Re Media Entertainment & Arts Alliance; Ex Parte Arnel [1994] HCA 1; (1994) 179 CLR 84; (1994) 119 ALR 193 (9 February 1994)

HIGH COURT OF AUSTRALIA

RE MEDIA, ENTERTAINMENT AND ARTS ALLIANCE AND ANOTHER;
EX PARTE ARNEL AND OTHERS [1994] HCA 1; (1994) 179 CLR 84, (1994) 119 ALR 193
F.C. 94/002
Number of pages - 13

Industrial Law (Cth)

HIGH COURT OF AUSTRALIA
MASON CJ(1), BRENNAN(1), DEANE(2), DAWSON(1) AND GAUDRON(1) JJ

CATCHWORDS

Industrial Law (Cth) - Australian Industrial Relations Commission - Decision to make award -Application by non-party to intervene before award made - Obligation to hear and determine application Procedural fairness - Industrial Relations Act 1988 (Cth), s. 111(1)(g)(iii).

HEARING

1993, August 12, 13; 1994, February 9
9:2:1994

ORDER

Order that a writ of prohibition issue to the first respondents directing them not to act on their decision of 19 May 1993 to the extent that that decision affected the entitlement of the applicants to put a case for leave to intervene with respect to differential rates for junior employees.

Order that a writ of certiorari issue to the first respondents quashing the decision of 19 May 1993 to the extent that that decision affected the entitlement of the applicants to put a case for leave to intervene with respect to differential rates for junior employees.

Order that a writ of mandamus issue to the first respondents directing them to hear and determine, before making the award announced in the decision of 1 April 1993, the requests of the applicants so far as they involve an application for leave to intervene to put argument with respect to differential rates of pay for junior employees with 12 months service.

Application for writs of prohibition, certiorari and mandamus otherwise dismissed.

DECISION

MASON CJ, BRENNAN, DAWSON AND GAUDRON JJ This is an application
on notice of motion to the Full Court for writs of prohibition,
mandamus and certiorari with respect to a decision of the Australian
Industrial Relations Commission ("the Commission") to make an award
governing the wages and conditions of persons employed by The Hoyts
Corporation Pty. Limited, Delarene Pty. Ltd. and Rampton Pty. Ltd.
("the Hoyts companies"). The decision was given by a Full Bench
of the Commission, the first respondents, on 1 April 1993 in
proceedings between the Hoyts companies, on the one hand, and on the
other, the Media, Entertainment and Arts Alliance and the Theatre
Managers' Association ("the Unions"). The decision was to make an
award with effect from 1 May 1993, containing rates and conditions
then announced. The award was to be made when its terms were settled.
In fact, it has not yet been made ((1) It appears most terms were
settled on 28 April 1993 with only one aspect outstanding to be settled
on Monday, 3 May. A stay was granted by Toohey J on 30 April.).

2. The applicants are young employees of one or another of the Hoyts companies but are not members of either Union. They are the
representatives of approximately 420 employees, about one half of
the workforce of the Hoyts companies. They and those they represent
complain that the award which the Commission proposes to make will
operate to their disadvantage or, more accurately, the disadvantage of
certain young employees. The applicants claim that, in the events
that transpired, they were entitled to put a case, after the decision
was handed down, that the award should not come into force. The
Commission did not allow them to pursue that course and they now seek
prerogative relief.

3. It is necessary to say something of the nature and history of the various proceedings before the Commission. They began with the
notification of a dispute in 1988. Other notifications followed and,
at some stage, The Hoyts Corporation Pty. Limited ("Hoyts") applied to
the Commission with a view to obtaining a new award for its employees
in place of the award which applied generally in the cinema and
drive-in industry. Some time later, it transferred some of its
employees to Delarene Pty. Ltd. ("Delarene") and Rampton Pty. Ltd.
("Rampton"). Those companies were not bound by any award and this led
to other notifications and applications which, in due course, were
joined with the earlier matters. Eventually, all these matters were
referred to a Full Bench of the Commission and became known as "the
arbitral matters". It is convenient to continue with that
description.

