Australasian Meat Industry Employees Union v Hamberger

Background facts - the chronology of events 12 All three matters now before us have proceeded, upon the acknowledged footing that, for present purposes, there is no dispute about the material background facts. In the circumstances, this course appears to us to be both convenient and appropriate. 13 On behalf of O'Connor, it is said (and this was not disputed) that the chronology of the relevant background events which are a matter of record, or common ground, is as follows: "(a) On 24th December 1992 the Australian Industrial Relations Commission ('the Commission') certified, under s 134E of the Industrial Relations Act 1988 ('the IR Act'), the G & K O'Connor Pty Ltd and Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 1992 ('the 1992 agreement'). That agreement was made between the union applicant in these proceedings and … O'Connor … (b) The 1992 agreement was required by s 134E(1)(f) of the IR Act to specify its 'period of operation' and it did so, naming the period between the beginning of the first pay period commencing on or after 18th December 1992 and 30th September 1995. (Cl1.3(a)) (c) On 30th March 1994 relevant provisions of the Industrial Relations Reform Act 1993 ('the Reform Act') came into operation. The Reform Act amended the IR Act in ways which included the introduction of a new regime for the certification of industrial agreements, but preserved the pre-existing law ('pre-Reform Act law') in relation to the effect of previously-certified agreements (s 35(2)(b) thereof). (The provisions of s 35(2)(b) are of central significance here. They are set out in para 20, below) (d) On 30th September 1995 the period of operation of the 1992 agreement came to an end in accordance with the terms of that agreement. (e) On 19th December 1996 the Commission made the Federal Meat Industry (Processing) Award 1996 ('the industry award'). [O'Connor] was and is not a named respondent to the industry award. (f) An organisation of employers bound by the industry award was and is the National Meat Association of Australia ('the NMAA'). The industry award binds the NMAA and its members … At the time when the industry award was made, [O'Connor] was not a member of the NMAA. (g) Save for the parties to it, the industry award dealt and deals with the same matters as were dealt with by the 1992 agreement (or at least did so insofar as issues in these proceedings are concerned). (h) On 31st December 1996 relevant provisions of the Workplace Relations and Other Legislation Amendment Act 1996 ('the WROLA Act') came into operation. The WROLA Act changed the name of the IR Act to the Workplace Relations Act 1966 ('the IR Act') and again introduced a new regime for the certification of industrial agreements. That regime was to apply to agreements made after the commencement of the relevant amendments. (i) On 17th January 1997 the Commission purportedly certified the G & K O'Connor Pty Ltd and Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 1995 ('the 1995 agreement') under s 170MC of the IR Act, a provision which had been introduced by the Reform Act …. The parties thereafter observed the 1995 agreement. (j) In March 1999 [O'Connor], in support of claims for a different regime of terms and conditions of employment, locked out its employees under Part VIB of the WR Act. (k) On 3rd June 1999 the [O'Connor] became a member of the NMAA. (l) On 26th July 1999 the Commission set aside the certification of the 1995 agreement. (m) On 19th August 1999 [O'Connor] in support of demands for the making of AWAs, locked out its employees under Part VID of the WR Act. That lockout came to an end upon the operation of an order of the Commission that it should do so on 21st November 1999. (n) AWAs were made between [O'Connor] and some of its employees. On and since 2nd September 1999 these AWAs were filed with the Employment Advocate for approval and were approved. (o) As at 20th April 2000, 159 AWAs had been approved." 14 It appears that none of the foregoing statement of events, or of their background, is in issue. In essence, the affidavit evidence previously mentioned accords with this chronology. In the absence of any challenge to the credibility of the evidence, we propose to accept it as accurately stating the background facts for present purposes.

