMBERS OF THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, COMMISSIONER GREGORY R SMITH, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE COMMUNITY AND PUBLIC SECTOR UNION

VID 1296 of 2004


WILCOX, FRENCH and FINKELSTEIN JJ
12 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1296 of 2004

On Remittal from the High Court of Australia

BETWEEN:	SENSIS PTY LTD APPLICANT
AND:	THE HONOURABLE PRESIDENT JUSTICE GEOFFREY M GIUDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT JEANETTE I MARSH AND COMMISSIONER GARETH S G GRAINGER, MEMBERS OF THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENT COMMISSIONER GREGORY R SMITH, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SECOND RESPONDENT THE COMMUNITY AND PUBLIC SECTOR UNION THIRD RESPONDENT
JUDGES:	WILCOX, FRENCH and FINKELSTEIN JJ
DATE OF ORDER:	12 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The proceeding 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	VID 1296 of 2004

On Remittal from the High Court of Australia

BETWEEN:

SENSIS PTY LTD APPLICANT

AND:

THE HONOURABLE PRESIDENT JUSTICE GEOFFREY M GIUDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT JEANETTE I MARSH AND COMMISSIONER GARETH S G GRAINGER, MEMBERS OF THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENT COMMISSIONER GREGORY R SMITH, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SECOND RESPONDENT THE COMMUNITY AND PUBLIC SECTOR UNION THIRD RESPONDENT

JUDGES:	WILCOX, FRENCH and FINKELSTEIN JJ
DATE:	12 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

WILCOX and FRENCH JJ:

1 This is an application for prerogative relief (certiorari, prohibition and mandamus) that was remitted to the Court on 13 July 2004 by Hayne J, of the High Court of Australia, pursuant to s 44 of the Judiciary Act 1903 (Cth).

2 The applicant, Sensis Pty Ltd (‘Sensis’), is an employer. Some of its employees are members of the Community and Public Sector Union (‘CPSU’), the third respondent. The first respondents are members of a Full Bench of the Australian Industrial Relations Commission (‘the Commission’ or ‘AIRC’) that heard an application for leave to appeal against a decision of the second respondent, Commissioner G R Smith of the Commission. Sensis seeks relief in relation to the decision of the Full Bench.

3 In accordance with the usual practice, the first and second respondents filed submitting appearances. CPSU appeared to resist the case argued by Sensis.

Background

4 Sensis is a wholly owned subsidiary of Telstra Corporation Limited. It was formerly known as Pacific Access Pty Ltd. Under that name, it was a party to, and bound by, the Pacific Access Employment Partnership Agreement No 2, 2001 (‘the 2001 EA’). That agreement was made under s 170LK of the Workplace Relations Act 1996 (Cth) (‘the Act’). It was certified by the Commission under s 170LT of the Act, to commence from 4 May 2001.

5 Section 170 LK relevantly provides:

‘(1) The employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement.
(2) The employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement has at least 14 days' notice, in writing, of intention to make the agreement, and the agreement must not be made before those 14 days have passed.
(3) At or before the time when the notice is given, the employer must take reasonable steps to ensure that every such person either has, or has ready access to, the proposed agreement, in writing.
(4) The notice must also state that if:
(a) any person whose employment will be subject to the agreement is a member of an organisation of employees; and
(b) the organisation is entitled to represent the person's industrial interests in relation to work that will be subject to the agreement;
the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement.
(5) If an organisation is so requested to represent such a person, the employer must give the organisation a reasonable opportunity to meet and confer with the employer about the agreement before it is made.
(6) ...
(7) ...
(8) ...’

6 The 2001 EA had a nominal life of two years. Accordingly, in late 2002, Sensis took preliminary steps towards formation of a further agreement. On 5 September 2002, Sensis requested nomination of a Staff Consultative Team (‘SCT’). The SCT members were announced on 27 September 2002. On the same day, Sensis announced the names of eight persons who would constitute the Management Consultative Team (‘MCT’) that would represent the Sensis management in the negotiations for the new enterprise agreement. Staff bulletins informed employees about these events and invited employees to contact SCT members conveying their views about the proposed new enterprise agreement.

7 Arrangements were made for the SCT and MCT to meet for negotiations on 14 and 15 November 2002. On 14 November 2002, the two teams of negotiators met. Among those representing Sensis were the company’s solicitor and its human resources manager. At the meeting, some SCT members indicated a desire to have the assistance of a CPSU representative. The management representatives did not agree to this, although they indicated they had no objection to SCT members conferring with a CPSU representative during breaks in the negotiations. After further discussion, the MCT offered to appoint an independent person to advise the SCT. Apparently, a person was appointed but the SCT members were dissatisfied with that response. The negotiations made little progress.

8 On 22 November 2002, CPSU gave notice to the Commission, pursuant to s 170MI(2) of the Act, of its intention to try to make an agreement with Sensis under Division 2 or 3 of Part VIB of the Act and to have any agreement so reached certified under Division 4 of Part VIB of the Act. Particulars in the notice specified the types of employees whose employment would be subject to the agreement as those covered by the Pacific Access (Clerical and Sales Employees) Award 2000. It is common ground in this proceeding that those employees are the same employees as those bound by EA 2001. The notice requested the Commission ‘to exercise powers to try by conciliation to facilitate the making of such an agreement’.

9 On the same day, CPSU gave a further notice to the Commission, this time pursuant to s 170NA of the Act. This notice read:

‘IN the matter of:

Sensis Certified Agreement 2002

Notice is hereby given that CPSU, the Community and Public Sector Union is negotiating with Sensis Pty Ltd for the making of a certified agreement.

The following steps have been taken in seeking to negotiate an agreement:

• CPSU has conducted meetings of employees to determine their views on the type of agreement they would like to have made
• In the majority employees have indicated their preference for an agreement made under Section 170LJ of the Workplace Relations Act 1996
• Employees have indicated this preference by signing a CPSU petition
• CPSU has advised Sensis of this preference and requested discussions about an agreement under Section 170 LJ
• Sensis have elected staff nominees to be involved in negotiations for the agreement and have denied these nominees’ request to have their union represent them in negotiations for an agreement under Section 170 LJ, or at all.

The Commission is being asked to exercise power under subsection 170NA to conciliate in respect of such an agreement.’

10 Section 170LJ is contained in Division 2 of Part VIB of the Act. It is concerned with agreements between employers and organisations of employees, as distinct from agreements with employees themselves under s 170LK. Section 170LJ relevantly reads:

‘(1) The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation:

(a) has at least one member employed in the single business or part whose employment will be subject to the agreement; and
(b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.

(2) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.
(3) The employer must take reasonable steps to ensure that:

(a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and
(b) before any approval is given, the terms of the agreement are explained to all the persons.

(4) ...’

11 Section 170NA appears in Division 8 of Part VIB of the Act. This Division is concerned with negotiations for certified agreements. Section 170NA is as follows:

‘(1) The Commission has the conciliation powers in relation to a matter arising under this Part that it would have under Part VI in relation to the matter if that Part applied to conciliation in relation to the matters instead of in relation to industrial disputes.
(2) If 2 or more organisations of employees are involved in the negotiations or proposed negotiations, the Commission may order that all of the organisations be represented, for the purposes of conciliating the matter, by a single person or group of persons, where the person or persons are authorised by the organisations to represent them (whether generally or in relation to the particular negotiations).
(3) Subsection (2) does not, by implication, limit the powers mentioned in subsection (1).’

