The compulsory conference power under s 27(1) cannot be used as a preliminary to the Commission varying an award of its own motion under s 59(2), and s 59(3) only applies other provisions of the Act to applications for variation, not to own-motion proceedings.
Later decisions that cite R v Gough; Ex parte Key Meats Pty Ltd
Decisions cited by R v Gough; Ex parte Key Meats Pty Ltd
THE QUEEN v. GOUGH; Ex parte KEY MEATS PTY. LTD. [1982] HCA 12; (1982) 148 CLR 582
Industrial Law (Cth)
High Court of Australia
Gibbs C.J.(1), Stephen(2), Murphy(3), Wilson(4) and Brennan(5) JJ.
CATCHWORDS
Industrial Law (Cth) - Concilliation and Arbitration - Award - Variation - Power of Conciliation and Arbitration Commission to vary award of its own motion - Compulsory conference - Power of Commission to convene conference - Whether exercisable in connextion with arbitration of a dispute or confined to conciliation - Whether conference can be called to consider proposal to vary award - Conciliation and Arbitration Act 1904 (Cth), ss. 21, 27 (1), 59 (2), (3).
HEARING
1981, October 7; 1982, April 6. 6:4:1982DECISION
1982, April 6.
2. The proceedings which have given rise to the present application began as
a result of a letter dated 3 June 1981 to the Deputy
Registrar of the
Commission from Mr. McPike, the Assistant Secretary of the union. The letter
read as follows:
"The above Union desires to notify you of a dispute between the Union
and Key Meats Pty. Ltd. of Ararat Abattoirs, Ararat.
This dispute arose over the company standing down employees on 14-4-81
and 24-4-81 without payment, which we claim is contrary
to the Award
provisions.
The parties are respondent to 'The Federal Meat Industry Interim Award
1965 as varied'.
As this matter cannot be resolved between the parties, the Union is
seeking the assistance of your office to determine this
problem." (at p584)
3. The facts that gave rise to this letter appear to have been that on two
days in April 1981 there were no animals, or insufficient
animals, to be
slaughtered at the abattoir and consequently no useful work to be done by the
employees, who were accordingly notified
on the evening before each of the
days in question that they would be stood down for the following day. The
employees did not attend
for work on the two days and were not paid in respect
of those days. The question whether they were entitled to be paid depends on
the true effect of the following words in cl. 6 of Pt 1 of the award:
"This shall not affect the right of an employer . . . to deduct payment
for any day on which an employee cannot be usefully
employed, because of any
strike other than in the meat industry, or through any breakdown of machinery
or any stoppage of work in
the meat industry by any cause for which the
employer cannot reasonably be held responsible, or for any day or part of a
day on which
an employee cannot be usefully employed because of any strike in
the meat industry."
However it is unnecessary for this Court on the present application to
consider whether in the circumstances there was a "stoppage
of work in the
meat industry by any cause for which the employer cannot reasonably be held
responsible", within the meaning of cl.
6. (at p585)
4. The matter came before the Commissioner on 15 June. The union was
represented by Mr. McPike. Mr. R. Jones appeared on behalf
of the Meat and
Allied Trades Federation of Australia and the prosecutor. He immediately
objected to the jurisdiction of the Commissioner
to deal with the matter. In
the course of argument Mr. McPike submitted that the employees were entitled
under the terms of the award
to receive payment for the two days in question.
When the Commissioner questioned Mr. Jones as to one aspect of the facts, and
Mr.
Jones replied that he did not know, the Commissioner said:
"Yes, but I would ask you to speak to your member and bring the award to
his notice because that could avoid whatever action
might be necessary by way
of an application to vary the whole award. Because if that is not clear to
your member there must be some
lack of clarity in the structure of the award
which the commission should do something about, and if it is necessary to
define a
fresh concept of standing down then, of course, the commission ought
to do that if your member is truly in doubt about the situation."
Mr. Jones replied that he did not believe that there was any doubt in the
prosecutor's mind. Later Mr. McPike said that he also did
not really think
that there was any doubt about the construction of the award. Nevertheless it
does appear that the prosecutor and
the union put different interpretations
upon the relevant words of the award; that suggests that they were ambiguous
or uncertain.