Legislative history 15 An understanding of the relevant legislative history is essential for present purposes. When the 1992 agreement was certified in December 1992, the definition of "award" included a certified agreement (s 4(1) of the IR Act). A certified agreement meant an agreement certified under Div 3A of Pt VI of the IR Act. That Division had commenced operation on 23 July 1992. It provided a detailed regime for the certification by the Industrial Relations Commission ("IRC") of agreements made between parties to settle industrial disputes. 16 Earlier, the Conciliation & Arbitration Act 1904 (Cth) ("the 1904 Act"), as it stood prior to the IR Act, had provided for certified agreements and for consent awards (s 28) which had the same effect as, and were deemed to be, an award. The IR Act of 1988 originally provided separately for consent awards (s 112) and for certified agreements (ss 115-117). "Award" was then defined to include a certified agreement, unless the contrary intention appeared. The second reading speech for the amendments which introduced the regime in force in December 1992 (Act No 109 of 1992) indicated that the new provisions were intended to encourage the use of certified agreements, inter alia, by removing some barriers to certification, particularly in the case of agreements covering a single business. 17 One amendment of significance for present purposes related to the period of operation of a certified agreement. Under the original provisions, an agreement had no force beyond its expiry date. The 1992 amendments made two major changes. The first was that the parties might extend the operation of an agreement by consent. The second was that if the agreement remained in force at the end of the period of it, then s 148 applied. Section 148 provided (relevantly) as follows: "148(1) [Until new award made] Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters." 18 Although not directly relevant in the present case, it is convenient to set out here s 134K and s 113 (which deals, inter alia, with variation). This is because of their significance in the case of Telstra Corporation Ltd v MacBean (2000) 171 ALR 357 ("Telstra") which we will need to consider, below, in some detail. "134K(1) [Extension subject to sec 134K(2)] Subject to subsection (2), the parties to a certified agreement may extend the period of operation of the agreement. 134K(2) [Nil effect of extension unless] An extension has no effect unless: (a) the parties agree to the extension; and (b) the parties notify the Commission in writing of the extension before the end of the period of operation of the agreement or that period as extended or further extended under this section." "113(1) [Prescription] The Commission may set aside an award or any of the terms of an award. 113(2) [Removal of ambiguity] The Commission may, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary an award. 113(3) [Variation of an award] The Commission may, on application by an organisation or person bound by an award, vary a term of the award referring by name to an organisation or person bound by the award: (a) to reflect a change in the name of the organisation or person; or (b) where: (i) the registration of the organisation has been cancelled; or (ii) the organisation or person has ceased to exist; to omit the reference to its name." 19 Division 3A of Pt VI of the IR Act was repealed by s 34 of the Industrial Relations Reform Act 1993 (Cth) ("the Reform Act"). The transitional provision in this connection was s 35, which was in the following terms: "35(1)In this section: "amended Act" means the Principal Act as amended by this Part; "commencement day" means the day on which Division 3A of Part VI of the Principal Act is repealed by this Part. (2) Despite the repeal of Division 3A of Part VI of the Principal Act: (a) an agreement made under that Division and in force (although not certified) immediately before the commencement day has effect as if it had been made under section 170MA of the amended Act; and (b) an agreement certified under that Division and in force immediately before the commencement day has effect as if the Principal Act had not been amended by this Act, but may be extended under section 170 MI [sic - see below] of the amended Act; [emphasis added] and (c) if an application that was made under that Division for certification of an agreement was pending immediately before the commencement day: (i) if subparagraph (ii) does not apply, the Commission is to deal with the application as if it had been made under section 170MA of the amended Act; or (ii) if each of the applicants so requests, the Commission is to deal with the application as if that Division had not been repealed, and, if the agreement is certified, it has effect as if the Principal Act had not been amended by this Act, but may be extended under section 170MJ of the amended Act. (3) The Commission may permit the parties to an agreement to which paragraph (2)(a) or subparagraph (2)(c)(i) applies to vary its terms so as to accord with Division 2 of Part VIB of the amended Act. (4) …… (5) ……" 20 It is common ground, in the light of observations made in the Telstra case (see below), that the reference in s 35(2)(b) to s 170MI of the amended Act, should be treated as an intention to refer to s 170MJ, which was in the following terms: "170MJ (1) [Parties to agreement may extend its operation] Subject to this section, the parties to a certified agreement may extend the period of operation of the agreement. (2) [Conditions giving extension effect] An extension has no effect unless: (a) the parties agree to the extension; and (b) before the end of the period of operation of the agreement or that period as last extended under this section: (i) if the agreement applies only to a single business, part of a single business or a single place of work - one or more of the parties apply to the Commission to approve the extension; or (ii) otherwise - one or more of the parties notify the Commission in writing of the extension (3) [Single business] If an application is made in accordance with subparagraph (2)(b)(i), the extension has effect at least until the application is determined, even if that happens after the period referred to in paragraph (2)(b). (4) [Commission must approve extension] On an application, the Commission must approve the extension unless an organisation of employees that is entitled under section 170MB to be heard satisfies the Commission that the extension would not be in the interests of the employees covered by the agreement. If that happens, the Commission must refuse to approve the extension." 