JUSTICE P.R. MUNRO
12 JULY 2002
 The topic of this paper was proposed for me by several AHEIA's Industrial Officers, who took the opportunity to refine the title as the delivery date got closer.
 The first approach came with an assurance that I need to do little more than repeat a paper I gave in March this year to the ACIRRT Conference1. Emboldened by what seemed a form of academic endorsement of some self-plagiarism, I accepted. My ACIRRT paper did not escape a level of censure about its candour and comment, but I thought I might as well be hung for a sheep as for a lamb. I am coming around to the view that, if a member of the Australian Industrial Relations Commission wishes to make a rational choice about either of those options, no weight should be given to a belief that it is more comfortable to be hung as a sheep.
 My delivery of this paper may disappoint what should be rather low expectations held of me. I am referring only to expectations about refraining from expressing views that may give rise to issues of bias or prejudgment in cases in which I might later participate. I say low expectations advisedly. In Re Polites; Ex parte Hoyts2, the High Court refused to press too far against members of the AIRC the proposition that an exposition of the law should disqualify a member from particular proceedings:
"The requirement that a member of a tribunal should not hear a case if there is a reasonable apprehension that he might not bring an impartial and unprejudiced mind to its resolution cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issue for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised. Qualification for membership cannot disqualify a member from sitting."
 My sensitivity about this subject was marginally influenced by the possibility that my public comments on this occasion could perhaps be judged to warrant my removal or disqualification from sitting on cases that I might enjoy. But then to assail the fortitude that I was mustering to face that fate, last month along came the Guide to Judicial Conduct. It was issued by the Australian Institute of Judicial Administration and the Council of Chief Justices of Australia3. So far as I am aware, the Chief Justices paid little account to Re Polites. However, the publication of a quasi code is itself a force that could add to the atmosphere of suspense about expression of views by an AIRC member. In the circumstances, I preface this paper by placing on record a point of view about my expression of views.
 Set out at Attachment A is a paraphrase of the substance the guidance offered by the Guide about public comment by Judges. My translation of the main points would read:
· Before contributing to public consideration and debate using the judicial title: take care.
· There is risk in expressing any view; but mainly, the risks concern issues of bias and prejudgment; public, or not so private, conflict with other judges.
· But, delivering papers at legal conferences is not objectionable; provided no controversy or political sensitivity about what is said.
 Most of those dot points translate readily enough to the conduct of members of tribunals who are not judges in the courts and judicial system and but must perform their functions in a quasi-judicial manner. It is the last of the points that causes a problem for me as a member of the AIRC. As the late Sir Frederick Wheeler once pointed out, (thereby inspiring my interest in freedom of information and masking his professional abhorrence of it): What is the point of giving a public servant a right to make public comment, if there is no entitlement to give it a relevant content?
 Unlike Laurie Oakes, I cannot claim that I have agonised much about the answer to a similar question that I asked myself. But I did come up with some other questions about the points of a dilemma for AIRC public commentators. Is a speech or paper:
· to be or not to be quotable.
· to make, or not make comment with a content relevant to practitioners?
· to prejudge, or not prejudge, or, to be prejudged as having prejudged?
 A robust review of acceptable conduct for AIRC members guided the High Court in Re Polites. Perhaps elements of that view have enough force to provide encouragement for careful expositions of what a member thinks to be the state of the law or of decision-making within the AIRC. Similar principles should also be a shield against those who might too readily infer prejudgment from mere exegesis based on experience, and of course, attitude.
 Perhaps a fuller exploration of that dilemma would be a bit more riveting than the subject to which I now turn. The core component of this paper is a detailed pass at some general questions about ambit and the limitations on private arbitration following the decision of the High Court in CFMEU v AIRC in March 20014. In that respect, a substantial part of the paper repeats much of the content of a paper I delivered to the 10th ACIRRT Labour Law Conference. I have revised a few points. Also, with an incomplete edit, I have canvassed some more recent Commission case law about the operation of section 170LW of the Workplace Relations Act 1996 (the Act) generally; and in the higher education section since CFMEU v AIRC.
Ambit and the limits of private arbitration:
 In federal industrial law, the scope of a conciliated agreement, it seems, is not circumscribed by the notion, peculiar to arbitration, of the ambit of an industrial dispute. In an attempt to be coy enough to side-step allegations of prejudgment, I framed several questions for my original ACIRRT paper. Neither the formulation of the questions nor my comments should be taken to be a considered indication of much more than a line of thought. But I do hope to assist and condition analyses toward sound principles.
 The questions posed are:
· Does a notion akin to ambit impose limits on the permissible content of a "private arbitration" under section 170LW of the Workplace Relations Act 1996 (the WR Act) between parties to an agreement over the application of it?
· Is there any significant difference in such ambit if the permissible content of the agreement being applied must pertain to the workplace relationship rather than a generic employment relationship?
· Is a procedure for discussion of disputes still a procedure for preventing and settling disputes arising under an agreement?
· Is provision for the empowerment of the Australian Industrial Relations Commission by certified agreement under section 170LW a matter of art?
· Should the requirement in section 170LW for the Commission to approve an empowerment of it be seen as requiring a substantive examination of whether an agreement does one, the other, both or none of the empowerments?
· Does private arbitration under an agreed section 170LW procedure allow adjudications upon legal rights and liabilities arising under the agreement in a manner not confined by board of reference case law precedents?
· Does the "new" province for private arbitration reflect a potential for recognising that industrial tribunals offer a cost effective alternative to court based litigation?
 An idea floated by a seminal article in The Irish Jurist should be acknowledged as a germinal factor in the High Court's recent resuscitation of the dispute settling power in section 170MH of the Industrial Relations Act 1988 (the IR Act). In a 1976 paper, McCormack discussed procedures for the settlement of disputes in primitive societies. He instanced approvingly a conciliator settling a dispute about a horse by an agreement about a cow5. In 1984 a majority of the High Court in R v Bain; Ex parte Bain v Cadbury Schweppes6 accepted that, for purposes of the exercise of award making powers, the ambit of an industrial dispute may be enlarged or contracted as a result of interactions between the industrial disputants7. All judgments proceeded from the unassailable proposition that the notion of ambit is a foundational condition for exercise of arbitral function by adjudication upon the matter of a dispute submitted8.
 However, some members of the court ventured beyond the bounds of the doctrine of industrial dispute ambit. Brennan and Deane JJ, who with Murphy J constituted the majority, cited McCormack's article. They pointed to the flexibility and sophistication exhibited even by the conciliation processes of primitive societies demonstrated by McCormack. The reference reinforced a point against applying to conciliation the ambit of dispute doctrine derived from the nature of arbitration. That notion constitutes a parameter of industrial arbitration. But conciliation is not the same thing as arbitration. They suggested the constitutional head of power in relation to the prevention of industrial disputes by conciliation might be a more potent source for legislation than the corresponding power relating to arbitration9. That dicta encouraged beliefs that the Commission could be empowered to settle disputes under a process agreed by parties as an outcome of conciliation.
 In 1993, a Full Bench of the Commission in Co-operative Bulk Handling pronounced upon the validity of an award dispute settlement procedure inserted many years earlier into the award by a consent variation10. The principle implied in dicta from Bain v Cadbury Schweppes was a major element in the Full Bench's analysis. The majority decision discussed the history and material jurisprudence of dispute settlement procedures in awards. The relevant award clause in issue contained a reference to "arbitration". The Full Bench read down that expression. Commission action to "arbitrate" a dispute referred to it under the provision could not go beyond giving a decision in circumstances where the Commission had been satisfied the decision would be accepted by each party11. That departure from the ordinary meaning of the words used in the relevant clause applied reasoning in Portus12, to the effect that the Commission, a creature of statute, could not exercise a function in the absence of an express power in the Act13.
 The absence of an effective link between dispute settlement procedures and a statutory empowerment of the Commission was addressed by the Industrial Relations Reform Act of 1993. The relevant passage of the Explanatory Memorandum seemed to disclose diffidence about the innovation, noting that it would be for the Commission to approve whatever role was proposed for it in a dispute settling procedure as appropriate14. The policy appears to have been intended to allow the parties to an agreement to "propose" a role for the Commission, leaving the Commission with a discretion when certifying the agreement to approve, or not approve that role. At a later point in this paper I will suggest that hindsight and a keener appreciation of the role of dispute settling procedures in certified agreement may justify a revisitation of policy issues. Some considerations may not have been taken into account when the relevant provisions were being drafted, or, in light of experience of the construction and implementation of the provisions, may now warrant re assessment.
 Be that as it may, with effect from March 1994, section 170MH of the IR Act provided in relation to dispute settlement provisions in certified agreements:
"170MH Procedures for preventing and settling disputes
Procedures in an agreement for preventing and settling disputes between employers and employees covered by the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes."
In 1996 section 170MH was re-enacted, with a minor change, as section 170LW of the Workplace Relations Act15.
 In mid 1997, in CFMEU v Gordonstone Coal Management16 a Full Bench of the Commission construed and applied section 170MH of the IR Act17. An agreement certified under the former Act contained a Problem Resolution Procedure, (the PRP), which provided:
"21. PROBLEM RESOLUTION PROCEDURE
(a) In the event of a safety or industrial issue arising, the parties agree to aim to resolve such conflict responsibly and harmoniously and as quickly as possible on site.
22. AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
(a) In the event of a dispute where resolution cannot be achieved without the assistance of the AIRC, the parties will exchange positions prior to any hearing taking place.
(b) The parties to this Agreement agree to abide by any decision determined by the AIRC which relates to a dispute at Gordonstone Mine.