The effect of s 170NA(1) is a major issue in this case.

12 On 11 December 2002, a member of the SCT wrote to Commissioner Smith, seeking his assistance. After identifying himself in his letter, he said:

‘I have been informed by the CPSU that there is [a] conciliation hearing on the 17 December and that this letter would be presented to you on the day.

There have been two Bargaining Negotiation Meetings to date and I have been present at both.

At the first meeting, the SCT asked that the CPSU be present and participate during discussions as a support and guidance for the SCT. This is because the Human Resource Management and company solicitor were present from Sensis and it was to balance that technical/legal knowledge and expertise.

This request was denied. Management informed the SCT that it was not possible to have the CPSU present as it was not a union agreement.

The SCT also asked the Company to conduct a staff ballot, to see whether staff wanted a union or a union agreement as many of us were asked to raise this issue by staff in our areas of work.

This request was denied. Management informed us that we had no right to ask for a staff ballot.

The SCT decided [sic: not?] to attend the second meeting as there was to be no negotiation and because we were aware of this hearing before the Commission.

The next meeting is on the 10-12 of February 2003 and the SCT would like the CPSU to be present and participate at the meeting.

The reason that I am writing this letter is because I am based in Sydney and am prepared to make myself available to the Commission if so required.

I have circulated this letter to all members of the SCT and nobody has disagreed with the contents of this letter.’

The hearings before Commissioner Smith
(i) The first decision

13 CPSU’s application for conciliation came before Commissioner Smith for directions on 17 December 2002. The Commissioner made directions for the filing of submissions and indicated he may fix the application for hearing on 6 or 7 February 2003, depending on what arose out of the submissions. A hearing date was later fixed before Commissioner Smith for 6 February 2003.

14 The submissions revealed an issue as to the jurisdiction of the Commission. Accordingly, Commissioner Smith decided first to address this issue. The hearing on 6 February focused on this issue, as did the reasons for decision handed down by the Commissioner on 17 February 2003. In those reasons, Commissioner Smith crystallised the issue in this way:

‘The CPSU, the Community and Public Sector Union (CPSU) has lodged an application pursuant to s.170NA(1) of the Workplace Relations Act 1996 (the Act) seeking assistance with negotiations between it and Sensis Pty Ltd (Sensis).

On 22 November 2002 the CPSU initiated a bargaining period in accordance with s.170MI of the Act.

Briefly, Sensis seeks to negotiate a replacement Agreement to an existing Agreement and wishes to maintain the approach of having an agreement made with its employees pursuant to s.170LK of the Act. Sensis has decided that it will determine how bargaining is to take place and has established a bargaining Committee of employees. Sensis has refused to enter into negotiations with the CPSU (which claims significant membership) and has rejected a request by the CPSU for a ballot of employees to allow them to express a view on a bargaining approach.

Sensis argue that it can unilaterally impose this approach on its employees as such action is consistent with the scheme of the Act. It would follow that for employees to reject the path determined by Sensis they must openly bring themselves into conflict with their employer and refuse to bargain.

The CPSU, in essence, argue that this approach by Sensis does not "enable employers and employees to choose the most appropriate form of agreement" nor does it provide for "fair and effective agreement-making". The CPSU submit that the approach adopted is an unfair bargaining practice.

The CPSU request a Direction in relation to the bargaining process, seeking either of the following.

That the:

CPSU be present and participate at the next negotiation meeting

or

Commission conduct a secret ballot of the staff representative to enable them to express a view as to whether or not they wish the CPSU to be present and participate at the negotiating meeting.

Sensis argue that there is no foundation in the Act which would give the Commission jurisdiction to issue any Direction which related to bargaining. In particular, it argued that the Commission would first have to conclude that there was either an express or implied obligation to bargaining in good faith and then identify the matter which arose in relation to that obligation.

There have been no merit arguments by Sensis as it made it clear that it wished to test the preliminary jurisdiction point through the appeal process. Nor have there been any significant submissions on whether or not any particular remedy is available should the Commission find that there is a duty to bargain in good faith. I do not criticise this approach as it was put openly. This is also an issue about which Sensis strongly argues. I am content to consider firstly whether or not there is an express or implied duty to bargain in good faith under the Act.’

15 Commissioner Smith then referred to an earlier Commission decision, Asahi Diamond Industrial Australia Pty Limited v Automotive, Food, Metals and Engineering Union (1995) 59 IR 385 (‘Asahi’), and certain statutory amendments made in 1996. After mentioning some subsequent decisions relating to the effect of those amendments, the Commissioner said:

‘Accepting the reasoning in Asahi that the Commission can not order parties to negotiate, it is still the case that significant rights accrue to persons or organisations under Part VIB of the Act. It would be hard to conclude that any of those rights could be invoked in circumstances where there was an absence of bona fides.’

16 Commissioner Smith observed that, under s 170LA(1) of the Act, the Commission is required, as far as practicable, to perform its functions under Part VIB of the Act ‘in a way that furthers the objects of this Act and, in particular, the objects of this Part’. Although Commissioner Smith did not set it out, s 170L of the Act states the object of Part VIB is ‘to facilitate the making, and certifying by the Commissioner, of certain agreements, particularly at the level of a single business or part of a single business’.

17 Commissioner Smith set out one of the objects of the whole Act, contained in s 3(e):

‘providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them’

18 Commissioner Smith concluded:

‘From the review of the decisions, together with the legislative framework now in place, I find that it is a duty upon those seeking to negotiate an agreement under Part VIB of the Act to do so in good faith.

Such a finding does not of course end the matter before me, because there still needs to be an identification of the matter arising under that obligation. The transcript of proceedings shows that other significant issues are yet to be considered and these travel beyond the immediate question. However, I have acquiesced to the submission of Sensis that it wished to have this preliminary question determined so that it may have my conclusion tested if I found that such a duty existed.

Having found such a duty I must now consider the future conduct of the matter. Sensis agreed to defer further negotiations for a period of two weeks. It was reluctant to do so but nonetheless afforded me the opportunity of reflecting upon its submissions.

In light of the submissions and the course which Sensis foreshadowed, it is appropriate that I now direct, pursuant to s.111(t), that no further bargaining take place, under Division VIB of the Act until this matter is resolved or until further order of the Commission.’

(ii) The second decision

19 Commissioner Smith conducted a further hearing on 2 and 7 April 2003 and issued a Supplementary Decision on 10 April 2003. In this decision, he noted the terms of the direction that CPSU then sought:

‘Sensis Pty Ltd ("Sensis") is directed to invite the nominated representative of CPSU, the Community and Public Sector Union ("CPSU") to be present in all negotiations, meetings or discussions where the purpose of those negotiations, meetings or discussions is to explain, or to seek to reach agreement on, the terms of an agreement which Sensis proposes to make and certified pursuant to the Act.’