4. Between March and July 1992, Delarene and Rampton entered into individual employment agreements with their employees, including
the applicants. The employees then applied to the Commission for
certification of their agreements under s.115 of the Industrial
Relations Act 1988 (Cth) ("the Act"). These applications were also
referred to the Full Bench and a ruling was made that they should
await the outcome of the arbitral matters. The proceedings with
respect to these applications have become known as "the s.115
proceedings". Again, it is convenient to continue with that
description.

5. In late 1992, the Hoyts companies applied under s.101 of the Act for variation of the dispute findings involved in the arbitral
matters. They claimed that certain other employers in the industry
and employees of the Hoyts companies or, at the very least, those who
had entered into employment agreements, had become parties to the
dispute ((2) The Hoyts companies no longer claim that the dispute
extends to other employers in the industry.). This application was
also referred to the Full Bench and proceedings with respect to that
application became known as "the s.101 proceedings". Again, it is
convenient to use that expression to identify those proceedings. They
were also to be dealt with after the arbitral matters, it being held
that they did not challenge the basis upon which the Commission was
proceeding in the arbitral matters. The ruling to that effect was the
subject of an unsuccessful application to the Court for prerogative
relief ((3) Dawson J refused an application for orders nisi for
writs of prohibition and mandamus: Re Hoyts Corporation Pty. Ltd.,
unreported, 23 December 1992. The application was renewed and
again refused by Toohey J on 30 April 1993. The Full Court
dismissed an application for leave to appeal from the decision
of Toohey J on 12 August 1993, unreported.).

6. Against the background of the individual employment agreements and the s.115 proceedings, the issues in the arbitral proceedings
resolved themselves into two broad questions, namely, whether an award
should be made and, if so, what its terms should be. In this regard,
the Hoyts companies argued, contrary to the original application by
Hoyts, that there should be no award and that they should be free to
contract individually with their employees. Alternatively, they
argued for terms and conditions as contained in the agreements the
subject of the s.115 proceedings. The Unions proposed different
terms and conditions, including with respect to junior, overtime and
penalty rates. In particular, they proposed that, subject to special
provision for trainees in their first year of employment, all
employees should receive full adult pay. The Hoyts companies argued
that there should be a sliding scale commencing at 50 per cent of the
adult rate for employees under the age of 17.

7. Although the applicants were aware of the s.101 and s.115 proceedings, they took no steps to present argument on the question
whether they should be heard before or after the arbitral matters.
This notwithstanding, they complain that they should have been allowed
to put a case, after the decision was given in the arbitral matters,
that an award could not or should not be made until the s.101
proceedings were finalized. They were also aware of the issues in the
arbitral matters and of the proceedings with respect to them but took
no steps to involve themselves, whether as interveners or otherwise.
They complain, however, that in one important respect, namely,
differential wage rates for junior employees with 12 months service
("differential rates"), the decision of the Full Bench deals with a
matter which was not in issue and was not the subject of evidence or
argument. And they claim that they should, on that account, have been
allowed to put argument on the matter.

8. The decision as it relates to differential rates was as follows:
"(W)e have decided to provide junior rates for cleaners and
cinema workers in the new award as follows:
Age Percentage
17 years and under 70%
At 18 years 80%
At 19 years 90%
At 20 years 100%
We have also decided to include provision for a junior
employee, who has attained the age of 18 years and who has
worked with Hoyts on a regular basis for a minimum period
of twelve months, to be paid the full adult rate for the
relevant classification."
will operate to their disadvantage. Their complaint in this regard
extends to the operation of the provision in combination with other
award provisions, particularly overtime and penalty rates.