(c) Where it is agreed by the parties to resolve the matter with a mediator of the AIRC, both parties agree to abide by the recommendation of the chairman.".
 The Full Bench relied upon the observations in Bain v Cadbury Schweppes as a basis for holding that section 170MH could validly empower the Commission to hear and determine disputes over the application of the agreement. The substance of the AIRC Full Bench's reasoning on that point was set aside on judicial review by a Full Court of the Federal Court18. However, the Full Court's judgment did not address the contention that section 170MH had a distinct constitutional basis. Rather, the Full Court held that the PRP provisions served to enliven the power in section 170MH in a way that came within the principles applied in Re Hegarty; Ex parte City of Salisbury19. A key point in the Full Court's reasoning was to construe Part VIB of the former Act, in which section 170MH appeared in its statutory context. The Full Court read it, and its successor in the current Act, as subject to the restrictions in Part VI of the current Act on use of arbitration powers. Perhaps for that reason, no attention was given to the substantial judicial and legislative moss that had accumulated on the rolling stone set loose in Bain v Cadbury Schweppes. That line of authority and reasoning was not mentioned at all in the joint judgment of the Full Court.
 On appeal, in a unanimous decision, the High Court addressed a primary question of whether section 170MH was validly made, held that it was, and reversed the Full Court decision. The Industrial Relations Act Case20 was relied upon for the proposition that it is incidental to the conciliation and arbitration power for the Parliament to permit parties to an industrial dispute to agree on the terms on which they will settle the matters in issue conditional upon their agreement having the same legal effect as an award. Bain v Cadbury Schweppes was not directly cited, but a reference to it can be found in passages from the Industrial Relations Act Case21 by the Court.
 Three points relevant to this paper are established by the decision in CFMEU v AIRC22. The first is that section 170MH of the IR Act is a validly enacted authorisation of the Commission to participate in procedures for the resolution of disputes over the application of an agreement. Thus:
"To the extent that s 170MH of the IR Act (or, presumably section 170LW of the Act) operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s 170MH of the IR Act is valid."23
 The second is that empowerment of the Commission to settle disputes over the application of the agreement confers on the Commission a power of private arbitration. The Court's reasoning to that effect proceeded from the premise that a power to make a binding determination as to legal rights and liabilities arising under an award or agreement is, of its nature, judicial power. The Commission could not by arbitrated award give itself such power, or any other power that it is not authorised to exercise. The further premise was that different considerations apply:
"if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.
Where parties agree to submit their differences for decision by a third party, the decision-maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it."24
 The third point was an acknowledgement of possible general law effects of a certified agreement collateral to its operation as an instrument akin to an award:
"The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award.
It was not suggested that the general law operates to render cll 21 and 22 of the agreement wholly invalid. Nor does s 170MH proceed on the basis that an agreed dispute resolution procedure is valid only if it is confined to disputes over the application of an agreement. That being so, there is no reason why cll 21 and 22 should not operate so far as it is concerned with disputes of that kind. ..."25
 On the reasoning of the Court as to the validity of section 170MH of the former Act, it follows that, so far as it relates to Part VIB Division 3 agreements made in settlement of industrial disputes, section 170LW of the WR Act would also be validly enacted. However, section 170LW is sustainable also as an authorisation of the Commission to participate in procedures for the resolution of disputes over the application of an agreement made under Part VIB Division 2. That distinct class of agreements is comprised of agreements between an eligible employer, including a constitutional corporation, and an organisation of employees or persons whose employment will be subject to the agreement26.
 Sections 170LJ, 170LK and 170LL stipulate the procedural conditions for making agreements of the nature described in section 170LI. The eligible employer for purposes of Part VIB Division 2 may be a constitutional corporation, the Commonwealth, an employer in Victoria and/or the Territories, a maritime or a flight crew employer27. In relation to the most prolific of the employers in that variegated class, constitutional corporations, a Full Court of the Federal Court has held that the provisions of Division 2:
"give binding effect to agreements made between such corporations and organisations of employees where such agreements are certified by the Commission. They also purport to bind by such agreements all persons whose employment is, at any time when the agreement is in operation, subject to the agreement. The laws create rights and liabilities between the constitutional corporations to which they apply, the organisations of employees with whom they conclude certified agreements and the employees to whom the agreements apply. The nature of the agreements is defined in s. 170LI which describes them as agreements:
`about matters pertaining to the relationship between ... an employer who is a constitutional corporation and ... all persons who, at any time when the agreement is in operation, are employed in a single business or a part of a single business of the employer and whose employment is subject to the agreement.'
These elements, made essential by s. 170LI, are sufficient to indicate that the impugned laws apply directly to constitutional corporations in that character and to their employees. ... The fact that the subject of the law is not itself unique does not deprive it of the character of a law with respect to constitutional corporations if it is specifically and uniquely directed to them. That direction is no mere peg or reference point. The constitutional corporation in Part VIB is a necessary party to the agreement for which that Part provides and a necessary repository of the rights and duties which they define. ..."28
 I have pointed to the diversity of the group of employers associated with the plural constitutional bases for agreements certified under Part VIB Division 2. That difference in the legal character of the employer as a party to an agreement may be of some relevance in any determination of whether the nature of the agreement test implicit in the elements of section 170LI must be applied in an employer neutral manner. In other words, may the permissible content of a Division 2 agreement differ between the kinds of employers eligible to negotiate such an agreement; is permissible content for a Division 2 agreement effectively co-extensive with that of a Division 3 agreement? If so, why?
 The answers may depend upon whether there is a legal significance in any difference that might seem to exist between the respective relationships of each type of employer and the persons employed in a single business of the employer and whose employment is subject to the relevant agreement. Is a generic employer as such indistinguishably the same as an employer who is a constitutional corporation, the Commonwealth, a waterside employer, a flight crew officer's employer, or an employer carrying on a single business in a Territory or the State of Victoria? Are the persons who are employed as described indistinguishable from generic employees, as such? Could it be that the elements of section 170LI define the nature of certified agreements to be about matters pertaining to the workplace relationship? A workplace relationship is that which exists between an employer and all persons in the workplace, (the single business or part of the single business), subject to the agreement. That is the real relationship, not an abstract employment relationship founded upon status.
 A question along those lines has been answered in a manner that poses it for further consideration and debate in relation to the recent series of decisions about payroll deduction of union dues or other authorised deductions29. The relatively provisional answers given in Full Bench, Federal Court, or Full Court decisions about aspects of those matters seem so far to have avoided an answer to what I think is a critical question about the character of the relevant relationship.30 Any eventual answer to it may also impinge upon the nature and content of subject matters that might qualify as being within the compass of disputes over the application of the agreement under section 170LW.
 That is so if only because the participation of the Commission in dispute resolution procedures that is authorised by section 170LW is explicitly dependent upon the content of the particular agreement. The High Court in CFMEU v AIRC states that section 170LW operates in conjunction with an agreed dispute resolution procedure. Literally, an agreement may empower the Commission to settle disputes over the application of the agreement. In addition, or as an alternative, the agreement may empower the Commission to appoint a Board of Reference for the purpose of settling such disputes, namely disputes over the application of the agreement. I am not aware of any judicial or arbitral consideration of the either or both phraseology of section 170LW. Those words might be read as a limit on the ability of negotiating parties to authorise a role for the Commission that is not one, the other, or both of the options in section 170LW. If that were to happen, it might also be thought that the words if the Commission so approves in section 170LW connote a substantive discretion that may be exercised within the scheme of conditions and considerations governing the certification process in Part VIB Division 4.
 In that respect, the function of subsection 170LT(8) also may be important. A necessary condition for the certification of an agreement under Division 2 or Division 3 is that:
"(8) The agreement must include procedures for preventing and settling disputes between:
(a) the employer; and
(b) the employees whose employment will be subject to the agreement;
about matters arising under the agreement."
 In Ampol Refineries31, a Full Bench concluded on appeal that such procedures need not be of a kind that guarantees the prevention and settlement of disputes. The Bench held it would be sufficient compliance with the requirement if an agreement provided for a procedure based solely on discussion and agreement. The Full Bench found no reason to conclude that arbitration is an indispensable element of the procedures referred to in subsection 170LT(8). It also held that the procedures described in that subsection should be construed to mean the same thing as a dispute resolution procedure of the kind referred to in subsection 170VG(3), (embracing the model procedure prescribed for the purpose of subsection 170VG(3), and Schedule 9 of the Regulations and Regulation 30ZI(2), in default of an agreed provision in an Australian Workplace Agreement)32.
 That decision of course was made before CFMEU v AIRC and reached without the benefit of arguments opposing positions put by the appellant and the Minister intervening. Some aspects of the reasoning so far as it applies to the juxtaposition of subsection 170LT(8) and section 170LW may need to be revisited. It must now be accepted that agreed procedures for the settlement of disputes may empower the Commission to determine legal rights and liabilities by private arbitration between the parties who agreed the procedure. That acceptance may justify or necessitate another look at the meaning of various expressions in the WR Act about procedures for preventing and settling disputes. Perhaps the word "settlement" in section 51(xxxv) of the Constitution could have some bearing upon the meaning of declensions of that word in the WR Act. That possibility, and the reasoning of the Court in CFMEU v AIRC could provide ice upon which to skate a proposition that the conjunction between discussion and agreement in section 91 of the WR Act could now be pregnant with meaning:
"91 Commission to encourage agreement on procedures for preventing and settling disputes
In dealing with an industrial dispute, the Commission shall, where it appears practicable and appropriate, encourage the parties to agree on procedures for preventing and settling, by discussion and agreement, further disputes between the parties or any of them, with a view to the agreed procedures being included in an award." (Emphasis supplied).