20 Commissioner Smith went on:

‘I note in passing that CPSU does not seek to have the direction pronounce upon or influence the type of Agreement to be bought for certification. That would be a matter properly for discussion and the Commission does not prefer any form of regulation. A side issue in this matter is the view held by CPSU that Sensis is trying to predetermine the form of regulation by its construction of the bargaining unit.

Against the background of a duty to bargain in good faith, the issues which remain for consideration are these:

• Can the Commission make directions, as a part of the conciliation process, in relation the conduct of bargaining where it is apprehended that one or more of the parties may not be bargaining in good faith?

• If it can make directions, are those directions limited in any way?

• Can the direction sought in this case be made within jurisdiction?’
[Footnote omitted]

21 After a lengthy discussion, which included reference to several authorities and statutory provisions, Commissioner Smith concluded by saying that, as he had not heard any merit arguments, he would content himself by finding at this stage ‘that the directions sought by CPSU can, as a matter of jurisdiction, be granted’.

22 Commissioner Smith did not make any substantive order. He merely stood the matter over until 16 April 2003 ‘to hear argument in relation to the merit’. However, on that day Sensis requested a further adjournment to enable it to consider a possible application for leave to appeal. This request was granted.

The Full Bench decision

23 On 29 April 2003, Sensis filed a notice of appeal to the Full Bench of the Commission. The notice cited nine grounds. Essentially, it amounted to a challenge to Commissioner Smith’s view about jurisdiction.

24 The Minister for Employment and Workplace Relations intervened at the Full Bench hearing, which occurred on 14 August 2003. The Commission President, Justice Giudice, Senior Deputy President Marsh and Commissioner Grainger constituted the Full Bench.

25 On 28 October 2003, the Full Bench delivered its decision. The Full Bench noted that Sensis needed leave to appeal. It decided leave should be granted. The Full Bench upheld some of the submissions made to it by Sensis. However, it did not make a formal order allowing the appeal. The Full Bench merely referred the matter back to Commissioner Smith with a direction that he deal with CPSU’s application in accordance with the Full Bench’s decision.

26 In its reasons for decision, after setting out the history of the matter, the Full Bench identified four issues:

‘(i) does the Commission have power to issue directions when exercising conciliation functions pursuant to Part VIB of the Act;

(ii) did the Commissioner have power to issue directions in the circumstances of this case;

(iii) how is the discretion to issue directions when exercising conciliation functions to be exercised; and

(iv) was the Commissioner correct to conclude that the direction sought by the CPSU in this case was one the Commission had power to make?’

27 The Full Bench then discussed each of these issues.

Issues before the Full Bench
(i) Power to issue directions under s 170NA

28 The Full Bench noted that s 170NA operates to confer on the Commission the conciliation powers in Part VI of the Act in relation to a matter arising under Part VIB. The Full Bench thought this gave rise to two additional issues:

‘(i) do the conciliation powers in Part VI include the power to issue a direction; and

(ii) what construction is to be given to the phrase "matters arising under this Part in s.170NA(a)[sic]?’

29 The Full Bench said it was decided in CPSU, the Community and Public Sector Union v Telstra Corporation Limited (Print S7179, 20 June 2000) (‘Telstra’) that the power to give a direction conferred by s 111(1)(d) and (t), which are in Part VI of the Act, may be exercised in conciliation. The Full Bench said no serious challenge had been made to Telstra. [In submissions to us, Sensis disputed this last statement.]

30 The Full Bench referred to a submission by counsel for Sensis concerning the meaning of the word ‘matter’ in s 170NA(1) of the Act; namely, that it was concerned with contraventions of duties or rights arising under statute; consequently, a legally enforceable remedy is required. The Full Bench commented:

‘We do not think that the tests adopted by the courts to decide whether there is a matter which can be the subject of a determination in a legal proceeding are of any assistance. Conciliation proceedings before the Commission do not involve the exercise of judicial power nor do they involve the creation of substantive rights. Words must be given a meaning consistent with their context. The exercise of conciliation powers is directed towards achieving agreement on the issues which divide the negotiating parties. Whether a matter arises will depend upon the circumstances. But the issue need not be one relating to a disagreement about the terms and conditions of employment to be included in the proposed agreement. That is clear from the terms of s.170NA(2) which permit an order to be made in relation to representation of parties for the purposes of conciliation and s.170NA(3) which provides that s.170NA(2) does not by implication limit the powers in s.170NA(1). Presumably a matter might include an issue as to the type of agreement, its duration or any of the other matters dealt with in the various provisions of Part VIB.’

31 The Full Bench concluded its discussion of this issue by saying:

‘A matter for the purpose of s.170NA(1) is a disagreement of substance which arises between parties, at least one of which wishes to reach an agreement to be certified under Part VIB of the Act, and which is relevant to Part VIB. It is not necessary or desirable to go beyond that formulation for the purposes of this decision.’

(ii) The availability of power in this case

32 In relation to the second issue, whether the power was available in this case, the Full Bench stated at [19]:

‘Sensis and the CPSU are in dispute about the form of agreement to be made and Sensis wishes to continue discussions with the Staff Consultative Team without any CPSU official present. It seems to us beyond doubt that issues have arisen between the parties as to the form of the agreement to be made and issues connected with the manner in which the negotiations are to be conducted. Given that not one but both parties are seeking an agreement under Part VIB, it is beyond doubt that the matters arise under that part. It is clear that the powers in s.111(1)(d) and (t) were available to the Commissioner in the circumstances of this case.’

33 Section 111 of the Act appears in Division 3 of Part VI of the Act. Division 3 is headed ‘Particular powers of Commission’. It commences with subs (1A) which provides that, subject to the Act, ‘the Commission may do any of the things mentioned in subsection (1) in relation to an industrial dispute arising under this Act’.

34 Section 111(1A) does not identify the Commission’s powers by reference to the separate functions of arbitration and conciliation; the requirement is the existence of an industrial dispute, the resolution of which may include conciliation, arbitration or both.

35 Paragraphs (d) and (t) of s 111(1) are in the following terms:

‘The Commission may:

...

(d) give a direction in the course of, or for the purposes of, the hearing or determination of the industrial dispute;

...

(t) generally give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute.’

(iii) The nature of the s 170NA(1) discretion

36 When considering the third issue, the nature of the discretion conferred by s 170NA(1), the Full Bench first noted, at [20], the requirement of s 170LA(1) of the Act that the Commission must, as far as practicable, perform its functions under Part VIB in a way that furthers the objects of the Act and, in particular, of Part VIB. The Full Bench then referred to objects (b), (c) and (e) in s 3 of the Act and commented:

‘It is clear from these objects that the discretion to issue directions should, so far as practicable, be exercised in a way which ensures that employers and employees at the workplace have primary responsibility for determining the terms of their relationship and which enables them to choose the form of agreement that suits them. And it is implicit in s.3(e) that this discretion will be exercised in a way which supports fair and effective agreement-making.’

37 After quoting s 170L, dealing with the object of Part VIB, the Full Bench said at [24]:

‘It is clear from this object that the discretion to issue directions should, so far as practicable, be exercised so as to facilitate the making and certifying of agreements under the Act.’

