ACTEW Corporation Ltd v Pangallo

RJ Mitchell and RB Naughton, Collective Agreements, Industrial Awards and the Contract of Employment (1989) 2 AJLL 252 RB Naughton and A Stewart, Breach of Contract Through Unfair Termination: The New Law of Wrongful Dismissal (1988) 1 AJLL 247 GJ Tolhurst, Contractual Confusion and Industrial Illusion: A Contract Law Perspective on Awards, Collective Agreements and the Contract of Employment (1992) 66 ALJ 705 JJ Macken, G McCarry and C Sappideen, The Law of Employment 3rd ed, Law Book Co, Sydney

RC McCallum, A Modern Renaissance: Industrial Law and Relations under Federal Wigs 1977-1992, (1992) 14 Syd LR 400 J de Meyrick, The Interaction of Awards and Contracts (1995) 8 AJLL 1 A Coulthard, Damages for Unfair Dismissal: The High Court's Judgment (1996) 9 AJLL 38 ACTEW CORPORATION LIMITED ACN 069 381 960 v JOHN PANGALLO A 12 OF 2002 WHITLAM, GYLES and ALLSOP JJ CANBERRA 28 OCTOBER 2002

AUSTRALIAN CAPITAL TERRITORY A 12 OF 2002 DISTRICT REGISTRY

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ACTEW CORPORATION LIMITED ACN 069 381 960

THE COURT ORDERS THAT:

1. The appeal is allowed. 2. The order of the Supreme Court of the Australian Capital Territory made on 21 March 2002 in so far as it relates to question (a) is set aside and in lieu thereof it is ordered that the question is answered No.
2. The proceeding is otherwise remitted to the Supreme Court. 4. The respondent is to pay the appellant's costs of the appeal and of the proceeding on the separate question in the Supreme Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 12 OF 2002

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ACTEW CORPORATION LIMITED ACN 069 381 960

