Industrial Tribunals: Challenges and Opportunities

Paper for Australian Industry Group National PIR Group Conference

Justice P.R. Munro

6 May 2002

[1] The topic of this paper, suggested to me by Stephen Smith the AiG's Director of National Industrial Relations, revived a memory from my first days as a Presidential Member of the Conciliation and Arbitration Commission. Not long after I was sworn in, the Honourable Neil Browne, a former Minister for Employment with the Fraser Government, saw me in an airport lounge and hailed me with a friendly congratulation on my appointment. Having got my and others' attention, always the politician, he added as we went our ways:

[2] Behind that comment is a province of experience ripe with opportunities for research. But it attests to the plain fact that institutions mould the conduct and even the values of the individuals who from time to time constitute them.

[3] I was appointed in 1986 to a tribunal that was unequivocally an institution established in the Australian social polity. The character of that institution, with the changes that since 1989 have been worked on it and its State counterparts, supply the formwork for my approach to the topic of this morning's paper. Challenges and opportunities for whom? Surely not for the industrial tribunals themselves? The real challenge is for those who process change to either mould the functions and character of those institutions, or who chose to dis-establish them as institutions and bring them to decay.

[4] My presentation to you first gathers some shorter questions and points about what I see to be four areas of challenge for those who will play major parts in that process or choice. Your Group will be a significant force in that process. My first four headings are the preface to a detailed pass at some general questions about ambit and the limitations on private arbitration following the recent decision of the High Court in CFMEU v AIRC. In that respect the remainder of the paper repeats without significant revision the content of a paper I delivered to the 10th ACIRRT Labour Law Conference.

What or who now sustain the foundations of the Australian industrial tribunal as a national public institution?

[5] My introduction was intended to suggest that there is no great value in the projection of a sectional view about this topic generally from the AIRC as an individual, or as a composite of its officeholders. Critics of the Commission and its predecessors frequently discern in the entrails of decisions the proofs of a desire for self preservation, continuing relevance, or at least of a reluctance to yield a power to any other participant in industrial relationships. Without endorsing or trying to refute points made in that debate, it and the version of history upon which it depends, provide sufficient reason in itself for any current officeholder to be circumspect about commenting in public on the continuing character of industrial tribunals.

[6] Rather it is what I shall refer to as the participants in industrial relationships who should embark upon those and related tasks. Not all participants are readily represented in debate. Participants include the clients of the services provided by the tribunals, the parties to industrial conflicts, governments in those and other rights, non-parties, and not least those enlisted through the concept of the public interest, who Isaacs J once described as, conspicuously on the face of the Constitution, the third party to every significant industrial dispute1.

[7] The short point is that it is only those participants who can effectively determine the continuance, character and role of national institutions. They can do so, or fail to do so, through the political process, including public debate. Only through that process can it be resolved whether in industrial or workplace relationships there is to be an industrial tribunal like the AIRC and its predecessors; a regulatory agency like the US National Labour Relations Board; or, no direct regulatory agency relatively independent of government , apart from the court system.

[8] Revolutions in regulatory values and associated demands for political responsiveness have in recent years eroded the standing and effective role of many public institutions in Australia. Australian industrial tribunals are not the only agencies affected by the trend. for the most part, such change has had general community support. It reflected necessary adjustment to the economic policy model adopted or imposed. However the consensus that emerged about roles that industrial tribunals should not undertake, does not absolve participants from giving ever more careful consideration to the roles that they should undertake , if they are to continue to exist at all.

[9] It is not necessary to descend to details to make the point that, particularly since 1993, federal governments have legislated, restructured and staffed the AIRC in ways designed to build close adherence to the policy objects set by the legislation. That development has been consistently pursued. That circumstance must eventually confront participants with a dilemma. Can the need for ad hoc machinery to implement policy be compatible with retaining the elements of a national public institution?