9. It is common ground that no application was made for differential rates of the kind decided upon by the Full Bench and that no evidence
was led and no argument directed to the specific provision in
question. And it seems that the provision is not one that is commonly
found in industrial awards. The award making power of the Commission
is not restricted by the relief claimed or the demands made by the
parties ((4) s.120 of the Act.). It is, however, confined by the
rules of procedural fairness ((5) See, for example, Re Australian
Railways Union; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 67
ALJR 904, at pp.908-909; [1993] HCA 28; 117 ALR 17, at pp.23-24; Re Media,
Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd.
[1993] HCA 18; (1993) 67 ALJR 389, at p.390; [1993] HCA 18; 112 ALR 193, at p.194.). And
prima facie at least, the decision of the Full Bench with respect to
differential rates was reached in circumstances in which the parties
were denied an opportunity to be heard on that aspect of the various
matters in issue.

10. It is to be remembered that the decision of the Full Bench was to make an award, but that no award was actually made. That being so,
the Full Bench was obliged in the period before the award was made
and quite independently of s.111(1)(g)(iii) of the Act, to hear
submissions from the Hoyts companies or the Unions, if they wished
to put any, that there had been a breach of the requirements of
procedural fairness on the question of differential rates. And
assuming that the argument was made good, it was also obliged to hear
them on the question whether that or some other provision should be
inserted in the award. However, neither the Hoyts companies nor the
Unions complain or have complained of the decision of the Full Bench
concerning differential rates or of the manner in which it was made.
It is in this context that the question arises whether, in the
circumstances, the Full Bench was obliged to hear the applicants in
relation to that or any other aspect of the decision of 1 April 1993.

11. After the decision was announced, some 420 individual employees, including the applicants, wrote to the presiding member of the Full
Bench indicating dissatisfaction with the proposed award. Their
letters contained the following request, or one to the same effect:

"I ask the Commission not to make the award and would like
to have a case presented on my behalf in support of this
application. I understand that this can be done under
s.111(1)(g)(iii) of the Industrial Relations Act ((6) Section
111(1)(g)(iii) permits the Commission to "dismiss a matter or part

of a

matter, or refrain from further hearing or from determining (an)
industrial dispute or part of (an) industrial dispute, if it

appears

... that further proceedings are not necessary or desirable in

the

public interest".).
I request a hearing so this can take place before
1 May 1993.
Please urgently advise me of the hearing date."

Some employees complained specifically of the decision as it related
to differential rates, claiming that it was discriminatory and, if
implemented, would reduce their employment prospects.

12. On 6 May, the s.101 and s.115 proceedings were listed before the Full Bench for programming. Mr Murdoch, of counsel, sought leave to
appear for 442 individual employees, being, in the main, the employees
who had written the letters referred to. He asked several times to
say something in relation to the arbitral matters, but, on each
occasion, the presiding member indicated that they were not listed.
It later emerged that the solicitor for the Hoyts companies had
written to the Commission requesting it, pursuant to s.111(1)(g)(iii)
of the Act, to refrain from "further hearing or determining (the
disputes involved in the arbitral proceedings), including making an
award" and that the Full Bench proposed to give directions in relation
to that request and the requests of the individual employees. The
request from the solicitor proceeded by reference to the proposition
that the s.115 proceedings should be determined before an award was
made, a proposition that seems to have been abandoned later.

13. Some time later on 6 May, the Full Bench issued a direction which, so far as concerns the individual employees represented by
Mr Murdoch, was as follows:

"In order to consider the purported applications pursuant
to s.111(1)(g)(iii) of the Act, the Commission makes the
following directions ...
(1) The individual employees who signed letters ... shall
be treated as applicants.
(2) The applicants shall by the close of business on
Wednesday 12 May, 1993 file with the Industrial
Registrar an outline of their submission(s) in support
of:
(a) the Commission entertaining such an application
following the issue of a final decision in the
arbitral matters on 1 April, 1993; and
(b) the Commission exercising its discretion under
s.111(1)(g)(iii), if any, in these circumstances."

A similar direction was given to the Hoyts companies.

