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High Court of Australia |
THE QUEEN v. MOORE; Ex parte AUSTRALIAN TELEPHONE AND PHONOGRAM OFFICERS'
ASSOCIATION [1982] HCA 5; (1982) 148 CLR 600
Industrial Law (Cth)
High Court of Australia
Gibbs C.J.(1), Stephen(2), Murphy(3), Aickin(4) and Wilson(5) JJ.
CATCHWORDS
Industrial Law (Cth) - Conciliation and Arbitration - Conciliation and Arbitration Commission - Powers - Prevention and settlement by conciliation and arbitration of industrial disputes in respect of Telecommunications Service - Whether power to formulate principles and apply them to particular cases - Wage Fixing Principles stated by Full Bench - Whether binding in single members - Common rule in industry - Mandamus - Power of Commission to make award altering rates of wages on grounds predominantly related to national economy - Power exercisable only by Full Bench except where alteration in accordance with principles determined by Full Bench - Powers of single member - Part of dispute referred by Full Bench to single member - Whether appeal from single member to Full Bench - Telecommunications Act 1975 (Cth), s. 67 (1) (a) - Conciliation and Arbitration Act 1904 (Cth), ss. 31 (1) (b), 34 (7B), 34A (6), 35 (2).
HEARING
1980, November 11, 12; 1982, February 11. 11:2:1982DECISION
1982, February 11.2. The two matters arose out of an industrial dispute between the prosecutor and Australian Telecommunications Commission ("Telecom") as to the salaries to be paid to members of the prosecutor who were employed by Telecom. The details of the course which the dispute took need not be set out in full. It appeared at an early stage that Telecom opposed any increase sought by the prosecutor which was outside the Wage Fixing Principles, or as they are sometime called, the Indexation Guidelines, adopted by the Commission, whereas the prosecutor contended that the Commission should not regard itself as bound by those principles but should settle the dispute on the merits of the case before it. The Wage Fixing Principles were first formulated by the Commission in the reasons given for its decision in the National Wage Case - April 1975. At the times material to the present case they were in the form in which they were stated in the Wage Fixing Principles Case of 14 September 1978. The principles provided for wage indexation, i.e. for the periodic adjustment by the Commission of award wages and salaries in relation to the movement of the Consumer Price Index. They further provided that the Commission would each year consider what increase in the total wage or changes in conditions of employment should be awarded on account of productivity. However, the only other grounds that would justify increases in wages and salaries were those stated in principle 7, which included changes in work value (principle 7 (a)), catch-up of community movements (cases in which awards had not been considered in the light of community movements in 1974) but applications under this principle had to be lodged before 31 December 1978 (principle 7 (b)) and inequities (cases where employees performing similar work were paid dissimilar rates of pay without good reason) (principle 7 (d)). Inequities were to be dealt with only through the Anomalies Conference - a conference of "peak trade union councils" - called by the President. These peak trade union councils were bodies to each of which a number of trade unions in related fields were affiliated. One of them was the Council of Australian Government Employee Organizations (CAGEO) to which the prosecutor was affiliated. The prosecutor was not a party to the disputes in which the relevant principles of wage determination were established, or to the conference called before the Wage Fixing Principle Case, although (if it matters) CAGEO intervened in the proceedings in relation to those disputes, and was a party to that conference. (at p605)
3. The first of the two matters in the present case (C. No. 1217 of 1979) was the original dispute arising from the claim for increased salaries made by the prosecutor. It came before Mr. Commissioner Clarkson. The second matter (C. No. 343 of 1980) was the question arising from a reference made by CAGEO to the Anomalies Conference of the claim made by the prosecutor in so far as it was based on the ground of inequity. That matter came before the President, sitting in the Anomalies Conference. It appeared to him that the matter before Mr. Commissioner Clarkson involved the application of principle 7 (a) of the Wage Fixing Principles, and that it was desirable that all the issues which the prosecutor wished to raise should be heard together. He accordingly ordered that the matter of the alleged inequity be referred to a Full Bench under s. 34 of the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Conciliation and Arbitration Act") and that the matter under principle 7 (a) be referred to the same Full Bench under s. 34A of the Conciliation and Arbitration Act. Thereafter the claim that had given rise to the original dispute was varied so that it included the subject of the "inequity claim" as well as the original claim. The matters came before a Full Bench on 29 April 1980 and it was argued on behalf of the prosecutor that the Commission should not bind itself by the Wage Fixing Principles. The hearing was adjourned to enable Mr. Commissioner Clarkson to take evidence and came on again before a differently constituted Full Bench on 16 May 1980. The Full Bench then referred the dispute to Mr. Commissioner Clarkson to hear and determine all parts of the dispute except the date of operation of the determination. This order was made pursuant to ss. 34 (7B) and 34A (6) of the Conciliation and Arbitration Act. (at p606)
4. The Commission, as constituted by Mr. Commissioner Clarkson, then sat to hear and determine that part of the dispute which had been referred by the Full Bench. Before the Commissioner the prosecutor advanced two alternative propositions. First it was submitted that the salaries of telephonists employed by Telecom had not kept pace with general community movements for telephonists, and that this could be rectified without the Commission being constrained or inhibited by the Wage Fixing Principles, which it was said were not binding on the Commission as presently constituted. As to this Mr. Commissioner Clarkson said: "There is some merit in his proposition but in my view until this matter is decided in some other place I should follow the indexation principles." Alternatively, it was contended that the telephonists had not received the community "catch-up" within principle 7 (b), and although that principle could not now be directly applied, the power given by principle 7 (d) was wide enough to deal with the problem. With this contention the Commissioner agreed. He said however: "An examination (of salary surveys) shows a considerable drift occurred between 1974 and 1980 and I have to some extent corrected this but because of constraints imposed by the Indexation guidelines I have come to the conclusion that I cannot completely correct this drift. All of these have led me to the conclusion that under the combined operation of Principles 7 (a) and 7 (d) I should fix a new scale and this I have done." His decision containing the remarks quoted, and setting out the salaries he had determined, was dated 4 June 1980. On the same day, and in fact before the Commissioner's decision was published, the Full Bench determined that the date of its operation should be the beginning of the first pay period on and after 1 December 1979. Nothing whatever turns on the order in which the respective determinations of the two parts of the dispute were published. On 15 July 1980 Mr. Commissioner Clarkson made an order which is expressed to be in matter C. No. 1217 of 1979, and takes the form of a variation of the previous award by which the employees in question were governed. The order gives effect to the Commissioner's determination and, in conformity with the determination of the Full Bench, provides that it shall come into force on and from the beginning of the first pay period to commence on or after 1 December 1979. (at p607)
5. From this recital of the facts three matters emerge. First, it is clear that the order nisi must be discharged so far as it concerns matter C. No. 343 of 1980. On no view of fact or law is it possible to hold that the Commission, whether constituted by Mr. Commissioner Clarkson or by the Full Bench, failed to perform its duty to determine the question before it, or committed any error of law in reaching its determination in that matter. The question was whether there was an inequity within the Wage Fixing Principles. The Commissioner determined that question in favour of the prosecutor. In so far as that matter was concerned it was not appropriate for the Commissioner to decide whether he could regard himself as not bound by the Wage Fixing Principles, because the matter was based on the hypothesis that the Wage Fixing Principles were applicable and the question was whether the case was within principle 7 (d). Secondly, in matter C. No. 1217 of 1979 there can be no reason, on any view, to direct mandamus or certiorari to the Full Bench. The Full Bench did not decide that its discretion was fettered by the Wage Fixing Principles; it was Mr. Commissioner Clarkson who regarded himself as constrained by those principles. Thirdly, it is plain that Mr. Commissioner Clarkson did not decide matter C. No. 1217 of 1979 entirely on the merits. In part he acted in obedience to the Wage Fixing Principles. The question that remains is therefore whether, in these circumstances, the Commissioner failed to hear and determine that matter according to law. (at p607)
6. The jurisdiction of the Commission to deal with this dispute was conferred
by s. 67 (1) of the Telecommunications Act 1975 (Cth),
as amended. By s. 68
(1) of the Act the provisions of Div. 1 of Pt III of the Conciliation and
Arbitration Act were extended
to and
in relation to the powers of the
Commission under (inter alia) s. 67 (1). These sections have been more
particularly referred
to
in the recent judgments of this Court in Reg. v.