21 As noted above, these amendments introduced a new regime for certified agreements in Division 2 of Part VIB. That Part related to "Promoting Bargaining and Facilitating Agreements". Division 3 related to a new species of agreement called "enterprise flexibility agreements", which introduced a procedure where a majority of employees of an enterprise had agreed to be bound. One of the principal objects of the Reform Act was: "… encouraging and facilitating the making of agreements, between the parties involved in industrial relations, to determine matters pertaining to the relationship between employers and employees, particularly at the workplace or enterprise level; and …" (s 3(a)) 22 The Reform Act also introduced a number of other new provisions relating to awards and other important industrial topics. The definition of award continued to include certified agreements, subject to contrary intention. The new regime for certified agreements had many similarities with the repealed provisions. 23 On 31 December 1996 the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the WROLA Act") amendments introduced revision of the legislation which gave effect to policies of a new government, as the second reading speech makes clear. It is also clear from the Parliamentary Debates, however, that, to an extent, the will of Parliament represented a compromise of those policies. 24 The drafting technique chosen was amendment by Schedule. Schedule 8 dealt with Certified Agreements. Part VIB was repealed, and a new part substituted which differed in many respects from the repealed provisions. The application and transitional provisions in relation to Sch 8 are contained in cl 23. With some exceptions, the new provisions only applied to new agreements. However s 23(2) provided: "If: (a) an agreement was entered into before the commencement of this Schedule and was covered by Division 2 of Part VIB of the Workplace Relations Act 1996 as then in force; and (b) whether before or after the commencement of this Schedule: (i) the period of operation specified in the agreement; or (ii) if it has been extended or further extended under section 170MJ of that Act as in force at the time - that period as extended or further extended; has ended; then, after the commencement of this Schedule, section 170MH of that Act as amended by this Schedule, instead of section 170MN of that Act as in force immediately before the commencement of this Schedule, applies to the agreement." 25 The new s 170MH was as follows: "170MH Terminating a certified agreement in public interest after nominal expiry date (1) After the nominal expiry date of a certified agreement: (a) the employer; or (b) a majority of the employees whose employment is subject to the agreement; or (c) an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement; may apply to the Commission to have the agreement terminated. (2) On receiving the application, the Commission must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated. (3) If, after complying with subsection (2), the Commission considers that it is not contrary to the public interest to terminate the agreement, the Commission must, by order, terminate the agreement. (4) The termination takes effect when the Commission's order takes effect." 26 Schedule 11 made various consequential amendments relating, inter alia, to certified agreements, including an amendment to the definition of "award" to exclude certified agreements. Clause 88 provided that: "88 Certified agreements Part 2 of Schedule 8 applies to the amendments made by this Schedule, so far as they relate to certified agreements, in the same way as that Part applies to the amendments made by Part 1 of Schedule 8." 27 Schedule 12 made amendments in relation to the "no-disadvantage" test which had been introduced by the Reform Act in relation, inter alia to certified agreements. This became Pt VIE of the WR Act. The relevant provisions are as follows: "170X Interpretation In this Part, unless the contrary intention appears: agreement means: (a) a certified agreement; or (b) an AWA. … award includes a State award, but does not include: (a) an exceptional matters order; or (b) an award under section 170MX. designated award, in relation to a person to whom an agreement will apply, means an award that the Employment Advocate under section 170XE, or the Commission under section 170XF, has determined to be appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test. … relevant award, in relation to a person to whom an agreement will apply, means an award: (a) regulating any term or condition of employment of persons engaged in the same kind of work as that of the person under the agreement; and (b) that, immediately before the initial day of the agreement, is binding on the person's employer. (emphasis added) 170XA When does an agreement pass the no-disadvantage test? (1) An agreement passes the no-disadvantage test if it does not disadvantage employees in relation to their terms and conditions of employment. (2) Subject to sections 170XB, 170XC and 170XD, an agreement disadvantages employees in relation to their terms and conditions of employment only if its approval or certification would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under: (a) relevant awards or designated awards; (emphasis added) and (b) any other law of the Commonwealth, or of a State or Territory, that the Employment Advocate or the Commission (as the case may be) considers relevant. … 170XE Determination of designated award or awards for the purposes of an AWA (1) If: (a) an employer proposes to make an AWA with a person; and (b) there is no relevant award in relation to the person; the employer must apply in writing to the Employment Advocate for the making of a determination under subsection (2). (2) Upon application, the Employment Advocate must determine, and inform the employer in writing, that an award or awards (being an award or awards under this Act regulating terms or conditions of employment of employees engaged in the same kind of work as that of the person under the AWA) are appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test. 170XF Determination of designated award or awards for the purposes of a certified agreement (1) If: (a) an employer or organisation of employees proposes to make a certified agreement; and (b) there is no relevant award in relation to some or all of the persons to whom the agreement will apply; the employer or organisation may apply in writing to the Commission for the making of a determination under subsection (2). (2) Upon application, the Commission must determine, and inform the employer or organisation in writing that an award or awards (being an award or awards under this Act regulating terms or conditions of employment of persons engaged in the same kind of work as that of those persons under the agreement) are appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test." 28 The office of Employment Advocate was established and dealt with by Sch 3 - principally by adding the provisions of Pt IVA of the WR Act.