At no stage during the proceedings did either of the parties
make application for a variation of the award. Towards the conclusion
of the
proceedings the Commissioner said that he had to find out whether there was a
doubt as to the effect of the award and that
he was prepared to summon a
compulsory conference to determine that question. He indicated that he would
summon the Federation and
the prosecutor. The following exchange then
occurred:
"MR. JONES: I make the point again, sir, it is not causing any difficulty
as far as we are concerned.
THE COMMISSIONER: Well, it is causing a lot of difficulty where the union
is concerned.
MR. JONES: That is their problem, sir, if they want a change they make an
application to change it, sir.
THE COMMISSIONER: No they do not. They bring it before me and say there is
an apparent ambiguity or uncertainty in the award,
then I have to consider
whether it is desirable to remove that uncertainty or ambiguity if I regard
the ambiguity or uncertainty
as existing and that is what I shall do if
necessary and if I consider it desirable."
He then adjourned the further hearing of the matter until 19 June and summoned
the Meat and Allied Trades Federation in the person
of Mr. Jones and the
proprietor of the prosecutor to attend a conference on that date. On 18 June
1981 the prosecutor obtained the
order nisi, which included an order for a
stay of proceedings. On the return of the order before this Court only the
prosecutor was
represented. The Commissioner has very properly indicated that
he will abide by any order of the Court and the union has not appeared.
The
matter has accordingly proceeded before us ex parte. (at p586)
5. The power of a Commissioner to direct parties to attend at a conference is
given by s. 27 (1) of the Act which is in the following
terms:
"(1) For the purposes of the performance of his functions in respect of
an industrial dispute, a member of the Commission may,
of his own motion or
upon application made by a party to the industrial dispute, direct a person to
attend, at a time and place specified
in the direction, at a conference
presided over by himself or another member of the Commission or by such other
person as the member
of the Commission determines."
The power of the Commission to set aside or vary awards is set out in s. 59 of
the Act. Sub-sections (2) and (3) of s. 59 provide
as follows:
"(2) The Commission may, if for any reason it considers it desirable to
do so, and shall if it considers it desirable for the
purpose of removing
ambiguity or uncertainty, vary any of the terms of an award.
(3) The provisions of this Act, so far as they are capable of
application, apply in relation to applications for the variation
or setting
aside of awards and proceedings in respect of such applications in like manner
as they apply in relation to industrial
disputes and proceedings in respect of
such disputes, and for that purpose such an application shall be treated as if
it were the
notification of an industrial dispute." (at p587)
6. The provisions of s. 27 (1) enable a Commissioner, for the purposes of the
performance of his functions in respect of an industrial
dispute, to direct a
person to attend at a conference. The expression "industrial dispute" is
defined in s. 4 (1) of the Act; it
must of course be a dispute which extends
beyond the limits of any one State except in certain cases, not here material,
of disputes
concerning employees of the Commonwealth. No conference in the
present case could have been called by the Commissioner for the purposes
of
the performance of his functions in respect of the "dispute" referred to in
the letter of 3 June. That was of course purely an
intrastate dispute. It was
a dispute between the union and one employer in Victoria, and related to the
standing down of particular
persons employed in Victoria. It was in truth a
dispute as to the respective rights of the employer and the employees under
the existing
award, and it appears that the union brought the matter before