38 The Full Bench then said, at [25]-[29]:

‘It follows from these provisions that the power to issue directions should be exercised so as to give primacy to the object of ensuring the primary responsibility for determination of terms and conditions rests with employers and employees at the workplace or enterprise level and that the choice of the form of agreement is a matter for them. The Commission’s role is facilitative. In carrying out that role it should remain neutral about the form of agreement while attempting to protect the rights of each party. It is a part of the scheme that employees who so choose may be represented in negotiations by their union: ss.170LJ, 170LK(4) and (5), 170LL and 170LN. Any directions the Commission makes should protect that right. The Act also provides that an employer may seek to make an agreement directly with its employees. In making \directions the Commission should also protect that right. The power to make directions should not be exercised so as to pre-empt the right of either party to seek the type of agreement which it prefers.

There is an additional consideration. In exercising its powers the Commission is required by s.110(2)(c) to act according to equity, good conscience and the substantial merits of the case. In the present context the Commission is under a duty to act according to equity and fairly in issuing directions. This reinforces the view that if proper regard is to be given to the objects of the Act and the objects of Part VIB, the Commission may issue directions which preserve the rights of all parties to pursue the type of agreement they prefer.

It follows from this analysis that the Commission may issue directions to ensure a fair process is adopted. We shall return to this issue in dealing with the order sought in this case. Before doing so, however, it is necessary to deal with the Commissioner’s finding that those seeking to negotiate an agreement under Part VIB must do so in good faith.

No party submitted that there is a legal duty to bargain in good faith pursuant to Part VIB. There clearly is no such duty. Such a duty is known to United States labour law ... There are no equivalent provisions in the Workplace Relations Act 1996.

The Commission is required, relevantly, to act according to equity and good conscience. It may be accepted that if registered organisations, employees or employers act other than in accordance with those precepts the Commission may take that fact into account when exercising its discretion. But that is a different matter entirely to the question of whether there is a legal duty to bargain in good faith.’

(iv) The correctness of Commissioner Smith’s decision

39 Finally, the Full Bench considered whether Commissioner Smith was correct in concluding he had power to make the direction sought by the CPSU. The Full Bench rejected an argument put by Sensis that such a direction would be beyond power because it would conflict with the statutory scheme.

40 The Full Bench saw more merit in Sensis’ alternative submission that the direction would be beyond power because the Commission can exercise only conciliation powers. However, the Full Bench did not reach a conclusion about that matter. It said, at [34]-[35]:

‘In considering the second argument, that the direction sought goes beyond facilitating agreement and amounts to arbitration about the type of agreement which the parties should have, it is appropriate to refer again to the terms of the direction. Those terms require the appellant to invite a CPSU representative to attend all negotiations, meetings or discussions where the purpose is to explain or seek to reach agreement on the terms of an agreement the respondent wishes to make and have certified under the Act.

While the Commission may make orders about the bargaining process, its role is facilitative. Directions requiring an employer to attend a conference in the Commission or to meet with a union may be seen as appropriate. The order in this case would prohibit Sensis from talking to its own employees about a proposed agreement without a representative of the CPSU being present. It is likely that such a direction goes beyond what might legitimately be directed because it tends to deprive the employer of its right to pursue its preferred form of agreement. We are not prepared to conclude that such an order would always be beyond jurisdiction. That would depend upon the circumstances, including the submissions of the parties. In this case, for the reasons we now give, this is a matter which we do not need to decide.’

41 The Full Bench concluded at [36]-[37]:

‘It will be recalled that the Commissioner approached the application for a direction on a two step basis. The first step was to decide whether he had jurisdiction to issue the direction. The second step was to hear ‘the merit arguments." It is clear that the Commissioner’s conclusion that he had jurisdiction to make the direction sought was based to a significant extent on the view that Sensis was under a legal duty to bargain in good faith. We have concluded that there is no such duty. It does not follow that the Commissioner’s decision as to jurisdiction was wrong. While we have real reservations about the particular direction sought, whether it can or should be made is a matter to be determined in light of all the circumstances. But because the Commissioner has indicated an intention to consider the merit arguments in the context of a duty to bargain in good faith it is necessary to ensure that does not occur and that the discretion is exercised having regard to the relevant statutory considerations.

We think the appropriate course is to direct Commissioner Smith to take further action to deal with the CPSU’s application in accordance with this decision. We do so.’

Subsequent proceedings

42 On 25 November 2003, Commissioner Smith made directions for a further hearing in January 2004. However, on 23 December 2003, Sensis filed a Notice of Motion and draft Order Nisi in the High Court. Although he took evidence over four days in late January and early February 2004, Commissioner Smith then indefinitely adjourned the hearing of the matter.

The applicant’s submissions

43 In their written outline of submissions, counsel for the applicant suggested that three issues arise in this proceeding, viz:

‘(a) do the conciliation powers of the Commission under Part VI of the Act, said to be conferred on the Commission in the present case by s170NA(1), give the Commission power to make a direction under s111(1) or otherwise;
(b) what construction is to be given to the phrase "a matter arising under this Part" in s170NA(1) and in particular:

(i) can the existence of a bargaining period constitute such a matter;
(ii) can a disagreement of substance between parties, one of whom wants to reach an agreement to be certified under Part VIB, constitute such a matter;
(iii) was there a matter arising in the present case.

(c) whether the directions:
(i) the Full Bench said could be made by Commissioner Smith in dealing with the CPSU application or;
(ii) sought by the CPSU in the proceedings before Commissioner Smith;
were directions that could be made within the jurisdiction of the Commission under either s170NA(1) or s111(1).’

44 In relation to the first issue, counsel noted that CPSU had referred to the Commission’s powers under s 111(1)(d) and (t) of the Act. Counsel commented that any such power ‘depends on there being a matter arising under Part VIB’ but contended, in any event, that these sub-paragraphs contained arbitration powers, whereas s 170NA(1) is confined to conciliation powers. Counsel argued:

‘Sub-paragraph (d) of s111(1) gives the Commission power to make directions in connection with "the hearing or determination of the industrial dispute". Sub-paragraph (t) of s111(1) uses the same phrase except that the word "and" replaces the word "or". No distinction between the two arises from this difference.’

45 Counsel cited authority for the proposition that the phrase ‘hear and determine the industrial dispute’ ‘refers to the function of arbitration and can only occur once conciliation has come to an end’. Counsel postulated that, to the extent that the Commission’s decision in Telstra suggests otherwise, it is wrong.

46 Counsel challenged the Full Bench’s interpretation of the word ‘matter’ in s 170NA(1). They noted the use of the phrase ‘matter arising under’ in s 76(ii) of the Constitution and in many other Commonwealth statutes, including the Act. Counsel said:

‘The phrase has been in common legal parlance since at least 1900, where a matter arising under a particular statute must be a matter than can be determined upon principles of law. This point was put two ways below. The first way, the more narrow, focused upon the word "matter". A matter is ordinarily concerned with some immediate right, duty or liability arising under the Constitution, Act of Parliament or part of the same (as in the instant case): Abebe -v- Commonwealth [1999] HCA 14; [1999] 197 CLR 510 at [25]- [26], [31], [32]. The second way, the broader, focused upon the phrase "matter arising under [Part VIB]".