Contentions of the parties 29 The AMIEU contends that the 1992 agreement: (1) continues to bind the parties; (2) is a relevant award for the purposes of Pt VIE of the WR Act, and in particular s 170XA; (3) is an award for the purposes of s 178(1) of the WR Act (see para 9 above). 30 The second proposition relates to the prerogative writ proceedings and is necessary to be established for a case for relief to be made out. The third proposition relates to the referred questions. The first relates to both. 31 O'Connor denies each proposition, and submits that the decision in Telstra compels a negative answer to (at least) propositions 2 and 3. Mr Hamberger is only concerned with the prerogative writ proceedings, and resists proposition 2, also relying, inter alia, upon Telstra.

Prerogative writ proceedings 32 Central to the questions that arise for determination in the prerogative writ proceedings are the meaning and operation of those provisions of the WR Act which deal with the application of the "no-disadvantage" test in the context of the making of an AWA. We have already set out the key sections, which, it will be recalled, are to the following effect: · If an employer proposes to make an AWA under Part VID of the WR Act with a person, and if there is no "relevant" award in relation to the person, then the employer must apply in writing to the Employment Advocate appointed under the Act for the making of an order under s 170XE(2) (s 170XE(1)). A "relevant" award is defined for this purpose as one (a) regulating any term or condition of employment of persons engaged in the same kind of work as that of the person under the agreement; and (b) that immediately before the initial day of the agreement, is binding on the person's employer (s 170X). Upon application being made, the Employment Advocate must determine that an award or awards (being an award or awards under the WR Act regulating terms or conditions of employment of employees engaged in the same kind of work as that of the person under the AWA) are appropriate for the purpose of deciding whether the agreement passes the "no-disadvantage" test (s 170XE(2)). · An agreement passes the "no-disadvantage" test if it does not disadvantage employees in relation to their terms and conditions of employment (s 170XA(1)). An agreement disadvantages employees in relation to their terms and conditions of employment only if its approval or certification would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under (a) "relevant" awards or a "designated" award; and (b) any other law of the Commonwealth, or of a State or Territory, that the Employment Advocate considers relevant (s 170XA(2)). A "designated" award is defined for this purpose to mean an award that the Employment Advocate, under s 170XE, has determined to be appropriate for the purpose of deciding whether the agreement passes the "no-disadvantage" test. 33 The attack on the position taken by Mr Hamberger depends upon the certified agreement being a subsisting award for the purposes of the relevant provisions.

Referred questions 34 The second of the questions referred also directly raises an issue whether the agreement (assuming it to be in force at the times referred to in the first question) was an award for the purposes of s 178(1) of the WR Act. This raises a similar issue to that involved in the prerogative writ proceedings. No relevant distinction in principle has been suggested between the two. We shall consider this aspect first, on the assumption that the agreement remained binding at all material times, and then return to consider the status of that assumption. The decision in Telstra 35 As mentioned, the judgment of the Full Court (Ryan, Marshall & Finkelstein JJ) in Telstra was a central feature of the arguments put before us. In order to understand what the case decides, and because the members of the Full Court differed somewhat in their respective approaches, reference will need to be made to what was decided by each member of the Court.