Staples; Ex parte Australian Telecommunications Commission [1980] HCA 27; (1980)
143 CLR 614,
at
pp 618, 622-624 . It is convenient to set out the provisions of Div. 1 of
Pt III which are relevant to the
present
case. Section
31 (1) of the
Conciliation and Arbitration Act provides as follows:
"The power of the Commission to make an award, or to certify, under
section 28, an agreement -
. . .which rates of wages are to be ascertained, on grounds predominantly related to the national economy and without examination of any circumstance pertaining to the work upon which, or the industry in which, persons are employed;
(b) Making provisions for, or altering, rates of wages, or the manner in
. . .accordance with principles, determined by a Full Bench, is exercisable by a Full Bench, and not otherwise."
except where the provision or alteration gives effect to matters, or is in
7. Since, by s. 34 (1), "the Commission" in that section means a Full Bench
of the Commission, the words "the Commission" where
they appear on the first
and third occasions in that subsection mean a Full Bench. Section 34A (6) is
as follows:
"Where the President has under sub-section (3) referred an industrial
dispute to a Full Bench, the Full Bench may refer a part
of the dispute to a
Presidential Member or a Commissioner and, in that case, the Commission
constituted by that member shall hear
and determine that part of the dispute
and the Full Bench shall hear and determine the dispute other than that part
of the dispute."
(at p608)
8. The relevant parts of s. 35 provide as follows:
"(1) In this section, unless the contrary intention appears -of a member not to make an award or a decision of a member by way of a finding as to the existence of, or the parties to, an industrial dispute;
'member' means a member of the Commission;
'the Commission' means a Full Bench of the Commission.
(2) An appeal lies to the Commission against -
(a) an award made by a member otherwise than under section 28, a decision
. . .in the opinion of the Commission, the matter is of such importance that, in the public interest, an appeal should lie." (at p609)
(3) An appeal does not lie under the last preceding sub-section unless,
9. These provisions give rise to two questions relevant to the present case.
The first is whether s. 31 (1) (b) so limited the power
of Mr. Commissioner
Clarkson that he could make an order in respect of the present matters only if
it conformed to the Wage Fixing
Principles, or in other words whether an order
altering rates of wages in a manner which contravened the Wage Fixing
Principles would
be an award altering rates of wages on grounds predominantly
related to the national economy. It is of course true that the National
Wage
Case - April 1975 and the Wage Fixing Principles Case made provision for the
manner in which rates of wages are to be ascertained
on grounds predominantly
related to the national economy. However, with all respect to those who take a
different view, in my opinion
an order or award which alters wages in a way
which the Wage Fixing Principles do not permit is not necessarily itself made
on grounds
predominantly related to the national economy. Mr. Commissioner
Clarkson was not asked by the prosecutor to alter the salaries of
telephonists
on grounds predominantly related to the national economy. He was asked to
increase their salaries because of the altered
nature of their work and
because their salaries had not kept pace with increases in salaries paid to
comparable employees. The grounds
on which he was asked to make the increase
were predominantly related to the particular position of telephonists, rather
than to
the national economy. Moreover he proceeded by making an examination
of circumstances pertaining to the work upon which the telephonists
were
employed. His order was in my opinion not of the kind referred to in s. 31 (1)
(b). That section therefore did not prevent him
from departing from the Wage
Fixing Principles laid down by the Full Bench in the other cases to which
reference has been made. (at
p609)
10. The second question that arises in relation to these sections is whether an appeal lay to the Full Bench against the order made by Mr. Commissioner Clarkson. That order was, as has been indicated, an award within the meaning of the Conciliation and Arbitration Act. It was of course not made under s. 28, which deals with consent awards. At first sight therefore it appears to come within the words of s. 35 (2) which provide that an appeal lies to the Full Bench against an award made by a member of the Commission. On behalf of the prosecutor two arguments were advanced against this conclusion. In the first place it was said that since in making an award Mr. Commissioner Clarkson was exercising power pursuant to a reference made by a Full Bench what he did should be regarded as having been done by the Full Bench itself. However the provisions of ss. 34 (7B) and 34A (6) provide no support for this argument. Those sub-sections provide that where the Full Bench has referred a part of a dispute to a Commissioner the Commission constituted by that member shall hear and determine that part of the dispute. Clearly enough the determination is that of the Commissioner and not that of the Full Bench which made the reference. The second argument submitted on behalf of the prosecutor was that the award of 15 July 1980 could not be said to have been made by Mr. Commissioner Clarkson because it contained a provision, as to the date of its operation, which had been determined by the Full Bench. This argument also in my opinion cannot be accepted. In truth the order of 15 July was made by Mr. Commissioner Clarkson although it contained a provision upon which the Full Bench had determined. Even if that view be not accepted, the order of 15 July, excepting the provision as to the date of its operation, was certainly made by Mr. Commissioner Clarkson, and an appeal under s. 35 (2) would lie to the Full Bench from the order in so far as it was made by him, subject of course to the Full Bench forming the opinion that the matter was of such importance that in the public interest an appeal should lie. I conclude therefore that, subject to the Full Bench forming the requisite opinion under sub-s. (3) of s. 35, an appeal lay to the Full Bench from the order of Mr. Commissioner Clarkson. (at p610)
11. It is now possible to consider the main argument presented on behalf of the prosecutor, which was that Mr. Commissioner Clarkson did not perform his duty to determine that part of the dispute which had been referred to him, because he decided it by reference to the Wage Fixing Principles, which were rules of policy determined by the Full Bench in cases involving other parties, rather than by reference to the individual merits of the case before him. It was conceded that the Commissioner was entitled to take the Wage Fixing Principles into account, but it was submitted that they did not bind him and that he had the right to depart from them when the circumstances of the particular case required or justified it. This argument rested on two foundations - the first the principle that the Commission has no power to make a common rule for an industry, and the second the doctrine that a tribunal entrusted with a discretion must not, by the adoption of a fixed rule of policy, disable itself from exercising its discretion in individual cases. (at p611)
12. It is established that the Commission, acting under legislation enacted
under s. 51 (xxxv.) of the Constitution, has no power to make a common rule in
an industry, i.e., to prescribe a provision applying to industry generally or
to a specified
branch of industry; its power is to make orders or awards
directed to the prevention or settlement of particular industrial disputes:
R.
v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres
(Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389,
at p 401 . An award
made by the Commission
creates rights and duties only as between those persons who were parties
to
the industrial
dispute in relation
to which the award was made: R. v. Kelly;
Ex parte Victoria [1950] HCA 7; (1950) 81 CLR 64, at p 82 . Although
the provisions of the
Telecommunications
Act were not enacted under s. 51 (xxxv.) it may be assumed
that when the Parliament by s.
67 (1) of that Act empowered the Commission
to
prevent or settle, by conciliation or arbitration, industrial disputes in
respect
of
the Telecommunications Service, and to hear
and determine
industrial questions in respect of the Service submitted to it, it did
not
intend to give the Commission the power,
which it otherwise lacked, to make a
common rule. However, to make this assumption does
not assist the prosecutor
in the present
case. Although the Commission must determine particular
disputes or questions, and may not
prescribe a system of industrial
legislation,
it may in the course of settling particular disputes formulate a
principle and consistently
apply it to cases falling within it.
In Reg. v.