[10] I do not know the answer to that question. I am not sure that I ought give it even if I did. I do know there is force in Dr. Verwoerd's observation. I know also the force or wisdom in a prediction made by another Doctor, Nugget Coombs, speaking about several independent advisory bodies, or "Think Tanks" established to advise governments, to the effect that:

[11] Industrial tribunals are not merely advisory bodies. However it may be that the trend toward an ever more ad hoc industrial regulatory system will prove irreversible, with decreasing dependence on public institutional foundations. But if not, it will be for you, among other participants, to play a part in the struggle to maintain the independence of such institutions. Re-establishment of the roles that are most compatible with needs and with sustainable community support is integral to achieving that maintenance. In that respect, the constitutional heads of power that are the sources of the current federal legislative scheme must be the most widely acceptable basis for identifying the core functions for which an independent regulatory tribunal or institution should be given responsibility. The challenge for the industrial tribunal in that respect is to work within what is given to most effectively and efficiently deliver the full range of services for which it is established.

Will a Summit Conference find the tune by which to conduct the harmonisation or the integration of separate or different State and federal regulatory regimes?

[12] Only vestigially, through the exercise of powers such as those in sections 109, 111(1)(g) or 111AAA can the industrial tribunals themselves influence the harmonisation of the jurisdictions or the tribunals. Dual appointments, shared registry functions and not least the alignment of State and federal regulatory regimes and jurisdictional standards are currently the main instruments of advancing harmonisation. There has been real progress. However, as the President of the AIRC, Justice Giudice, pointed out in a recent address to the AWU, ample room remains for further consideration to be given to the operation of our industrial laws, including those relating to termination of employment.2 I shall not elaborate upon the content of that paper, which I commend for your attention. In circumspect terms , it pointed to the problems of overlap, particularly in relation to termination of employment matters. In my view, there is ample evidence of unnecessary confusion and uncertainty about access and remedies related to termination of employment. Those problems cannot be isolated from a background based upon a realistic conspectus of the complexity of the interfaces and interests that underlie such differences and their intractability. The thrust of the President's conclusion was that there were reasons why the operation of or industrial laws, including termination of employment laws should be investigated. The reasons he gave were the desirability of equal and consistent treatment before the law; the avoidance of litigation costs about jurisdictional issues; and, the desirability for trade considerations of reducing unnecessary complexity and inconsistency in the labour law system. Against that background Justice Giudice revived the recommendation made 17 years ago by the Hancock Committee for participants to enter into a conference to be conducted around an agenda for identifying problems and possible solutions.3 With ALP administrations in all six States, there may never be a more opportune time for the re-invigoration of tri-partitism!

The evolution of fair enterprise bargaining conduct from hybrid origins in Australia's industrial relations systems.

[13] The purpose of this heading is to touch upon the scope that remains for the development of principles and standards of bargaining conduct associated with certified agreements. It is not appropriate for me to descend to much detail. Probably it will suffice to introduce the topic to refer to the plea recently made by Professor Ron McCallum for a statutory trade union recognition procedure4. The preface to that plea is an argument that federal voluntary collective bargaining laws, fail to adequately protect collective bargaining by unions. That argument is founded upon a on review of some Australian case-law, reference to the jurisprudence about ILO freedom of association and collective bargaining jurisprudence, and a comparison with the collective bargaining schemes in the US, Canada, New Zealand and the UK.

[14] I trust I will not be seen to have exceeded the bounds of discretion if I mention some instances of collective bargaining practices that give rise to concerns. Published decisions have commented upon difficulties associated with what was described as multiple negotiators' personality disorder5. In part that problem is a by-product of the flexibility that is allowed to an employer to select a respondent negotiating party. It seems to have been a factor in several drawn out and acrimonious failures to resolve disputes about terms and conditions.