Ryan J 36 His Honour explained the background to the matter, and gave reasons for his conclusions as follows: · On 27 April 1993, the AIRC certified a redundancy agreement binding on predecessors of Telstra which had applied for prerogative relief, and various organisations of employees, including predecessors of some of the respondents to the application. The agreement was expressed to operate with effect from 4 March 1993, and to remain in force until 31 January 1995. The central question for determination was whether an agreement certified in 1993 under Div 3A of Pt VI of the IR Act continued to be regulated and, in particular, to be subject to variation, in accordance with the IR Act as amended from time to time, as though the subsequent amendments of the definition of "award" in the IR Act had never been made. · The definition of "award" provided by s 4 of the IR Act current in April 1993 was "an award or order that has been reduced to writing under s 143(1), and includes a certified agreement". Section 4 defined a "certified agreement" as "an agreement certified under Div 3A of Pt VI". Division 3A, which was inserted by Act No. 109 of 1992, commenced on 23 July 1992. It constituted a code governing the making, certifying, operation, effect, variation and termination of an agreement between parties to an industrial dispute for the settlement of all or any of the matters in dispute, or for the prevention of further industrial disputes between the parties to the agreement. Division 3A was repealed by the the Reform Act. However, s 35 of the Reform Act contained a relevant saving clause. By s 35(2)(b), it was provided that, despite the repeal, an agreement certified under that Division and in force immediately before the commencement day "has effect as if the Principal [i.e. IR] Act had not been amended by [the Reform] Act, but may be extended under section 170MI [scilicet s 170MJ - see above] of the amended Act". (Emphasis added.) · The WROLA Act made far-reaching amendments to the IR Act. Schedule 5 of the WROLA Act inserted amendments dealing with the subject "Awards". Schedule 11 dealt with the "Consequential amendments relating to certified agreements, AWAs and enterprise flexibility agreements". Item I of Pt I of Sch 11 repealed the previous definition of "award" and (relevantly) substituted this: "award means an award…under section 143(1), but does not include an order made by the [AIRC] in a proceeding under Subdivision B of Division 3 of Part VIA." · Subdivision B of Div 3 of Pt VIA deals with the AIRC's power to grant relief in respect of the termination of employment. Section 143(1), which has not been amended, (relevantly) provides: "When the [AIRC] makes a determination that, in [its] opinion, is an award…, [it] shall promptly (a) reduce the determination to writing that (i) expresses it to be an award…." · However, the WROLA Act substituted a new s 143(1A) which (relevantly) provides: "(1A) For the purposes of sub-section (1), none of the following is an award…: (a) a decision to certify an agreement under Part VIB." · Schedule 8 to the WROLA Act deals with the subject "Certified agreements". Item 23 of Pt 2 of Sch 8 (relevantly) provides: "(1) Subject to this item, the amendments made by this Schedule apply to: (a) an agreement made after the commencement of this Schedule; and (b) a bargaining period, for a proposed agreement, initiated after [that] commencement." · New termination provisions apply to pre-commencement certified agreements. "(2) If: (a) an agreement was entered into before the commencement of this Schedule and was covered by Division 2 of Part VIB of the [WR] Act 1996 as then in force; and (b) whether before or after the commencement of this Schedule: (i) the period of operation specified in the agreement; or (ii) if it has been extended …under section 170MJ … - that period as extended…; has ended; then, after the commencement of this Schedule, section 170MH of that Act as amended by this Schedule, instead of section 170MN of that Act as in force immediately before the commencement of this Schedule, applies to the agreement." (emphasis added) · The emphasised words make it clear that Item 23 did not apply to pre-1996 certified agreements which antedated the Reform Act which inserted Div 2 of Pt VIB of the IR Act. · Pt 2 of Sch 5 contains transitional provisions in the case of awards. Item 49 deals with "Variation of awards during the interim period" (i.e. the period of eighteen months beginning on the day on which s 89A of the WR Act (dealing with the scope of industrial disputes) commences). Item 49 (relevantly) provides: "(1) If one or more of the parties to an award apply to the [AIRC] for a variation of the award under this item, the [AIRC] may, during the interim period, vary the award so that it only deals with allowable award matters. … (6) If the [AIRC] varies the award under subitem (5), it must include in the award provisions that ensure that overall entitlements to pay provided by the award are not reduced by that variation, unless the [AIRC] considers that it would be in the public interest not to include such provisions." · By subitem (7), the AIRC must, if it considers it appropriate, review the award to determine whether or not it meets certain criteria. · By subitem (8) the AIRC must also review the award to determine whether or not it meets certain other criteria. · Item 50(1) of Pt 2 of Sch 5 provides: "At the end of the interim period, each award ceases to have effect to the extent that it provides for matters other than allowable award matters." · As noted, Sch 11 deals with consequential amendments relating to certified agreements. · Item 88 (in Pt 4 of Sch 11) provides: "Part 2 of Schedule 8 [which deals with transitional aspects in relation to certified agreements] applies to the amendments made by this Schedule, so far as they relate to certified agreements, in the same way as that Part applies to the amendments made by Part 1 of Schedule 8." · In other words, the transitional provisions enacted by Item 23 of Pt 2 of Sch 8 were given the same operation in relation to the amendments in Sch 11 in their application to certified agreements, as they had been given in relation to the new code governing certified agreements embodied in Pt VIB of the WR Act inserted by Pt 1 of Sch 8 of the WROLA Act. As indicated, none of those provisions applied to agreements certified before 30 March 1994. · Telstra argued that since the redundancy agreement ("the Agreement") had been certified at a time when the IR Act defined "award" so as to include a certified agreement, the Agreement continued to be an "award" for the purposes of that Act as subsequently amended and, so, was susceptible of variation pursuant to Item 49 of Sch 5 of the WROLA Act. · However, the difficulty with Telstra's argument is that it preserves for certified agreements coming into force before 30 March 1994, the status of "awards" as then defined; but it subjects the same agreements to radically different requirements, imposed in an ambulatory way on "awards" which are quite differently defined. Yet that consequence could only follow if s 35(2) of the Reform Act were to be construed to mean that an agreement certified under Div 3A of Pt VI before 30 March 1994 should continue to be an "award" for the purposes of the IR Act, as amended by the Reform Act. This would be so on that approach, notwithstanding the repeal of Div 3A of Pt VI, certification under which had been essential if an agreement were to come within the extended meaning given to "award" by its definition in s 4. · The preferable construction of s 35(2) is this: except in relation to extension of the period of their operation, s 35(2) preserves the application to agreements coming into force before 30 March 1994 of the whole statutory regime embodied in the IR Act as in force immediately before 30 March 1994, as far as that regime was applicable to those certified agreements. Section 35(2)(b) is framed to take effect as a "savings" provision, preserving the effect of the IR Act, notwithstanding amendments, including repeals which would otherwise, subject to s 8 of the Acts Interpretation Act 1901 (Cth)obliterate the repealed provisions. (Section 8 deals with the effect of repeal by providing, inter alia, that where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears, the repeal shall not affect the previous operation of the repealed Act or affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act.) However a savings provision, without more, does not add to, or alter the reach of the saved enactment. · This view is supported by the explanation of s 35 in the Explanatory Memorandum accompanying the Bill for the Reform Act, as follows: "The existing certified agreement provisions…Division 3A … are to be repealed…. This clause makes transitional provisions in relation to agreements which were certified, or made with the intention of an application being made for certification, under those provisions…paragraph 2(b) deals with agreements that were certified under Division 3A … prior to its repeal - such agreements will continue to operate as if Division 3A … had not been repealed, but will be able to be extended under the new s 170." · As mentioned above, the reference to "the new s 170" was clearly to s 170MJ, which was inserted by the Reform Act. It is common ground that s 35(2) mistakenly referred to s 170MI. (this must have been a typographical error in the legislation - s 170MI, irrelevantly for these purposes, makes provision for the operation of certified agreements; whereas s 170MJ, appositely, deals with the IR extension.) · The express indication of the limited way in which the new regime was to apply to pre-Reform Act certified agreements, by making them susceptible to extension under s 170MJ, argues strongly for an interpretation which denies to the post-Reform Act legislation any other application to those agreements. Otherwise, s 35(2) only saved the regulation of those agreements by the IR Act as in force immediately before 30 March 1994.