Kelly; Ex parte Australian Railways Union [1953] HCA 96; (1953) 89 CLR 461, at p
475 Dixon
C.J. said, that to adopt a provision in common
form for wage adjustment, and
to insert it in a
number of awards, or to
depart uniformly from such a
provision, was not to make a
common rule. The Commission must, however,
proceed
from dispute to dispute.
In R. v. Commonwealth Court of Conciliation
and Arbitration;
Ex parte Ozone Theatres (Aust.) Ltd. (1949)
78 CLR, at p 402
the Court,
after referring to the inability of the Arbitration Court
(as it
then was) to declare generally a basic
wage, said:
"These propositions are not in any way inconsistent with the practice of
the Arbitration Court in holding from time to time
what is regarded as a
general inquiry into the amount of the basic wage or into the principles
according to which it is to be computed.
These inquiries consist in hearing
together a number of applications in relation to the basic wage as prescribed
in a number of separate
awards, each made in settlement of some particular
dispute."
The means by which the Commission was able to determine the basic wage without
making a common rule was further explained in Reg.
v. Commonwealth
Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering
Union (Australian Section)
(1967) 118 CLR
219, at p 234 where it was held that
the Commission could abandon its former practice and fix a total wage instead
of a basic wage.
It
is clear from these authorities that the Commission, in
the course of settling particular disputes, was entitled
to formulate
the
Wage
Fixing Principles and, having done so, was entitled to apply those principles
consistently in the settlement
of other disputes.
It was submitted on behalf
of the prosecutor that it was nevertheless the duty of the Commission in each
matter
before it where the
question was raised to consider whether the
circumstances of the case warranted a departure from the Wage Fixing
Principles. There
is a general principle that a tribunal which is called upon
to exercise a discretion does not perform its duty
if it acts in blind
obedience to a rule or policy that it had previously adopted. In R. v. Port of
London authority; Ex parte Kynoch
Ltd. (1919) 1 KB
176, at p 184 Bankes L.J.
said:
"There are on the one hand cases where a tribunal in the honest exercise
of its discretion has adopted a policy, and, without
refusing to hear an
applicant, intimates to him what its policy is, and that after hearing him it
will in accordance with its policy
decide against him, unless there is
something exceptional in his case. I think counsel for the applicants would
admit that, if the
policy has been adopted for reasons which the tribunal may
legitimately entertain, no objection could be taken to such a course.
On the
other hand there are cases where a tribunal has passed a rule, or come to a
determination, not to hear any application of
a particular character by
whomsoever made. There is a wide distinction to be drawn between these two
classes."
He obviously meant that in a case of the second class there would be no real
exercise of the discretion. In British Oxygen Co. Ltd.
v. Board of Trade [1970] UKHL 4;
(1971) AC 610, at p 625 , Lord Reid, after citing this passage with approval
went on:
"But the circumstances in which discretions are exercised vary
enormously and that passage cannot be applied literally in every
case. The
general rule is that anyone who has to exercise a statutory discretion must
not 'shut his ears to an application' . . .
I do not think there is any great
difference between a policy and a rule. There may be cases where an officer or
authority ought
to listen to a substantial argument reasonably presented
urging a change of policy. What the authority must not do is to refuse to
listen at all. But a Ministry or large authority may have had to deal already
with a multitude of similar applications and then they
will almost certainly
have evolved a policy so precise that it could well be called a rule. There
can be no objection to that, provided
the authority is always willing to
listen to anyone with something new to say . . . ." (at p613)
13. As the words of Lord Reid indicate, it would be wrong to apply literally
to the situation of the Commission statements of principle
enunciated in
relation to the exercise by other tribunals or administrative bodies of
discretionary powers different from those exercised
by the Commission. The
Commission stands in a special position, not directly comparable with that of
other administrative or quasi-judicial
tribunals. When the Commission has
formulated a principle, such as that a particular figure should be adopted as
a basic or minimum
or total wage, or that wages should be increased only in
accordance with particular guidelines, it may apply that principle
consistently
from case to case. If an application is made to it to depart from
any such principle, it should hear the application. That of course
does not
mean that it must embark upon a full scale hearing on each occasion on which a
disputant seeks a departure from the principle.
The Commission, in hearing and
determining industrial disputes, is, subject to the Conciliation and
Arbitration Act and regulations
thereunder, the master of its own procedures:
see ss. 40 and 41. It has power to decide in what manner it shall hear the
application
and how it shall determine it. It is not obliged to traverse
well-trodden ground on each occasion on which a disputant seeks a review
of
principle. Moreover, the general duty of the Commission to determine
particular disputes does not require an individual Commissioner
to regard
himself as bound to consider for himself whether he should depart from a
principle which a Full Bench has formulated and
which is applicable to the
case before him. It would lead to chaos if each individual Commissioner
constituting the Commission was
required to decide for himself whether he
should follow and apply the principles laid down by a Full Bench, and if a
Commissioner
did make an award which contravened such principles his
determination could be overturned by a Full Bench on appeal. The commonsense
for a Commissioner to adopt is to adhere to the principles which the Full
Bench has evolved. It was right for Mr. Commissioner Clarkson
to take the
course which he did in the present case. The Commission may be constituted by
a Commissioner, a Presidential Member or
a Full Bench: s. 6 (4). Where a
principle has been laid down by a Full Bench, the members of the Commission
are entitled to act on
the view that only a Full Bench should consider whether
there should be a departure from that principle. In the present case, if
an
application had been made to a Full Bench under s. 35 (3) of the Conciliation
and Arbitration Act, the Commission, in deciding
whether in its opinion the
matter was of such importance that in the public interest an appeal should
lie, would have been able to
consider whether or not in the circumstances
there ought to be a departure from the Wage Fixing Principles. On such an
application
the submission by the prosecutor that there should be a departure
from the principles could have been given such consideration as
the Commission
decided it warranted. However, no such application was made. (at p614)
14. In short, speaking generally the Commission was entitled to act in conformity with the Wages Fixing Principles. If the prosecutor wished to show some special reason why there should be a departure from those principles in the particular case, it should, appropriately, have addressed its arguments to the Commission constituted by a Full Bench, rather than to the Commission constituted by a Commissioner. No application was made to a Full Bench for that purpose, although the question could have been raised on an application under s. 35 (3). Mr. Commissioner Clarkson did not fail to hear and determine the matter when he decided that he should follow the Wage Fixing Principles, and (as has already been said) the Full Bench did not decide that its discretion was fettered by those principles or refuse to hear any application to depart from them. (at p614)
15. For these reasons in my opinion it has not been shown that the Commission failed to determine in accordance with law the dispute before it or that it committed an error of law. Having reached this conclusion I find it unnecessary to consider whether the privative provisions of s. 60 (2) of the Conciliation and Arbitration Act have any application or whether, if it had been otherwise appropriate to grant mandamus, the fact that an appeal lay subject to s. 35 (3) would have provided a sufficient reason to refuse that remedy. (at p614)
16. For these reasons I would discharge the order nisi. (at p614)
STEPHEN J. I have had the advantage of reading the reasons for judgment of the Chief Justice, with which I am in agreement. Accordingly I do no more than express beifly in my own words what I understand to be the effect of s. 31 (1) of the Conciliation and Arbitration Act and what it was that correctly led the Commissioner to take the course he did. (at p615)
2. A paraphrasing of s. 31 (1) which concentrates upon the operation of par.
(b) seems to me to aid in its interpretation. So paraphrased
it provides that
-
an award (or agreement) providing for or altering wages or the ascertainment
of rates of wages
(a) on ground predominantly related to the economy, and
(b) without an examination of any work or industry-related circumstances
may only be made (or certified) by a Full Bench, unless the award -
(i) gives effect to matters, or
(ii) accords with principles
previously determined by a Full Bench.