[15] Another instance of work in progress is the relative proliferation of recourse to restraining orders in the Commission, and the courts , State or Federal, about what may be ostensibly protected industrial action6. Section 127 applications are commonly made about ostensibly protected industrial action. The interests and entities involved in section 127 proceedings of that kind are susceptible also to embroilment in civil litigation about the industrial action or associated conduct. Causes of action in tort; with or without the fiat of a section 166A certificate; proceedings for Supreme Court injunctions; and interlocutory applications for anti-suit injunctions in the Federal Court; or proceedings for injunctions in the Federal Court restraining breaches of a penalty provision of the Act are now seen as options that might be selected before, after or in conjunction with a section 127 proceeding. It would be inappropriate here to attempt a summary of those initiatives. However, it is clear that, the judicial processes are an ever increasing adjunct of industrial action during what might initially have been thought to be regularly instituted bargaining periods. In one recently extended conciliation, the parties to the bargaining period encountered proceedings under sections 127and 166A, as well as a Supreme Court injunction before negotiating a settlement. That is no longer an uncommon experience in workplace bargaining practice.

[16] There is no simple answer to problems of this kind. Some are probably in the nature of "running-in" faults as parties learn their respective roles in an altered system. But we are now nearly a decade into the operation of enterprise level bargaining. Only a few of the difficulties are susceptible to the development of guidelines by the AIRC itself on a case by case basis. I doubt that any of those who made the policy reflected in the Act would have anticipated the relatively rapid judicialisation of bargaining processes and conduct. Although of course they may not be unhappy about the trend. Perhaps the agenda for any national conference of participants envisaged for discussion of the integration or rationalisation of State and federal industrial relations systems should be expanded. In relation to collective bargaining conduct and the regulation of it, it might discuss whether the way we are going is still the best way to go.

New "employment" :do labour hire practices reconcile a notion of joint employment with the common law master-servant relationship?

[17] It seems that a relative proliferation of employment forms or entities is a concomitant of almost any modern regulatory regime. In the early 1980's, independent contractors, engaged as courier drivers, were marshalled into corporate entity personalities to avoid the natural person condition for eligibility to lodge an application under the then unfair contracts jurisdiction of the AIRC. One does not have to follow the ebb and flow of such characterisations of working relationships to understand that the entities who employ, and even the entity who performs work for reward, are not static. The contortions through which the courts have gone to fit the doctrine of vicarious liability to the traditional notion of employment illustrate the problems of fitting regulatory regimes to shifting forms of relationship that are not much different from employment7.

[18] The growing use of labour hire arrangements as a form of employment poses a number of problems for participants in industrial regulation. Usually driven by a need to achieve maximum flexibility in human resource use, in practice that form of engagement has come to be associated with some serious disputation. Perhaps the most important is the ill fit between collective bargaining by unions on behalf of employees of the labour user employer, and the effective exclusion from that process of the competing labour hire employer. Less significant generally, but important to individuals, can be the lack of effective redress when the employee has an employment terminated for reasons that the labour use employer refuses to give the labour hire employer beyond expressing a desire to terminate the contract of hire.

[19] I am not in a position in this paper to explore issues that arise. However I draw to attention for wider comment the notion of joint employment that I understand to have been developed by the NLRB. As I understand the notion, where the user of labour, and the employer who rents out the labour, jointly exercise effective control over enough incidents of the employment, both are held be employers for purposes of the duties under the US National Labour Relations Act.8 The participants in Australian industrial relations systems may need to examine the relevance and transportability of such a notion to our regulatory regimes.

Ambit and the limits of private arbitration.

[20] 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. Several questions occur to me although what I have to say should not be taken to be a considered answer to any of them. Those questions are:

[21] 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 cow9. In 1984 a majority of the High Court in R v Bain; Ex parte Bain v Cadbury Schweppes10 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 disputants11. 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 submitted12.

[22] 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 arbitration13. That dicta encouraged beliefs that the Commission could be empowered to settle disputes under a process agreed by parties as an outcome of conciliation.