 Consideration of all those questions is unlikely to be avoided, but will not be much advanced by discussion in the abstract. For present purposes, it is safer to focus upon what may be necessary to effectively agree to enliven section 170LW by a dispute settlement procedure, and to look at some of the failures. Even a clear election by negotiating parties for either or both of the section 170LW options is unlikely to free the negotiating parties from the task of spelling out details of the procedure and the Commission's role in it. That point may be supported by analogy.
 A glance at section 131 is sufficient to demonstrate that point. Appointment of a Board of Reference is not likely to be effective unless the appointer, or the agreement authorising the appointment, descends to details:
"131 Boards of reference
(1) The Commission may, by an award, or an order made on the application of an organisation or person bound by an award:
(a) appoint, or give power to appoint, for the purposes of the award, a board of reference consisting of a person or 2 or more persons; and
(b) assign to the board of reference the function of allowing, approving, fixing, determining or dealing with, in the manner and subject to the conditions specified in the award or order, a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed, determined or dealt with.
(2) The board of reference may consist of or include a Commissioner."
 In Re Hegarty; Ex parte City of Salisbury33, Mason J enunciated what has since been taken to be a guiding principle for the effective implementation of that provision through an award. In short, the thing allowed, approved, fixed, determined, or dealt with by the Board of Reference provides the "factum upon which the provisions of the award then operate". An effective Board of Reference provision in an award therefore identifies the matter or thing that may be the subject of that datum establishing process. Several recent arbitrated Board of Reference provisions for awards illustrate the relative precision with which the linkage between subject matters, operative award provisions, Board of Reference procedure and determination is articulated34. The order made for a procedure dealing with complaints about excessive nursing workloads in the Western Australia Department of Health provides an example of a relatively careful attempt. I have set out for reasons that I explain later, the most relevant provisions as Attachment C.
 In theory, there is no sound reason why a provision in a certified agreement should not be framed with care and precision to allow it to operate in conjunction with sections 170LW(b) and 131. Much the same care and precision might seem to be appropriate in relation to the framing of provisions for dispute settlement procedures for purposes of paragraph 170LW(a). A careful framing of the procedure to stipulate the matters on which arbitration may be conducted, the mutual commitment to abide the determination, and the form of declaration of any such determination might be thought to be prudent.
 However, if the agreements that I see on a regular basis are any guide, such care in the drafting of dispute settlement procedures empowering the Commission under section 170LW is relatively exceptional. Moreover it is a matter for conjecture whether the rigour of the R v Hegarty template needs to be followed at all. The principle stated in that case countenanced the permissible extended operation of an award around the subsequently established datum. For purposes of an agreement empowering the Commission under section 170LW, it seems there may need to be only an adequate general submission of disputes over the application of the agreement to determination by arbitration. That is because the decision in CFMEU v AIRC did not turn upon a mere re-statement of the principles explained in R v Hegarty. Rather, it turns upon an acceptance that, by agreement, the parties may through section 170LW establish a procedure for private arbitration giving rise to binding determinations of legal rights and liabilities in relation to disputes over the application of an agreement.
 It would seem to follow that provisions that submit such disputes in broad terms for arbitration if necessary may be sufficiently specific to empower the Commission under section 170LW. However, an express, or necessarily implied stipulation in the agreed procedure that the parties have agreed to accept the decision of the Commission on such disputes as binding on them would appear to be a necessary element of any such submission35.
 Acceptance of a relatively broad approach along those lines is evidenced in the most recent decisions involving submission of disputes under agreements operating in conjunction with section 170LW. Thus in Ansett36, Ross VP considered the terms of the particular dispute settlement procedure provision before him in its overall context, and characterised the nature of the dispute:
" Clause 10 of the Agreement sets down a procedure for resolving disputes between the parties. Clause 10 does not apply to any dispute which arises during the life of the Agreement but rather the scope of clause 10 is limited by the clause itself. The introductory words to clause 10 are in the following terms:
`Any dispute arising from this Agreement shall be determined pursuant to the following procedure ...' (emphasis added)
 In my view the dispute currently before the Commission is not a dispute "arising from [the] Agreement".
 Clause 10 needs to be construed in the context of the Agreement as a whole [Metropolitan Gas Co. v Federated Gas Employees' Industrial Union (1924) 35 CLR 449 per Isaacs and Rich JJ at 455]. As a specific provision clause 24 would operate to impliedly limit the scope of the more general clause 10 [See Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 per Gavan Duffy CJ and Dixon J at 7; in R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550 Dixon J said: "an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course."].
 In my view the claim before me seeks to change the existing classification structure by adding a new rate for pilots operating B747-400 aircraft. Hence the claim falls within the ambit of clause 24 and may only be implemented by agreement.
 Even in the absence of clause 24 I do not think that the dispute can properly be said to be a dispute "arising from [the] Agreement". No term of the Agreement is in dispute between the parties. The dispute is not about the application of a particular term. Rather it seeks to establish a new term. In my view the APA's claim is different in character to that contemplated by clause 10 of the Agreement.
 I have decided that clause 10 of the Agreement does not provide the Commission with jurisdiction to set an actual rate of pay for pilots operating B747-400 aircraft. This conclusion is based on the construction of clause 10 of the Agreement and the characterisation of the dispute before me as set out above."
 That approach was endorsed on appeal37. It has been adopted in several more recent first instance decisions38. To similar effect, Lacy SDP in MUA v Australian Plant Services39 observed:
" An important limitation on the Commission's powers under s 170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement "to settle disputes over the application of the agreement" and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order determine whether the matter is a dispute over the application of the agreement. [Qantas Airways Limited v Australian Municipal, Administrative, Clerical and Services Union, Print T0301, .]. And, importantly, the character of the dispute is distinguishable from the orders that may be made in settlement of the dispute [ibid, ; see also CFMEU v AIRC ibid at par 36.].
 In the present matter the dispute relates to the conduct of the management under the grievance procedure and disciplinary action taken against two employees at East Swanson dock. The question is whether the agreement was applied according to its terms with respect to those matters. The resolution of the dispute will have no application beyond the narrow scope of the management and employees directly concerned with the incident at East Swanson dock. The resolution of the dispute does not involve any variation of the terms of the agreement so as to affect other sites that are bound by the agreement. ..."
 Those propositions and passages appear to me to provide a possible answer to the question I posed about the continuing relevance of the notion of ambit to private arbitration pursuant to section 170LW. The notion of ambit is inherent to the concept of arbitration40. In private arbitration, the content for the notion is supplied by the terms of the submission in the agreed dispute settlement procedure, subject to the restraint that the matters submitted cannot travel beyond disputes over the application of the agreement, including Board of Reference matters or things in dispute. On that analysis, the settlement of a dispute over the application of the award about a horse by a determination about a cow would probably only be available if the agreement not only made provisions applying to horses but included some reference to cows or other livestock in the dispute settlement procedure. Justice Giudice in a recent paper stressed the need for clarity in the drafting of dispute resolution procedures. He also observed that the High Court has smoothed the way for the exercise of powers about the application of collective agreements promptly and free of the jurisdictional arguments that have been barriers to simplicity and clarity41.
 However, I should not want to overstate the legal administrative simplicity of the likely operation of agreed dispute settlement procedures in conjunction with section 170LW. There are several reasons for that. The third proposition from CFMEU v AIRC, summarised at paragraph 22 above imports a possible general law effect of a certified agreement. As yet, that seems to be a rather vague province. The effect it may have on the operation of a particular certified agreement as a collective agreement is not clearly delineated. Nor can the items of content that must depend for their force upon general law be readily established. Some of the more mystifyingly abstract and visionary provisions of certified agreements may quality in that respect. Other provisions agreed might also possibly be incorporated in industrial contracts of employment; the gap that often exists between the agreed date from which entitlements commence, and the date of operation tied to date of certification by section 170LX may open another pathway upon which general law effects may venture.
 Another consideration likely to confound administrative simplicity in the operation of section 170LW around particular agreements stems from that presence in certified agreements of provisions of uncertain character and effect. Interesting prospects for much litigation in future are opened. The principles formulated by O'Toole v Charles David42 state criteria for testing the validity of awards. Those principles pertain to the circumstances in which a Court may go behind the stipulation in the Commission's privative clause, section 150, that an award is final and conclusive. Presumably, a less restricted set of tests may be applied in judicial determinations about whether an agreement has been validly made in accordance with the agreement making and certification process. That possibility will not be diminished if the belief that members of the Commission are bound to follow first instance decisions of any "superior court" prevails43. In sum, the new potential for litigation may yet prove to be a major stimulus for a revisitation of the policy that should be served by any continuing privative clause in the WR Act. An alternative may be to revisit the policy foundations for sections 170LT(8) and 170LW and test whether the practical application of these provisions matches optimal policy settings.
 The application of the various propositions to particular cases turns upon the terms of the particular agreement, and the nature of the subject matter of any dispute that arises. Perhaps it should not be forgotten that in CFMEU v AIRC, the Court may have intended to encourage an industrially simplified approach. It did state that the relevant disputes at Gordonstone were disputes over the application of the agreement44.
 A steady growth in the frequency and variety of the resort to the Commission's power to arbitrate determinations about matters at issue in such disputes is certain45. The trend is readily apparent in figures from AIRC Annual Report and case management system statistics lodged over recent years:
 A paper of this kind cannot review or evaluate the outcomes of the several hundred matters lodged under section 170LW since CFMEU v AIRC was decided. However, some of the most recent decisions may be a guide. I am not persuaded by my research that an industrially simplified approach is yet manifest.