REASONS FOR JUDGMENT WHITLAM and GYLES JJ: 1 This is an appeal from the answer given by the Supreme Court of the Australian Capital Territory ("the Supreme Court") to a separate question ordered to be determined as a preliminary question of law pursuant to O 37 r 2 of the Rules of the Supreme Court, leave to appeal having been granted immediately prior to argument on the appeal. 2 The question was the first of two which were posed as follows: "(a) Does the Court have jurisdiction to make declarations of right in relation to the Enterprise Agreement as defined in paragraph 3 of the Statement of Claim, that Enterprise Agreement being a certified agreement within the meaning of the Workplace Relations Act 1996? (b) Do the rules of natural justice apply to the demotion of the plaintiff as alleged in paragraph 14 of the Statement of Claim and/or the confirmation of that demotion as alleged in paragraph 21 of the Statement of Claim?" The answers given by the Supreme Court were: "(a) Yes. (b) Not answered." (Pangallo v ACTEW Corporation Ltd [2002] ACTSC 15). 3 A Statement of Claim has been filed but no defence has been filed. The motion for determination of the preliminary questions of law was, in effect, treated as a jurisdictional challenge. As framed, question (a) (referred to hereafter as "the question") is very narrow and, having regard to the procedure involved, should be capable of answer without reference to evidence. However, it needs to be understood in the context of the Statement of Claim, which is as follows (omitting formal parts): "1. The Defendant is a corporation established by law and able to sue and sued [sic] in its own name. 2. At all material times the Plaintiff was employed by the Defendant as a Supervisor. 3. At all material times the Plaintiff's employment with the Defendant was subject to the ACTEW Corporation Enterprise Agreement 1999 ("the Enterprise Agreement"), and both the Plaintiff and the Defendant were bound by its terms. 4. On 13 September 1999 the Defendant sent a notice to the Plaintiff alleging that he had been guilty of neglect of duty on 31 August 1999 ("the Disciplinary Allegation"), and requiring him to show cause in writing as to why he should not be summarily dismissed. 5. As from 13 September 1999 the Defendant stood the Plaintiff down from work with pay pending a decision on the Disciplinary Allegation. 6. On 17 March 2000 the Defendant sent a notice to the Plaintiff ("the 17 March Notice") inviting him to attend a hearing on 23 March 2000 ("the 23 March Hearing") to consider the Disciplinary Allegation. 7. In the 17 March 2000 Notice, the Defendant stated that the Plaintiff would be denied legal representation at the 23 March Hearing. 8. In the 17 March 2000 Notice, the Defendant did not state that any witnesses would be called, nor did it invite the Plaintiff to bring witnesses. 9. On 22 March 2000 the Plaintiff, through the National Union of Workers ("the Union"), lodged a grievance with the Defendant under cl. 11.5.2 of the Enterprise Agreement ("the Grievance") in relation to the Defendant's failure to allow the Plaintiff legal representation at the 23 March Hearing and the Defendant's failure to allow a hearing as provided for in cl. 14.1.1 of the Enterprise Agreement. 10. On 23 March 2000 the Defendant purportedly conducted a disciplinary hearing into the Disciplinary Allegation, at which the Plaintiff was not present ("the First Disciplinary Hearing"). 11. The First Disciplinary Hearing was conducted prior to any determination of the Grievance under cl. 11.5.2 and 11.5.3 of the Enterprise Agreement. 12. The First Disciplinary Hearing was subject to the provisions of cl. 11.5.2, 11.5.3 and 14.1.1 of the Enterprise Agreement, and to the rules of natural justice. 13. The First Disciplinary Hearing was unlawful in that it was in breach of - (i) an implied term of cl. 11.5.2 of the Enterprise Agreement and the rules of natural justice in that there was no resolution of the Grievance prior to the hearing, (ii) cl. 14.1.1 of the Enterprise Agreement and the rules of natural justice in that there was no full investigation of the circumstances of the Disciplinary Allegation at which the Plaintiff and the Union were able to confront and counter any evidence of inappropriate behaviour by the Plaintiff, (iii) the rules of natural justice in that the Defendant denied the Plaintiff the right to legal representation at the hearing. 14. On 24 March 2000, as a result of the First Disciplinary Hearing, the Defendant determined that the Plaintiff was guilty of the Disciplinary Allegation and demoted the Plaintiff from the substantive classification of GSO10.1 to GSO8.1 with effect immediately ("the First Disciplinary Finding"). 15. By reason of the matters set out in par. 13 the First Disciplinary Finding was void. 16. On 4 April 2000 the Plaintiff lodged a grievance appeal pursuant to cl. 11.5.2 of the Enterprise Agreement against the First Disciplinary Finding ("the Disciplinary Appeal"). 17. On 26 June 2000 an Appeal Committee constituted under cl. 11.5.3 of the Enterprise Agreement conducted a hearing purportedly to determine the Disciplinary Appeal ("the Second Disciplinary Hearing"). 18. The Second Disciplinary Hearing was subject to the provisions of cl. 11.5.2, 11.5.3 and 14.1.1 of the Enterprise Agreement, and to the rules of natural justice. 19. The Second Disciplinary Hearing was unlawful in that it was in breach of - (i) an implied term of cl. 11.5.2 of the Enterprise Agreement and the rules of natural justice in that there was no resolution of the Grievance prior to the hearing, (ii) cl. 14.1.1 of the Enterprise Agreement and the rules of natural justice in that there was no full investigation of the circumstances of the Disciplinary Allegation at which the Plaintiff and the Union were able to confront and counter any evidence of inappropriate behaviour by the Plaintiff, (iii) the rules of natural justice in that the Defendant denied the Plaintiff the right to legal representation at the hearing. 20. On 26 June 2000, as a result of the Second Disciplinary Hearing, the Appeal Committee recommended by majority to the Defendant that the First Disciplinary Finding should stand ("the Appeal Determination"). 21. On 28 June 2000 the Defendant, relying on the recommendation in the Appeal Determination, confirmed the First Disciplinary Finding ("the Second Disciplinary Finding"). 22. By reason of the matters set out in par. 19 the Second Disciplinary Finding was void. 23. At no time prior to the First or Second Disciplinary Hearings or the First or Second Disciplinary Findings has the Grievance been heard and determined by an Appeal Committee as required by cl. 11.5.2 and 11.5.3 of the Enterprise Agreement. 24. By reason of the matters set out in this Statement of Claim, the Plaintiff is entitled to declarations in the terms sought in this Claim." 4 The relief sought in the Originating Application was as follows: "1. The Court declare that the disciplinary actions taken by the Defendant against the Plaintiff on 24 March 2000 and 28 June 2000 are void; 2. The Court declare that the Defendant breached the rules of natural justice and cl. 14.1.1 of the ACTEW Corporation Enterprise Agreement 1999 by conducting disciplinary proceedings against the Plaintiff on 23 March 2000 and 26 June 2000 which did not involve a full investigation of the circumstances at which the Plaintiff and the National Union of Workers were able to confront and counter any evidence of inappropriate behaviour by the Plaintiff. 3. The Court declare that the Defendant breached the rules of natural justice by conducting disciplinary proceedings against the Plaintiff on 23 March 2000 and 26 June 2000 by denying the Plaintiff the right to legal representation. 4. The Court declare that the Defendant breached the rules of natural justice and the implied terms of cl. 11.5.2 and 11.5.3 of the ACTEW Corporation Enterprise Agreement 1999 by conducting disciplinary proceedings against the Plaintiff on 23 March 2000 and 26 June 2000 at a time when the Defendant knew that the Plaintiff had lodged a grievance appeal under cl. 11.5.2 of the Enterprise Agreement in relation to the failure of the Defendant to permit legal representation at those disciplinary proceedings, and that grievance appeal had not been concluded at the time the disciplinary proceedings were conducted on 23 March 2000 and 26 June 2000. 5. Costs." 5 It will be seen that the question adds a matter that is not pleaded, namely, that the Enterprise Agreement referred to in paragraph 3 of the Statement of Claim was a certified agreement within the meaning of the Workplace Relations Act 1996 (Cth) ("the Act"). This is a conclusion which would follow from the Agreement having been certified pursuant to s 170LT of the Act. Argument proceeded on the basis that that was an agreed fact for the purposes of the argument, and counsel for the respondent indicated that the Statement of Claim would be amended accordingly, if necessary. 6 Before discussing the judgment of the Supreme Court, it is desirable to sketch the statutory background to the question. Certified agreements are provided for by Pt VIB of the Act. They have long been a feature of industrial law, although the provisions which relate to them have changed significantly over the years. A short history can be found in Australasian Meat Industry Employees' Union v Hamberger (2000) 102 FCR 74 at [15] to [27]. 