It follows that if, but only if, two factors coincide will a single member of
the Commission be deprived by s. 31 (1) of power to
make an award relating to
wages which is in disregard of a previous Full Bench determination. These two
factors are those in (a)
and (b) of my paraphrase, that the grounds for the
award are predominantly economy-related and that no examination of any work or
industry-related circumstances has been undertaken. (at p615)
3. Absent either of these factors, par. (b) of s. 31 (1) is of itself no obstacle to the making of an award by a single member of the Commission in disregard of a previous Full Bench determination. In the present case each of these factors was absent: the grounds relied upon for an alteration in wage rates were not predominantly related to the national economy; they related instead to changes in the work performed by telephonists, to an anomaly due to lack of flow-on of a past metal trades award increase and to a "drift" in relativities as between Telecom telephonists and others. Moreover reliance upon those grounds necessarily involved the Commission in some examination of circumstances in the industry. Hence s. 31 (1) would not have operated to deprive the Commissioner of jurisdiction to make an award in disregard of earlier Full Bench decisions, including those laying down indexation guidelines. (at p615)
4. What did, however, very properly deter the Commissioner from doing so was the existence of the principles of wage fixation which had been formulated by the Commission and which were well established as the policy for the time being of the Commission. No principle of law obliges an individual member of the Commission to engage on his own account in a review of that policy whenever it is challenged in proceedings before him; on the contrary, it will usually be mischievous to do so. In any regulatory system which provides for appeals from the decisions of single members of a tribunal to a multi-member appellate tribunal, and despite the absence of any doctrine of binding precedent, a single member should be slow indeed to depart from decisions of broad principle earlier established on appeal. To do otherwise will be productive of a spate of appeals, with attendant expense, delay and general disruption. For single members to adhere to previously established broad principles, leaving it to the appellate tribunal to alter or depart from them if it sees fit on appeal, is clearly the better course and one which the law should encourage in the interests of rational and proper operation of the system. (at p616)
5. In the present case the Commissioner acceded to the application made to him to the extent regarded by him as compatible with adherence to the general principles established by the Commission. To have gone further would have been to embark on the very course which I have described as disruptive of the system of arbitration. (at p616)
6. I agree with the order proposed by the Chief Justice. (at p616)
MURPHY J. Most of the difficulties in this case arise from the tortuous provisions of the Conciliation and Arbitration Act 1904 (Cth), as amended. The Act is of national importance and is intended to be understood and applied by many people, most of whom are not lawyers. Amendments over recent decades have made it a textbook example of how laws should not be drafted. In the public interest it should be redrafted so as to be reasonably clear. (at p616)
2. There is no basis for any order against the Commission. The Principles of Wage Fixation have been abondoned, so that the main issue is now a dead issue. Even if it were still a live issue, I am far from satisfied that prohibition should ever be issued to correct the alleged errors of substance and procedure on which the prosecutor relied. The order nisi should be discharged. (at p616)
AICKIN J. This is the return of an order nisi for a writ of mandamus or alternatively writs of certiorari and mandamus addressed to Mr. Eric Clarkson, a Commissioner of the Conciliation and Arbitration Commission, and to Sir John Moore, President of the Commission, Williams J., a Deputy President of the Commission, and Mr. Clarkson, and to the Australian Telecommunications Commission ("Telecom") in which the Australian Telephone and Phonogram Officers' Association ("the Association") was the applicant. (at p616)
Telecom was established as a commission by the Telecommunications Act 1975
("the Act"), its functions being "to plan, establish,
maintain and operate
telecommunications services within Australia" and other functions
as specified
in s. 5. The word "Service" is
defined in s. 3 to mean "the Australian
Telecommunications Commission Service established by section 38". Section 38
provides as
follows:
"(1) For the purpose of enabling the Commission to perform its functions
under this Act, there is hereby established an Australian
Telecommunications
Commission Service.
(2) The Service consists of the persons appointed as officers or
employed as temporary employees in accordance with this Part
and of persons
deemed to be appointed as officers under section 16 of the Transitional
Provisions Act."
Section 67 is as follows:
"(1) The Conciliation and Arbitration Commission is empowered -disputes in respect of the Service; and
(a) to prevent or settle, by conciliation or arbitration, industrial
(a) a part of an industrial dispute in respect of the Service;to a matter in dispute; or
(b) an industrial dispute in respect of the Service so far as it relates
'industrial question in respect of the Service' means -Thus the Conciliation and Arbitration Commission ("the Commission") is given in relation to Telecom and its employees a wider jurisdiction under the Act than it has under the Conciliation and Arbitration Act 1904 (Cth), as amended. (at p618)
(a) an industrial dispute in respect of the Service; and
(b) an industrial matter in respect of the Service."
2. It is necessary to set out the history of the proceedings in order to understand the arguments which were addressed to the Court. On 3 July 1979 the Association sent to Telecom a letter claiming increased wages for its members employed by Telecom and on 13 July 1979 Telecom wrote to the Association stating that it opposed the claims which it regarded as "outside the principles of Wage Fixation". Certain matters were agreed between the Association and Telecom on 17 July 1979 but this agreement did not include all matters claimed in the original letter by the Association. On 30 July 1979 the Association notified the Industrial Registrar of a dispute with respect to the salary claim, which was for a 20 per cent increase for all members of the Association employed by Telecom. Thereafter certain discussions took place between the Association and Telecom but no agreement was reached in any material respect. (at p618)
3. The expression "the Principles of Wage Fixation" requires some explanation
for it lies at the heart of these proceedings. In
the "National Wage Case"
heard by the Commission in April 1975 a claim was made (inter alia) for "Wage
indexation in the shape of
automatic quarterly cost of living adjustments of
the total wage based on the Consumer Price Index". The Commission set out in
its
reasons what it called "Principles of Wage Determination". It said (inter
alia):
"Regardless of the reasons for increases in labour costs outside
national productivity and indexation, regardless of the source
of the
increases (award or overaward, wage or other labour cost) and regardless of
how the increases are achieved (arbitration, consent
or duress), unless their
impact in economic terms is 'negligible', we believe the Australian economy
cannot afford indexation."
It also said that it would hear submissions on the principles in July 1975.
The Commission applied these principles in its decision
of September 1975. It
is not necessary to set out those principles in detail. It is sufficient for
present purposes to say that they
included the decision to adjust award wages
and salaries each quarter in relation to the Consumer Price Index and that
each year
the Commission would consider what increase in total wages should be
included on account of productivity. Clause 7 provided that
"In addition to
the above increases, the only other grounds which would justify increases in
wages or salaries are:". There were
then set out certain matters, some of
which were subsequently varied, but the details of those matters are not
material. (at p619)
4. In the July 1975 hearing the question was raised as to whether "anomalies" and "special circumstances" should be added to the exceptions in respect of which wage increases might be based. The President of the Commission announced that he would call a conference of all the principle parties to consider that question. We were informed from the Bar that the expression "principal parties" referred to what were called the "peak unions", being associations of registered industrial organisations in related areas, but which were not themselves registered industrial organisations. It was also stated, without disagreement, that the term "The Anomalies Conference" referred to that conference and subsequent conferences between the President of the Commission and the "peak unions" arranged for the purpose of the consideration of anomalies and special circumstances which might warrant wage increases over and above those by reference to indexation. It appears that such conferences were held from time to time to consider individual instances. (at p619)
5. On 23 October 1979 Commissioner Clarkson found the existence of an industrial dispute between the Association and Telecom and found that the subject matter of the dispute was a claim for a 20 per cent increase for all members of the Association employed by Telecom. At that hearing the Association informed the Commissioner that it did not regard itself as in any way bound by the "guidelines", i.e. the Principles of Wage Fixation. On 2 November 1979 Telecom informed the Association that it could not accede to the Association's claims by reason of "principle 7 (d)", which had been substituted for an earlier paragraph in the Principles of Wage Fixation by the Commission on 14 September 1978. Principle 7 (d) relates to inequities existing where employees performing similar work are paid dissimilar rates of pay without good reason. On 2 November 1979 the Association wrote to the Federal Secretary of the Council of Australian Government Employees and Officers ("CAGEO") (being a "peak union") requesting that it present to the next sitting of the Anomalies Conference a statement of "inequity" under Principle 7 (d) and on 7 November 1979 the Association informed Telecom that CAGEO had agreed to refer the salary claim to the next sitting of the Anomalies Conference. (at p620)
6. On 4 February 1980 the President of the Commission, sitting as the
Anomalies Conference, dealt with the questions raised with
respect to
principle 7 (d). The President made a finding which he expressed as follows:
"It became apparent during the discussion that in addition to this
matter of inequity there is before the commission a matter
under 7 (a) in
which a dispute has already been found. It is my view that it would be
preferable if all the issues which the union
wishes to raise - and, for that
matter, which Telecom may wish to raise - be dealt with at the same time and
by the same bench.