14. An outline of submissions was filed on behalf of 445 individual employees in accordance with the direction of the Full Bench. The
outline contained statements directed to the proposition that the
Commission should finalize the s.101 proceedings before making an
award. It also included the following statement:

"The first occasion on which (the 445 employees) became
aware of the penal rates which would operate against 18 year
olds (especially those who have been employed by Hoyts for
12 months) and the requirement to pay double time on Sundays
and public holidays which would make it uneconomic to employ
people 18 years old and over, especially on Sundays and
public holidays, was when the decision to make the award was
made."

The outline went on:

"Employees submit that they ought to be heard in relation
to the matters raised, by way of outline, in this document.
Employees ask that they be heard prior to the implementation
of the award. At such a hearing employees would present a
case to substantiate the matters raised in the outline."

Attached to the outline were a petition and an outline of the case
which the employees wished to put in the event that the Full Bench
acceded to their application to be heard. It was said in that second
outline:

"Those 18 years of age and over are angry that the new award
will price them out of the casual work market at Hoyts.
Those not yet 18 years of age are arguing that their 18th
birthday will make them unemployable."

Clearly, the outline attempted to raise the issues that concerned the
employees as well as the specific matters required by the direction of
the Full Bench.

15. An outline of submissions was also filed on behalf of the Hoyts companies. It was directed to the proposition that the s.101
proceedings should be determined before the making of an award. In
that context it was put that "it (was) appropriate to defer the making
of the award until (a) dispute finding and the submissions on the
merits of the proposed Award by and on behalf of the employees, have
been considered". However, and as earlier indicated, no complaint
was made with respect to differential rates or the circumstances
surrounding that aspect of the Full Bench decision.

16. On 19 May, the Full Bench decided, without any further hearing, that "(i)n all the circumstances ... it (was) not appropriate ... to
refrain ... from making an award or to hear any further argument on
the matters raised in the letters from Hoyts' solicitor". So far as
the requests of the employees were concerned, it was noted that:

"(a)t no stage during the proceedings and before the
Commission's decision was made have individual employees
sought to be represented separately and apart from the
unions."

The Full Bench went on to say:

"If there were submissions which such employees wished to
make in opposition to the making of an award in a particular
form, apart from the evidence given and the submissions by
Hoyts and other parties or interveners, then the employees
should have sought leave to appear or intervene in the
proceedings at an earlier stage and before a final decision
was made."

17. The first claim which the applicants make in support of their application for prerogative relief is that they will be directly
affected by any award made and, thus, their right to be heard was the
same as for the Hoyts companies and the Unions. As already indicated,
the companies and the Unions were entitled, in the circumstances, to
put an argument to the Full Bench that there had been a breach of
the requirements of procedural fairness and, if that was accepted, to
put argument with respect to the differential rates announced in the
decision of 1 April 1993.

18. The argument that the applicants had the same right to be heard as the Hoyts companies and the Unions is based on the statement in
Reg. v. Ludeke; Ex parte Customs Officers' Association of Australia
that "a person whose rights will be directly affected by an order made
by the Commission must be given a full and fair opportunity to be
heard before the order is made" ((7) [1985] HCA 31; (1985) 155 CLR 513, per
Gibbs CJ at p.520.). However, a reading of the entire passage in
which that statement appears makes it clear that it is concerned only
with persons whose legal rights and obligations are directly and
immediately affected, not a person "who is not a party to a dispute,
but who may nevertheless be affected, indirectly and consequentially"
((8) ibid.; see also per Brennan J at p.529; per Deane J at p.530.
See also Reg. v. Moore; Ex parte Victoria [1977] HCA 58; (1977) 140 CLR 92; Reg. v.
Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR
615.).