7 The principal object of the Act is described in s 3 (inter alia) as: "… to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: … (b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and (c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and …" 8 The object of Pt VIB is: "170L The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business." 9 The role of the Australian Industrial Relations Commission ("the Commission") is limited in relation to certified agreements (s 170LA and Div 4). The primary field for certified agreements is between the employer and the employees of a single business, as is the case here (s 170LB). There are two kinds of certified agreements - the first is between employers who are constitutional corporations (a term specially defined in s 4) or the Commonwealth and organisations of employees or employees (s 170LH) and the second is made: "(a) to settle, further settle or maintain the settlement of, or to prevent, industrial disputes; or (b) to prevent industrial situations from giving rise to industrial disputes." (s 170LN.) There is no allegation in the pleading as to the category into which the pleaded agreement falls, but, for present purposes, it does not matter. 10 In each case, a certified agreement will, directly or indirectly (through membership of an organisation), bind all employees of the relevant business provided that, amongst other things, the agreement is agreed to or approved by a valid majority of the relevant employees (s 170LE; s 170LJ(2); s 170LK(1); s 170LT(5) and (6); s 170M; s 170MA, s 170MB). 11 In view of the facts pleaded, it is appropriate to note the following provisions of Div 4: "170LT … (8) The agreement must include procedures for preventing and settling disputes between: (a) the employer; and (b) the employees whose employment will be subject to the agreement; about matters arising under the agreement. … 170LW Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following: (a) to settle disputes over the application of the agreement; (b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes." 12 Section 131 is as follows: "131 (1) The Commission may, by an award, or an order made on the application of an organisation or person bound by an award: (a) appoint, or give power to appoint, for the purposes of the award, a board of reference consisting of a person or 2 or more persons; and (b) assign to the board of reference the function of allowing, approving, fixing, determining or dealing with, in the manner and subject to the conditions specified in the award or order, a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed, determined or dealt with. (2) The board of reference may consist of or include a Commissioner." 13 While a certified agreement is in operation it generally prevails over an award or order of the Commission to the extent of any inconsistency (s 170LY). 14 Division 8 contains an elaborate set of provisions relating to the negotiations for certified agreements, including various prohibitions. Division 9 expressly prohibits coercion in relation to agreements. Division 10 deals with enforcement and remedies for breach of certain of the prohibitions in Div 8 and 9. It is of interest that, in addition to penalties, remedies of injunction and (in the case of certain dismissals) reinstatement and compensation are provided. An "eligible court" for the purposes of Div 10 is each of: "(a) the Federal Court of Australia; (b) a District, County or Local Court; (c) a magistrate's court." (s 170NE.) 15 Otherwise, compliance in relation to contravention of awards and certified agreements is dealt with by Pt VIII of the Act. Relevant provisions include: "177A In this Division: court of competent jurisdiction means: (a) a District, County or Local Court; or (b) a magistrate's court. 178 (1) Subject to section 182, where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction. … (4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is: (a) where the penalty is imposed by the Court: (i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e) - $5,000 for a body corporate or $1,000 in other cases; and (iia) if the breach is of a term of a certified agreement and continues for more than one day - the total of: (A) $10,000 for a body corporate or $2,000 in other cases; and (B) $5,000 for a body corporate, or $1,000 in other cases, for each day for which the breach continues; and (iib) if the breach is of a term of a certified agreement but subparagraph (iia) does not apply - $10,000 for a body corporate or $2,000 in other cases; and (ii) in any other case - $10,000 for a body corporate or $2,000 in other cases; and (b) where the penalty is not imposed by the Court - $10,000 for a body corporate or $2,000 in other cases. (4A) A certified agreement may provide that subparagraph (4)(a)(iia) applies to specified breaches of the agreement as if sub-subparagraph (4)(a)(iia)(B) referred to a specified amount that is greater or less than $5,000 for a body corporate, or $1,000 in other cases. If such an agreement so provides, paragraph (4)(a) has effect accordingly. (5) A penalty for a breach of a term of an award or order may be sued for and recovered by: (a) an inspector; (b) a party to the award or order; (c) an employer who is a member of an organisation and who is affected by the breach; (ca) a person: (i) whose employment is, or at the time of the breach was, subject to the award; and (ii) who is affected by the breach; (d) an organisation that is affected, or any of whose members are affected, by the breach; or (e) an officer or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation. (5A) A penalty for a breach of a term of a certified agreement may be sued for and recovered by: (a) an inspector; or (b) an employee whose employment is subject to the agreement; or (c) a person or organisation that is bound by the agreement; or (d) an organisation: (i) that has at least one member whose employment is subject to the agreement; and (ii) that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement; or (e) an officer or employee of an organisation mentioned in paragraph (c) or (d), where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation." …" (Section 182 has been repealed.) "Court" means the Federal Court of Australia (s 4). 16 The jurisdiction of this Court is dealt with by Pt XIV of the Act. The relevant provisions include: "412 (1) The Court has jurisdiction with respect to matters arising under this Act in relation to which: (a) applications may be made to it under this Act; or (b) actions may be brought in it under this Act; or (c) questions may be referred to it under this Act; or (d) appeals lie to it under section 422; or (e) penalties may be sued for and recovered under this Act; or (f) prosecutions may be instituted for offences against this Act. (2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946. (3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903. 413 (1) The Court may give an interpretation of an award on application by: (a) the Minister; or (b) an organisation or person bound by the award. (2) The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court. 413A (1) The Court may give an interpretation of a certified agreement on application by: (a) the Minister; or (b) an organisation or person bound by the certified agreement; or (c) an employee whose employment is subject to the agreement. (2) The decision of the Court is final and conclusive and is binding on: (a) the organisations and persons bound by the agreement; and (b) the employees whose employment is subject to the agreement; who have been given an opportunity of being heard by the Court. 414 (1) Subject to this Act, the jurisdiction of the Court in relation to an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament or any court of a State or Territory. (2) The jurisdiction of the Court in relation to matters arising under section 208, 209 or 261 or Division 5 of Part IX is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority. (3) The jurisdiction of the Court under section 422 is exclusive of the jurisdiction of any court of a State or Territory to hear and determine an appeal from a judgment from which an appeal may be brought to the Court under that section. … 422 (1) An appeal lies to the Court from a judgment of a court of a State or Territory in a matter arising under this Act. (2) It is not necessary to obtain the leave of the Court or the court appealed from in relation to an appeal under subsection (1). (3) An appeal does not lie to the High Court from a judgment from which an appeal may be made to the Court under subsection (1)." 17 It is also relevant to note s 86, which deals with the powers of inspectors appointed pursuant to Pt V of the Act and is prefaced as follows: "(1) For the purpose of ascertaining whether awards and certified agreements, and the requirements of this Act, are being, or have been, observed, an inspector may, at any time during ordinary working hours or at any other time at which it is necessary to do so for that purpose: …" 18 It is not necessary to refer here to the statutory provisions which relate to the jurisdiction of this Court and of the Supreme Court of the Australian Capital Territoryas these are set out in the judgment of Allsop J. We are content to assume, for the purposes of argument, that the Supreme Court has the same jurisdiction as that exercised by the New South Wales Supreme Court. 