The Emerging Significance of the

Drafting of Dispute Resolution Clauses

Paper for Australian Higher Education Industrial Association

JUSTICE P.R. MUNRO

12 JULY 2002

[1] 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.

[2] 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.

[3] 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:

[4] 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.

[5] 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.

[6] 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?

[7] 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?

[8] 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.

[9] 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:
[10] 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.

[11] 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?

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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:

In 1996 section 170MH was re-enacted, with a minor change, as section 170LW of the Workplace Relations Act15.

[17] 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:

[18] 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.

[19] 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.

[20] 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:

[21] 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:

[22] 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:

[23] 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.

[24] 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:

[25] 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?

[26] 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.

[27] 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.

[28] 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.

[29] 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:

[30] 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.

[31] 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:

[32] 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.

[33] 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:

[34] 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.

[35] 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.

[36] 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.

[37] 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.

[38] 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:

[39] 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:

[40] 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.

[41] 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.

[42] 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.

[43] 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.

[44] 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:

            Year

      No.

            1997-98

      45

            1998-99

      260

            1999-00

      280

            2000-01

      399

            2001-02

      548

[45] 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.

[46] 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:

[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.

[48] 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.

[49] 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.

[50] 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:

[51] 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:

He concluded:

[52] 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.

[53] 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.

[54] 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:

[55] His honours reasoning on the point is summarised in the following passages:

[56] 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.

[57] 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.

[58] 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

[59] 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.

[60] 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.

[61] 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:

[62] 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.

[63] 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.

[64] 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.

[65] 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.

[66] 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:

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.

[67] 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.

ATTACHMENT A

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:

Public debate about judicial decisions:

· 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.

TAKING PART IN CONFERENCES:

· 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.

ATTACHMENT B

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 [1] to [8] 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 [15] and [16]).

· 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 [17] to [22]).

· 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 [30] to [33]).

· 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:

· Subclause 58.1.1 of the Agreement provides:

· At the conclusion of the applicable internal resolution processes, subclause 58.5 of the Agreement provides:

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 [2] 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 [3] of the decision:

· 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 [8]).

· In the first instance, Duncan SDP agreed with the observations cited from the authorities referred to above. At paragraph [10], Duncan SDP then determined:

· Later at paragraph [10], Duncan SDP distinguished the situation from that in NTEU v Charles Sturt University:

· The Commission was not prepared to dismiss the notification for want of jurisdiction (paragraph [11]).

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 [2] 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 [3]). The employee in question was not currently employed by the University (paragraphs [11] to [14]).

· 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 [4]).

· 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 [8] and [9]).

· 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 [10]).

· 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 [18] to [21]).

· At paragraph [25] of the decision, O'Callaghan SDP held:

CLAUSE 11 - DISPUTE SETTLEMENT PROCEDURE

· Subclause 11.1 provides:

· Subclause 11.3 provides:

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:

· 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 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 [35]).

· With respect to the section 170LW application, Duncan SDP held at paragraph [36]:

· The section 99 application and the section 170LW application were both dismissed.

CLAUSE 66 - DISPUTE SETTLING PROCEDURE

· Subclause 66.1 provides in part:

· Subclauses 66.2, 66.3 and 66.4 provide as follows:

ATTACHMENT C

Extract from Nurses (WA Government Health Services)
Exceptional Matters Order 2001 [PR914193]

GRIEVANCE PROCEDURE
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;

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 [2001] 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:

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:

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:

16 CFMEU v Gordonstone Coal Management Pty Ltd [1997] 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 [2002] 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:

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:

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 [2001] FCA 547.

61 Ibid [2001] 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.