[23] 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 variation14. 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 party15. That departure from the ordinary meaning of the words used in the relevant clause applied reasoning in Portus16, to the effect that the Commission, a creature of statute, could not exercise a function in the absence of an express power in the Act17.

[24] 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 appropriate18. 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.

[25] 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 Act19.

[26] In mid 1997, in CFMEU v Gordonstone Coal Management20 a Full Bench of the Commission construed and applied section 170MH of the IR Act21. An agreement certified under the former Act contained a Problem Resolution Procedure, (the PRP), which provided:

[27] 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 Court22. 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 Salisbury23. 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.

[28] 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 Case24 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 Case25 by the Court.

[29] Three points relevant to this paper are established by the decision in CFMEU v AIRC26. 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:

[30] 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:

[31] 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:

[32] 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 agreement30.

[33] 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 employer31. 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:

[34] 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?

[35] 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.

[36] 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 deductions33. 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.

[37] 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.

[38] 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:

[39] In Ampol Refineries34, 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)35.

[40] 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:

[41] 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 may be worthwhile to focus upon what may be necessary to effectively agree to enliven section 170LW by a dispute settlement procedure. An election by negotiating parties for either or both of the section 170LW options would not usually 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.

[42] A glance at section 131 is sufficient to demonstrate that appointment of a Board of Reference is not likely to be effective unless the appointer, or the agreement authorising the appointment, descends to details:

[43] In Re Hegarty; Ex parte City of Salisbury36, 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 articulated37.

[44] 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 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.

[45] 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.

[46] 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 submission38.

[47] 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 Ansett39, 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:

[48] That approach was endorsed on appeal40. It has been adopted in several more recent first instance decisions41. To similar effect, Lacy SDP in MUA v Australian Plant Services42 observed:

[49] 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 arbitration43. 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 clarity44.

[50] 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. The third of the propositions from CFMEU v AIRC, summarised at paragraph 12 above, imports the 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 field for general law effect. Moreover, the field from which such provisions may be selected would seem to have been expanded by the acceptance in several recent decisions that an agreement may be certified with provisions that are considered by the Commission Member certifying the agreement to be unenforceable45.

[51] The presence in certified agreements of provisions of uncertain character and effect opens interesting prospects for much litigation in future. The principles formulated by O'Toole v Charles David46 for testing the validity of awards can presumably be applied to the agreement making and certification process. They could well prove a fecund stimulus for a revisitation of the privative clause in the WR Act. 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" prevails47.

[52] The application of the various propositions to particular cases will of course depend 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 when it stated that the relevant disputes at Gordonstone were disputes over the application of the agreement48. But despite hopes that complexity will be avoided, I expect that there will be 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. About 4000 section 170LW notifications were recorded as lodged in calendar 200049

[53] 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 Qantas50 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.

[54] There might almost be a tripartite consensus 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 10 and 11, 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 interests52.

[55] I suspect that unfamiliarity with those strengths and the pluralist practical sources may have prevented policy makers from recognising that it is not always necessary to throw out the baby with the bathwater. I consider that a compelling series of points were made in 1972 by Hal Wootten as the Dean of Faculty of Law at University of New South Wales. In an introduction to a monograph by G.D. Woods and Paul Stein, he wrote:

[56] I accept that there may be a widespread view that the counterpart unfair contracts jurisdiction, now found in section 106 of the current New South Wales Act, may have become over litigated and legally complex. However, even if that be so, the fact only reinforces the need for priority to be given to fostering a tribunal system with the operative characteristics identified by Wooten. But 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.

1 per Isaacs J. in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Merchant Service Guild (1912-13) 15 CLR 586 at 609-610; and in J.C. Williamson v. Musicians Union of Australia (1912) 15 CLR 636 at 654.

2 Justice Giudice: Paper for Australian Workers Union Conference ; 19 April 2002 at Para 17; available AIRC website: airc.gov.au.