 In Warkworth Mining Limited46, a Full Bench of the Commission discussed the approach which should be taken following a section 170LW referral of a dispute to the Commission:
"A disputes procedure in a certified agreement that complies with s.170LT(8) will not necessarily have within it a role for the Commission and, where such a procedure does provide a role for the Commission, s.170LT(8) does not prescribe what that role will or should be. Section 170LW provides that procedures in an agreement for preventing and settling disputes between employers and employees subject to the agreement may "empower" the Commission to settle disputes over the application of the agreement. "Empower" is defined in the New Shorter Oxford English Dictionary in these terms:
`1. Invest formally with power; authorize, license (a person to do).
2. Endow with the ability or power required for a purpose or task; enable, permit.'
In our opinion the starting point [should be] a consideration of the terms of the dispute settlement procedure and a decision about what it "empowered" the Commission to do. In this consideration one does not commence with a presumption that the Commission will have been empowered to undertake any particular role, be it conciliation and/or arbitration. The question is what the parties to the agreement have decided the role of the Commission will be, which role ideally will have made clear in the words used in the relevant clause.47"
 That approach is in line with earlier decisions that treated section 170LW as the enabling source of power underpinning provisions in an agreement48. The characterisation of one, other or both section 170LW and the relevant agreement as the enabling source is a point about which the decision in CFMEU v AIRC may stimulate conjecture. Would any difference of approach be necessary if the empowerment required in an agreement were to be conceived more as a licence for the exercise by the Commission of either or both the powers conferred or authorised by section 170LW?49. Or, is the empowerment a form of charter that itself constitutes a relatively subjective source of powers to be exercised within the limits established by section 170LW? Should it be accepted that, for practical purposes and provided there is a valid empowerment under section 170LW, no difference turns upon that distinction.
 In any event, the approach adopted in Warkworth and some earlier precedents requires the Commission on a section 170LW reference to determine the scope of the power conferred by the relevant dispute resolution clauses. A broadly similar approach has been applied in several first instance decisions although some divergence in reasoning processes and results are apparent. In Construction, Forestry, Mining and Energy Union v Nubrik Australia Pty Ltd50, Holmes C declined to arbitrate a matter on the basis that the "Grievance Procedure" in an enterprise agreement only allowed the Commission to "assist" with conciliation. Holmes C selected for construction the words "to assist" from a phrase that read: "either party may request that the AIRC exercise its powers to assist in settling the dispute". He concluded that the agreement did not mean that the Commission could provide a direction or an order.
 In Simon Engineering, Hamilton DP construed a term that a party may "refer the matter to the Australian Industrial Relations Commission" (including, where agreed to a Board of Reference). He concluded that the reference was insufficient to confer upon the Commission the power to arbitrate or determine the matter in issue51.
 In Warkworth, the dispute settlement clause in question provided that, after certain steps were followed, if a matter "remains unresolved it will be referred by either party to the appropriate Industrial Authority". The matter was an appeal against a finding at first instance that the Commission had power to arbitrate a referred dispute. The parties proceeded on the basis that the "Appropriate Industrial Authority", which was not defined, should be read as "the Commission". After reading the dispute settlement clause as a whole, the Full Bench concluded that it was open to interpret the clause as intending the Commission to act upon a referred dispute rather than just be the recipient of it52. The Full Bench's approach to the task of construction allowed considerable scope for extrinsic evidence:
"Had the parties addressed the manner in which the disputes procedure would operate and the role intended for the Commission under [the dispute settlement clause] at the time of certification, this would have been appropriate and permissible to take into account when interpreting the clause. In this case, however, ... nothing said at the certification hearing aids in the interpretation of the clause."
 I note in passing that at least one Member of the Federal Court has expressed some irritation with the vagaries inherent to the task of construing certified agreements. In AMCOR, Finkelstein J commenced his decision by stating:
"Yet again it is necessary to determine the proper construction of an industrial agreement. The object to be achieved is to discover what was meant by the parties to the agreement. The task does not involve deciding what the parties actually intended, although it would be permissible to have regard to their actual intentions if they were in agreement on construction. What must be done is to discover what the parties intended from the meaning that is conveyed by their words, construed in the context in which those words are used. Sometimes that can be a straightforward exercise. On the last occasion upon which I was required to construe an industrial instrument, I could apply the rule that the words mean what they say. But things are not always so easy. If the same rule were to be applied in this case then, on one view, the result may be an affront to commonsense. Does this mean that the words can be given another meaning? That is the issue that must be resolved."
"Yet there comes a point when a court of construction must resist the temptation of forcing a meaning to a bargain which the parties did not intend and to substitute for the arrangements actually made, an arrangement which the court believes is a better one. The problem that exists in the present case seems to be the result of oversight, in the sense that the parties failed to anticipate the particular situation which occurred and would have dealt with it had they adverted to it. It is often the case that, where there is a drafting error which is the product of carelessness in the expression of the text, a court of construction can cure the mistake. It is not so easy when there is an oversight. Here the court is not being asked to construe the agreement in question, but to fill a gap. It is by no means clear whether the court can do this in the case of an instrument such as a certified agreement....
Here, if the same reasoning allows the court to fill a gap in a certified agreement, I can only surmise what the parties would have done."53
 As I have already observed the secondary limitation on the Commission's private arbitration power is derived from the provisions of section 170LW itself. A line of cases has developed around themes to the effect that it is necessary that the dispute referred be a dispute over the application of the agreement. Lacy SDP described that limitation in Maritime Union of Australia v Australian Plant Services Pty Ltd54 in a passage I have already extracted.
 Duncan SDP referred to Lacy SDP's comments in National Tertiary Education Industry Union and University of Newcastle55. He agreed that the provisions of s 170LW effectively raise a threshold or preliminary point for consideration before the Commission may proceed with a substantive application brought under that section. In other words, it is necessary to characterise the dispute as one over the application of the agreement before the Commission's jurisdiction is established.
 Finally in this review, I note that in Australian Nursing Federation v Department of Health McCarthy DP, on his own motion, considered whether a dispute about access to a permanent part-time position on job share was within jurisdiction. The dispute was referred under an agreement provision that read in part as follows:
"Should the matter remain in dispute after the above processes have been exhausted either party may refer the matter to the AIRC for conciliation and if necessary arbitration. If arbitration is required to resolve the dispute, the decision of the Commission shall be final and binding on all parties."56
 His honours reasoning on the point is summarised in the following passages:
" The role of the Commission in s.170LW is to determine issues associated with rights, obligations and entitlements established and prescribed by the agreement. The role is not to establish new entitlements or to abolish existing ones, regardless of the merit. To do so would be to go beyond the role that the Commission is empowered to perform.
 Unlike the agreement that was the subject of the Qantas decision, in this case there is no provision in the agreement that gives a commitment to introduce job sharing. The only commitment the hospital has made with respect to job sharing is a general statement that it supports it in principle. That statement is not contained in any formal instrument and cannot be classed as an obligatory requirement.
 The Commission therefore does not have the jurisdiction under s.170LW to require the hospital to make job sharing generally available, let alone determine whether Ms Lofthouse should be provided with part-time or job sharing work.57"
 In an attempt to assist a perspective, and to create a background to section 170LW matters in the higher education sector, Mr Richard Williams, Industrial Officer for AHEIA kindly provided me with details and comment upon four recent decisions of the Commission. I have included as Attachment B a slightly revised version of that material.
 From those and other contested cases reviewed in this paper, it would seem to be manifest that the Commission may need to be persuaded to accept that it has power under section 170LW; and may even resist too ready an acceptance that it has or should exercise an otherwise available power on a particular dispute. In relation particularly to the treatment of particular cases, it seems that the expression dispute over the application of the agreement, (dotaa), gives rise to much uncertainty about what will be such a dispute. If the small percentage of contested cases is a guide, the expression is even more difficult to apply than the expressions in subsection 170LT(8), and section 170LW about the necessity for a dispute settlement clause in an agreement and the empowerment of the AIRC under one.
 The expression dotaa has a genealogical link with the similar expression: disputes arising under the agreement in subsection 170LT(8). Both those expressions would seem to have a common antecedent in an expression disputes arising out of the Award, much used in award based dispute settlement procedures. Some of the case history and usage of that expression was touched upon in the Full Bench decision in Co-Operative Bulk Handling.58
 It seems remarkable that the recent case law in the Commission discloses no persevering questioning of the applicability to the relevant issues of principles derived by analogy from common law cases about private arbitration of commercial disputes. Perhaps the expression dotaa might be interpreted and applied in a manner informed by the considerable body of law associated with the identification of disputes or differences within the meaning of arbitration clauses in standard contracts.59 Expressions such as " disputes arising out of this agreement" are commonplace in arbitration clauses of commercial contracts. A substantial body of law exists about the construction of such expressions. Moreover, reasoning about the policy and principles applicable to contractual submission to arbitration seems likely to have some persuasive bearing upon analogous questions about the concept, process and effect of an empowerment under section 170LW. Perhaps those sources might yet be productively mined with a view to encouraging a consistent approach to some of the jurisdictional and related issues about the administration of sections 170LT(8) and 170LW. I have touched upon an aspect or those issues at paragraphs 28 - 31, and 47 above.
 The most obvious conclusion from recent cases about jurisdiction under s.170LW is that the more comprehensive and explicit the agreement, the higher the probability that a matter will be referred to the Commission for conciliation and/or arbitration (depending upon the relevant dispute settlement clause) pursuant to section 170LW. Turning to that aspect, I was told by Mr. Williams that the dispute resolution clauses appended as footnote to each decision in Attachment B are representative of the tenor of the majority of clauses in higher education certified agreements.