The First Respondent erred by finding that the principles in Abebe and the cases cited therein are only relevant to the exercise of judicial power. This was wrong, whether one focuses upon the word "matter" or the phrase "matter arising under ..." For example, the phrase "matter arising under" is used in the Act in relation to the exercise of:

(a) judicial power only – sections 347(1), 412(1), 416, 422(1), 470 and 471(1); and

(b) the conciliation, arbitration and other powers of the Commission only – sections 45A, 81, 109(4A) and 170NA(1).

The phrase "matter arising under" has a long pedigree and accepted judicial meaning. It would be peculiar to attribute to Parliament an intention that the phrase have a different meaning in different sections of the Act based on the type of power being exercised in reference to the "matter". Rather, Parliament should be assumed to have been well aware of the meaning of the phrase and adopted a consistent meaning for it throughout the Act.’

47 Sections 45A, 81 and 109(4A) all refer to ‘a matter arising under the Registration and Accountability of Organisations Schedule’ of the Act.

48 Counsel submitted that, although the phrase ‘matter arising under’ is used in s 170NA in relation to conciliation powers, the meaning of the word ‘matter’ remains unaffected. The use of the word in this context merely limits the Commission’s ability to resolve the ‘matter’ to ‘a consensual process, in which the Commission plays a facilitative role in assisting the parties to reach agreement on the controversy between them’.

49 Counsel argued that, even on the Full Bench’s interpretation of the word ‘matter’, no matter had arisen between CPSU and Sensis. Sensis wished to make an agreement under s 170LK of the Act (not s 170LJ); a registered organisation cannot be a party to an agreement under s 170LK. Counsel submitted that CPSU:

‘seeks to invoke the Commission’s jurisdiction to conciliate in relation to the negotiation of an agreement to which it cannot, by definition, be a party. Accordingly, there is no matter arising under Part VIB between the Applicant and the Third Respondent that attracts the Commission’s jurisdiction.’

50 Counsel also said the direction sought by CPSU cannot be a valid exercise of the Commission’s conciliation power because it is a substantive (not procedural) direction. The direction would determine any ‘matter’ that arose under Part VIB of the Act.

51 Counsel further contended the direction sought by CPSU was inconsistent with the statutory scheme, which permits an employer to determine whether it wishes to enter into an agreement with a registered organisation or directly with its employees.

The third respondent’s submissions

52 The outline of submissions filed by counsel for CPSU commented that, on Sensis’ submission:

‘in order for the AIRC’s jurisdiction under s170NA(1) to be enlivened, there must be a justiciable controversy (or something akin thereto). As a matter of power, it says there is no power in conciliation to hear and determine a controversy because that would be arbitration. On that analysis, s170NA is entirely inoperative. The AIRC’s jurisdiction is only enlivened by a controversy which the AIRC is powerless to resolve. The Applicant’s analysis cannot be right.’

53 Counsel acknowledged the authorities concerning the meaning of the word ‘matter’ when used in a constitutional context. However, they argued:

‘It is only in that context and by reference to the indicia of judicial power that "matter" has been defined as a right, duty, benefit or liability enforceable at law.’

Counsel continued:

‘The approach suggested by Sensis is inapplicable to the determination of the jurisdiction of an administrative tribunal such as the AIRC. The determination of existing legal rights, duties and entitlements can never fall for determination by an administrative tribunal such as the AIRC. The AIRC does not exercise judicial power and there could never be a legally enforceable remedy in respect of s170NA(1), even if a right, duty or liability could be identified. An interpretation of a provision which carries out its purpose, is to be preferred to one which will negate, or render it otiose.’

54 Counsel observed that the word ‘matter’ is used in numerous provisions in the Act, but not in a consistent or uniform way. They cited provisions where the word was used to designate a ‘subject matter’ or ‘topic’; and also where it connotes ‘issue’ or ‘controversy’. Counsel submitted:

‘The word "matter" appearing in s.170NA(1) means an issue, difficulty or simple (as distinct from justiciable) controversy. The composite phrase "matter arising under this Part" means an issue, controversy or difficulty arising under Part VIB.

This construction is consistent with and promotes the objects of the Act and the objects of Part VIB of the Act (s. 15AA Acts Interpretation Act 1903). The jurisdiction of the AIRC under s170NA(1) relates to and assists the process of bargaining and agreement making identified as primary objects of the Act in s3(b),(c) and (e). This approach to "matter" is consistent with the specific objects of Part VIB concerning the facilitation of the making and certifying of agreements under the Act (see s170L).

Section 170NA(1) is a general conferral of jurisdiction to the AIRC in respect of the subject matters dealt with by Part VIB of the Act. Provisions of this type should be construed liberally, eschewing limitations and implications not found in the words of the provision.’

55 Counsel for CPSU contended this approach coincides with the intention underlying s 170NA, as disclosed by the Explanatory Memorandum for the Bill that introduced s 170NA into the Act and an answer to a question on notice given by the responsible Minister. The Explanatory Memorandum stated, in para 9.211, that the ‘Commission has unfettered conciliation powers in relation to matters arising during a bargaining period, whether for an agreement under Division 2 or Division 3’ of Part VIB. Paragraph 9.79 noted, in relation to the proposed s 170LK, that ‘the Commission has the capacity to facilitate any negotiations by conciliation (see new section 170NA)’. In his answer, the Minister said that, under the Act, the Commission ‘may exercise conciliation powers to assist parties in connection with negotiations for a certified agreement – see s 170NA of the [Act]’.

56 Counsel for CPSU said:

‘Sections 170QH – 170QK of the Industrial Relations Act 1988 dealt with conciliation functions of the AIRC in relation to proposed agreements in the predecessor legislation to the Act. The AIRC’s functions under that Act clearly extended to issues or controversies arising in bargaining, including potential controversies. Sections 170NA covers essentially the same territory, but in a simplified and less prescriptive manner consistent with the "unfettered" nature of the conciliation power accorded to the AIRC. In an Act effecting alterations whose main purpose was "to expand the role of conciliation" in the system of dispute resolution (Re Pacific Coal; Ex parte CFMEU [2000] HCA 34; (2000) 203 CLR 346 at [7] per Gleeson CJ), it should not be presumed that Parliament intended to narrow the AIRC’s function or powers.

Applying the approach here contended for to the present proceeding, it can be seen that Part VIB of the Act deals with a number of subjects, including negotiations and bargaining for the making of certified agreements (see s170L, s170LA, Divisions 2 and 3). In the present circumstances, bargaining for the making of a certified agreement had commenced and there existed a disagreement concerning the process of negotiations for a certified agreement and in particular the representation of employees and the form of any agreement to be made. The AIRC’s jurisdiction under s170NA(1) had clearly been enlivened.’

57 Counsel for CPSU said Sensis’ submission that the Commission could not make an order pursuant to s 170NA(1) is shown to be erroneous by the terms of s 170NA(2) of the Act, which refers to a particular type of order that the Commission has power to make for the purpose of conciliating the matter. They went on:

‘Other provisions in Part IVB also envisage that the AIRC has the capacity to make orders in relation to negotiations for an agreement under that Part: s170MP(1)(b); s170MP(2)(b) and s170MW(2)(c).’