the Commission in an attempt to secure payment by the prosecutor to
the
employees who had been stood down. However, the Commission had no jurisdiction
to determine the legal rights of the employees
who had been stood down or to
enforce the rights given by the award: Reg v. Gallagher; Ex parte Aberdare
Collieries Pty. Ltd. (1963)
37 ALJR 40, at pp 43, 46 ; Reg. v. Austin; Ex
parte Farmers and Graziers Co-Operative Co. Ltd. [1964] HCA 48; (1964) 112 CLR 619,
at pp
627, 629
. It would not have been legitimate to call a compulsory conference
in an attempt to persuade
the prosecutor to make
the payment
sought by the
union. (at p587)
7. The Commissioner nevertheless had power to vary the award, and to do so on his own motion: see ss. 21 and 59 (2) of the Act. His power extended to making a variation which applied only to parties within one State, provided that the variation was within the limits of the original interstate dispute: see, e.g., Reg. v. Kelly; Ex parte Australian Railways Union [1953] HCA 96; (1953) 89 CLR 461, at pp 473-474 ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1962] HCA 22; (1962) 108 CLR 166, at p 169 ; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR 615, at pp 619-620 . It may be assumed that the variation of the award by the Commissioner would be something done in the "performance of his functions in respect of an industrial dispute" - the original dispute which gave rise to the award - within s. 27 (1). It does not follow that s. 27 (1) gives the Commissioner power to direct a person to attend a conference for the purpose of enabling the Commissioner to consider whether a variation should be made to an award. The question whether other provisions of the Act apply in relation to variations is dealt with specifically by s. 59 (3), and the general provisions of s. 27 (1) must give way to the specific provisions of s. 59 (3) in their application to the particular subject matter dealt with by the latter sub-section. The other provisions of the Act are applied by s. 59 (3) only (1) "so far as they are capable of application", and (2) "in relation to applications for the variation or setting aside of awards and proceedings in respect of such applications". A conference of the kind envisaged in the present case hardly seems appropriate for the purpose of varying an award to which the prosecutor was only one of many respondents, but I need not decide whether the provisions of s. 27 (1) would have been "capable of application" if there had been an application for the variation of an award, for there was no such application. The Commissioner was proceeding of his own motion, and s. 59 (3) does not render the other provisions of the Act applicable in such a case. There may well be sound reasons of policy to deny to a Commissioner who proceeds of his own motion to vary an award such powers as those conferred by s. 27 (1), but in any case that is in my opinion the effect of s. 59 (3). (at p588)
8. It would be inappropriate to engage in an elaborate discussion of these questions in a case that was argued ex parte. It is enough to say that for the reasons mentioned the order nisi should be made absolute. (at p588)
STEPHEN J. Twice in April 1981 Key Meats Pty. Ltd. stood down for a day without pay members of the Australasian Meat Industry Employees' Union employed by it at its abattoirs at Ararat, Victoria. These employees were employed by Key Meats under the terms of the Federal Meat Industry Interim Award 1965. (at p588)
2. Clause 6 of the Award provides for employment by the week terminable on a
week's notice but without prejudice to an employer's
right to:
"deduct payment for any day on which an employee cannot be usefully
employed, because of any strike other than in the meat industry,
or through
any breakdown of machinery or any stoppage of work in the meat industry by any
cause for which the employer cannot reasonably
be held responsible, or for any
day or part of a day on which an employee cannot be usefully employed because
of any strike in the
meat industry".