 He added that many agreements include a separate process for the resolution of internal grievances. Such provisions are common to many higher educations agreements. Mr Williams referred to clause 13.3.4 (under the heading "Grievance Procedures") of the James Cook University Enterprise Bargaining Agreement (the JCU EBA). It provides:
"Where the matter remains unresolved after five (5) working days following the third level grievance committee meeting (or if a timely third level meeting was not convened) the grievance or problem may be referred to the Australian Industrial Relations Commission for conciliation or arbitration in which case the parties shall be bound by any decision or recommendation of the Commission."
 I was told that that clause is a good example of the nature of agreed dispute settlement procedures in the higher education sector and of the role envisaged for the Commission in the resolution of a wide range of disputes. At the conclusion of an internal resolution process, such grievances may be referred to the Commission for conciliation or arbitration.
 In the circumstances, it is convenient to set out here the detail of both of the Dispute Settlement Procedure, and the Grievance Procedure of the JCU EBA.
"12 DISPUTE SETTLING PROCEDURES
Where a dispute arises in respect to the application and implementation of this Agreement:
(a) (i) In the first instance an accredited representative(s) of the relevant union/s and the appropriate representative(s) of the University shall discuss the dispute and attempt to reach agreement, subject to ratification by either party:
(ii) Where a dispute is not resolved under (i) above, at the request of either party a Disputes Committee shall be convened within one working week, unless agreed otherwise. The Disputes Committee shall consist of:
(a) 2 nominees of the University
(b) 2 nominees of the relevant union
(iii) The Disputes Committee shall attempt to resolve the matter within one working week of its first meeting. Any resolution shall be in the form of a written agreement subject, if necessary, to ratification by either party.
(b) Industrial Action
Until the procedures described in sub-clause (a) above have been exhausted:
(i) work shall continue in the normal manner;
(ii) no industrial action shall be taken by the University or the union;
(iii) the University shall not change work, staffing or the organisation of work if such is the subject of the dispute, nor take any other action likely to exacerbate the dispute; and
(iv) the subject matter of the dispute shall not be taken to the Australian Industrial Relations Commission by the union or management.
(c) Should the dispute not be resolved by the processes referred to in sub-clause (a) the matter may be referred to the Australian Industrial Relations Commission by either party. It is the intention of the parties that the Australian Industrial Relations Commission is empowered by this agreement to settle and determine any matters in dispute.
Where the Commission determines that it has jurisdiction to arbitrate, the Commission may resolve the dispute by the process of conciliation and/or arbitration. The parties agree to be bound by the Commission's resolution of the dispute.
Where the Commission determines that it does not have jurisdiction to arbitrate, the parties agree to ask the Commission to conciliate the matter and agree to be bound by any and all recommendations made by the Commission during conciliation, to resolve the dispute.
(d) It is acknowledged that if the dispute relates to an alleged ambiguity or uncertainty in this agreement any party may at any time apply for variation of the agreement to eliminate the alleged uncertainty or ambiguity or the Commission may act of its own motion to take steps to vary the agreement.
13 GRIEVANCE PROCEDURES
1.1 The guidelines described below are designed for the resolution of complaints, grievances or problems related to internal personnel related matters within the University. Where the University is required by legislation or agreement to deal with a particular matter in another way, this procedure shall not be available.
1.2 These procedures operate on the basis that staff are obliged to undertake duties as designated in the relevant job description. The role of the staff member may, however, be renegotiated from time to time with the supervisor.
1.3 The parties concerned in any matter under these procedures, are entitled to fair treatment. Negotiation and conciliation are the guiding principles.
1.4 Notwithstanding the time frames set out in this clause, with the agreement of the parties to the grievance, timings can be changed.
2. General Provisions
2.1 Where a University action, inaction, policy change or decision gives rise to a grievance or problem, the University where possible shall refrain from such action, inaction, policy change or decision during the period taken up by discussion under these procedure. In addition, the status quo of the staff member concerned shall, where possible, remain unchanged in all other respects.
2.2 Where two(2) or more staff members believe they have an identical or common grievance or problem, they may take action together and the matter shall be dealt with as a single grievance or problem.
2.5 These grievance resolution procedures shall not be used to challenge decisions of the University Council, procedures required by industrial legislation, regulations, awards or duly executed agreements between the University and a relevant Union.
2.6 Allegations of discrimination or of sexual harassment, equal opportunity complaints, and charges of sexual harassment may, by mutual agreement between the staff member invoking these procedures and the person or persons subject to the grievance, be pursued through these grievance procedures and not handled through separate procedures.
2.7 The University agrees not to seek decisions of Council concerning any matter during the period it is subject to these procedures.
3.1 First Level
3.1(a) When a staff member wishes to raise a grievance or problem with the University within these procedures, that staff member should verbally advise their immediate supervisor in the first instance, provided that where a staff member claims to have been aggrieved by their immediate supervisor, the staff member shall instead inform that supervisor's immediate superior.
GRIEVANCE RESOLUTION PROCEDURE FOR ACADEMIC AND GENERAL STAFF
Grievance raised by staff member
Meeting with Supervisor
Not resolved within 5 working days
Director, Human Resources arranges meeting within 5 working days,
involving - Head of Organisational Unit, Supervisor, Staff Member, Union Rep. (Optional)
Not resolved within 2 days of meeting
Director, Human Resources establishes Grievance Resolution
Committee, involving 2 Senior Officers, 2 Nominees of Union
Meeting to be held within 10 days
Decision within 5 days of meeting
Industrial Relations Commission
For Conciliation or Arbitration (Recommendation or Decision binding on the parties)
3.4 Fourth Level
Where the matter remains unresolved after five (5) working days following the third level grievance committee meeting (or if a timely third level meeting was not convened) the grievance or problem may be referred to the Australian Industrial Relations Commission for conciliation or arbitration in which case the parties shall be bound by any decision or recommendation of the Commission."
 I have added my own emphasis. However, I shall leave to those who read this paper the task of parsing the content against the various criteria I have rather randomly covered. Industrial utility, in the workplace is a criterion in itself. Other criteria are concerned with effective identification of what matters may be the subject of dispute, the form of empowerment, and the form and effect of a determination. The approach reflected in the exceptional matters order in Attachment C may be a useful basis for contrasting the application of such criteria.
 Each of the several Full Bench and considered first instance decisions delivered since CFMEU v AIRC emphasise two determinative points of reference. The terms of the submission to the Commission under section 170LW must be found and construed from the relevant agreement. If there is an empowerment, through the agreement operating in conjunction with section 170LW, is the matter referred a dispute over the application of the agreement? Thus far, the outcomes of determinations based on s.170LW, have not caused much litigation. Perhaps that is because most are not controversial. It might also be because the screening process associated with jurisdictional and substantive objections prevents more substantial issued from being determined. In time, that may mean that there will be increased recourse to the Court, which may be ever more testy about having to address questions formulated about poorly drafted or inchoate Agreements. If that is the pattern that develops, one response may be to look more closely at whether the policy implied in section 170LT(8) should be strengthened, or revisited; and at the specifics or screening that may prove to be a deterrent to cease section 170LW.
 It should not be overlooked that that power may be augmented by occasional resort in appropriate cases to the power vested in the Commission by paragraph 170MD(6)(a) to vary a certified agreement "for the purpose of removing ambiguity or uncertainty". North J in AFMEPKIU v Qantas60 on 11 May 2001, dismissed an application for a penalty under section 178 based on breach of a certified agreement, observing that:
"Certified agreement are subject to the special statutory regime of the Act. It allows the Commission to impose terms on the parties in limited circumstances. In this respect certified agreements differ from other contracts governed by the general law. In the case of a certified agreement which has a provision which is ambiguous, the Commission has power to vary the agreement `for the purpose of removing ambiguity or uncertainty': S170MD(6)(a). In a case such as the present an application to the Commission is likely to provide a more constructive resolution to the problem of ambiguity. While the Court can identify the ambiguity, it cannot remove it. The Commission is empowered to remove the ambiguity."61
North J's observation points to what may be a cogent reinforcement of the Commission's capacity. In that respect, for more reasons than one, the exercise of Commission power pursuant to section 170LW and generally in respect of particular agreements, will need to be cautious and principled.
 It has been my hope that an almost tripartite consensus may develop to accept that a resourceful, suitably qualified and accessible adjunct to a dispute resolution process is inescapably intrinsic to any binding instrument declaring legal rights and duties. The extracts from the Explanatory Memoranda for the 1993 and 1996 Bills, set out at footnotes 14 and 15, almost imply a degree of consensus about such a need. Most of the partisan issues are about the ambit of operation, rather than about that need itself. Implicit in the developments to which I have referred is a recognition of what has long been one of the strengths of the industrial tribunal system: capacity and industrial know-how being applied through informal processes to resolve conflicting interests62. Such characteristics are not self sustaining. They are a product of sound institutional policies, bi-partisan support, and an acceptance that whatever excellence is able to be achieved is essentially a compound of the quality of the personnel and the depth of their experience in the role of settling disputes pertaining to workplace relations across Australian industries.
Guide to Judicial Conduct
2002 - CCJA and AIJA
PUBLIC COMMENT BY JUDGES:
Participation in public debate:
· Many aspects of the administration of justice and of the functioning of the judiciary are the subject of public consideration and debate in the media, at public meetings and at meetings of a wide range of interest groups.
· Considerable care should be exercised to avoid using the authority and status of the judicial office for purposes for which they were not conferred. Points to bear in mind when considering whether it is appropriate to contribute include the following:
· There is a risk that the judge may express views, or be led in the course of discussion to express views, that will give rise to issues of bias or prejudgment in cases that later come before the judge;
· Other judges may hold conflicting views, and may wish to respond accordingly, possibly giving rise to a public conflict between judges which may bring the judiciary into disrepute or could diminish the authority of a court.