19 The judgment of the Supreme Court referred to the statutory background, to the jurisdiction of the Federal and Supreme Courts respectively, analysed the submissions and concluded: "34 My opinion is that the Workplace Relations Act was intended to give the Federal Court of Australia power or jurisdiction to decide a question of the interpretation of a certified agreement (including the Enterprise Agreement, with which the present proceedings are concerned) so long as the question arises in any matter in relation to which the Federal Court has jurisdiction. The applicant's claim for a declaration, in my view, is not concerned with a matter in respect of which the Federal Court has jurisdiction, even if it is a "matter" which is required for the attraction of judicial power under ch III of the Constitution. The assertions made in the applicant's statement of claim are sufficient to give this Court jurisdiction to entertain the proceedings." 20 That reasoning, which appears to depend upon a limitation of the jurisdiction granted to this Court by the Act, whether in applications under s 413A or otherwise, is not supported on behalf of the respondent. This puts the legal argument at large, as there are no disputed facts. 21 The appellant's basic propositions are that a certified agreement has legislative as opposed to contractual force, that the statute which creates the right also regulates the means by which it may be enforced and that the legislature has not chosen to involve the Supreme Courts of the States or Territories in those means. Counsel referred to, and relied on, authority in the High Court including Josephson v Walker (1914) 18 CLR 691 at 700-702 and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 425, and in this Court including Australasian Meat Industry Employees' Union v Frugalis Pty Ltd (1987) 14 FCR 535; Wattyl Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995)134 ALR 203; and Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 347. It is submitted that these cases establish that there is no jurisdiction in any court to grant relief under the general law in such cases. Counsel for the appellant submitted that the analogy between private contracts and certified agreements is false, citing Ryan v Textile Clothing and Footwear Union [1996] 2 VR 235. It was also argued that this Court has jurisdiction to decide the questions which arise in the Supreme Court proceedings if it were asked to do so - directly by s 413A and indirectly by virtue of s 412 of the Act and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) - whether or not any application has been made (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49 at 61-62; Transport Workers Union v Lee (1998) 84 FCR 60 at 65-6). Reference was made to Pt VIII of the Act which gave this Court and nominated State or Territory inferior courts, but not Supreme Courts, jurisdiction to enforce certified agreements. Counsel also referred to s 422 and argued that this gave jurisdiction under s 412(1)(d) of the Act. 22 Counsel for the appellant point to the introduction of s 177A of the Act as an indicator that Parliament did not envisage a role for State or Territory Supreme Courts in this field. If a superior court was to be involved, then it should be this Court. Reference was made to the portion of the Explanatory Memorandum upon the introduction of s 177A to that effect. 23 Counsel for the respondent submitted that the argument for the appellant depended upon certified agreements being equated with awards under the Act, and that this conclusion was not warranted. He submitted that the contrary decision in Gordonstone Coal Management Pty Ltd was incorrect and was, in any event, a single judge decision on an interlocutory application. Counsel contrasted the restricted scope for awards made under the present Act (s 89A) with the freedom to include comprehensive provisions relating to the employment relationship in a certified agreement. It was submitted that a compliance regime limited to penalties and recovery of underpaid wages is plainly inadequate in the case of a certified agreement, which may contain many positive or negative stipulations which should be capable of construction and enforcement by a range of orders and remedies, including declarations of right. It was submitted that interpretation of a certified agreement pursuant to s 413A is not the equivalent of and does not take the place of a declaration of right. It was not likely that Parliament would have intended such an inadequate enforcement regime. Counsel submitted that the fact that certified agreements can now be made without any link to settling an industrial dispute takes such agreements out of the realm of the prior jurisprudence relating to that topic and distinguishes the authorities relied upon by counsel for the appellant accordingly. 24 It is submitted for the respondent that if it is accepted that the Act does not constitute a code for enforcement of a certified agreement and that other remedies are available in this Court, then there is no basis for excluding the jurisdiction of the Supreme Court or for holding that this Court has an exclusive jurisdiction in relation to such other remedies. State and Territory Supreme Courts are not excluded without express provisions (such as s 414 of the Act), and have exercised jurisdiction over the years (Williams v Hursey (1959) 103 CLR 30; Alexander v Australian National Airlines Commission [1988] 1 Qd R 331; Edwards v Federated Moulders (Metals) Union of Australia (1982) 32 SASR 164; and Transport Workers Union v Lee). 25 The principal argument for the appellants starts from an apparently firm foundation in the decision of the High Court in Byrne (which related to the interrelationship between an award and the employment contract), which is consistent with the decision of Pincus J in Frugalis when coupled with the decisions in Wattyl and Gordonstone Coal Management Pty Ltd, which make the reasoning in Byrne applicable to certified agreements as well as to awards. The question is whether the respondent succeeds in establishing either that it is wrong to equate certified agreements with awards for this purpose or there have been relevant changes to the Act from the form of the Act as it was considered in Byrne. 26 In considering these issues, it is necessary to take account of the fact that the decision of the High Court in Byrne was a significant landmark in this area of the law. The interrelationship between awards, on the one hand, and employment contracts, on the other, had been a somewhat controversial topic for decades, and one of the matters of controversy was the extent to which remedies other than those expressly provided for by the relevant industrial law of the day could be granted, and, if so, by which court or courts. It is not necessary to trace the controversy here. It was brought to something of a head by the decision of the Full Court in Gregory v Philip Morris Ltd (1988) 80 ALR 455, in which the majority held that the contract of employment incorporated the terms of the relevant award such that the employer's breach of the award was also a breach of contract, with the consequence that common law damages could be awarded for breach of a term of the award which prohibited harsh, unjust or unreasonable termination of the employment. This decision opened up a fruitful field of litigation and provoked considerable debate amongst commentators (eg, RJ Mitchell and RB Naughton, Collective Agreements, Industrial Awards and the Contract of Employment (1989) 2 AJLL 252 at 267-273; R Naughton and A Stewart, Breach of Contract Through Unfair Termination: The New Law of Wrongful Dismissal (1988) 1 AJLL 247 at 251-255; GJ Tolhurst, Contractual Confusion and Industrial Illusion: A Contract Law Perspective on Awards, Collective Agreements and the Contract of Employment (1992) 66 ALJ 705 at 717-719; JJ Macken, G McCarry and C Sappideen, The Law of Employment 3rd ed, Law Book Co, Sydney, 298 at 502-523; RC McCallum, A Modern Renaissance: Industrial Law and Relations under Federal Wigs 1977-1992, (1992) 14 Syd LR 400 at 415-417; and J de Meyrick, The Interaction of Awards and Contracts (1995) 8 AJLL 1 at 15). The essential question in Byrne was the correctness of the decision in Gregory. The High Court decisively rejected the reasoning in Gregory and all other available bases for the conclusion that there could be a claim for damages for breach of an unfair dismissal clause in an award, save for cases in which the award was expressly made a term of the contract of employment. This was consistent with the decision of the majority in the Full Courtin Byrne ((1994) 47 FCR 300). The significance of the decision was again noted by commentators (eg, A Coulthard, Damages for Unfair Dismissal: The High Court's Judgment (1996) 9 AJLL 38). 27 Because of the importance of the decision in Byrne it is necessary to give some attention to it. Byrne and Frew were dismissed on 28 March 1989, and sought an order under s 178 of the Industrial Relations Act 1988 (Cth) ("the 1988 Act") for the imposition of a penalty and an order under the then s 356 for the payment of the penalty to the respective applicants, together with damages for breach of contract and for breach of statutory duty in the accrued jurisdiction of the Federal Court. Their employment was governed by the Transport Workers (Airlines) Award 1988, a clause of which provided: "Termination of employment by an employer shall not be harsh, unjust or unreasonable. For the purposes of this clause, termination of employment shall include terminations with or without notice." The Full Court had held that there was a breach of that clause, but had rejected the application for damages as claimed.