Key Meats had on each occasion of standing down told its employees the night
before that no work would be available for them the
next day because there
would be no useful work to be done at the abattoirs. This was because of a
shortage of livestock for slaughtering
on those two days; Key Meats' abattoirs
are conducted as a "service meatworks", slaughtering stock supplied by others
and returning
to them the carcasses of the beasts it slaughters. These
shortages were, apparently, local affairs affecting these abattoirs and
were
not due to any strike or breakdown of machinery. (at p589)
3. The union subsequently notified the Conciliation and Arbitration Commission of what it described as a dispute between it and Key Meats arising out of these two instances of standing down without pay, which it claimed to be contrary to the Award. (at p589)
4. When the matter came on for hearing before Mr. Commissioner Gough the employers' representative objected to the Commission's jurisdiction, saying that there was no interstate dispute nor any dispute about an industrial matter and that what was required was an interpretation of the award, which was not a matter for the Commission. This the union's representative contested. The Commissioner, without ruling on the question of jurisdiction, observed that the award might be ambiguous and that it might be appropriate for him to vary the award. He wished first to inform himself as to whether there really was "some uncertainty or ambiguity in the award". However, the employers' representative, having taken his objection to jurisdiction, declined to discuss the particular circumstances at the abattoirs, whereupon the Commissioner foreshadowed the calling of a compulsory conference to which Key Meats would be summoned so that he might obtain information directly from that employer. (at p589)
5. In subsequent discussion with the union's representative the Commissioner observed that Key Meats might genuinely believe that it had been entitled to stand down its employees without pay. The union representative replied that the award was unambiguous and entitled the employees to their pay, while the employers' representative also claimed the award to be unambiguous, asserting that it had precisely the opposite meaning and that Key Meats had no doubt but that it was entitled to act as it had. (at p589)
6. The Commissioner then stated that he would convene a compulsory conference
since "If there is a doubt I have to find out what
that doubt is". The
employers' representative said that cl. 6 of the award was causing his client
no difficulty of interpretation
and that if it was causing difficulty to the
union it was open to it to apply for a variation, "if they want a change they
make an
application to change it". The Commissioner replied:
"No they do not. They bring it before me and say there is an apparent
ambiguity or uncertainty in the award, then I have to
consider whether it is
desirable to remove that uncertainty or ambiguity if I regard the ambiguity or
uncertainty as existing and
that is what I shall do if necessary and if I
consider it desirable. So I shall adjourn the further hearing of C No. 999 of
1981
until 12 noon on Friday 19 June on these premises and I hereby summon the
Meat and Allied Trades Federation in your person, Mr. Jones,
to that
conference and I shall summon (the employer) likewise". (at p590)
7. It is in these circumstances that Key Meats has sought and obtained the
present order nisi for prohibition, directed to prohibiting
the Commissioner
from proceeding with the proposed compulsory conference. The union has chosen
not to appear on the return of the
order nisi; the Commissioner, having
informed the Court that he will abide by any order of the Court, has also not
been represented.
The matter has therefore proceeded ex parte, without the
benefit of argument in opposition to the contentions of the prosecutor,
Key
Meats. (at p590)
8. It is clear that the standing down by Key Meats of its employees without pay, whether or not in breach of the award, gave rise to no industrial dispute within the meaning of the Conciliation and Arbitration Act 1904 (Cth): not only was there lacking any interstate element; there was, properly speaking, no dispute but, rather, an alleged breach of award. For this there certainly are remedies, but not ones to be found by recourse to the Commission. Likewise, if it was interpretation of the award that was called for, that too was no matter for the Commission. The objection taken to jurisdiction accordingly had substance; any finding of the existence of a dispute by the Commissioner pursuant to s. 24 of the Act would have been erroneous. However the Commissioner made no such finding; being confronted with what might prove to be ambiguity in an award, he sought to turn to use the opportunity presented by the union's notification of dispute and by the presence of the parties before him. (at p590)
9. The course which the Commissioner proposed to take appears to have been as follows: to convene a compulsory conference under s. 27 of the Act; to enquire at that conference about the state of mind of Key Meats concerning the meaning of cl. 6; and, if he should conclude both that Key Meats had a genuine belief concerning its entitlement to stand down without pay its employees and that the clause was ambiguous, then to initiate of his own motion proceedings to vary the award pursuant to s. 59 (2) so as to remove that ambiguity. At that stage the Commissioner would no doubt have involved all parties to the award in those variation proceedings. (at p591)