19. The award which the Full Bench decided to make was an award in settlement of disputes between the Hoyts companies and the Unions.
As such, it could not impose obligations on employees who, like the
applicants, were members of neither Union ((9) Reg. v. Graziers'
Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96
CLR 317; Re Finance Sector Union of Australia; Ex parte Financial
Clinic (Vic.) Pty. Ltd. [1994] ATOSGD SGD94_6; ; (1993) 67 ALJR 687, at pp.690-691; 114
ALR 321, at pp.326-327.). The rights they will acquire, if the
award is made, namely, the right to bring enforcement proceedings
((10) See s.178, particularly sub-s.(5)(ca).) and to recover moneys
payable ((11) See s.179.), will not derive from the award ((12)
Blackley v. Devondale Cream (Vic.) Pty. Ltd. [1968] HCA 2; [1968] HCA 2; (1968) 117 CLR 253, at
p.257.), but from the Act. They are not award rights, but statutory
rights conferred in consequence of the making of an award which applies
to the terms and conditions of persons who are not members of the union
bound by it ((13) ibid., per Taylor J, at p.269. See also Mallinson
v. Scottish Australian Investment Co. Ltd. [1920] HCA 51; (1920) 28 CLR 66. See
also s.178(5)(ca) of the Act, inserted by the Industrial Relations
Legislation Amendment Act (No. 2) 1990 (Cth).). Thus, the applicants
are not "directly affected", in the sense discussed in Ludeke, and
their right, if any, to put a case to the Full Bench depends on other
considerations.

20. It is to be noted that the employees did not, by their letters, seek to make a case of the kind usually involved in applications under
s.111(1)(g) of the Act, namely, that the Commission should refrain
altogether from exercising its jurisdiction ((14) See, with respect to
applications under s.41(1)(d) of the Conciliation and Arbitration Act
1904 (Cth) which was to the same effect, Re Queensland Electricity
Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; [1987] HCA 27; (1987) 61
ALJR 393, per Deane J at pp.399-400; 72 ALR 1, at pp.12-13.
See also Re Australian Bank Employees Union; Ex parte Citicorp
Australia Ltd. [1989] HCA 41; (1989) 167 CLR 513.). Rather, they asked
the Commission not to make the award announced, indicating their
understanding that that could be done under s.111(1)(g)(iii) of
the Act. And the outline of submissions, so far as it concerns
differential rates, was directed to their being "heard prior to the
implementation of the award". In a context where the employees were
not parties to the disputes involved in the arbitral matters, it must
have been apparent to the Full Bench that their requests necessarily
involved an application for leave to intervene which, under s.43 of
the Act, the Commission has power to grant if it "is of the opinion
that an organization, a person (including the Minister) or a body
should be heard in a matter". And as no award had been made and the
arbitral matters were, thus, still on foot, it was, technically, not
too late for them to make an application of that kind.

21. Ordinarily, an application for leave to intervene to argue some matter on which a decision has already been given will enjoy scant
prospect of success. However, in the circumstances involved in this
case, where the employees concerned were not members of either Union
and were fearful that the proposed award would operate to their
disadvantage and where, apparently, neither the Hoyts companies nor
the Unions were interested to put an argument with respect to
differential rates and, prima facie, the decision on that question had
been reached in breach of the requirements of procedural fairness, it
might be thought that an application to intervene to put an argument
that there had, in fact, been a breach of those requirements and that
differential rates should be reconsidered would be one that would
merit serious consideration. The position may not be as clear cut,
but if the rules of procedural fairness were satisfied with respect to
the Hoyts companies and the Unions, the fact that the employees had
not appreciated that the Full Bench might make an award containing
differential rates might also be a matter justifying serious
consideration of their application. But whatever the merits, their
application to intervene in proceedings which were still on foot (and
that application was necessarily involved in their letters requesting
a hearing) was one that the Commission was bound to hear and
determine.