· This construction is also reinforced by the presence in the Reform Act of s 35(3), which extended the facility to vary a certified agreement to accord with Div 2 of Part VIB of the IR Act, as amended, only in the case of those agreements to which s 35(2)(a) or s 35(2)(c)(ii) applied. (By s 35(3) it is provided that the AIRC may permit the parties to an agreement to which s 35(2)(a) or (2)(c)(i) applies, to vary its terms so as to accord with Div 2 of Pt VIB of the amended Act.) The clear implication is that certified agreements in force before 30 March 1994, to which s 35(2)(b) applied, were incapable of variation under Div 2 of Pt VIB.

· This understanding of s 35(2) was shared by the Legislature when enacting Item 49 of Pt 2 of Sch 5 of the WROLA Act. For example, Item 49(7) would be almost unworkably circular if the reference it contains to "the award" were to be construed, as on Telstra's argument it must, so as to include a certified agreement which came into force before 30 March 1994.

Marshall J 37 His Honour's reasons were (relevantly) as follows: · The definition of "allowable award matters" in the WR Act should govern the interpretation of the provision in the WROLA Act; and the definition of "award" in the WR act should similarly govern the interpretation of that word in Item 49 of Sch 5 of the WROLA Act. This accords with s 15 of the Acts Interpretation Act 1901 (Cth) which provides - "Every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof". · In defining "an award", s 4 of the WR Act makes no reference to certified agreements, whether made under that Act or any statutory predecessor. · Item 23 of Pt 2 of Sch 8 to the WROLA Act applies the provisions in the WR Act concerning termination of certified agreements to an agreement made under Div 2 of Pt VIB of the IR Act (and, as from 25 November 1996 until 31 December 1996, to the renamed WR Act). · Pt 1 of Sch 8 of the WROLA Act deals with the new regime for certified agreements which currently applies under the WR Act. Item 88 of Sch 11 to the WROLA Act provides: "Part 2 of Schedule 8 applies to the amendments made by this Schedule, so far as it relates to certified agreements in the same way as that Part applies to amendments made by Part 1 of Schedule 8." · Nothing in the WROLA regulations authorises the AIRC, in an application pursuant to Item 49, to amend an agreement certified under the IR Act prior to the enactment of the Reform Act.