10. The Commissioner had power of his own motion to vary the existing award in appropriate circumstances: s. 59 (2) empowers the Commission (and hence a Commissioner - s. 22 (1)) to vary any of the terms of an award if for any reason it considers it desirable to do so; it requires it to do so if it considers it desirable for the purpose of removing ambiguity or uncertainty. This it may do despite the absence of any application by a party to the award: s. 21 (1) empowers the Commission to exercise any of its powers or functions of its own motion and this provision seems clearly enough to be applicable to s. 59 (2). The fact that s. 59 (3), in expressly making applicable the other provisions of the Act to variation proceedings, speaks in terms of applications for variation of awards does not, I think, mean that in the absence of an application the Commission has no power to vary of its own motion. Section 21 (1) is general in its terms and nothing in the Act makes it inapplicable to s. 59 (2). The predecessor to s. 59 (1) and (2), s. 49 of the Act as it stood in 1952, was held, in conjunction with the then s. 34 of the Act, to confer power upon a conciliation Commissioner to "vary an award on his own motion" - per Dixon C.J. speaking for the Court in Reg. v. Galvin; Ex parte Australian Textile Workers' Union [1955] HCA 7; (1955) 92 CLR 173, at p 175 . Section 34 was the predecessor of the present s. 21 (1). The subsequent introduction in 1972 of sub-s. (3) into s. 59 is not to be regarded as by implication restricting the power which had until that time been conferred by sub-s. (2) of that section. (at p591)
11. If, then, the Commissioner might of his own motion initiate proceedings for variation of the award, could he use the compulsory conference procedure as a preliminary to doing so? If the Commissioner sought by this procedure to learn of Key Meats' state of mind he was enquiring after an irrelevancy: the existence of an ambiguity or uncertainty in an award is not to be found in a particular party's belief as to what it means but rather from the terms of the award and the factual situations to which it is to be applied. However let it be assumed for present purposes that the Commissioner intended to use the compulsory conference so that he might learn more of the factual situation at the abattoirs. The Commissioner's power to convene such a compulsory conference will depend upon the effect of s. 27 (1) of the Act; the terms of s. 30 (4) will also be of relevance. (at p592)
12. Section 27 (1) empowers a member of the Commission of his own motion to direct a person to attend a conference. That power is qualified by the opening words of that sub-section: "For the purposes of the performance of his functions in respect of an industrial dispute". In the present case the standing down of employees gave rise to no industrial dispute but, if compulsory conferences may be used at all for fact-finding preliminary to the variation of awards, the original industrial dispute which was settled by the making of the 1965 Award will satisfy these opening words of s. 27 (1). In Reg. v. Kelly; Ex parte Australian Railways Union [1953] HCA 96; (1953) 89 CLR 461, at p 474 , Dixon C.J. described the work of the predecessor of s. 59 as being to enable awards in settlement of industrial disputes to be maintained in an expedient and satisfactory form adjusted to changed conditions. In contemplating a possible variation of the award, and for that purpose having recourse to a preliminary conference, Commissioner Gough was acting in the performance of his functions in respect of the original industrial dispute. (at p592)
13. However the prosecutor makes a more fundamental attack upon the
Commissioner's purported use of s. 27 (1); it is said that the
compulsory
conference procedure is not available as a means of factfinding preliminary to
proceedings for variation of an award.
That there are practical difficulties
in any use of it for that purpose is undeniable and these suggest that it is,
at the least,
an inexpedient course. These difficulties arise from s. 30 (4)
of the Act and their nature is immediately apparent from the terms
of that
sub-section:
"In arbitration proceedings under this Act, unless the parties otherwise
agree, evidence shall not be given, or statements
made, concerning anything
relating to the matters remaining in dispute that was said or done in
proceedings before a member of the
Commission, or at a conference (whether
compulsory or not) arranged by a member of the Commission".
A Commissioner who uses a compulsory conference as an aid preliminary to award
variation will be likely later to encounter these
difficulties unless the
parties "otherwise agree". Sub-section (4) only applies to "arbitration
proceedings under this Act" but this
will include proceedings for the
variation of an award pursuant to s. 59. That section owes its constitutional
validity to its character
as incidential to the arbitration power - Reg. v.