28 For present purposes, there were effectively two strands to the decision of the High Court. The first was that, absent express agreement, a clause of an award does not become part of the contract between the parties. The second was that no cause of action for damages for breach of statutory duty arose on the facts of the case. (The point taken in Byrne based on the decision in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 does not arise here, as there has been no dismissal.) So far as the first strand was concerned, three arguments were dealt with:

1. that the term was imported by law;
2. that the term was implied in order to give the agreement business efficacy; and
3. custom or usage.

It may not be over-simplifying matters to say that it was held that there was no necessity to import or imply the terms of the award as terms of the contract of employment, because the legislation provided that the terms of the award would bind the parties and provided sanctions if there were breach. As we shall indicate shortly, in our opinion this reasoning also applied to certified agreements and continues to apply to certified agreements notwithstanding changes to the Act. We note what was said in the judgment of Brennan CJ, Dawson and Toohey JJ at 423:

"Whatever may, as a matter of implied agreement, flow from collective bargains into individual contracts of employment, a term of an award derives its force, not from agreement between the parties, but from statute. That being so, if a contract of employment is made in reliance upon a provision of an award, it is not a reliance which requires the provision to be made a term of the contract because it already has statutory force." and at 424:

"Whatever may be the situation with the terms of collective bargains, which at least involve a measure of agreement albeit not with individual employees, there can in our view be no basis for treating a provision of an award as a "crystallised custom" and implying a term to its effect into a contract of employment."

We do not read their Honours' last remark as expressing any view about the position in relation to a certified agreement pursuant to the Act.

29 The question of custom or usage stands on a somewhat different footing. All judges in Byrne decided this point on the principles referred to in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226, and concluded that there was no evidence to establish the custom on that footing. No assumption of custom could be made, as the award governed by virtue of the statute. Again, we take the view that there is no distinction in the case of certified agreements. It should also be pointed out that in the present proceeding no such case was pleaded, and no such case is incorporated in the question which was determined. 30 The question as to whether there is a cause of action for damages for breach of the relevant term of the certified agreement does not arise as such, as the Statement of Claim pleads no such cause of action and no such relief is claimed. However, it might be said that the relief sought in paragraph 1 of the Originating Application is of the same genus. Counsel for the respondent has pointed to passages from the judgment of Brennan CJ, Dawson and Toohey JJ at 425 which refer to public interest considerations to be taken into account by the Commission (which do not now apply to certified agreements), and to the foundation for the award being the settlement of industrial disputes (which does not necessarily apply now to a certified agreement). McHugh and Gummow JJ also refer to the dispute settling substratum. We do not read these comments as being critical to the decision for present purposes. Brennan CJ, Dawson and Toohey JJ complete their discussion of the topic in the following manner at 426: "Even if it were permissible (and we do not think that it is) to seek the creation of a statutory duty giving rise to private rights in the award itself without regard to the Act, we do not think that as a matter of construction they would emerge. Awards are made in settlement of industrial disputes and represent the degree of compromise necessary to effect such settlements. They are required to be made having regard to the objects of the Act which, as we have observed, extend beyond the interests of the parties to the dispute. The obligations which awards impose are various and are not wholly for the protection or benefit of any one class of persons, be they employers or employees or the organisations which represent them. In those circumstances, as a matter of construction, awards cannot in our view be regarded as conferring private rights enforceable by way of an action for damages. When regard is had to the enforcement mechanism provided by the Act, the situation is even plainer." McHugh and Gummow JJ said, at 461-462:

"The existence of rights conferred by the legislation to recover payments due under awards and the power of the court to order payment of penalties tend against the proposition that, from the nature, scope and terms of the legislation, there arises the further inference that damages are recoverable. We have referred to the rather special juristic nature of the Award. Even where the duty in question is created by delegated legislation in the form of regulations made under power conferred on the Executive by statute, there is an added difficulty in discerning the existence of a civil sanction for breach. The question then, as Fullagar J pointed out in Darling Island Stevedoring & Lighterage Co Ltd v Long is whether the statute gives power to create by regulation duties enforceable by action at the suit of a person injured by breach thereof. If the statute does not expressly confer on the Executive a power by regulation to create an action for damages at the suit of any person injured by breach of the substantive provisions of the regulations, it must be difficult to construe the statute and the delegated legislation as impliedly bringing about that result. This must be so, perhaps a fortiori, where the silent statute operates upon an award made by an arbitral body established by the statute. These considerations provide further support for the conclusion on this issue which was reached by the majority in the Full Federal Court. After referring to Mallinson, Keeley J stated that, in any event, in his opinion, the legislation disclosed no intention to benefit employees as a class as distinct from employers as a class. Beaumont and Heerey JJ concluded their examination of the point as follows: "[S]ince awards will always operate alongside employment contracts, or in a contractual milieu, there is logic in imputing to the legislature the assumption that it is a matter for employer and employee to agree whether award provisions are to be expressly incorporated into the contract - as for example occurred in True - and thus create contractual remedies in case of breach. Absent such agreement, the statute provides the remedy. The very fact that the statute provides for awards which (for the reasons already advanced) do not become part of employment contracts, is a ground for thinking that one cannot impute to the legislature an intention to confer (irrespective of the intention of the parties) a right which is, practically speaking, equivalent to the right which would exist if the award were part of such contracts."" 31 The most important provisions relating to certified agreements in the 1988 Act were as follows: "115 (1) If the parties to an industrial dispute or any of them agree on terms for the settlement of all or any of the matters in dispute, they may make a memorandum of the terms agreed on. (2) The memorandum of agreement shall specify the period for which the agreement is to continue in force. (3) The parties to the agreement may apply to the Commission for the certification of the agreement. (4) If the Commission is of the opinion that the agreement is in the interests of the parties immediately concerned, the Commission shall, subject to subsections (6), (7) and (8), certify the agreement unless it is of the opinion that it would be contrary to the public interest to certify the agreement. (5) Certification of the agreement shall not be taken to be contrary to the public interest merely because the agreement is inconsistent with general Full Bench principles. (6) If, in the opinion of the President, the agreement is inconsistent with general Full Bench principles, the powers of the Commission under this section are exercisable only by a Full Bench. (7) The Commission is not empowered to certify the agreement if it includes terms based on the terms of another certified agreement unless the Commission is satisfied that the inclusion of the terms in the agreement is justified in the particular circumstances of the case. (8) If it appears to the Commission that the agreement wholly or substantially regulates all the matters pertaining to the relationship between: (a) the employers who are parties to the agreement; and (b) the employees whose employment is dealt with in the agreement; the Commission shall not certify the agreement unless it includes provisions setting out procedures for preventing and settling, by discussion and agreement, further disputes between the parties. (9) Subsection (4) shall not be taken to require the Commission to certify the agreement if it is of the opinion that: (a) the terms are not in settlement of an industrial dispute; or (b) any of the terms is a term that the Commission does not have power to include in an award. (10) In this section: "general Full Bench principles" means principles established by a Full Bench that apply in relation to the determination of wages and conditions of employment, other than principles that apply in relation to the certification of agreements under this section. 116 (1) While a certified agreement is in force: (a) the terms of the agreement prevail over the terms of an award or an order of the Commission binding on the parties to the agreement that deals with the same matters; (b) a term of the agreement shall not be set aside or varied by the parties; (c) the agreement or a term of the agreement shall not be set aside under subsection 113(1); (d) the agreement may only be varied under subsection 113(2) for the purpose of: (i) removing ambiguity or uncertainty; (ii) including, omitting or varying a bans clause; or (iii) including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee; and (e) the Commission shall not exercise arbitration powers in relation to the matters dealt with in the agreement. … (4) An award constituted by a certified agreement is binding on: (a) each of the parties to the agreement; (b) all members of an organisation that is a party; and (c) an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of a party, including a corporation that has acquired or taken over the business or part of the business of the party. … 117 (1) At any time while a certified agreement is in force, the Minister may apply to the President for a review by a Full Bench of the operation of the agreement. … (3) If the Full Bench finds that the continued operation of the certified agreement is contrary to the public interest, the Full Bench may, by order, set aside or vary the agreement. … (5) Where a party to a certified agreement engages in industrial action in relation to a matter dealt with in the agreement, another party who is affected by the industrial action may apply to the Commission for a declaration that the party is no longer bound by the agreement. (6) The Commission may, on application under subsection (5) by a party to a certified agreement, by order, declare that the party is no longer bound by the agreement if the Commission is satisfied that the making of the declaration is in the public interest. (7) A party to a certified agreement may, with the consent of all the relevant parties, give the Commission written notice stating that the party does not want to remain bound by the agreement. (8) All the parties to a certified agreement may jointly give the Commission written notice stating that they want the agreement to be terminated. (9) Where a notice is given to the Commission under subsection (7) or (8), the Commission may, if it is satisfied that it would be in the public interest for the party to be no longer bound or for the certified agreement to be terminated, as the case may be, by order, make a declaration to that effect. …" 32 At that time, "award" was defined, unless the contrary intention appeared, as including a certified agreement. The compliance provisions in Pt VIII of the 1988 Act applied to certified agreements and covered imposition and recovery of penalties (s 178), recovery of amounts due pursuant to a certified agreement (s 179), a special set of provisions in relation to the breaches of bans clauses (ss 181-186) and cancellation and suspension of awards and orders (s 187). The board of reference provision (s 131) applied to certified agreements as being an award. 33 Counsel for the respondent is correct in submitting that there are substantial differences between the current regime for certified agreements and that which applied pursuant to the 1988 Act. There is less discretion reposed in the Commission so far as certification is concerned; the emphasis is upon single businesses rather than industry or other groupings; there is the opportunity for those affected to vote; and agreements are not necessarily made in settlement of an industrial dispute. At the same time, there has been a significant change in the scope of awards, particularly as a result of s 89A of the Act, so that awards are likely to be less comprehensive and less prescriptive than previously. These developments, and the introduction of Australian workplace agreements (Pt VID), reflect a movement to more consensual industrial arrangements. It is likely that matters which may formerly have been dealt with by an award may now be dealt with either in a certified agreement or an Australian workplace agreement. That trend does not assist the respondent's argument in endeavouring to distinguish the decision in Byrne. A certified agreement now may be rather more like an award was at the time of that decision than it might be now. However, the trend towards consensual arrangements has not resulted in any fundamental change to the nature and effect of a certified agreement. The submission for the appellant that a certified agreement is solely a creature of statute having force by virtue of the statute remains correct. In a sense, the term "agreement" is a misnomer because it will bind individuals whether or not they authorise it or are in favour of it. There is no scope for private law concepts of contract or equity in such circumstances. (See, in a different setting, McHugh J in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 at [84].) We do not see that the circumstance that a certified agreement can now be made without settling an industrial dispute has any significance in this context. Once the process has been gone through, and the agreement is certified, it has force in precisely the same way as a certified agreement which settles an industrial dispute. The application of administrative law remedies does not arise in considering the question of law at issue in this appeal. 34 The argument that the remedies provided by the Act are inadequate to ensure compliance with a certified agreement and that there should be means for enforcing obligations beyond those specifically provided by this statute is contrary to the history of enforcement of industrial obligations, as explained by Madgwick J in Wattyl. The Act has, for some time, reflected the policy of not specifically enforcing industrial obligations, except insofar as express remedies are provided. In any event, the point loses much of its force when consideration is given to ss 131, 170LT and 170LW. This is not the occasion to explore all of the ramifications of those provisions or to decide what role, if any, the courts have to play in enforcement of such provisions. It is sufficient to say that there is no complaint about the operation of the dispute settling mechanism in this case - it is the result about which complaint is made. There is no need to call in aid the power of a court to make a declaration of right as to the construction of the agreement as that role is expressly dealt with by s 413A of the Act. 35 All in all, we accept the submission that the Act has created the concept of a certified agreement, has given it statutory force and has also regulated the means by which it may be construed and enforced in accordance with the principle in Josephson v Walker. In our opinion, the statute excludes a court of general jurisdiction of a State or Territory from the field, except insofar as it is expressly included, and is inconsistent with the ability of such a court to make a binding declaration of right as to the effect of a certified agreement. This is consistent with the reasoning of Burchett J in Gordonstone Coal Management Pty Ltd, although in this case we need not consider the question as to the jurisdiction of the Court in this field flowing from s 39B(1A)(c) of the Judiciary Act as the existence of it alone would not exclude a State or Territory court from the field (National Union of Workers v Davids Distribution Pty Ltd (1999) 91 FCR 513 at [27]). 36 In one sense our conclusion can be expressed in terms of jurisdiction, although there may be arguments as to what that means in the case of relief granted by a superior court by way of a remedy which it may grant. We understand and answer the question for determination with that caveat. It follows that the appeal should be allowed; the answer to question (a) by the Supreme Court should be set aside; the question should be answered in the negative; and the proceeding be otherwise to be remitted to the Supreme Court. 37 The respondent should pay the appellant's costs of the appeal and of the proceeding on the separate question in the Supreme Court (without prejudice to any application for a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth)). In our opinion neither this appeal nor the Supreme Court proceedings are caught by s 347 of the Act. They are closer to Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [No 2] (1997) 189 CLR 654 than to Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. (See also Quickenden v O'Connor (2001) 109 FCR 243 and Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645.) The plaintiff sought the exercise of the general jurisdiction of the Supreme Court and the particular issue litigated concerned the jurisdiction of that court to grant the relief sought (c.f. Australian Education Union v Department of Training and Employment [2002] FCA 1149; Johnston v Cameron [2002] FCAFC 301). I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Justices Whitlam and Gyles.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 12 OF 2002