Therefore, Mr. Grenville having asked for a reference, I will refer the
inequity to a full bench debate and at the same time,
using the provisions of
section 34A, I will refer the principle 7 (a) matter to the same full bench
and it will be a matter for that
full bench to decide how both matters should
be dealt with."
The reference to "7 (a)" is to that paragraph of the Principles of Wage
Fixation which deals with changes in work value. (at p620)
7. On 5 March 1980 the Association notified Telecom that its claim made on 3 July 1979 was varied so as to include the whole of the matters originally claimed together with the matters the subject of the "inequity claim" referred to the Anomalies Conference. On 12 March 1980 a letter was sent to the President of the Commission enclosing a copy of the revised log of claims which had been served on Telecom. On 18 March 1980 Telecom wrote to the Association expressing its agreement that the whole of the relevant matters in dispute between the parties should be referred to the Full Bench. (at p620)
8. On 9 April 1980 both the original claim and the claim arising from the Anomalies Conference were brought on for hearing before the President of the Commission and the hearing before the Full Bench of the Commission was fixed for 29 April 1980. At that hearing the Full Bench (Sir John Moore, Williams J. and Mr. Commissioner Clarkson) varied the finding of Mr. Commissioner Clarkson of 23 October 1979 so as to include the dispute created by the amended log of claims delivered on 5 March 1980. It was contended at that hearing that the so-called "Principles of Wage Fixation" had no legal status and did not bind the Commission and further that the Commission could not bind itself by such principles. That hearing was adjourned to 15 May 1980, Mr. Commissioner Clarkson having been authorized under s. 43 to take evidence, which he did on 9 May 1980. On 16 May 1980 the Full Bench made an order referring the dispute to Mr. Commissioner Clarkson to hear and determine all parts of it except the date of operation of the determination, pursuant to ss. 34 (7B) and 34A (6). (at p621)
9. Mr. Commissioner Clarkson heard the matter referred to him on 20, 21 and
22 May 1980 and 4 June 1980 made his decision. It had
been submitted to him on
behalf of the Association that he should deal with the claims without being
constrained or inhibited by
the Principles of Wage Fixation and that they were
not binding on him. In the course of dealing with that submission he said:
"He put as part of his argument that the guidelines were not binding on
the Commission as presently constituted. His authority
for this proposition
was R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone
Theatres (Aust.) Ltd. [1949] HCA
33; (1949) 78
CLR 389 . There is some merit in his
proposition but in my view until this matter is decided in some other place I
should
follow
the indexation principles".
He also said:
"An examination shows a considerable drift occurred between 1974 and
1980 and I have to some extent corrected this but because
of constraints
imposed by the Indexation guidelines I have come to the conclusion that I
cannot completely correct this drift.
All of these have led me to the conclusion that under the combined
operation of Principles 7 (a) and 7 (d) I should fix a new
scale and this I
have done." (at p621)
10. Mr. Commissioner Clarkson then made an award covering the matters in
dispute save as to the date of operation. On 4 June 1980
the Full Bench
determined the date of operation of the award to be 1 December 1979. (at p621)
11. On the basis of these events and statements it was submitted on behalf of the Association that the Commissioner had held himself to be bound by the Principles of Wage Fixation and had thus failed to determine matters in dispute as they would have been determined in the absence of the guidelines. (at p621)
12. In his reasons Mr. Commissioner Clarkson, after referring to the history
of the matter up to the Full Bench's referral to him
of the whole of the
dispute other than the date of operation of his decision, said:
"The effect of this procedure is that the Commission as now constituted
for the first time is sitting to hear concurrently
claims under both
principles 7 (a) and 7 (d). The Commission is therefore vested with the task
of determining whether there is a
significant net addition and if necessary
the value thereof and the task of correcting any anomaly or inequity which may
exist. It
must be stressed that this puts the proceedings in a class all their
own."
He then directed the parties to prepare a draft order. (at p622)
13. The grounds for the order nisi made by Stephen J. were as follows:
"1. The Conciliation and Arbitration Commission failed to exercise or
alternatively failed properly to exercise its jurisdiction
under the
provisions of the Telecommunications Act 1975 and the Conciliation and
Arbitration Act 1904 in determining that by reason
of alleged 'Indexation
Guidelines' or 'Wage Fixing Principles',
it was unable to determine an
industrial dispute by making an Award
granting certain claims made by the
Prosecutor which would or
may have been granted by it had it not been bound by
such alleged 'Indexation
Guidelines' or 'Wage Fixing Principles'.
2. In deciding that by reason of alleged 'Indexation Guidelines' or
'Wage Fixing Principles' determined upon in other proceedings
in the
Conciliation and Arbitration Commission, the said Commission was bound not to
grant certain claims made by the prosecutor,
the Commission failed to
determine by arbitration the dispute which was before it and thereby failed to
carry out the functions vested
in it by the provisions of the
Telecommunications Act 1975 and the Conciliation and Arbitration Act 1904.
3. In deciding that it was bound by the said 'Indexation Guidelines' or
'Wage Fixing Principles' and was therefore bound not
to grant certain claims
made by the prosecutor, the Conciliation and Arbitration Commission made an
error on the face of the record."