22. As earlier indicated, the Full Bench decided on 19 May, without hearing further argument, that it would not refrain from making an
award, whether generally or in the terms earlier announced. That was
a different question from the one with which its earlier direction had
been concerned. And, of course, it was not the question addressed in
the outlines of argument. The decision was, thus, reached in breach
of the requirements of procedural fairness, which requirements are an
essential feature of arbitral power ((15) Re Australian Railways
Union; Ex parte Public Transport Corporation (1993) 67 ALJR, at
pp.908-909; 117 ALR, at pp.23-24.). Accordingly, prohibition
should issue to the members of the Full Bench directing them not to
act on that decision so far as it affects the entitlement, if any, of
the applicants to put a case for leave to intervene and, if granted,
to put an argument with respect to differential rates for junior
employees with 12 months service. To the same extent, certiorari
should issue to quash the decision.

23. It is clear that the Full Bench decision on 19 May 1993 was based on the view that the employees were attempting to bring about a
situation in which they could put fresh argument with respect to
matters that had already been argued. However, there was no specific
consideration of whether that was the case. By assuming that that was
so and by addressing itself to the question whether it would refrain
from making an award, rather than the question whether it would allow
the employees to put a case, it failed to hear and determine their
requests which, as already indicated, necessarily involved an
application for leave to intervene. If that application was dismissed
by the decision of 19 May 1993 (and that is not entirely clear) there
was a constructive failure to exercise jurisdiction ((16) See with
respect to constructive failure to exercise jurisdiction, Re Coldham;
Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338, at pp.349-350. See also Reg.
v. Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, at
pp.267-269; Ex parte Hebburn Ltd. (1947) 47 SR (NSW) 416, per
Jordan CJ at p.420.). If not,
there was an actual failure to exercise jurisdiction. In either
event, mandamus is available.

24. However, the employees clearly had ample opportunity to argue that the s.101 proceedings should be finalized before an award was
made. That being so, mandamus, which is a discretionary remedy, ought
not be granted to oblige the Full Bench to entertain that aspect of
their requests. That does not apply to that part of their requests
concerned with differential rates, on which issue, the applicants
claim, there has never been an opportunity to put argument. On
that issue, there is another discretionary matter which warrants
consideration, namely, that mandamus may result in other employees
being shut out from award benefits to which they would otherwise be
entitled. In our view, that does not justify the refusal of mandamus
for it is a matter that can be taken into account by the Full Bench
in deciding whether to grant leave. And should leave be granted, it
is within the power of the Full Bench to decide that the award or
particular provisions of it should be brought into force as an interim
measure ((17) See, with respect to interim awards, Re Media,
Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd.
(Hoyts, Delarene and Rampton Award) [1993] HCA 40; (1993) 67 ALJR 723; 115 ALR
321.).

25. Prohibition should issue to the members of the Full Bench directing them not to act on their decision of 19 May 1993 to the
extent that it affects the entitlement of the applicants to put a case
for leave to intervene with respect to differential rates for junior
employees and, if leave is granted, to put an argument with respect
to that aspect of the decision of 1 April 1993. To the same extent,
certiorari should issue to quash the decision of 19 May 1993.
Mandamus should also issue to the members of the Full Bench directing
them to hear and determine, before making the award announced in the
decision of 1 April 1993, the requests of the applicants so far as
they involve an application for leave to intervene to put argument
with respect to differential rates of pay for junior employees with
12 months service. Otherwise the application for prerogative relief
should be dismissed.

DEANE J The background facts to this application for prerogative
relief are set out in the judgment of the other members of the Court.
Except to the extent necessary for the purposes of supplementation or
discussion, I shall refrain from repeating them. The remaining issue
in the application is whether the Australian Industrial Relations
Commission ("the Commission") failed in a duty to accord procedural
fairness which it owed to the applicants who are non-unionist
employees of one or other of the Hoyts Group of Companies. In my
view, it did not. Since that view is a dissenting one and the case
turns very much on its own particular facts, I shall confine myself to
a brief statement of my reasons for it.