3 Ibid at Para. 15 citing Recommendations 1 to 5 of the Committee of Review of Australian Industrial Law and System. AGPS (1985).

4 R. McCallum: "Good Faith Bargaining, Protected Action and the Need for a Statutory Trade Union Recognition Procedure", Tenth Annual Labour Law Conference: ACIRRT 21 March 2002.

5 CPSU v Australian Protective Service: Print 9106821 at Para.174; and AMWU v Joy Mining Print T1133 at Para. 55 to 61

6 For an already dated discussion of the scope of judicial interventions in bargaining related disputes and conduct see V. Di Felice: Stopping or Preventing Industrial Action in Australia [2000] MULR 12.

7 See generally the trail of decisions culminating in Hollis v Vabu Pty Ltd [2001] HCA 44 (9 August 2001).

8 Kenneth A. Jentero and Mark A. Spognardi: Temporary Employment Relationships: Review of the Joint Employer Doctrine under the NLRA Employee Relations L.J., Vol. 21, No. 2/Autumn 1995.

9 See, e.g. G. McCormack, "Procedures For The Settlement of Disputes in `Simple' Societies", The Irish Jurist, Vol. 11 (1976), 175.

10 (1984) 159 CLR 163.

11 Ibid Bain v Cadbury Schweppes at 168 per Murphy J with whom Brennan and Deane JJ agreed at 175.

12 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.

13 Ibid Bain v Cadbury Schweppes at 176:

14 Co-Operative Bulk Handling Ltd v Australian Workers' Union (1993) 47 IR 361.

15 Ibid Co-Op Bulk Handling at 382.

16 Re Portus; Ex parte ANZ Banking Group (1972) 127 CLR 353 at 360.

17 Ibid Co-Op Bulk Handling at 386.

18 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:

19 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:

20 CFMEU v Gordonstone Coal Management Pty Ltd [1997] 75 IR 249.

21 Ibid CFMEU v Gordonstone at 261.

22 Gordonstone Coal Management Pty Ltd v AIRC (1999) FCA 298 per Black CJ, Heerey and Goldberg JJ.

23 (1981) 147 CLR 617 at 629-630.

24 Victoria v Commonwealth (1996) 187 CLR 416.

25 Ibid Victoria v Commonwealth at 536 - 537, per Brennan CJ; Toohey, Gaudron McHugh & Gummow JJ; cited CFMEU v AIRC ibid at 68 - 69.

26 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.

27 Ibid CFMEU v AIRC at paragraph 32.

28 Ibid CFMEU v AIRC at paragraphs 30-31.

29 Ibid CFMEU v AIRC at paragraphs 34 and 35.

30 Section 170LI, to the requirements of which in context are outlined in Webforge Australia Pty Ltd and AMWU Print PR914387.

31 Sections 170LI, 5AA and 494.

32 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.

33 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.

34 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.

35 Ibid Ampol at pages 5 and 7.

36 (1981) 147 CLR 617 at 627.

37 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.

38 See paragraph 10 above.

39 Print R8525 at paragraphs 25-35.

40 Ansett Pilots Association v Ansett Australia Pty Ltd Print S1467 at paragraphs 9 and 10.

41 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.

42 PR908236 at paragraphs 57 and 61.

43 Ibid Bain v Cadbury Schweppes at 176; and footnote 4 above.

44 Justice Giudice: The Industrial Relations Commission Power of Private Arbitration: Australian Labour Law Association, 14 November 2001 at paragraph 22.

45 See footnote 24 above.

46 (1991) 171 CLR 232 at 275, 289-291.

47 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.

48 Ibid Gordonstone at paragraph 38.

49 Ibid Giudice at paragraphs 23 and 27:

50 [2001] FCA 547.

51 Ibid [2001] FCA 547 at paragraph 69.

52 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.

53 G.D. Woods and Paul Stein "Harsh and Unconscionable Contracts of Work in New South Wales" at pages vi-vii, The Law Book Company Limited.