(at p622)
14. On behalf of the applicant it was contended that the principles or
guidelines expressed by the Full Bench do not, and could
not, bind any other
Full Bench or any Presidential Member of the Commission or any Commissioner
sitting alone in arriving at an appropriate
award for settling a dispute. This
argument had been put to Mr. Commissioner Clarkson but was rejected by him. He
had said at the
conclusion of the hearing before him that he would otherwise
have granted a further increase if he were not "bound" or "constrained"
by the
decision of the Full Bench setting out the principles of wage fixation as
varied from time to time. (at p622)
15. It was argued that if the Parliament itself cannot dictate to the Commission, the Full Bench of the Commission cannot dictate its own future conduct or that of any subsequent Full Bench and in particular cannot dictate to individual Presidential Members or to individual Commissioners the manner in which or the basis upon which they should settle industrial disputes. It is common ground that the Parliament cannot prescribe a system of regulation of industrial matters, its power being confined to the terms of s. 51 (xxxv.) of the Constitution. It was further said that prevention, as distinct from settlement, of industrial disputes can be achieved only by conciliation and not by arbitration. It was said that R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR, at p 402 and Reg. v. Kelly; Ex parte Australian Railways Union [1953] HCA 96; (1953) 89 CLR 461, at p 474 were authority for those propositions. I postpone for the moment consideration of those cases, but add that no question of conciliation arose and therefore it is not necessary to consider the proposition that under the conciliation and arbitration power prevention can only be achieved by conciliation. (at p623)
16. It is true to say, as was submitted by the Solicitor-General for the Commonwealth, that, in the system of conciliation and arbitration as embodied in the Conciliation and Arbitration Act in accordance with the legislative power given by s. 51 (xxxv.) of the Constitution, there is no place for the doctrine of precedent as it operates in courts of law. The concept of conciliation and arbitration is the very antithesis of judicial power for it is concerned primarily with the creation of new rights and duties, not with the determination and enforcement of existing rights and duties. This is as true of the application of the Conciliation and Arbitration Act to disputes between Telecom and its employees in accordance with the provisions of the Act as it is true of its application to industrial disputes extending beyond the limits of any one State within the meaning of the Constitution. That is however not the same thing as saying that consistency is prohibited or is to be avoided or that general principles may not be applied where the Commission thinks fit. (at p623)
17. It was suggested in the course of argument that the applicant might have sought to obtain its objectives by an appeal to the Full Bench under s. 35. It was however argued on behalf of the applicant that no appeal lay to the Full Bench from Mr. Commissioner Clarkson's decision and that therefore the only remedy was an application for mandamus on the basis that he wrongly failed to exercise his jurisdiction. It will be convenient to deal with this question first. It was argued that s. 35 was not applicable because Mr. Commissioner Clarkson's decision was, or was the equivalent of, a decision by a Full Bench. This question depends on the proper construction of the provisions of ss. 34 (3)-(7B) and 34A, all of which were inserted or substituted by the Conciliation and Arbitration Amendment Act 1979 (Act. No. 110 of 1979). The effect of s. 34 is that where the President of the Commission regards a dispute or part of a dispute as of such importance that it should be dealt with by a Full Bench of the Commission, he may give a direction that the dispute be dealt with under that section. Thereupon the industrial dispute or part thereof shall, subject to sub-s. (7B), be dealt with by a Full Bench. Sub-section (7B) provides that where the President has given such a direction, the Full Bench may refer part of the dispute to a Presidential Member or a Commissioner and "in that case, the Commission constituted by that member shall hear and determine that part of the dispute and the Commission shall hear and determine the dispute other than that part of the dispute". Section 34A authorizes the President to refer an industrial dispute or part of an industrial dispute to a Full Bench and provides that when he does so the Full Bench shall hear and determine the dispute or that part of the dispute. (at p624)
18. Section 35 provides that an appeal lies to a Full Bench against an award made by a member of the Commission and against a decision not to make an award, and against a finding that there is or is not an industrial dispute. Subsection (3) provides that an appeal does not lie unless a Full Bench of the Commission is of opinion that the matter is of such importance that in the public interest an appeal should lie. It is also necessary to note the provision of s. 41 (1) (b) that "the Commission" (a term which in that context bears its defined meaning of a Commissioner, a Presidential Member or a Full Bench) may in relation to an industrial dispute "make an award (including a provisional or interim award relating to any or all of the matters in dispute) or give a direction in pursuance of the hearing or determination". (at p624)
19. Section 4 (2) provides as follows:
"A reference in this Act to an industrial dispute shall, unless the
contrary intention appears, be read as including a reference
to -
(a) a part of an industrial dispute;
(b) an industrial dispute so far as it relates to a matter in dispute; or
(c) a question arising in relation to an industrial dispute." (at p624)
20. It was argued that, when pursuant to s. 34A (6) the Full Bench referred
part of the dispute back to Mr. Commissioner Clarkson
for determination, the
consequence was that a decision or determination by him was, or was the
equivalent of, a determination of
the Full Court. It was then contended that
there could not be an appeal to a Full Bench from such a decision or
determination. This
reasoning would be impeccable if the premise on which it
is founded were correct. In my opinion however that premise is not correct.
In
the circumstance stated, the decision by a Commissioner on that part of a
dispute which is referred, or referred back, to him
by a Full Bench is not a
decision, or the equivalent of a decision, by a Full Bench. It does not matter
whether what the Full Bench
refers to a Commissioner is 5 per cent or 95 per
cent of the matters in dispute. He is then dealing with matter referred to him
in
his own right as a Commissioner, not as an agent for or deputy of a Full
Bench of the Commission. Section 6 (4) provides that "Subject
to this Act, the
Commission may be constituted, for the purposes of the exercise of its powers,
by a Commissioner, a Presidential
Member or a Full Bench", and in respect of
that part of this dispute the Commission is constituted by a Commissioner. (at
p625)
21. The scheme of the Act seems to me to make it clear that whenever and by whatever means a Commissioner is given power to hear and determine a dispute or part of a dispute an appeal to a Full Bench is available if the conditions of s. 35 are satisfied. (at p625)
22. I am therefore satisfied that the exercise by a Full Bench of the powers given by ss. 34 and 34A does not produce the result that the Commissioner to whom part of a dispute is referred is, or is in the same position as, a Full Bench and that the submission that for that reason no appeal lies from a decision of a Commissioner in such circumstances must be rejected. (at p625)
23. Other grounds were advanced for the proposition that no appeal lay from
Mr. Commissioner Clarkson to a Full Bench. It was argued
that, because there
was no appeal as of right but only where a Full Bench was of opinion that the
matter was of such importance that
in the public interest an appeal should lie
(s. 35), it could not be said there was an appeal. The fact that the
availability of
an appeal depends upon what is the equivalent of a grant of
leave to appeal does not mean that there is no appeal. In the present
case the
absence of any application to the Full Bench under s.35 may be of significance
in relation to the exercise of the discretion
which is involved in the grant
of mandamus. The next argument was that Commissioner Clarkson's decision was a
nullity because the
Full Bench at 9.35 a.m. on 4 June 1980 had announced its
decision on that part of the dispute which it had reserved for itself, viz.,
the date of operation of Mr. Commissioner Clarkson's decision on the balance
of the matters in dispute, and that at that time Mr.
Commissioner Clarkson's
decision had not been "handed down". Precisely what was intended to be
conveyed by the expression "handed
down" is by no means clear. Section 40 (4)
of the Conciliation and Arbitration Act provides:
"An award or decision made by a single member of the Commission shall be
made by an instrument signed by the member and the
instrument shall be dated
with the date on which it is so signed, which date shall, for the purposes of
this Act, be deemed to be
the date of the award or decision." (at p626)
24. The sequence of events is not altogether clear from the papers placed
before the Court but I am prepared to assume, as contended
by counsel for the
applicant, that the document which bears a formal heading and the word
"Decision", the name of Mr. Commissioner
Clarkson and the date 4 June 1980, as
well as provision at its end for the Commissioner's signature, was signed by
him on that day
at a time later than the announcement by the Full Bench of the
operative date. The copy of that document reproduced in the papers
before the
Court bears no copy of his signature, but in the absence of any evidence to
the contrary it is proper to assume that he
signed the original on that day
and that it was filed in the office of the Registrar. There is no statutory
provision as to the mode
of recording awards or decisions of a Full Bench. The
copy document before the Court concludes with the following paragraph:
"The parties are directed to prepare a draft order which in accordance
with the Full Bench decision is to operate on and from
the beginning of the
first pay period to commence on or after 1 December 1980 (sic) except as to
extraneous payments which will operate
on and from the beginning of the first
pay period to commence on or after 4 June 1980. It will remain in force until
30 June 1981."
Whether that paragraph was typed in after the Full Bench's announcement or
before and in anticipation of its decision does not appear,
but it was argued
that this sequence of events produced the result that what was achieved was a
nullity. There are a number of reasons
why this submission should be rejected,
but it is sufficient to say that it is plainly a decision made by Mr.
Commissioner Clarkson
in accordance with s. 40 (4) notwithstanding that it
contains extraneous matter in so far as it records the Full Bench's decision
on that part of the dispute reserved to it. The fact that Mr. Commissioner
Clarkson's decision was not formally made prior to the
announcement of the
Full Bench's decision on the part of the dispute retained by it seems to me to
be irrelevant to the validity
or effectiveness of each decision. What Mr.