2. The applicants were not parties to, and did not seek to intervene or make submissions in, the arbitral proceedings in the Commission
leading up to the Full Bench's decision of 1 April 1993 to make an
award binding the Hoyts Companies and the two Unions who were parties
to the proceedings. Nor were the applicants parties to any of the
industrial disputes giving rise to those proceedings. It is common
ground that, while they will be indirectly affected by its provisions,
the applicants will not be bound by the Award when it is finally made.
Clearly, the Full Bench was under no requirement of procedural
fairness to give the applicants advance notice of its decision to make
the Award containing the clause setting differential rates to which
the applicants object. If the Full Bench had immediately made the
Award, it would not even be properly arguable that it was invalid
because of a denial of procedural fairness to the applicants ((18) See
Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation
Pty. Ltd. [1993] HCA 40; (1993) 67 ALJR 723, at pp.731-732; [1993] HCA 40; 115 ALR 321, at
pp.332-334.).

3. The Full Bench's decision to make the Award was reached over the strong and persistent opposition of the Hoyts Companies which were
parties to the dispute and the proceedings. It was only after that
decision had been published that the applicants, and more than four
hundred other non-unionist employees of those companies, wrote letters
to the presiding member of the Full Bench asking that the Award not be
made. Apparently, all but six of the letters were in "standard form".
Those "standard form" letters did not specifically refer to the
differential rates clause. They stated that the writer did "not want
the award ... to apply to me because I am satisfied with my current
pay and terms and conditions of employment" and asked the Commission
"not to make the award". They indicated reliance upon
s.111(1)(g)(iii) of the Industrial Relations Act 1988 (Cth). Some of
the other six letters expressly objected to the differential rates
clause on the ground that, if it were implemented, it would reduce the
employment prospects of young employees. It will be convenient to
refer to the applicants and their colleagues who wrote letters as "the
relevant employees". In none of the letters was there any suggestion
that the Full Bench had somehow denied procedural fairness to the
relevant employees. Nor was there any suggestion that the Full Bench
had denied procedural fairness to anyone else.

4. It has often been pointed out that the precise content of the requirements of procedural fairness which must be observed by a
particular administrative decision-maker vary according to the
circumstances of the particular case ((19) See, e.g., Russell v. Duke
of Norfolk (1949) 1 ALL ER 109, at p.118; Heatley v. Tasmanian Racing
and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp.513-514; Reg. v.
Ludeke; Ex parte Customs Officers' Association of Australia [1985] HCA 31; (1985) 155
CLR 513, at p.530; Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, at pp.584,
633; Re Australian Railways Union; Ex parte Public Transport
Corporation [1993] HCA 28; (1993) 67 ALJR 904, at p.909; [1993] HCA 28; 117 ALR 17, at p.24.).
Where a non-party to judicial or administrative proceedings seeks to
reverse a final decision which is issued after a lengthy hearing and
which is directly binding on the parties but not on the non-party, a
determination of the content of the non-party's entitlement to
procedural fairness will necessarily involve consideration of the
legitimate claims of a party to the contested hearing who is interested
in sustaining the decision and in avoiding further delay in its
implementation. This is particularly so in a case such as the present
where the non-party wishes to reverse a decision which was the result
of lengthy proceedings and which was intended to become operative in a
matter of days and to remain operative for only a limited period (i.e.
twelve months). In such circumstances, the determination of the
precise content of the requirements of procedural fairness necessarily
involves a value judgment of what constitutes an appropriate
opportunity of being heard in the context of all the surrounding
circumstances, including the legitimate claims of the parties to the
proceedings.

5. Section 111(1)(g)(iii) empowers the Commission "to dismiss a matter or part of a matter, or refrain from further hearing or from
determining the industrial dispute or part of the industrial dispute,
if it appears ... that further proceedings are not necessary or
desirable in the public interest". In the present case, the Full
Bench effectively decided, in its decision of 1 April 1993, that it
was necessary or desirable in the public interest that it make an
award containing the clause setting differential rates. It was only
after that decision had been made and published that the presiding
member received the letters from non-parties asking that the proposed
Award be not made. The Full Bench responded to those letters by
directing that the relevant employees be treated as applicants in an
application under s.111(1)(g)(iii) and that they file with the
Industrial Registrar an outline of their submissions in support of
(a) the Commission entertaining such an application after "the issue
of a final decision" by the Full Bench; and (b) the Commission
exercising its discretion under s.111(1)(g)(iii). For my part, I
doubt whether, at that stage of the proceedings, the Commission was
required to do so much.