Kelly, and proceedings under it are "arbitration proceedings under the Act"
for
the purposes of s. 30. (at p593)
14. That s. 30 is so drafted as to give rise to these difficulties is no doubt because the legislation does not contemplate the use of compulsory conferences as an aid in the arbitration of disputes, as distinct from their conciliation. And since variation of an existing award, as was here proposed, forms part of the process of arbitration, the legislation proves to be intractable when the compulsory conference procedure is then sought to be employed in that process. The Act draws a clear distinction between the two processes, conciliation and arbitration; this appears most clearly from s. 25 (4) and (5) and the terms of s. 22 (2) and of s. 30 (4) also emphasize it. The procedure for settlement by conciliation is governed by s. 26 and ss. 28 and 29 are also exclusively concerned with the process of conciliation; only when s. 30 is reached does the Act turn its attention to arbitration. Section 27, providing for compulsory conferences, thus finds itself in that portion of the Act exclusively concerned with conciliation and its terms and general subject-matter are directed to conciliation not arbitration. The concept of having the parties to a dispute meet together in conference is of the essence of conciliation and s. 27 (2), by its reference to the presence at compulsory conferences of those "having the highest degree of authority on behalf of the parties to the industrial dispute to negotiate for the prevention or settlement of the dispute", reveals that it is the process of conciliation that is in progress when compulsory conferences take place; sub-ss. (4) (b) and (6) also suggest the same conclusion. (at p593)
15. The use to which the Commissioner has here sought to put the compulsory conference procedure is, in contrast, quite foreign to conciliation. There exists no industrial dispute capable of conciliation; the only relevant dispute was that which was settled by the 1965 award and it passed beyond the reach of conciliation when that award was made. The union's notification which led the parties to come before the Commissioner is itself testimony to this: it correctly described the matter at issue as concerning the standing down of employees which it claimed to be "contrary to the Award provisions". The union was, in reality, complaining of what it regarded as a breach of a term of the award and was seeking enforcement of that term. It chose an inappropriate forum and initiated proceedings by reference to a dispute which did not in fact exist. (at p593)
16. When the matter thus came to the notice of the Commissioner he might have turned this false start to some use by initiating, of his own motion, proceedings to vary the award had he discerned possible ambiguity or uncertainty in its terms. All parties to the award would then have been entitled to appear and argue the question of variation. What the Commissioner could not do was to employ, as a preliminary to such proceedings, powers conferred for use only in the process of conciliation, a process the time for which, in relation to the only relevant dispute, the dispute settled by the 1965 award, had long since passed. (at p594)
17. I would make absolute the order nisi for prohibition. (at p594)
MURPHY J. The Commission was notified of an industrial dispute between the
Union and Key Meats Pty. Ltd. "over the company standing
down employees on two
days" which the Union claimed was contrary to "The Federal Meat Industry
Interim Award". Clause 6 of the Award
provides:
"This shall not affect the right of an employer to . . . deduct payment
for any day on which an employee cannot be usefully
employed, because of any
strike other than in the meat industry, or through any breakdown of machinery
or any stoppage of work in
the meat industry by any cause for which the
employer cannot reasonably be held responsible, or for any day or part of a
day on which
an employee cannot be usefully employed because of any strike in
the meat industry."
Mr. Commissioner Gough had made the Interim Award. When this matter of the
dispute came before him, the Australasian Meat Industry
Employees Union ("the
union") appeared. Mr. Jones appeared for both Key Meats Pty. Ltd. and the Meat
and Allied Trades Federation
of Australia ("the Federation") (the employer
organisation to which it belonged) and objected that the Commission had no
jurisdiction.
In exploring the differences between the union and the other
parties, the Commissioner considered that there was no dispute about
the
facts, only about the operation of cl. 6. The employees had been stood down on
days when there was no work for them because the
employer had failed to
arrange enough animals for slaughter; there was no stoppage of work in the
meat industry generally. The union
contended that the employer was not, and
Mr. Jones that it was, entitled in these circumstances to a deduction payment
under cl.
6. The Commissioner could not grasp the basis of the employer's
contention that cl. 6 was applicable. The Commissioner was given
no
co-operation when he pressed Mr. Jones to elucidate his client's view of the
clause's operation. The Commissioner tentatively
took the view that unless the
employer was simply refusing to obey the award, there was a strong possibility
that his apparent disobedience
was due to ambiguity or uncertainty in cl. 6.