58 Counsel noted that ‘it has long been established that the AIRC can make orders in conciliation’. They cited High Court authority for the proposition that an order making a consent award is an exercise of the conciliation power. And they pointed out that the power to order a compulsory conference (s 119 of the Act) demonstrates that the power to make orders in conciliation is not confined to orders made by consent.

59 Counsel also referred to the terms of the 1988 legislation:

‘Sections 170QH – 170QK of the Industrial Relations Act 1988 made it abundantly clear that the making of orders and directions by the AIRC to facilitate the making of agreements was an accepted characteristic of conciliation: see ss170QH(2), 170QI(1) and 170QK(2). Note that s170QK(2) specifically referred to s111(1)(t) (which remains in the same terms) as the source of the power available to the AIRC.

60 In relation to s 111, counsel submitted:

‘The powers specified in s111 are powers which are, or may be necessary, for the effective conduct and disposition of a proceeding. They are available in a conciliation proceeding where the power is to be used for the purpose of conciliation. Where the processes of conciliation and arbitration are brought to bear on an industrial dispute, they are brought to bear, in the case of conciliation, for the purpose of reaching agreement or, in the case of arbitration, for determining what those rights and liabilities should be ... Section 111 powers are not available in conciliation for the purpose of determining the content of an industrial instrument. However, in relation to matters of process rather than content, the AIRC can exercise the powers available to it in s111 in conciliation, including those specified in paragraphs (b),(d) and (t) of s111(1).’

61 Counsel for CPSU disputed Sensis’ claim that the direction sought in this case was substantive, as distinct from procedural. But they said this distinction is immaterial:

‘[T]he question is not whether the direction sought in the present case is referable to a substantive or procedural issue, but whether it is sought for the permissible purpose of facilitating the making of an agreement, or for the impermissible purpose of determining the content of an agreement. The direction sought does not touch upon the content of the industrial agreement which might be made as a result of negotiations.’

62 Counsel for CPSU took issue with Sensis’ claim that no ‘matter’ had arisen under Part VIB of the Act because a registered organisation could not be a party to an agreement under s 170LK of the Act. They said:

‘A union can be in disagreement with an employer in relation to whether an agreement should be made at all and/or whether an agreement under s170LJ or alternatively s170LK of the Act should be made. Further, even if a s170LK agreement is to be made, a union, employees and an employer can be in disagreement in respect of whether employees should be represented by the union in negotiations for such an agreement. In this case, both the union and also the employees have sought the assistance of the AIRC because of their disagreement with Sensis as to who should represent the employees in negotiations, the form any agreement made should take and who should be parties thereto. An employer’s preference for a s170LK agreement does not foreclose controversy.

Contrary to its contentions ... if the direction sought was made, Sensis will remain free to make a s170LK agreement. The direction sought deals with the representation of the employees and imposes no limitation upon the type of certified agreement which Sensis can make.

The essential discrimen between s170LK and s170LJ agreements is that the latter permits a registered organisation to be a party principal to such an agreement. If made, the direction sought will not require the CPSU to be a party to any agreement made and leaves that issue to the negotiations. Neither s170LK, or any other provision in the Act, seeks to impose any limitation on the fundamental right of any party to an agreement to be represented by the person of their choice in negotiations for a certified agreement.’

Conclusions

63 We have recounted, at some length, the history of this case and the submissions made by the parties. However, the case seems to be much ado about very little. Contrary to the suggestion of Sensis, any direction that might be made by the Commission, along the lines of that sought by CPSU, would not deprive Sensis of the opportunity to make an agreement directly with its employees under s 170LK, if that is what Sensis and the employees wish to do. It would not force Sensis into an agreement with CPSU under s 170LJ. The only effect of such a direction would be to enable the SCT members to have the immediate assistance of a union representative during their negotiations with the MCT. Their desire to have that assistance does not seem unreasonable. The SCT members bear the responsibility of negotiating on behalf of many other Sensis employees, as well as themselves. They are confronted with management representatives that include a lawyer and the company’s human resources manager. It is difficult to understand why any fair-minded employer would wish to deny expert assistance to an employees’ negotiating team placed in that situation.

64 Be those comments as they may, there is no merit in the case put by Sensis to this Court. We agree generally with the CPSU submissions set out above.

65 We do not accept that, in s 170NA(1) of the Act, the word ‘matter’ bears the same meaning as in provisions such as s 76 of the Constitution or in statutes relating to the exercise of judicial power. As reference to any dictionary will readily establish, ‘matter’ is a word of variable import. Its meaning in a particular context must depend upon that context. Section 170NA is concerned with conciliation in respect of proposed certified agreements. It is not concerned with the exercise of judicial power, or even with arbitration proceedings. So it would be bizarre to read the word ‘matter’ as requiring the existence of ‘some immediate right, duty or liability’ arising under the Constitution or a statute. It makes more sense to treat ‘matter’ as a reference to an issue, controversy or topic that arises under Part VIB; that is, in the course of negotiations commenced under Part VIB.

66 The negotiations that Sensis commenced (through the MCT) with its employees (through the SCT) were negotiations pursuant to s 170LK of the Act. The ultimate issues between the parties, in those negotiations, were whether there should be an agreement under s 170LK of the Act and, if so, its terms. Each of these issues was ‘a matter arising under this Part’, within the meaning of s 170NA(1). At an early stage of the negotiations, a question arose concerning the SCT’s request for a union representative to assist them at the negotiating table. That was a procedural question related to the ultimate issues between the parties. Accordingly, the request enlivened, in relation to the negotiations, the Commission’s powers under Part VI of the Act. Those powers include the powers set out in s 111(1) of the Act.

67 Paragraphs (d) and (t) of s 111(1) are framed in terms of the hearing and determination of an ‘industrial dispute’. In s 4 of the Act, that term is defined in such a way as to exclude an issue about the making, or terms, of a certified agreement. However, obviously realising that fact, the drafter of s 170NA provided that the Commission’s powers under Part VI shall apply in relation to the Part VIB matter as ‘if that Part [Part VI] applied to conciliation in relation to the matters [under Part VIB] instead of in relation to industrial disputes’. Therefore, it is necessary to read provisions such as s 111(1)(d) and (t) as if they said:

‘The Commission may:

(d) give a direction in the course of, or for the purposes of, the ... determination of the Part VIB matter;

...

(t) generally give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of the Part VIB matter.’

68 In our opinion, it is not correct to identify the relevant Part VIB matter as the question whether a CPSU representative should be allowed to participate in the negotiations between the SCT and MCT. That was merely a procedural issue ancillary to the ultimate questions whether there shall be a certified agreement between the parties and, if so, its terms. Once that is accepted, it will be apparent that both paras (d) and (t) empower the Commission to give a direction that will facilitate resolution of those ultimate questions. There is no reason to exclude a direction concerning representation at the negotiating table.