· It is well established that a judge does not comment publicly once reasons for judgment have been published, even to clarify ambiguity.
· On occasions decisions of a court may attract unfair, inaccurate or ill-informed comment. Many judges consider that, according to the circumstances, the court should respond to unjust criticism or inaccurate statements, particularly when they might unfairly reflect upon the competence, integrity or independence of the judiciary. Any such response should be dealt with by the Chief Justice or other head of the jurisdiction.
· Judges may, and frequently do, delivery papers at legal conferences. Participation in, or the giving of papers at, non-legal conferences, without a fee, is not objectionable, but it would generally be advisable to avoid speaking or writing on controversial or politically sensitive topics.
Recent section 170LW decisions of AIRC in Higher Education Sector
1 NTEU v Charles Sturt University [PR906189] 6 July 2001, Raffaelli C
· The dispute was notified by the National Tertiary Education Industry Union (the NTEU) to the Commission pursuant to clause 58 of the Charles Sturt University (Academic Staff) Enterprise Agreement 2000-2003. It concerned a senior lecturer engaged in a series of fixed term contracts, the last of which was set to end on 30 June 2001.
· The facts of the matter are outlined at paragraphs  to  of the decision. The dispute was about whether the employee concerned should have a right to be confirmed as a continuing employee at the conclusion of his last contract.
· The NTEU sought in the alternative that the employee be confirmed as a continuing employee; or be paid six months pay in lieu of notice.
· The NTEU argued that the HECE Award provisions had been incorporated into the Agreement and that three of the fixed term contracts entered into did not meet any of the definitions allowable for fixed term employment, as stipulated in the HECE Award. Consequently, the NTEU argued that the employee should be made a continuing employee as the University should not have employed him on fixed term employment when it did so (paragraphs  and ).
· AHEIA on behalf of the University argued that the Commission did not have the jurisdiction to make the orders sought, on the basis that the Commission's powers pursuant to section 170LW are limited to settling disputes over the application of an agreement. As the matters at issue were not matters dealt with in the Agreement, there could be no dispute over the application of the Agreement that could be settled by the Commission (paragraphs  to ).
· The Commissioner referred to the approach taken by Ross VP in the Ansett Pilots Association case [Print R8525] and determined that there were no provisions in the Agreement "that regulate the circumstances in which an employee engaged on a fixed term contract can be changed to continuing employment". The Commissioner decided that the Commission could not proceed as the Commission was not settling a dispute over the application of the Agreement (paragraphs  to ).
· The application was dismissed for want of jurisdiction.
CLAUSE 58 - DISPUTE SETTLMENT PROCEDURES
· The dispute settlement clause in question outlines procedures for three kinds of disputes, concerning:
58.1 - the application of the provisions of the Agreement;
58.2 - an industrial grievance or dispute involving a specific employee (or group of employees); and,
58.3 - general disputes that do not relate to either of the other two.
· Subclause 58.1.1 of the Agreement provides:
Where an industrial grievance or dispute arises concerning the application of the provisions of this Agreement, the following procedure shall apply: ...
· At the conclusion of the applicable internal resolution processes, subclause 58.5 of the Agreement provides:
Should a dispute not be resolved after completing the procedures referred to respectively in subclause 58.1, 58.2 or 58.3, the matter may be referred to the Australian Industrial Relations Commission by either party for resolution by conciliation and, if conciliation does not resolve the dispute, by arbitration. The parties agree to be bound by the Commission's resolution of the dispute.
2 NTEU v James Cook University [PR908913] 13 September 2001, Duncan SDP
· The dispute was notified by the NTEU pursuant to section 170LW of the Act. It concerned the application of clause 21.1.2 of the James Cook University Enterprise Bargaining Agreement 2000.
· The nature of the dispute as notified by the NTEU is outlined at paragraph  of the decision. The essence of the dispute was the alleged failure of the University to undertake the appropriate review process prior to the expiry of the fixed-term appointment of the academic employee concerned.
· His Honour, Duncan SDP, outlined the clause in dispute at paragraph  of the decision:
Clause 21.1.2 provides, for the purposes of this matter:
"A fixed-term appointment is an appointment for a specified period of time or for a specific task or project and for which during the term of employment, the appointment is not terminable, by the University, other than during a probationary period, or for cause based upon serious misconduct. Where a fixed-term position is made into an on-going position it will be offered, in the first instance, to the incumbent provided that their performance has been satisfactory."
· AHEIA on behalf of the University claimed that the Commission did not have jurisdiction to determine the matter pursuant to section 170LW. Because the dispute is not referable to the application and implementation of the Agreement.
· In response, the NTEU submitted that the dispute, as notified, was not only concerned with the position of the employee in question but also with the application of clause 21.1.2 in general (paragraph ).
· In the first instance, Duncan SDP agreed with the observations cited from the authorities referred to above. At paragraph , Duncan SDP then determined:
"It is therefore necessary to characterise the dispute. Having heard the parties and considered the submissions I am satisfied that it is about the implementation or application of the agreement."
· Later at paragraph , Duncan SDP distinguished the situation from that in NTEU v Charles Sturt University:
"- the decision was concerned with particular orders sought: there are no particular orders before the Commission in this matter and what the Commission may do to determine the general dispute is at large. Even if there are orders the Commission is not obliged to issue them."
· The Commission was not prepared to dismiss the notification for want of jurisdiction (paragraph ).
CLAUSE 12 - DISPUTE SETTLING PROCEDURES
· The dispute settlement clauses are set out in full in the body of the paper.
3 ALHMWU v Murdock University [PR913512] 22 January 2002, O'Callaghan SDP
· The decision dealt with a question about the jurisdiction available to the Commission to determine a dispute referred pursuant to the dispute settlement clause of the Murdoch University (General Staff) Enterprise Bargaining Agreement 2000. The background to the matter is outlined at paragraph  of the decision.
· The LHMU requested a finding from the Commission in the form of a "declaration that [Mr Leota] was treated inequitably in the appointment process" (paragraph ). The employee in question was not currently employed by the University (paragraphs  to ).
· O'Callaghan SDP determined that the first issue was whether he believed that jurisdiction exists for the Commission to consider the merits of the employee's claim (paragraph ).
· The LHMU argued that the High Court decision in CFMEU v AIRC "establishes a clear capacity for the Commission to exercise a role in `private arbitration' when so authorised by the parties". The LHMU argued that the dispute settlement clause of the Agreement establishes a private arbitration role for the Commission within the scope of section 170LW of the Act (paragraphs  and ).
· AHEIA on behalf of the University submitted that whilst CFMEU v AIRC had established the potential for the Commission to exercise the power of arbitration, the Agreement itself did not provide for the scope for this potential to be utilised in the particular circumstances (paragraph ).
· O'Callaghan SDP referred to the decision in CFMEU v AIRC and later decisions of Lacy SDP in Kodak Australia v AFMEPKIU [PR904035] and MUA v Australian Plant Services [PR908236]. O'Callaghan SDP concluded "it becomes necessary to consider whether the Agreement has application to the specific circumstances in question".
· O'Callaghan SDP determined that essentially, the dispute related to the selection process applied to the employee in relation to his application for ongoing employment as a security officer at the University. The Agreement did not specifically address selection processes. Therefore, he could not conclude "that whether the selection process was properly applied with respect to the employee in question, is a matter that arises under the Agreement" (paragraphs  to ).
· At paragraph  of the decision, O'Callaghan SDP held:
"I consider that the grievance raised initially by Mr Leota was addressed by the University in accordance with the provisions of the Agreement. In this instance, there is simply no capacity under the Agreement for the Commission to take this matter further. There is nothing in the Agreement that establishes a capacity for the Commission to review the selection of job applicants who have been unsuccessful. In my view it would be quite beyond the intent of the Agreement for the Commission to assume such a jurisdiction."
CLAUSE 11 - DISPUTE SETTLEMENT PROCEDURE
· Subclause 11.1 provides:
This clause establishes a process to deal with:
(a) dispute about matters arising under this Agreement for which there are no appeals process specified in this Agreement;
(b) grievances of employees whether it be with another employee, the supervisor or a decision of the University, not accounted for elsewhere in this Agreement or in University policies.
Provided that the provisions of this clause shall not apply to grievances or other matters covered under anti-discrimination legislation.
· Subclause 11.3 provides:
(c) If the dispute/grievance remains unresolved then either party may refer the matter to the AIRC for conciliation and if necessary arbitration.
4 NTEU v University of Newcastle [PR914889] 11 March 2002, Duncan SDP
· The NTEU commenced concurrent proceedings in the Commission pursuant to section 99 and section 170LW of the Act. The section 99 dispute was said to concern:
"a failure to properly administer the employment of Dr Michael Blackmore with reference to s.89A(2)(a), (m), (n), (p), (r) and (s) of the Act."
· The application for settlement of a dispute under section 170LW of the Act related to the University of Newcastle (Academic Staff) Enterprise Agreement 2000. The NTEU stated in their notification:
"The matter in dispute relates to the failure to properly administer the employment of Dr Michael Blackmore and a failure to consult under clause 17 managing change in the workplace."
· The relief the NTEU sought was a finding that Dr Blackmore had, and never relinquished, a substantive academic position at the University.
· AHEIA argued that the dispute must be about the application of the Agreement. Again, the University relied upon the decision of Lacy SDP in MUA v Australian Plant Services and the decision of the High Court in CFMEU v AIRC. The University also distinguished the dispute in question from the decision of Duncan SDP in NTEU v James Cook University on the basis that Dr Blackmore's position was the sole subject of the dispute.