The Commissioner's view was that even if this were a stoppage of work, the
entitlement
of the employer to deduct payment under cl. 6 arises only in the
event of a stoppage of work in the industry, that is generally,
not a mere
stoppage in the employer's workplace. The Commissioner then indicated that he
had to consider whether it was desirable
to vary the award and whether, if he
was of the opinion that there was ambiquity or uncertainty, he was obliged to
vary it. This
was a reference to the Conciliation and Arbitration Act 1904
(Cth), as amended, s. 59 (2) which states:
"The Commission may, if for any reason it considered it desirable to do
so, and shall if it considers it desirable for the
purpose of removing
ambiquity or uncertainty, vary any of the terms of an award." (at p595)
2. He adjourned the further hearing, summoned the Federation, the union, the
proprietor of Key Meats, and a representative of the
meat company Tancreds, to
attend a conference. The employer obtained an order nisi for prohibition, and
now seeks to have it made
absolute. In this Court the prosecutor referred to
clauses in other awards similar to cl. 6 which had been applied in favour of
the
employer's viewpoint, but these used the expression "stoppage of work",
not "stoppage of work in the industry". (at p595)
3. The Commissioner was entitled of his own motion (see s. 21), as well as on application of any party or parties, to vary cl. 6 (under s. 59 (2)). If for any reason he considered it desirable to do so, he was also entitled of his own motion as well as on the application of any party or parties to set aside an award or any term of an award (s. 59 (1)). The Commissioner's jurisdiction to vary or set aside did not depend upon a fresh industrial dispute extending beyond the limits of one State; the original dispute on which he had made the Interim Award was sufficient. (at p595)
4. The power to direct persons to attend a "compulsory conference" is in s. 27 (1) of the Act. "For the purposes of the performance of his functions in respect of an industrial dispute, a member of the Commission may, of his own motion or upon application made by a party to the industrial dispute, direct a person to attend, at a time and place specified in the direction, at a conference presided over by himself or another member of the Commission . . . ". One of the functions of a member of the Commission in respect of an industrial dispute is to vary an award of his own motion under s. 59. Therefore the power in s. 27 (1) is available. However the prosecutor claimed that s. 27 (1) should be read down because of s. 59 (3); this applies the provisions of the Act to applications to set aside or vary, and provides that such applications are to be treated as if they were notifications of an industrial dispute, but does not in terms extend to proceedings by the Commission of its own motion under s. 59. However s. 27 (1) by its generality applies of its own force to the performance of the Commissioner's functions under s. 59. It would be a serious and unjustifiable reading down of s. 27 (1) to subject its wide scope to an exception "but not for the purposes of a setting aside or variation of an award by the Commission of its own motion". (at p596)
5. The prosecutor also contended that the power in s. 27 (1) to direct a conference is restricted to purposes of conciliation, and is unavailable once arbitration has been commenced, so that it is not available at all in any s. 59 proceedings whether on application or on the Commission's own motion. The Commission's free use of its conference power under s. 27 (1) for conciliation or arbitration especially for varying or setting aside awards is of the utmost importance. The Act should not in the absence of compelling language be read so as to restrict this power. The submission was based on the proximity of s. 27 to s. 26 which deals with the action to be taken where a dispute is referred for conciliation. This novel submission was not supported by reference to any precedent or practice of the Commission nor by any compelling language; on the contrary it resembles an exercise in pedantry. Industrial disputes are often settled part by part; and because of the power to set aside or vary, all settlements are in a sense provisional. To interpret s. 27 (1) so that once arbitration has commenced the power to direct into conference is lost, is so lacking in any justification in the language of the Act, that it must appear cavalier to those engaged in the difficult task of preventing and settling disputes. (at p596)
6. The prosecutor also submitted that by interpreting the Interim Award the Commissioner exceeded his jurisdiction and invaded the province of the judicial power as decided in Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 . That case did not decide that administrators and non-judicial tribunals must not interpret and apply laws and legal instruments. They do so every day, as an essential part of their duty. In Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [1960] HCA 19; (1960) 103 CLR 15 this Court (Dixon C.J., McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ.) decisively rejected such an approach. They said "In the settlement of any industrial dispute views and opinions may be formed on the meaning of documents and on matters which are not necessarily foreign to judicial power. Were it true that Mr. Lydon took into consideration or acted upon some construction of the order of 14 December 1954 in arriving at his conclusion it would not amount to an exercise of judicial power or an attempt to usurp judicial power." (1960) 103 CLR, at p 22 . (at p597)