69 It is true, as Sensis says, that CPSU was not a party to the negotiations initiated by Sensis. However, that fact does not preclude an application to the Commission by CPSU, an organisation having members amongst the Sensis employees that would be subject to any agreement reached as a result of the negotiations. As the relevant registered organisation, CPSU was entitled to act on the employees’ behalf in seeking a procedural direction that was designed to safeguard their interests.

70 However, it is important to bear in mind that the only proper rationale of the direction sought was to provide representation and assistance for Sensis employees in their bargaining process. There is no rationale which would support an entitlement of the CPSU to participate in those meetings in its own right. A direction in the precise terms proposed by the CPSU appears to have the effect of conferring such an entitlement, reflected in the obligation to invite a nominated CPSU representative to each meeting. It does not in terms confer on Sensis employees or their committee, the SCT, a right to representation and assistance of their choice. A modified direction in the terms sought by the CPSU, but requiring the invitation to be sent to such officer of the CPSU as is nominated by the SCT to participate in negotiations would be appropriate and, for the reasons already given, within power.

71 The Full Bench expressed a tentative view that the direction sought by the CPSU 'goes beyond what might legitimately be directed because it tends to deprive the employer of its right to pursue its preferred form of agreement'. To the extent that the direction sought would confer an entitlement on the CPSU to participate in the negotiations in its own right, there might be some force in that argument. However, if the control of representation and assistance by the CPSU in the negotiations rests with the members of the SCT, through their process of nomination, there is no basis for that proposition. The only effect of the direction, if made, would be to provide the SCT members with a source of immediate advice and assistance and, possibly, advocacy in the negotiations. It will still be for the negotiators (the MCT and SCT members) to discuss, and for Sensis and the employees to determine, whether there is to be an agreement under s 170LK and, if so, its terms.

Disposition

72 Sensis has not demonstrated that the reasoning of the Full Court was incorrect in relation to the existence of a power to make a direction as to representation in negotiations under Part VIB. It has not made out the legal merits of its case. Even had it made out its case, there would have remained a real question whether any relief should be granted given the inchoate and interlocutory character of the ‘decision’ complained of. The applicant has failed to make a case for prerogative relief. The proceeding must be dismissed.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox and French.

[ IMAGE ]
Associate:

Dated: 12 May 2005

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1296 of 2004

On Remittal from the High Court of Australia

BETWEEN:

SENSIS PTY LTD Prosecutor/Applicant

AND:

THE HONOURABLE PRESIDENT JUSTICE GEOFFREY M GIUDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT JEANETTE I MARSH AND COMMISSIONER GARETH S G GRAINGER, MEMBERS OF THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondents COMMISSIONER GREGORY R SMITH, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Second Respondent THE COMMUNITY AND PUBLIC SECTOR UNION Third Respondent

JUDGES:	WILCOX, FRENCH & FINKELSTEIN JJ
DATE:	12 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

FINKELSTEIN J:

73 The question raised by this application for prerogative relief (the principal remedy sought is the issue of a writ of prohibition directed to the Australian Industrial Relations Commission) is whether the "conciliation powers" which have been incorporated into Pt VIB, Div 8 of the Workplace Relations Act 1996 (Cth) by s 170NA confer on the Commission, when it exercises its conciliation power in relation to negotiations for a certified agreement between an employer and its employees, the power to direct that employees can have a union representative present at a conciliation. The problem has arisen because in the infrequent negotiations which have taken place between the prosecutor and several of its employees concerning a new certified agreement, the prosecutor who is represented by a team of experienced executives, a skilled lawyer and a consultant, insists that the employees should go it alone. To deal with this unsatisfactory state of affairs the Commission decided that it has jurisdiction to give the direction. The prosecutor says otherwise and seeks to prohibit the Commission from exercising its asserted jurisdiction.

74 Section 170NA(1) provides that the Commission "has the conciliation powers in relation to a matter arising under [Pt VIB] that it would have under Pt VI in relation to the matter if that Part applied to conciliation in relation to the matters instead of in relation to industrial disputes." It is as apparent from s 170NA(2), as it is from the remainder of Pt VIB, Div 8 (where s 170NA is located), that the principal "matter" likely to be the subject of conciliation is the negotiation of a certified agreement between an employer and a union under s 170LJ or an employer and a "valid majority" of its employees under s 170LK. This construction is confirmed when reference is made to the predecessor of s 170NA. In the Workplace Relations Act in force before the amendments made by Workplace Relations and Other Legislation Amendment Act 1996 (Cth) when the Act was entitled the Industrial Relations Act 1988 (Cth), the Commission’s role in facilitating the making of certified agreements was dealt with in Pt VIB, Div 5. The object of Pt VIB was to facilitate the making and certifying of agreements: s 170LA(1)(a). Divisions 2 and 3 made provision for two types of agreements viz, certified agreements in s 170MA and enterprise flexibility agreements in s 170NA. The Commission was authorised "by conciliation, to facilitate the making of [any] such ... agreement": s 170QH(2). The power conferred by s 170NA(1) is just as extensive. The prosecutor’s contention that the Commission has no right to conciliate the making of a certified agreement because the word "matter" in s 170NA(1) should be given the same meaning as the word has in s 76 of the Constitution merely brings to mind the famous speech of Lord Atkin in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, 245.

75 A convenient place to begin an investigation of the Commission’s conciliation powers is with the Workplace Relations Act, as in force before the enactment of the 1996 Amendment Act. Having conferred power on the Commission to facilitate by conciliation the making of an agreement under ss 170MA or 170NA, the Commission was then given a number of specific powers, mostly procedural in nature, to enable it to better carry out that function. First, by s 170QI(1) the Commission (by a vice president) could "give directions, and make orders, in order to facilitate the making of agreements". Second, by s 170QJ, in so far as it related to conciliation, Pt VI of the Act "applie[d] in relation to conciliation by the Commission under [Div 5] ... (d) with any ... necessary changes." Third, and perhaps most important, by s 170QK(1) the powers in s 111(2) were made applicable to conciliation under Part V or under Part VIB, Div 5. By s 170QK(2) the Commission could make orders under para 111(1)(t) for the purpose of "(a) ensuring that the parties negotiating an agreement under [Pt VIB did] so in good faith or (b) promoting the efficient conduct of negotiations for such an agreement or (c) otherwise facilitating the making of such an agreement." Section 170QK(3) set out a list of matters that the Commission was required to consider when deciding what order (if any) should be made under sub-section (2). To understand the effect of s 170QK it is necessary to explain s 111. That section contained particular powers which the Commission could use in the course of carrying out its function of preventing and settling industrial disputes. The powers are substantially the same as they are now. Two are of particular importance. Section 111(1)(d) enabled the Commission to give a direction for the hearing or determination of an industrial dispute. Section 111(1)(t) allowed the Commission "generally [to] give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute".

76 There is no doubt that one of those heads of power authorised the Commission during a conciliation to permit a party to be represented by a suitable person of the party’s choosing. It would have made no difference if the conciliation was presided over by a member of the Commission (s 102(2)(a)) or at a conference where the Commission was not present (s 102(2)(b)). The matter can be tested in this way. Assume that there were negotiations for an agreement between an employer and a group of employees. Assume also that the employees were minors. Finally, assume that the minors were disadvantaged in the negotiations because they did not understand the terms of an agreement which has been proffered by the employer. The employees ask to be represented by a lawyer. Can it be supposed that the Commission lacked the power to give a direction for the employees’ lawyer to be present and represent his clients? Clearly there was power to give that direction. If the Commission had power to allow a lawyer to be present then it logically follows that it also had power to permit employees to be represented by a union official or some other suitable person. I can think of no reason why the provisions should be given a different effect.