· Duncan SDP concluded that the dispute concerned Dr Blackmore and nobody else. Further, the declaration sought by the NTEU "would purport to determine existing rights and as such would be characterised as judicial" (paragraph ).
· With respect to the section 170LW application, Duncan SDP held at paragraph :
"A determination that Dr Blackmore had not given up his academic position does not arise as a dispute about the application of either agreement. That determination precedes any question about the application of an agreement. I considered whether the situation was covered by clause 66.4 of the academic staff agreement (or 99.4 of the general staff agreement). They each provide:
Where the Australian Industrial Relations Commission determines that it does not have jurisdiction to arbitrate, the parties agree to be bound by any clear recommendation made to the parties by the Australian Industrial Relations Commission to resolve the dispute."
but they do not overcome the restriction that the power conferred on the Commission is to resolve disputes about the application of the agreement. That, as was pointed out in the earlier quotation from the decision of Lacy SDP, is in effect a threshold or preliminary point. It is necessary to be able to characterise the dispute as one over the application of the agreement before proceeding. A dispute over the status of Dr Blackmore is not as I have already indicated about the application of the agreement."
· The section 99 application and the section 170LW application were both dismissed.
CLAUSE 66 - DISPUTE SETTLING PROCEDURE
· Subclause 66.1 provides in part:
The parties agree that wherever appropriate the Mediation and Facilitation Procedures should be utilised before invoking the provisions of this clause. Any disagreement not otherwise resolved by the procedures in clause 65.1 and/or clause 65.2 shall be dealt with as an industrial dispute as follows:
· Subclauses 66.2, 66.3 and 66.4 provide as follows:
Should the dispute not be resolved by the processes referred to in clause 66.1, or if either party refuses to engage in the processes referred to in clause 66.1, the matter may be referred to the Australian Industrial Relations Commission by either party.
Where the Australian Industrial Relations Commission determines that it has the jurisdiction to arbitrate, the Australian Industrial Relations Commission may resolve the dispute by the processes of conciliation and/or arbitration. The parties agree to be bound by the Australian Industrial Relations Commission's resolution of the dispute.
Where the Australian Industrial Relations Commission determines that it does not have jurisdiction to arbitrate, the parties agree to be bound by any clear recommendation made to the parties by the Australian Industrial Relations Commission to resolve the dispute.
Extract from Nurses (WA Government Health Services)
Exceptional Matters Order 2001 [PR914193]
10.1 Notwithstanding clause 30 of the Award and clause 19 of the Nurses (WA Government Health Services) Agreement 2001, the following grievance procedure shall apply to a workload grievance under this clause.
10.2 A workload grievance is a grievance stated in writing by an employee bound by this Order performing work to which this Order applies, by the ANF, or by a respondent employer, as a person aggrieved, about the nursing workload that a nurse is required to undertake, on the ground that:
10.2.1 an unreasonable or excessive patient care or nursing task work load is being imposed on the nurse other than occasionally and infrequently;
10.2.2 to perform nursing duty to a professional standard, a nurse is effectively obliged to work unpaid overtime on a regularly recurring basis;
10.2.3 the workload requirement effectively denies any reasonably practicable access to the nurse's quota of time for professional development, within 12 months of the entitlement arising;
10.2.4 within a workplace or roster pattern, no effective consultative mechanism and process is available in respect of the determination of bed closures or patient workload for the available nursing resources in the workplace or roster pattern;
10.2.5 a reasonable complaint to the appropriate hospital authority about capacity to observe professional mandatory patient care standards has not been responded to or acted upon within a reasonable time; or
10.2.6 a particular member or set of members of a patient care team are being consistently placed under an unreasonable or unfair burden or lack of adequate professional guidance because of the workload or the staffing skill mix of the team.
10.3 Before initiating the formal grievance process under this clause, the person aggrieved shall attempt to resolve with the appropriate and responsible employee, employer or organisation the matter giving rise to the grounds of the grievance. After such an attempt has failed, or if the attempt is manifestly likely to be unproductive of a resolution of the matter, the person aggrieved shall lodge a statement setting out details of the grievance with the Director of Nursing at the work location, and in the case of an aggrieved employee, with the ANF.
10.4 Where the grievance is not resolved within five working days, the Director of Nursing shall inform the Chief Executive Officer (CEO) of the Area Health Authority (or if one has not been established, the CEO or General Manager of the relevant hospital of health service as the case may be) responsible for the work location of the grievance and supply as soon as practicable a statement outlining the grievance and setting out the principal reasons why it has not been or cannot be resolved. Thereupon, the CEO of the Area Health Authority and one person nominated by the ANF, shall form a conciliation committee to attempt to resolve the grievance.
10.5 Where the grievance is not resolved within five working days of being brought to the Area Health Authority's CEO, the CEO of the Area Health Authority shall inform the Director General of Health of the grievance and supply as soon as practicable a statement outlining the grievance and setting out the principal reasons why it has not been or cannot be resolved. Thereupon, the Director General of Health or one person nominated by the Director General of Health and one person nominated by the ANF, shall form a conciliation committee to attempt to resolve the grievance.
10.6 A grievance shall be resolved where the parties to the grievance reach agreement. Where agreement is reached the parties at the work location shall be informed of the grievance resolution in writing including an implementation timetable and method of implementation.
10.7 The implementation of these procedures shall take place without delay and be completed as soon as practicable. The employer and the ANF shall each as far as practicable avoid action which may exacerbate the dispute or predetermine the outcome of an attempt to resolve the grievance.
10.8 A grievance that remains unresolved for a period of more than 15 working days Monday to Friday may be referred by the ANF or a respondent employer to a Board of Reference.
10.9 A Board of Reference under this clause shall be constituted comprising two nominees of the ANF and two nominees of the employer, and a member of the Australian Industrial Relations Commission as Chairperson.
10.10 The function of the Board of Reference shall be to resolve the grievance if practicable, without making a formal determination. If the Board of Reference is:
10.10.1 unable to resolve the grievance, but,
10.10.2 is satisfied that the ground for the grievance has been established; and
10.10.3 is satisfied that a determination on the basis of the grievance is necessary;
the Board of Reference may make a determination in conformity with clause 10.11.
10.11 Subject to clause 10.10, a Board of Reference may determine:
10.11.1 in relation to a grievance under clause 10.2.1, 10.2.5, or 10.2.6, a principle to be applied for determining the workload relevant to the ground of the grievance being a principle capable of remedying the ground of grievance if applied by the responsible employer;
10.11.2 in relation to a grievance under clause 10.2.2 or 10.2.3, a right for the employee or employees affected to, or a duty on the employer to grant an entitlement which, if granted or enforced, would remedy in part or whole the ground of the grievance;
10.11.3 in relation to a grievance under clause 10.2.4, a process for consultation and reporting upon management decisions about patient workload or bed closures, not being a process inconsistent with clause 7 of this Order, that if introduced, would be appropriate to remedy the ground of the grievance.
10.11 In the event of representative members of the Board being equally divided in opinion, the Chairperson will cast his or her vote to give a majority decision.
10.12 A determination by the Board shall be binding upon the parties and the parties shall abide by any such determination as though it is a provision of this Order having a term co-extensive with the duration of this Order.
1 ACIRRT Paper for 10th Labour Law Conference: "The Ambit of Private Arbitration: Limits on Determination under Agreed Dispute Settlement Procedures in Federal Awards and Agreements", 21 March 2001.
2 Re Polites and Another; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 78 per headnote.
3 Guide to Judicial Conduct June 2002, AIJA: www.aija.org.au.
4  HCA 16 (15 March 2001); (2001) 178 ALR 61.
5 See, e.g. G. McCormack, "Procedures For The Settlement of Disputes in `Simple' Societies", The Irish Jurist, Vol. 11 (1976), 175.
6 (1984) 159 CLR 163.
7 Ibid Bain v Cadbury Schweppes at 168 per Murphy J with whom Brennan and Deane JJ agreed at 175.
8 Ibid Bain v Cadbury Schweppes at 173 per Wilson and Dawson JJ citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow and Company (No. 2) (1910) 11 CLR 1. But see especially Isaacs J at 61-62.
9 Ibid Bain v Cadbury Schweppes at 176:
"... the ambit of the dispute determines the limits of the jurisdiction of an arbitrator to bind the parties by his award. Those limits are derived from the nature of arbitration; they do not circumscribe the functions of a conciliator who is at liberty to assist the parties themselves to avoid or settle a dispute by an agreement which ventures beyond the ambit of their prospective or actual dispute. If the functions of an industrial conciliator were circumscribed by the ambit of a prospective or actual dispute, they would lack the flexibility and sophistication exhibited even by the conciliation processes of primitive tribal societies (see, e.g. G. McCormack, "Procedures For the Settlement of Disputes in `Simple' Societies", The Irish Jurist, vol. 11 (1976), 175; Roberts, Order and Dispute (1979), pp. 68-69). The decisions of this Court in which the limits of arbitral power have been stated by reference to the ambit of disputes may be given too wide a significance if they are assumed to state in the same way the scope of the legislative power with respect to conciliation under s. 51(xxxv) of the Constitution or the scope of the conciliation powers of the Commission under the Act ..."