7. In the present case the union's claim was for an award for payment of moneys in the circumstances which had occurred. This came within the scope of the original dispute, which made prospective claims which antedated the stand-downs. The Commissioner is entitled to decide, for his own purposes, what the legal effect of cl. 6 is, in order to decide whether to vary or set it aside, in accordance with the Act. He cannot of course declare conclusively (in the sense that a court would) what the rights of the parties are under cl. 6 or any variation of the award provisions. The jurisdiction of the Commissioner to entertain the claim depends on the existence of the original industrial dispute "not on the arguments used to support the claim, or the source from which the claim grew, or upon the reasoning by which he reached or justified his conclusion". (Lydon's Case (1960) 103 CLR, at p 23 ). As that case shows, the fact that the claim relates to past work does not put it outside the jurisdiction of the Commission and place it within the judicial sphere. If cl. 6, properly construed, authorized the deductions, the Commission is entitled to vary the clause, or set it aside, retrospectively so as to make the employees entitled to wages during the stand-down. The Commission is entitled to vary and set aside award provisions in accordance with the Act so as to maintain the efficacy of the settlement. It may do so even if its new provision operates locally, temporarily, prospectively or retrospectively, provided the provision would have been within the scope or ambit of the original dispute. For very good reasons awards or variations are rarely retrospective, but there is no doubt of the jurisdiction to make them retrospective to the date of the dispute. (at p597)
8. This Court in the past has discouraged the Commission from appearing, and the Attorney-General and bodies such as the Australian Council of Trade Unions from intervening, on proceedings such as these. Neither the Federation nor the union has appeared to assist the Court with argument. It is very unsatisfactory that the Court should have to decide the interpretation and application of important procedural powers of the Commission after hearing the prosecutor only. The reason for discouraging the Commission's predecessor, the Court of Conciliation and Arbitration, was no doubt the partly judicial character of the Court of Conciliation and Arbitration. Such discouragement of judicial bodies has not always been unqualified. In R. v. Kent Justices; Ex parte Commissioner of Metropolitan Police (1936) 1 KB 547 an English Divisional Court (Hewart C.J., Humphreys and Singleton JJ.) considered that justices should be represented, or argument presented to sustain their decision, where otherwise an appeal against their decision would be pursued without any participation by the respondent. In the United States of America on review of an order of an administrative commission agency or officer the commission or other body should appear to defend if there would be no other party to ensure the proper adversarial clash requisite to a case or controversy: McCord v. Benefits Review Board, U.S. Department of Labor [1975] USCADC 40; (1975) 514 F 2d 198, at p200 . (at p598)
9. In Reg. v. Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, at p 36 where the application by the prosecutor for an order against the Tribunal was opposed by a number of respondents this Court said: "The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal". In my opinion, this Court should have had the assistance of the Commissioner or the Attorney-General on the question of powers and procedures of the Commission. I appreciate that the failure to seek to provide such assistance has been in deference to this Court's past wishes. For my part, I would welcome such assistance at least in a case concerning the Commission's powers and procedures where otherwise only one side would be heard. (at p598)
10. The Commission was authorized to summon before it the Federation and the employer, in relation to proceedings in which the Commissioner would determine of his own motion whether he should, or whether he was obliged, to vary the terms of the award in accordance with s. 59 of the Act. I am not satisfied that the Commission has in any way exceeded its authority. (at p598)
11. The order nisi should be discharged. (at p598)
Wilson J. I have had the advantage of reading the reasons prepared by Stephen J. I agree with those reasons, and would therefore make absolute the order nisi for prohibition. (at p598)
BRENNAN J. I have had the advantage of reading the reasons of my brother Stephen with which I agree. I would make absolute the order nisi for prohibition. (at p599)
ORDER
Order nisi for writ of prohibition made absolute.