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ACTEW CORPORATION LIMITED ACN 069 381 960

REASONS FOR JUDGMENT ALLSOP J: 38 I have had the advantage of reading the reasons of Whitlam and Gyles JJ. I agree with the orders that they propose and with their reasons. I wish only to add the following comments. 39 The jurisdiction of the Supreme Court of the Australian Capital Territory (the Supreme Court) is now provided for by s 20 of the Supreme Court Act 1933 (ACT), which is in the following terms: s 20 (1) The court has the following jurisdiction: (a) all original and appellate jurisdiction that is necessary to administer justice in the Territory; (b) jurisdiction conferred by a Commonwealth Act or a law of the Territory. (2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers where it has concurrent jurisdiction with another court or tribunal. 40 In 1992, this provision (though with the words "Supreme Court" not the word "court" in subs 20(1)) was placed into the Australian Capital Territory Supreme Court Act 1933 (Cth) by the A.C.T. Supreme Court (Transfer) Act 1992 (Cth) (the Transfer Act) as part of the transfer of responsibility for the Supreme Court from the Commonwealth to the Australian Capital Territory (the Territory). (The Transfer Act also removed the words "Australian Capital Territory" from the title of the Act.) The Supreme Court Act 1933 was renumbered. Section 20 replaced the former s 11. Section 11 was in the following terms at the time of its replacement by s 20: s 11 (a) has, subject to this or any other Act or to any Ordinance or enactment, in relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of the State of New South Wales had in relation to that State immediately before 1 January 1911; (b) has such jurisdiction, both civil and criminal, and whether original or otherwise, as is from time to time vested in the Supreme Court by Act, by Ordinance or by enactment; and (c) has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or by Ordinance or enactment, to hear and determine appeals from all judgments, convictions, orders and sentences of inferior courts having jurisdiction in the Territory. 41 This provision was inserted into the then Australian Capital Territory Supreme Court Act 1933 by s 4 of the Australian Capital Territory Supreme Court Act 1957 (Cth) in place of the jurisdictional provision first enacted in 1933 as s 11 in the then entitled Seat of Government Supreme Court Act 1933 (Cth) which was, relevantly, in the following terms: s 11 (1) Subject to this Act, in all matters arising under any law of the Territory, and generally in relation to the Territory, the Supreme Court shall have - (a) the same original jurisdiction, both civil and criminal, as immediately before the first day of January, One thousand nine hundred and eleven, the Supreme Court of the State of New South Wales had in relation to that State; and (b) such jurisdiction, both civil and criminal, and whether original or otherwise, as is from time to time vested in the Supreme Court by Ordinances made by the Governor-General; and (c) jurisdiction, with such exceptions and subject to such conditions as are provided by Ordinance, to hear and determine appeals from all judgments, convictions, orders, and sentences of inferior Courts having jurisdiction in the Territory. 42 Prior to the creation of the Supreme Court in 1933, the High Court had exercised jurisdiction in the Territory. From 1909 until 1927, this jurisdiction had been exercised pursuant to s 8 of the Seat of Government Acceptance Act 1909 (Cth) which was in the following terms: s 8 Until the Parliament otherwise provides, the High Court and the Justices thereof shall have, within the Territory, the jurisdiction which immediately before the proclaimed day belonged to the Supreme Court of the State and the Justices thereof. 43 In 1927, Parliament "otherwise provid[ed]", for the purposes of s 8, by the insertion of ss 30B and 34A into the Judiciary Act 1903 (Cth)by ss 4 and 5 the Judiciary Act 1927 (Cth). These provisions were in the following terms: 30B (1) The High Court shall have, in relation to the Territory for the Seat of Government - (a) the same original jurisdiction, both civil and criminal, as immediately before the first day of January One thousand nine hundred and eleven the Supreme Court of the State of New South Wales had in relation to that State; and (b) such original jurisdiction, both civil and criminal, as is from time to time vested in the High Court by Ordinances made by the Governor-General. (2) The jurisdiction vested in the High Court by this section shall be exercised in accordance with the practice, procedure and powers of the High Court, and with Rules of Court made in that behalf. (3) In relation to the jurisdiction vested in the High Court by this section, the Rules of Court may provide for the places of sitting of the Court, and for the service and execution of the process of the Court, and the execution of the judgments of the Court, in any part of the Commonwealth and in any Territory under the control of the Commonwealth. (4) A decision of the High Court in the exercise of the jurisdiction vested by this section shall be final and conclusive except so far as, under the Constitution or the laws of the Commonwealth, an appeal may be brought to a Full Court of the High Court. 34A (1) The High Court shall have such jurisdiction to hear and determine appeals from all judgments whatsoever of any Court of the Territory for the Seat of Government as is vested in it by Ordinance made by the Governor-General. (2) The jurisdiction of the High Court under this section may be exercised by one Justice or by a Full Court; and, when it is exercised by one Justice, an appeal from his decision may, upon leave being granted by a Full Court of the High Court, be brought to a Full Court of the High Court. 44 In Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 585-86 Dixon J dealt with the nature and extent of this jurisdiction in the High Court under s 8 of the Seat of Government Acceptance Act 1909. After referring to the difference of view expressed in Porter v The King; Ex parte Yee (1926) 37 CLR 432, and to R v Bernasconi (1915) 19 CLR 629 and Mainka v Custodian of Expropriated Property (1924) 34 CLR 297, and to the relationship between s 52(i) and s 76(ii) of the Constitution, Dixon J said (at 585-86): But it is at least clear that a claim to a right conferred by or under ordinances made by the Governor-General in Council under sec. 12 of the Seat of Government (Administration) Act is a matter arising under an enactment of the Parliament. A difficulty arises upon the terms of sec. 8 of the Seat of Government Acceptance Act 1909, because it confers jurisdiction, not by reference to "matters," in the manner which sec. 76 contemplates, but by reference to the jurisdiction of the Supreme Court of New South Wales. The jurisdiction of that Court depends in the main on service of process and not upon subject matter, and it may extend beyond that which could be conferred under sec. 76(II.). It does not follow, however, that sec. 8 does not operate to the full extent authorized by sec. 76. [Emphasis added] 45 Section 8 was authorised by s 76 of the Constitution. (I leave aside the question of s 122 of the Constitution.) The "full extent" of such authorisation for s 8 stems from the fact that as at 1 January 1911 (the proclaimed date for the purposes of acceptance by the Commonwealth: see s 5 of the Seat of Government Acceptance Act 1909) the Supreme Court of New South Wales had been invested (along with other State Supreme Courts) with federal jurisdiction by subs 39(2) of the Judiciary Act 1903 as contemplated by s 77(iii) of the Constitution. 