Finkelstein J 38 His Honour's reasons may (relevantly) be summarised as follows: · Under the 1904 Act, an agreement settling an industrial dispute could be certified and would then have effect as an award in the same way as a compulsory award. This position was maintained by the IR Act 1988, which repealed and replaced the 1904 Act. It was, however, brought to an end in 1996 by the WROLA Act. · Between 23 July 1992 and 30 March 1994, the certification of an agreement settling an industrial dispute was governed by Div 3A of the IR Act, comprising s 134A to s 134N, which were inserted into the IR Act by the Industrial Relations Legislation Amendment Act 1992 (Cth). To qualify for certification, an agreement was required, inter alia, to specify the period of its operation (s 134E(1)(f)). A certified agreement came into force when it was certified and it remained in force during "the period of agreement" - i.e. the period of operation of the agreement specified, or as further extended (s 134J). If an agreement was in force at the end of the period of the agreement, s 148 applied (s 134J(3)). By s 148, subject to s 113 and any order of the AIRC, an award dealing with particular matters continues in force until a new award is made dealing with the same matters. · Section 113 empowered the AIRC to set aside or vary the terms of an award. At the time the subject agreement was certified, the AIRC could vary an award for the purpose of removing ambiguity or uncertainty (s 113(2)), or to reflect certain changes that had taken place with regard to the parties (s 113(3)). There was also a general power to set aside or vary an award (s 113(1)). · Although a certified agreement is not an award for the purposes of the IR Act, an award was defined to include a certified agreement, unless a contrary intention appeared (s 4(1)). A "certified agreement" was defined as one certified under Div 3A of Pt VI (s 4(1)). Because an award was defined to include a certified agreement, such an agreement could be set aside or varied in an application under s 113. However, limits were imposed upon the application of s 113 to a certified agreement. During the period of the operation of the agreement, neither the agreement, nor a term of it, could be set aside under s 113 (s 134L(1)(c)). Further, a certified agreement could not be varied under s 113(2), except to achieve one of the objects mentioned in s 134L(1)(d), namely removing ambiguity, bans or stand down clauses (s 134L(1)(e)). · The Reform Act which came into operation on 30 March 1994 repealed Div 3A of Pt VI, and replaced that division with new provisions dealing with the certification of agreements made for the purpose of settling or preventing an industrial dispute. The new provisions (s 170MA to s 170MN) were now to be found in Div 2 of Pt VIB. The Reform Act also substituted a new definition of "award" and amended the definition of "certified agreement". The alteration to the definition of "award" is presently immaterial; it continued to include a certified agreement. The definition of certified agreement was changed to reflect the replacement of Div 3A of Pt VI by Div 2 of Pt VIB. · The Reform Act contained transitional provisions dealing with the status of agreements certified before its commencement; e.g., s 35(2)(b) provides that, despite the repeal of Div 3A of Pt VI, "an agreement certified under [Div 3A] and in force immediately before the [repeal of Div 3A] has effect as if the [IR Act] had not been amended by [the Reform Act], but may be extended under s 170M[J] of the amended Act". · There is ambiguity in the stipulation that a certified agreement is to "[have] effect" as if the IR Act had not been amended. On one view, it means that the rights created and obligations imposed by the agreement, to the extent that they depend for their efficacy on any of the repealed provisions, are to subsist as if those provisions remain in force. · A more likely meaning is that a certified agreement made under the repealed provisions is to continue to operate and that the repealed provisions will continue to apply to it. Dictionary meanings of "effect" include "force, validity, or importance; purport, import, tenor, or general intent". · The period of operation of the subject agreement came to an end on 31 January 1995. Yet, by reason of s 170MI(3) of the IR Act, which applied s 148 to the agreement, it continued in force. However, upon expiry of the period of operation of the agreement, the restrictions imposed by s 134L on the ability of the AIRC to set aside or vary the agreement under s 113, came to an end. · Is an agreement certified before the commencement of the WROLA Act subject to other provisions introduced by that Act, in particular the new provisions dealing with awards? The answer does not depend solely upon the operation of s 35, but rather depends upon the field of operation of the WROLA Act. · An important change made by the WROLA Act was to undo the previous relationship between an award and a certified agreement. An award is no longer defined to include a certified agreement. An important consequence is that the power to prevent or resolve an industrial dispute by making or varying an award is limited to an industrial dispute about matters set out in s 89A(2) and (3) (i.e. "allowable award matters"). However, a certified agreement can be utilised to resolve wider areas of dispute. Yet one result of accepting Telstra's argument is that certified agreements made before the commencement of the 1996 Act will be limited in their operation to allowable award matters, but certified agreements made thereafter will not be so limited. · Although there is a general presumption at common law that, prima facie, a statute deals with future acts and ought not change the character of past transactions, it is clear that the new provisions of Sch 5 of the WROLA Act relating to allowable award matters are intended to apply, not only to awards coming into existence after the Act, but also to earlier awards. In particular, the power to vary an award under Item 49 only applies if the award was made before the Act, since an award made thereafter will include only allowable award matters. · But this is not to say that the awards to which Item 49 (and 50 and 51) applies are awards as defined, according to a definition that is no longer in force. The WROLA Act shows a clear intention that Sch 5 is only to apply to an award strictly so called, and not to certified agreements. · When the word "award" is used in Sch 5, it means an award according to the definition introduced by Item 1 of Sch 11. Each amendment made by the WROLA Act, including the amendments made by Sch 5 and Sch 11, must be construed as part of the enactment they amend. That is, the new provisions must be treated as if they had always been in the WR Act, save for their time of commencement. Thus the word "award" in Items 49 and 50 of Sch 5 is to be given the meaning set out in Item 1 of Sch 11. That definition does not bring in certified agreements. · Moreover, s 35 of the Reform Act does not assist Telstra. Although a certified agreement is to be preserved as if the IR Act had not been amended by the Reform Act, the only consequence is that the repealed provisions continue to apply to the agreement. But it does not follow that a certified agreement is, for all purposes and for all times, to be regarded as an award. That is not the effect of s 35. It preserves the past, but does not carry the past into the future as if the Reform Act amendments had not been made. In particular, it does not give new meaning to the word "award" as used in Item 49. · Parliament did not intend to affect certified agreements as Telstra argued, if only for the consequences that would follow. Freely negotiated agreements resolving industrial disputes would be rewritten. Significant disputes that had been amicably resolved would be brought back to life. Only very clear language could cause such a construction to be adopted.

Summary of the reasoning in Telstra 39 Thus, in essence - (1) Ryan J held that, so far as certified agreements coming into force before 30 March 1994 were concerned, s 35(2)(b) preserved the application of the whole statutory regime embodied in the IR Act as in force immediately before 30 March 1994, to the extent that this regime was applicable to those agreements; (2) Marshall J held that the (new) definition of "award" in the WR Act governed the meaning of the same word in Item 49 of Sch 5; and that the AIRC was not authorised to act under that item in relation to an agreement certified prior to the Reform Act; (3) Finkelstein J held that, if the Reform Act amendments had not been made, a pre-Reform Act certified agreement would still be an "award" as defined, and be subject to s 113 and s 148; but that Item 49 applied only to awards as newly defined; and also held that the effect of s 35(2)(b) of the Reform Act was that the repealed provisions continued to apply to a pre-Reform Act agreement; and not that such an agreement continued to be regarded as an award for all purposes. (4) As submitted on behalf of O'Connor, the process of reasoning adopted by Finkelstein J has in it some elements of the reasoning of both Ryan J and Marshall J. 40 We agree, as was submitted on behalf of O'Connor, that the ratio of Telstra includes at least the following: (a) pre-Reform Act certified agreements continue to be governed by pre-Reform Act legislation; and (b) to the extent that a pre-Reform Act certified agreement was an "award" within the meaning of the IR Act under the pre-Reform Act legislation, that remains the case, but only with respect to that body of law; and (c) a pre-Reform Act certified agreement is not an "award" to the extent that this term is used in the current legislation.