77 I should say, lest it be thought that I have overlooked the point, that s 42 of the Industrial Relations Act dealt with representation before the Commission. The section is still in force. No reliance has been placed on the provision. Perhaps the parties are of the view that s 42 does not apply to conciliation because the section’s subject matter is the representation of "a party to a proceeding" and a conciliation is not "a proceeding". For my own part, I am of the tentative view that when conciliation is undertaken by the Commission that is relevantly "a proceeding". But this is not a matter that needs to be resolved here.

78 I can now consider the position under the present form of the legislation. I accept that the legislation is now different. For present purposes, there are two differences of note. The first is that while s 170NA incorporates the Commission’s "conciliation powers" it does not do so "with any ... necessary changes". I think this omission is immaterial. If any of the "conciliation powers" need adjustment so they can be made to work in their new setting they will be read mutatis mutandis for example as in R v Whitehead [1982] QB 1272, 1282. See also A Code, Statutory Interpretation (4^th ed, 2002) at 648; Craies on Legislation (8^th ed, 2004) at 314. The second difference is that there is no equivalent of s 170QK. Is this omission significant? Does it indicate an intention by Parliament that the Commission was not intended to give directions for the efficient conduct of a conciliation, including directions about representation?

79 To answer these questions it is necessary first to examine in a little more detail both the effect of the former s 170QJ as well as the powers conferred by the former s 170QK. Section 170QH provided the Commission with the bare power to conciliate the making of a certified agreement and an enterprise flexibility agreement. But the section said nothing about how the conciliation process could be triggered nor what powers the Commission could exercise during the process. These were topics that were dealt with in the Act in relation to the Commission’s powers under Pt VI. All these powers were incorporated into Div 5 by s 170QJ. Section 170QK gave the Commission additional powers which had the potential of being wide-ranging. Nevertheless they were read down by the cases. So, for example, in the Asahi Test Case, Asahi Diamond Industrial Australia Pty Limited v Automotive, Food, Metals and Engineering Union (1995) 59 IR 385, 421- 422 it was decided, in a rather unconvincing fashion, that s 170QK could not be used to compel parties to negotiate an agreement, although it was said that the Commission could direct them to meet and discuss their respective claims. In any event, Parliament got rid of s 170QK so there would no longer be any suggestion that there should be "good faith" negotiations.

80 The structure of Pt VIB has changed. In particular, in relation to the conciliation of certified agreements there is no direct conciliation power and no express procedural provisions in aid of such a power. Everything is incorporated by reference. That is the function of s 170NA, which brings the "conciliation powers" into Div 8. But precisely what powers have been incorporated?

81 The Commission has taken the view that incorporated into Part VIB are those specific powers in s 111(1) which can be used in conciliation, particularly the power in s 111(1)(d) (to give a direction in the course of and for the purposes of the hearing or determination of an industrial dispute) and the power in s 111(1)(t) (to give directions generally). It must be said that only a handful of s 111(1) powers can apply in a conciliation. The prosecutor also makes the point that the powers in s 111(1)(d) and (t) relate to the hearing and determination of an industrial dispute and therefore are only applicable to an arbitration: CSR Humes Pty Ltd v Construction, Forestry, Mining and Energy Union (1997) 76 IR 121, 126. This argument ignores s 111(2). By that subsection an industrial dispute is taken to include any proceeding before the Commission. It also ignores the need to construe the incorporated powers in their new setting. It necessarily follows that expressions such as "the hearing or determination" in s 111(1)(d) or "the hearing and determination" in s 111(1)(t) must be read down. When one considers that what has been incorporated are the "conciliation powers" of the Commission and not just the Commission’s "conciliation power" the clear inference is that among them are the powers conferred by s 111(1)(d) and s 111(1)(t). In my view the Commission has power to give a direction that the employees be represented by a union both in a conciliation conference before the Commission and in a conciliation conference which the parties are directed to hold among themselves.

82 There may in any event be another source of power. Section 89 describes the Commission’s functions as being "(a) to prevent and settle industrial disputes: (i) so far as possible, by conciliation; and (ii) as a last resort and within the limits specified in this Act, by arbitration." Section 98A requires the Commission to perform its functions in a way that "facilitates the fair and practical conduct of any proceeding" before it. The Commission has power to deal with an industrial dispute when it receives notification of that dispute pursuant to s 99 or, as stated in s 100, when it becomes aware of the existence of an industrial dispute. Then s 102(1) authorises the Commission to "do everything that appears to the member to be right and proper to assist the parties to agree on terms for the prevention or settlement of the industrial dispute." For this purpose the Commission is given power by s 102(2) to arrange conferences of the parties or their representatives before the Commission or to arrange for the parties or their representatives to confer among themselves. These are the principal "conciliation powers" that have been incorporated with appropriate adaptations in Div 8. If the Commission does not have power to allow representation at these conferences under s 111(1)(d) or (t) then s 102 would give it that power.

83 I am pleased to see that this conclusion is, as it turns out, in line with the stated view of Parliament. On the second reading of the bill for the 1996 Amendment Act the Minister for Industrial Relations said:

"If a union wishes to make an agreement, or to participate in negotiations as a principal party or on behalf of members, it must have a member in the enterprise concerned whose industrial interests it can represent. In the case of agreements made directly between an employer and employees, a union will be able to represent any member in discussions with the employer ... ". (Commonwealth, Parliamentary Debates, House of Representatives, 23 May 1996, 1301.)

84 There is a further matter that requires resolution. The Commission’s power to give the direction sought is adjectival. But, as I see things, it is adjectival in this case to a conciliation concerned with the stalled negotiations for a certified agreement. The Commission’s conciliation power was initially instigated by the union which had identified the dispute as being about representation. The real dispute, however, is between the prosecutor and its employees, a dispute of which the Commission is aware of and is entitled to resolve by conciliation. The exercise of the power would be incidental to the conciliation of that dispute and not the notified dispute.

85 One last comment. I see that it has taken several years to get this matter before a court and that in the interim nothing of note has come of the negotiations. Far be it for me to instruct the Commission on what to do next. Nevertheless, I cannot refrain from suggesting that the Commission should do whatever is necessary to force the parties to get on with it.

86 The application should be dismissed in my opinion.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:
Dated: 12 May 2005

Counsel for the Applicant/Prosecutor:	Mr F Parry SC Mr S Wood
Solicitor for the Applicant/Prosecutor:	Freehills
Counsel for the 1st & 2nd Respondents:	No Appearance
Solicitor for the 1st & 2nd Respondents:	No Appearance
Counsel for the 3rd Respondent:	Mr M Bromberg SC Mr S Moore
Solicitor for the 3rd Respondent:	The Community and Public Sector Union
Date of Hearing:	17 February 2005
Date of Judgment:	12 May 2005