6. In due course, the Commission received the outline of submissions of the relevant employees. It is not suggested that the Full Bench
failed to consider it. By then, 1 May 1993 had come and gone. At
that stage, the requirements of fairness to the parties to the
proceedings obviously dictated that the Commission decide whether it
would give effect to its decision to make the Award or whether the
making of the Award should be further delayed so that employees of the
parties who were dissatisfied with the Full Bench's decision could
address full submissions on matters which the Full Bench had already
decided. Not surprisingly, the Full Bench concluded that the making
of the Award should not be further delayed for that purpose. In
explaining that conclusion, the Full Bench referred at some length to
the opportunity which the relevant employees had had "over a very
lengthy period" to "have sought leave to appear or intervene in the
proceedings at an earlier stage and before a final decision was made".
They went on to say:

"In circumstances where a decision has been made by the
Commission determining issues in dispute between parties and
where the Commission has determined as part of the decision
that the award giving effect to the decision would apply
from 1 May 1993, we have provided an opportunity for the
applicants to present the substance of their case in support
of the s.111(1)(g)(iii) applications. We consider that it
would be unfair and unreasonable to the other parties and
persons concerned and contrary to the public interest for
there to be any further delay in relation to the making of
the award occasioned by the timing of the latest
s.111(1)(g)(iii) applications. Having considered the
applications and the submissions made, we are of the view
that public interest considerations overwhelmingly support
the Commission proceeding to make an award as determined in
the decision of 1 April 1993."

7. The views expressed in the above passage by the members of the Full Bench about the competing claims in justice and reason of those
concerned to uphold and those concerned to reverse its "final
decision" were (at the least) open on the material before them. They
are not, in my view, susceptible of legitimate challenge in
proceedings for prerogative relief in this Court. In the light of
them, and having given due consideration to the submissions made on
behalf of the applicants, the Full Bench decided that there should be
no "further delay" in the making of the Award. That decision was, in
my view, one which it was clearly open to the Full Bench to reach at
that stage. It necessarily involved a denial of the applicants'
request that the Award be not made. In all the circumstances,
including the opportunity to make submissions which had already been
extended to the relevant employees, it involved no denial of
procedural fairness to the applicants.

8. There is one further matter which should be mentioned. It is that the material before the Court indicates that no evidence was led
or submission made by the actual parties to the arbitration
proceedings in relation to a differential rates clause. None of those
parties has, however, complained about the differential rates clause
or has asserted that the Commission's decision to make the proposed
Award was invalidated by reason of any denial of procedural fairness.
More importantly, there is no basis upon which the applicants could
rely upon any such failure to accord procedural fairness to persons
other than themselves. As has been mentioned, none of the relevant
employees suggested or complained that there had been any relevant
denial of procedural fairness in his or her original letter to the
presiding member of the Full Bench. The outline of submissions lodged
on behalf of such employees in compliance with the Full Bench's
direction likewise contained no suggestion or complaint of a relevant
denial of procedural fairness. Nor is there any material before the
Court which would found a conclusion that any of the applicants was
misled or disadvantaged by any failure of the parties to the arbitral
proceedings expressly to advert, in their submissions, to a
differential rates clause of the kind decided upon by the Full Bench.
Indeed, there is nothing at all in the material before the Court which
suggests that any of the applicants followed what was submitted by the
parties in the proceedings before the Full Bench or was aware, before
the decision was published on 1 April 1993, whether or not there had
been debate about the inclusion of a differential rates clause.

9. The application should be dismissed.