Commissioner Clarkson did was plainly an effective decision on that part of
the dispute
referred to him and it came into operation on the date fixed by
the Full Bench for the commencement of its operation. It was therefore
capable
of being the subject of an application for an appeal under s. 35. (at p626)
25. The substantive question is whether what Mr. Commissioner Clarkson did was to refuse to exercise his jurisdiction when he said that he was "constrained" by the decision of the Full Bench on the Principles of Wage Fixation not to award an increase which he would otherwise have been disposed to include in his award. (at p627)
26. The provisions of the Act appear to me to provide the answer to the problem. The system established by the Act together with the Conciliation and Arbitration Act is substantially the same for the settlement of disputes between Telecom and its employees as that which applies to industrial disputes extending beyond the limits of any one State, i.e., settlement by decisions or awards by Conciliation Commissioners or Presidential Members, subject to appeals to a Full Bench, together with ancillary references of disputes to and from a Full Bench, but the jurisdiction of the Commission is wider in that it may deal with "industrial questions" and is not confined to disputes extending beyond the limits of one State. (at p627)
27. The President is given authority by ss. 34 and 34A to refer matters to a Full Bench where the public interest so requires and a Full Bench may under s.35 hear appeals where in its opinion the matter is of such importance that in the public interest an appeal should lie. Thus the Full Bench is in ultimate control of the system of conciliation and arbitration, including the making of awards in settlement of industrial disputes, with power to overrule or vary decisions of individual Presidential Members and Commissioners. (at p627)
28. There is no doubt the Full Bench of the Commission may adopt general policies or principles in accordance with which it will act in the making of awards for the settlement of industrial disputes. This was clearly done by Higgins J. as long ago as 1912 in the making of the Harvester Award. The adoption of the system of making awards providing for a basic wage and margins for skill and other particular factors is another example. While that policy prevailed, the basic wage was fixed in a separate hearing from that dealing with disputes as to margins. That system was abandoned by the Commission in 1967 and its power to do so upheld by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47; (1967) 118 CLR 219 . (at p627)
29. The question in the present case concerns an individual Commissioner to whom part of a dispute was referred. That dispute related to a claim for wage increases in an amount which exceeded that allowable under the Principles of Wage Fixation after increases pursuant to "indexation" had been granted. There can be little doubt that if he had made an award granting increases of amounts over and above those falling within the Principles an appeal would have been launched and that, consistently with the decision allowing indexation and formulating the Principles, a Full Bench would have been of opinion that "the matter is of such importance that, in the public interest, an appeal should lie", but in the end nothing turns on that question. (at p628)
30. I am unable to see how the decision of this Court in R. v. Commonwealth
Court of Conciliation and Arbitration; Ex parte Ozone
Theatres (Aust.) Ltd.
[1949] HCA 33; (1949) 78 CLR 389 assists the applicant in the present case. Reliance was
placed on the well-known
passage
in the joint judgment
of the Court at pp.
401-402. There the Court said:
"It follows that, when s. 25 refers to 'the basic wage or the principles
upon which it is computed', the reference cannot (if
the provision is valid)
be to a generally declared basic wage or to generally declared principles of
computation. If any effect is
to be given to the provision the reference must
be taken to be a reference to a basic wage to be discovered in an award or
awards
as a wage or element in a wage or wages payable to persons entitled to
the benefit of the award and to the principles upon which
that wage or element
in the award is computed. In the present case there are current awards
applying to the relevant industry, namely,
the theatrical industry, and
therefore we do not pause to consider what the position may be in relation to
an industry which is not
regulated by any law in respect of wages, where there
might or might not be a basic wage determined by custom. Where there are
relevant
awards (as in the present case), if they prescribe a basic wage, that
basic wage and the principles upon which it is computed may
be altered by the
court, but not otherwise.
These propositions are not in any way inconsistent with the practice of
the Arbitration Court in holding from time to time
what is regarded as a
general inquiry into the amount of the basic wage or into the principles
according to which it is to be computed.
These inquiries consist in hearing
together a number of applications in relation to the basic wage as prescribed
in a number of separate
awards, each made in settlement of some particular
dispute."
Reference should also be made to pp. 406-407 where the Court discusses the
principles formulated from time to time upon which the
basic wage was
computed, it being a matter then within the exclusive jurisdiction of the
Conciliation and Arbitration Court as then
constituted. These passages do not
in my opinion support the applicant's argument. That decision does not mean
that that Court, or
the Commission, could not itself alter those principles in
the course of a later decision settling another dispute, or indeed in
a later
decision varying an award made in the settlement of the original dispute. (at
p629)
31. Reliance was also placed on an observation by Dixon C.J. in Reg. v.
Kelly; Ex parte Australian Railways Union
[1953] HCA 96; (1953) 89 CLR
461 that the
Arbitration Court "cannot have in its hands the general control or direction
of industrial social or
economic policies".
However when read in its context
that observation does not support the argument. The passage in which it occurs
is worth quoting
in full for the light it throws on the extent of the
legislative power given by s. 51 (xxxv.). He said (1953) 89
CLR, at pp 473-475
:
"It is too late to deny that the legislative power derived from s.51
(xxxv.) of the Constitution does not (sic) extend far enough to enable the
legislature to give to the Arbitration Court a power of varying an award
within the
limits of the original industrial dispute, and that is so whether
the variation is made during the period specified in the award
for its
operation or during the period thereafter whilst it remains in operation by
virtue of s.48(2). The award is in operation as a settlement or determination
of the dispute and, within the limits arising from the subject matter
and the
boundaries of the dispute, the court may revise or review the settlement it
has made. Section 49 of the Act, which confers
the power to set aside any
terms of an award and the power to vary it, does not distinguish between the
specified period of the operation
of an award and the period when it is
continued in operation until a new award is made. There is nothing to
necessitate such a distinction.
But the reason for reviewing or revising the
terms of an award may be found in changing circumstances as well as in a
reconsideration
of the wisdom or expediency of the provision independently of
any change brought by time and the longer an award is kept in force,
the
greater is the likelihood of circumstances changing so as to make a variation
necessary or expedient. That the provision is valid
which continues the
operation of an award after the expiry of its fixed term is of course well
established. From that conclusion
it follows almost as a corollary that the
Arbitration Court may be empowered to vary the terms of the award in order to
give it a
reasonable application to altered conditions. It must be incidental
to the prevention and settlement of industrial disputes by arbitration
to
empower the arbitral tribunal to vary any of its awards so long as it is in
operation, not only to correct or improve upon the
provisions it contains
independently of change of circumstances, but also to meet altered conditions.
It is true that the power must
be exercised in respect of the subject
constitutionally described as conciliation and arbitration for the prevention
and settlement
of industrial disputes. But that subject includes all that is
incidental thereto, and to maintain a settlement made by award of an
industrial dispute in an expedient and satisfactory form adjusted to changed
conditions must be incidental to the subject. Variations
cannot go beyond what
is appropriate to the general purpose of the settlement of the industrial
dispute and continuing the settlement
in force. That means that the limits set
by the scope and nature of the original dispute cannot be transcended. In the
original settlement
of an industrial dispute, so long as those limits are
observed, the arbitral tribunal is at liberty, in deciding what kind of award
it will make for the purpose of determining the dispute, to take into account
the social and economic effects that may be produced.
While an arbitral
tribunal deriving its authority under an exercise of the legislative power
given by s. 51 (xxxv.) must confine
itself to conciliation and arbitration for
the settlement of industrial disputes including what is incidental thereto and
cannot
have in its hands the general control or direction of industrial social
or economic policies, it would be absurd to suppose that
it was to proceed
blindly in its work of industrial arbitration and ignore the industrial social
and economic consequences of what
it was invited to do or of what, subject to
the power of variation, it had actually done. This is equally true of the
exercise of
the power of variation itself, and it is true whether the exercise
of that power is addressed to bettering a provision of the award
independently
of changes in circumstance or to adjusting the settlement made to changes of
circumstance.