Conclusion as to the meaning of "award" for present purposes 41 In our opinion, Telstra cannot be distinguished from the present case so far as, at least, propositions 2 and 3 in paragraph 29 above are concerned. The agreement in Telstra was certified during the same statutory regime as the present agreement, and is subject to the same statutory regime thereafter. If that agreement were not an award for the purposes of the WR Act, then the agreement in the present case is not an award for the purposes of s 178(1) or Pt VIE of the WR Act. 42 Telstra is a recent, and reasoned, decision of a Full Court. Even if we had a different opinion, it would be our duty to follow Telstra unless it were one of those exceptional cases where we are compelled to the conclusion that the earlier decision was wrong (Nguyen v Nguyen (1989-1990) 169 CLR 245 at 269). This is not such a case. On the contrary, we see no good reason to doubt the approach, and ratio, of Telstra. That approach is consistent with the general principles of statutory construction in their application to transitional provisions. The position is explained in Halsbury's Laws of England, 4th ed reissue Vol 44(1)at p 771-72,to the following effect: · Where an Act fails to include a transitional provision which regulates the coming into operation of the enactment and (where necessary) modifies its effect during the period of transition, or where the Act includes an inadequate transitional provision, the Court is required to draw such inferences as to the intended transitional arrangements as, in the light of the interpretative criteria, it considers Parliament to have intended. · One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with which it is designed to deal have been dealt with. 43 As Nourse J said in Inland Revenue Commissioners v Metrolands (Property Finance) Ltd [1981] 2 AllER 166 at 183, [1981] 1 WLR 637 at 649; on appeal [1982] 2 AllER 557, [1982] 1 WLR 341, HL): "One thing which is clear about s45 and (8) is that the former is a permanent provision and the latter is a transitional one … it would be very dangerous, in trying to get to the effect of the permanent provision, to attach too much weight to the particular wording of the transitional one" 44 This requires refusal of the prerogative relief sought. No other issue which could seriously go to jurisdiction is raised. The answer "no" to the second question referred to us by Marshall J also follows.

Agreement binding? 45 The first question posed by Marshall J (which is also implicit in the argument for prerogative relief) is different. The agreement could still bind, even if it were not an award for the purposes of the WR Act. We have had some concern that a question in this form might be too open-ended to be properly referred and answered as a separate question of law. O'Connor, which is the only other party concerned, however, is content for the question to be answered in the light of only the arguments before us which have been presented on its behalf. 46 O'Connor accepts that the 1992 agreement would have been, at the named times, in force and binding on it were it not for the operation of s 148(1) of the WR Act, which has been in the same terms throughout, and is set out in para 17 above. O'Connor contends that at the time it joined the NMAA in 1999 it became bound by the Federal Meat Industry (Processing) Award 1996 ("the FMIPA"), and so a new award was made within the meaning of s 148(1), dealing with the same matters as were dealt with by the 1992 agreement. It is common ground that, generally speaking, where a party joins a registered organisation it becomes bound by all awards to which the organisation is a party which relate to the activities of the organisation (s 149(1)(f) WR Act; Burwood Cinema Ltd v Australian Theatrical & Amusement Employees Association (1925) 35 CLR 528). 47 However, the AMIEU submits: (1) that at the time it was in fact made the FMIPA did not bind O'Connor as it was not a member of the NMAA - becoming bound by an award later is not the equivalent of the making of an award; (2) the FMIPA does not deal with the same subject matter as the 1992 agreement; (3) the FMIPA was general, and did not override the specific terms of the 1992 agreement. 48 In our view the submission of the AMIEU as to the meaning of the phrase "until a new award is made" in s 148 is correct. We see the force of the argument put on behalf of O'Connor. It was put that the sense of the provision is captured by the wording "has been made", in s 58(2) of the 1904 Act. However this, of course, is a significant change in tense and in sense. We do not, in any event, think that it quite suffices to capture the effect of the submission on behalf of O'Connor which, to be effective, requires the phrase to read "until a new award binds the parties". In our view, this is inconsistent with the language of the section which, in this respect, is intractable. There is no dictionary meaning of "made" or "make" which could accommodate this meaning. There is a difference in meaning, as well as language involved, which this case illustrates, and it is not for us to obliterate that difference. It is conceivable that the legislature intended to differentiate the two cases. 49 This conclusion means that, on the basis upon which the question has been argued, question (c) should be answered "yes, at all such times". 50 Our conclusions mean that other issues raised in each of the proceedings, including standing in the application for prerogative relief, do not need to be addressed. 51 For these reasons we make the following orders: 1 The application for prerogative and consequential relief is dismissed. 2 Order that the questions referred to the Full Court be answered as follows: Question: "(c)Whether the G & K O'Connor Pty Ltd and Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 1992 ('the 1992 agreement') was binding at any, and if so what, times between 19 August 1999 and 22 November 1999?" Answer: Yes, at all such times. Question: "(d)If the answer to (c) is in the affirmative, whether the 1992 agreement was, at the time when it was in force, an award for the purpose of s 178(1)WRA?" Answer: No I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Lee and Gyles.

Associate: Dated: 25 August 2000 Counsel for the Applicant: S Rothman SC and E White

Solicitor for the Applicant: Gill Kane & Brophy

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: C Jessup QC and N Harrington

Solicitor for the Second Respondent: Dunhill Madden Butler

Date of Hearing: 26 and 27 June 2000

Date of Judgment: 25 August 2000