46 Until 1992, this formula of conferring on (first) the High Court and (then) the Supreme Court jurisdiction the same as that vested in the Supreme Court of New South Wales as at 1 January 1911 was used. As indicated above, this included jurisdiction in any matter arising under laws made by Parliament by reference to s 76(ii) of the Constitution by force of subs 39(2) of the Judiciary Act 1903 investing the Supreme Court of New South Wales with jurisdiction under s 76(ii) of the Constitution, subject to the limitations within subs 39(2) itself. 47 In 1992, this formula was replaced by the form of words in s 20 of the Supreme Court Act 1933 (see [39] above). Also, apparently so as to entrench the jurisdiction of the Supreme Court beyond the power of the Territory Assembly, in 1992 the Transfer Act also amended the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act) by inserting Part VA entitled "The Judiciary" which included s 48A in the following terms: 48A. (1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory. (2) In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance. (3) The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal. 48 There is no suggestion in the second reading speeches in the Parliament in 1992 dealing with the Transfer Act that the jurisdiction of the Supreme Court was to be in any way made more limited. Nevertheless, the extent of s 20 of the Supreme Court Act 1933 and s 48A of the Self-Government Act is not self evident, in particular the relationship between pars 20(1)(a) and (b) and subss 48A(1) and (2). However, like Whitlam and Gyles JJ, for the purposes of disposition of this appeal, I am content to assume that the Supreme Court has the same jurisdiction as that exercised by the New South Wales Supreme Court. 49 The matter before the primary judge, and before this Court on appeal, concerned only the question of the jurisdiction of the Supreme Court. It did not, strictly speaking, raise the question of the jurisdiction of the Federal Court. Nevertheless, the primary judge dealt with the question of the Federal Court's jurisdiction. He found that the Federal Court lacked jurisdiction to deal with the matter brought before the Supreme Court. 50 The phrase "arising under" in the context of s 76(ii) of the Constitution and statutory provisions dealing with jurisdiction has been given a wide meaning: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; Felton v Mulligan (1971) 124 CLR 367, 374, 375, 388, 403, 408 and 416; Fejo v Northern Territory (1998) 195 CLR 96, 120; Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [No 2] (1997) 189 CLR 654, 656-57; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457, 476; LNC Industries Ltd v BMW (Aust) Ltd (1983) 151 CLR 575; and Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1, 6-8. The phrase "arising under" in subs 412(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) should be taken to have the same meaning. This being so, it is difficult to see why pars 412(1)(a) and (c) of the WR Act would not confer original jurisdiction on the Federal Court: cf Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49, 60-61. 51 Also, par 39B(1A)(c) of the Judiciary Act 1903 confers jurisdiction on the Federal Court, relevantly, in any matter: arising under any laws made by the Parliament 52 The primary judge did not deal with par 39B(1A)(c). 53 The argument before this Court did not deal in any detail with the question of the relationship between the general conferral of jurisdiction on the Federal Court by par 39B(1A)(c) of the Judiciary Act 1903 and the WR Act, in particular Pt XIV of the WR Act. In this context, it is appropriate that I limit my comments on that question to the following. 54 The Full Court of this Court in Transport Workers Union v Lee (1998) 84 FCR 60 dealt with, and rejected, an argument that s 412 of the WR Act (contained in Div 1 of Pt XIV of the WR Act) provided exhaustively for proceedings which might be brought before the Federal Court after the introduction of par 39B(1A)(c) into the Judiciary Act 1903. Involved in that rejection was the view expressed by the Court (at 67) that, as a matter of statutory construction, the later statutory provision (par 39B(1A)(c)) was not to be cut down by any implied circumscription within the WR Act which might otherwise exist, absent par 39B(1A)(c). Paragraph 39B(1A)(c) operates according to its terms as a general conferral of jurisdiction. As a general conferral of jurisdiction it should be construed liberally, eschewing limitations and implications not found in the words of the provision: CDJ v VAJ (1998) 197 CLR 172, 201; Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404, 421; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301, 313 and 316; Knight v FP Special Assets Ltd (1992) 174 CLR 178, 185, 202-3 and 205; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283-84 and 290; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, 275-76; Emanuelev Australian Securities Commission (1997) 188 CLR 114, 136-37; Oshlack v Richmond River Council (1998) 193 CLR 72, 81; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 56-7; Abebe v Commonwealth (1999) 197 CLR 510, 586-87; Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184, 201; Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285, 301; Eastman v R (2000) 203 CLR 1 at [81]; Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 at [17]; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 605 at [30]; and Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353, 357 at [14]. 55 That par 39B(1A)(c) put the Federal Court in the same position as the New South Wales Supreme Court on 1 January 1911 or the Supreme Court in 1933 or 1988 or 2002, by conferring on the Federal Court jurisdiction by reference to s 76(ii) of the Constitution, does not lead to the conclusion that the resolution of the question of statutory construction arising from the interrelationship between provisions of the WR Act and par 39B(1A)(c), answers the question of the relationship between the jurisdiction of the Supreme Court and the WR Act. 56 The matters which have led Whitlam and Gyles JJ to the view that they express as to the lack of jurisdiction in the Supreme Court might provide a foundation for an argument in the Federal Court that, as a matter of discretion, relief in a given case should be restricted to that contemplated by the WR Act. However, on the authority of TWU v Lee, supra, the jurisdiction of the Federal Court is to be ascertained by reference not only to the terms of the WR Act, but also by reference to the general conferral of jurisdiction under par 39B(1A)(c) of the Judiciary Act 1903. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Allsop.

F J Purnell SC with C B O'Grady Counsel for the appellant: Solicitors for the appellant: Mallesons Stephen Jaques Counsel for the respondent: C M Erskine Solicitors for the respondent: Ken Cush & Associates Date of hearing: 6 August 2002 Date of judgment: 28 October 2002