. . .that constitutionally no power can be conferred upon it to make a common rule, is to confuse the conception of a common rule, a thing of a legislative nature, with the consistent application of a principle of decision to a number of cases inter partes considered all to fall within the application of the principle. No doubt the adjustment clauses which stood in these very awards were of a pattern uniform with those found in countless other awards. But because the Arbitration Court adopted on this matter a provision in common form for wage adjustment and inserted it in the greater number of the awards delivered, it did not make a common rule. And now by uniformly departing from the provision, it makes no common rule. In both cases it proceeded from dispute to dispute. In neither case were the formulation of a principle and its application to the cases falling within it incompatible with the lawful use of the authority to arbitrate for the prevention and settlement of industrial disputes, including in that authority the maintenance of the settlement over a period of time in a shape considered appropriate to changed circumstances."
To say that the Arbitration Court has in effect made a common rule and
32. The present division of the jurisdiction of the Commission between a Full
Bench on the one hand and Presidential Members and
Conciliation Commissioners
on the other is prescribed by ss. 31 and 32. So far as is presently material,
s. 31 provides as follows:
"(1) The power of the Commission to make an award, or to certify, under
s. 28 an agreement -
. . .which rates of wages are to be ascertained, on grounds predominantly related to the national economy and without examination of any circumstance pertaining to the work upon which, or the industry in which, persons are employed;
(b) making provision for, or altering, rates of wages, or the manner in
. . .accordance with principles, determined by a Full Bench, is exercisable by a Full Bench, and not otherwise.
except where the provision or alteration gives effect to matters, or is in
. . .otherwise than as a Full Bench, the question arises whether the matter is one in relation to which sub-section (1) applies -
(3) Where, in relation to a matter before the Commission constituted
(a) where the Commission is constituted by the President -matter - the Commission constituted by the President is, subject to the provisions of this Act other than this section, empowered to make an award with respect to the matter; or
(i) if the opinion of the President is that the matter is not such a
33. The decision by the Full Bench in granting indexation subject to restricting increases on other grounds to specified exceptions was on grounds "predominantly related to the national economy". The application of the terms of those exceptions would no doubt require examination of "any circumstances pertaining to the work upon which, or the industry in which, persons are employed" and would be a matter for individual Commissioners. (at p632)
34. The scheme of s. 31 appears to me to require the conclusion that the authority of a Commissioner is limited by decisions of the Full Bench made under sub-s. (1). It would be contrary to that scheme for a Commissioner to make an award granting, for example, indexation plus 10 per cent or other increases on a basis not included in the specified exceptions in the Full Bench's decision. Section 31 (1) has both a positive and a negative aspect. There would be no point in confining jurisdiction to make awards in respect of wages based on matters related to the national economy to the Full Bench if an individual Commissioner could destroy the operation of those principles by granting increases on grounds other than the specified exceptions. If it were otherwise an individual Commissioner would have power to destroy in part the operation of the Full Bench's decision based on "grounds predominantly related to the national economy". The fact that the Commissioner was asked to grant those increases on the basis of facts concerning a particular industry does not of itself have the consequence that he would have been free to make such an award. The exception in the sub-section of cases where the provision or alteration (by a single Presidential Member or a Commissioner) is one "which gives effect to matters, or is in accordance with principles, determined by a Full Bench" lends force to this view of the sub-section. Sub-section (3) likewise supports this construction in that it gives to the President the exclusive power to determine whether a matter falls within sub-s. (1). The "guidelines" had both positive and negative aspects and it would have been destructive of the operation of any award made under s. 31 (1) if individual Commissioners were free to make awards in individual disputes which contained provisions in contradiction of the Full Bench's award. That does not appear to me to represent the intention of the legislature; indeed it would be contrary to the intention which appears from the words themselves. The Full Bench concluded that, if its award provided for indexation of wages, the national economy required limitations on other increases in wages, and its award so provided. For Mr. Commissioner Clarkson to have made an award inconsistent with the Full Bench's decision and the awards implementing it would have interfered with and contradicted the Full Bench's award and in my opinion to do so would have been outside his jurisdiction. (at p633)
35. The Commissioner was therefore quite right to refer to the Principles of Wage Fixation as a "constraint" but the constraint was that of the Conciliation and Arbitration Act upon his jurisdiction, not of the Full Bench upon his discretion. (at p633)
36. A division of jurisdiction between a Full Bench on the one hand, and individual Presidential Members and Commissioners on the other, has been clearly recognized as within constitutional power by the cases to which I have referred. (at p633)
37. It appears to be clearly within the Full Bench's constitutional and statutory power to make awards settling disputes by granting increases in wages of a particular kind (whether by reference to specific sums of money or by reference to specified calculations) upon grounds related to national economy but embodying a prohibition upon other increases save in specified exceptional cases, during the operation of the particular award. What s. 31 (1) does is to give to the Full Bench exclusive jurisdiction to make awards fixing wages, or the manner in which wages are to be fixed, "on grounds predominantly related to the national economy and without examination of any circumstances pertaining to the work upon which, or the industry in which, persons are employed". Neither that section nor any other provision enacts the converse, i.e., it is not correct to say that individual members of the Commission have a completely unfettered jurisdiction in respect of matters requiring examination of circumstances pertaining to the work upon which, or the industries in which, persons are employed. An award by a Full Bench based on grounds predominantly related to the national economy may include negative as well as positive provisions. It would not be open to an individual member of the Commission to reduce for a particular industry an amount awarded by a Full Bench or to make an award contrary to a negative provision in such a Full Bench award. (at p634)
38. There is no express power given to members of the Commission sitting alone to make awards in particular industries which are contrary to either positive or negative decisions of a Full Bench. Nor can any such power be implied. The division of function and jurisdiction would be defeated if it were open to individual members of the Commission to make awards contrary to either positive or negative decisions embodied in awards by a Full Bench on the basis of the requirements of the national economy. (at p634)
39. It is beyond doubt that the Full Bench may, either upon application or of its own motion, vary an award made by it within the ambit of the relevant dispute. The various changes since 1975 in the extent of indexation provided for in awards and changes in the "guidelines" or "principles" are illustrations of the exercise of this power. (at p634)
40. It is therefore not necessary to consider in this case the extent to which a Full Bench may in other circumstances formulate general principles by which individual members of the Commission may be or feel "bound" without being subject to a mandamus requiring them to exercise their jurisdiction according to law. (at p634)
41. For these reasons I would dismiss this application and discharge the order nisi. (at p634)
WILSON J. I have had the advantage of reading the reasons for judgment prepared by my brother Aickin. I agree entirely with those reasons. In particular, with all respect to those who are of a different opinion, I agree with his Honour's construction of s. 31 (1) (b) of the Conciliation and Arbitration Act 1904 (Cth), as amended, and with his view of its application to this case. The Full Bench having, pursuant to s. 31 (1) (b), laid down principles of wage determination which are applicable to the industry in question, it is not within the jurisdiction of a single Commissioner to vary wage rates in that industry otherwise than in accordance with those principles. The principles themselves identify the manner in which the rates under a particular award may be varied in response to the circumstances existing in that industry. The framework within which any variation may be sought or granted is the decision of the Full Bench in September 1978 that in the interests of the national economy "there should continue to be a centralized and orderly system" of wage fixation. There would seem to be little point in prescribing an exclusive jurisdiction for the Full Bench to lay down general principles governing the alteration of wage rates if a Commissioner is free to disregard them so long as the claim in question relates to the circumstances of a particular industry. (at p635)
2. The order nisi should be discharged. (at p635)
ORDER
Order nisi discharged.
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