10 Co-Operative Bulk Handling Ltd v Australian Workers' Union (1993) 47 IR 361.
11 Ibid Co-Op Bulk Handling at 382.
12 Re Portus; Ex parte ANZ Banking Group (1972) 127 CLR 353 at 360.
13 Ibid Co-Op Bulk Handling at 386.
14 The introduction of the new provision in the Explanatory Memorandum circulated for the First Reading of the Industrial Relations Reform Bill 1993 was no model of coherence or the plain English promoted by that legislation:
"Section 170MG: Procedures for preventing and settling disputes:
This section complements proposed paragraph 170MC(1)(c) which gives the Commission power to settle disputes over the application of the agreement or which allow the Commission to appoint a board of reference to settle such disputes (the establishment of boards of reference is covered by section 31 of the Principal Act).
The Commission will have a discretion as to whether it will allow the inclusion of these terms in an agreement. The Commission might take the view that disputes settling procedures contained in the agreement propose a role for the Commission which was inappropriate." [Industrial Relations Reform Bill 1993: Explanatory Memorandum Parliamentary Paper 51513 Cat. No. 93 4413.]
15 Section 170LW substitutes the words "employees whose employment will be subject to the agreement" for the words "employees covered by the agreement". A requirement in s.170LT(8) for all certified agreements to include procedures for preventing and settling disputes between the employer and such employees about matters arising under the agreement corresponds in much the same way to s.170MC(1)(c) of the IR Act. The Explanatory Memorandum for the 1996 Bill explained the revised provision as follows:
"New section 170LW - Procedures for preventing and settling disputes
9.109. Agreements must contain procedures for preventing and settling disputes about matters arising under the agreement [new subsection 170LT(7)]. New section 170LW provides specified means by which this requirement may be satisfied.
9.110. This provision provides that a certified agreement may, if the Commission approves, empower the Commission to settle disputes over the application of the agreement and/or appoint a board of reference for the purpose of settling such disputes. [Boards of reference are provided for by section 131 of the Act.]
9.111. An agreement is not required to contain either mechanism, but may contain either or both." [The Parliament of the Commonwealth Australia, House of Representatives: Workplace Relations and Other Legislation Amendment Bill 1996, Explanatory Memorandum: 77708 Cat. No. 96 4511X ISBN 0644 445688 at 75.]
16 CFMEU v Gordonstone Coal Management Pty Ltd  75 IR 249.
17 Ibid CFMEU v Gordonstone at 261.
18 Gordonstone Coal Management Pty Ltd v AIRC (1999) FCA 298 per Black CJ, Heerey and Goldberg JJ.
19 (1981) 147 CLR 617 at 629-630.
20 Victoria v Commonwealth (1996) 187 CLR 416.
21 Ibid Victoria v Commonwealth at 536 - 537, per Brennan CJ; Toohey, Gaudron McHugh & Gummow JJ; cited CFMEU v AIRC ibid at 68 - 69.
22 CFMEU v AIRC (2001) 178 ALR 61. The decision also confirms that an award of costs will be made in respect of a proceeding for the constitutional writ of prohibition. Gageler SC in a recent address suggested that that aspect of the decision reflected the adoption of a principle that the duty of a member of the AIRC as an officer of the Commonwealth to act in conformity with the WR Act arises from Chapter III Section 75 of the Constitution, and rather than from the WR Act.
23 Ibid CFMEU v AIRC at paragraph 32.
24 Ibid CFMEU v AIRC at paragraphs 30-31.
25 Ibid CFMEU v AIRC at paragraphs 34 and 35.
26 Section 170LI, to the requirements of which in context are outlined in Webforge Australia Pty Ltd and AMWU Print PR914387.
27 Sections 170LI, 5AA and 494.
28 Quickenden v Commissioner O'Connor of the Australian Industrial Relations Commission (2001) FCA 303 [23 March 2001] per Black CJ and French J at paragraph 40; Carr J at paragraphs 114-115 described the laws as operating directly on a constitutional corporation in its day-to-day employment relationships.
29 See Webforge Australia Pty Ltd and AMWU: PR914387, 18 February 2002 per Munro J; Re Knox City Council Enterprise Agreement No. 4 2001: PR914084 per Kaufman SDP; Re Atlas Steels Metals Distribution Certified Agreement 2001-2003: PR914084 per Ives DP; and Re Cadbury Schweppes Pty Ltd Confectionary Division - NUW Enterprise Agreement 2001: PR914087 per Ives DP.
30 AFMEPKIU v Electrolux Home Products  FCAFC 199; Wilcox Branson and Marshall JJ (21 June 2002); Re Atlas Steels Metal Distribution Certified Agreement: PR917092, Giudice J McIntyre VP Whelan C; 29 April 2002
31 Ampol Refineries (NSW) Pty Ltd v AIMPE Print P8620 per Giudice P, McIntyre VP and Raffaelli C; see also Print P6777 per Polites SDP; Re University College (UNSW) Defence Force Academy Enterprise Agreement 1995 Print M9096 per Smith C; The ABC Case Print M3463 per Williams and Marsh DPP and Larkin C.
32 Ibid Ampol at pages 5 and 7.
33 (1981) 147 CLR 617 at 627.
34 WAGHI v ANF, decisions PR912571 and PR914192, and order PR914193; AEU v Minister for Education Victoria Prints L8274 at 29; M2054 at 15-16 and Attachment A Clause 8; M3409 at 18 ff; see also the discussion of principles in relation to the correspondence between an arbitrated dispute settlement procedure and a board of reference procedure in NTEU v AHEIA Print Q0702 at 46-53.
35 See paragraph 21 above.
36 Print R8525 at paragraphs 25-35.
37 Ansett Pilots Association v Ansett Australia Pty Ltd Print S1467 at paragraphs 9 and 10.
38 MUA v Broome Port Authority PR914136 per Raffaelli C at paragraphs 25-63; CPSU v Air Services Australia PR903214 per Smith C at paragraphs 8, 13, 18, 62-68.
39 PR908236 at paragraphs 57 and 61.
40 Ibid Bain v Cadbury Schweppes at 176; and footnote 8 above.
41 Justice Giudice: The Industrial Relations Commission Power of Private Arbitration: Australian Labour Law Association, 14 November 2001 at paragraph 22.
42 (1991) 171 CLR 232 at 275, 289-291.
43 See PR914084; PR914087 referred to at footnote 25, citing Commissioner of Taxation v Salenger (1988) 19 FCR 378 at 387-388 per French J commenting upon a decision of a senior member of the AAT sitting in the jurisdiction taken over from the Taxation Board of Review. The correlation of that analysis with "the pragmatic considerations which demand conformity to the opinion of a court superior in the hierarchy" by the tribunal established under the WR Act could be a bit more labyrinthine than may have been the case for the successor to the Board of Review. Part XIV of the WR Act, section 49A of the Judiciary Act and Brennan J's analysis in O'Toole v Charles David at 256-269 of the essential difference between the doctrine of estoppel per rem judicam and the doctrine of precedent occlude an easy passage to substantiating a belief that a judicial opinion expressed at first instance level of any court, including the Federal Court represents law made by that court by which a member of the Commission, especially a Presidential Member, is bound.
44 Ibid Gordonstone at paragraph 38.
45 Ibid Giudice at paragraphs 23 and 27:
" Certified agreements are now the primary determinant of wages and salaries for a very large part of the workforce. In 1994 there were about 1500 applications lodged relating to agreements. In 2001 there were over 10,000 applications and over 7000 agreements were certified. Increasingly parties are exercising their rights to private arbitration provisions in the agreements."
46 PR916526, Harrison SDP, Cartwright SDP and Cargill C.
47 Ibid PR916526 at paras 18, 19.
48 Ansett Pilots Association v Ansett Australia Ltd Print S1467, 2 December 1999 per Giudice J, Polites SDP and Whelan C at para 10:
"In relation to the submission about s.170LW we would point out that that section is a source of power underpinning provisions in an agreement. It does not confer any original jurisdiction upon the Commission in relation to dealing with an agreement other than in accordance with power conferred by the terms of the agreement itself."
49 See paragraph 28 above.
50 PR915571, 25 June 2001.
51 See, for example, Automotive, Food Metals, Engineering, Printing and Kindred Industries Union and Simon Engineering (Aust) Pty Ltd, Print PR915076, 8 March 2002 per Hamilton DP.
52 Ibid Warkworth at para 20 citing Australian Broadcasting Corporation and the Media Entertaining and Arts Alliance Print M3463. In that case, a Full Bench was prepared to accept the parties intended to confer upon the Commission a duty or power to attempt to settle by conciliation any unresolved dispute referred to it. It decided the relevant clause did not empower the Commission to settle the dispute by way of an arbitrated decision or recommendation without agreement of the parties.
53 CFMEU v AMCOR (2002) FCA 610 [13 May 2002] Finkelstein J at para 1 and 18.
54 PR908236, 3 September 2001.
55 PR914889, 11 March 2002, at para 36.
56 PR918916, 14 June 2002 at para 19.
57 Ibid PR918916. See also Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and British Aerospace [Print Q1215], para 8; Ansett Pilots Association and Ansett Australia Ltd [Print R8525] at para 46.
58 Ibid. 47 IR at 379-381.
59 See generally Australian Digest 3rd Edition: "Arbitration." Vol.2 at 2-5: What is a submission; at 7-9: What matters may be referred; at 10-15: Dispute or differnce within the meaning of an arbitration Clause. Law Book Company.
60  FCA 547.
61 Ibid  FCA 547 at paragraph 69.
62 For references supporting a view that the daily tasks of industrial tribunals establish a capacity to make value judgments about what is fair, within a broad discretion exercised with flexibility and the application of good sense: see TWU v Wagner Print K8216 at page 58 and notes pages 100 to 102; and see also the concluding passages of ACIRRT Paper for 10th Labour Law Conference referred to as footnote 1 above.