Australian Liquor, Hospitality and Miscellaneous Workers Union, in the matter of an application for a writ of Mandamus and a writ of Certiorari against the Australian Industrial Relations Commission [2001] FCA 770 - FCA 2001 case summary — Zoe

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Australian Liquor, Hospitality and Miscellaneous Workers Union, in the matter of an application for a writ of Mandamus and a writ of Certiorari against the Australian Industrial Relations Commission [2001] FCA 770

[2001] FCA 770

Federal Court of Australia|2001-07-01|Before: Stone JJ

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Court

Federal Court of Australia

Decision date

2001-07-01

Before

Stone JJ

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

[2]

INDUSTRIAL LAW - award - arbitration - interim award - application for final award - whether provision prohibiting Commission from exercising arbitration powers operates where dispute found to exist and interim award made before commencement of provision - whether making of interim award gives rise to an accrued right to have application for final award dealt with under legislation as unamended - whether finding that an industrial dispute exists gives rise to an accrued right to have dispute resolved under legislation applicable when finding made - nature of Commission's arbitration function - whether necessary to invoke power of Commission before an accrued right exists - nature of interim award - whether interim award a step to invoke arbitral power of Commission - effect of an award made in part settlement of an industrial dispute - whether accrued right to have further award made in settlement of the dispute - contrary intention - scheme of repealing Act to limit existing and future industrial disputes to allowable award matters - absence of express contrary intention - whether scheme of Act discloses contrary intention - transitional provision covering commencement of new provision prohibiting Commission from exercising arbitration powers - whether express contrary intention STATUTES - interpretation - repealing Act - whether accrued right to have industrial dispute arbitrated under legislation as unamended - whether contrary intention disclosed by scheme of amending Act - whether express contrary intention PRACTICE AND PROCEDURE - enlargement of time - time limit fixed by High Court Rules - whether Federal Court has power to enlarge time - prerogative writs - where no relevant decision in respect of which mandamus or certiorari could issue - whether declaration appropriate - costs - where prerogative writs sought - whether matter arises under the relevant legislation WORDS AND PHRASES - "right … accrued"

[4]

Director of Public Works v Ho Po Sang [1961] AC 901, considered Esber v The Commonwealth (1992) 174 CLR 430, considered Lee v Secretary, Department of Social Security (1996) 68 FCR 491, considered State of Queensland v Australian Industrial Relations Commission [2000] FCA 1654, (2000) IR 35, considered Yao v Minister for Immigration & Ethnic Affairs (1996) 69 FCR 583, considered R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, followed Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393, followed R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers' Association (1959) 107 CLR 208, referred to Federated Engine-Drivers' and Firemen's Association of Australasia v Adelaide Chemical and Fertiliser Co Ltd (1920) 28 CLR 1, cited R v Blackburn; Ex parte Transport Workers' Union of Australia (1953) 88 CLR 125, cited R v Isaac; Ex parte State Electricity Commission of Victoria (1978) 140 CLR 615, cited Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483, cited Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379, referred to Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union [2000] HCA 34, (2000) 172 ALR 257, referred to Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission [1999] FCA 298, (1999) 93 FCR 153, considered Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16, (2001) 178 ALR 61, referred to Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226, (2000) 104 FCR 454, cited Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, cited Re McJannet; Ex parte Australian Workers' Union of Employees, (Qld) (No 2) (1997) 189 CLR 654, cited Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16, (2001) 178 ALR 61, cited IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS AND A WRIT OF CERTIORARI AGAINST THE HONOURABLE I J K ROSS, VICE PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND ORS; EX PARTE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION W 209 of 2000 GRAY, LEE AND STONE JJ 22 JUNE 2001 PERTH

[12]

REASONS FOR JUDGMENT THE COURT: 1 By notice of motion filed in the High Court of Australia on 1 November 2000, the Australian Liquor, Hospitality and Miscellaneous Workers' Union ("the union") sought writs of prohibition, mandamus and certiorari directed to the respondents named in the notice of motion. Those described as the first respondents are the Honourable I J K Ross, Vice President of the Australian Industrial Relations Commission ("the AIRC"), the Honourable G L Fielding, a Deputy President of the AIRC, the Honourable D A Duncan, a Deputy President of the AIRC and J J O'Connor, a Commissioner of the AIRC. Those described as the second respondents are employers who operate residential aged care facilities ("the employers"). The union is an organisation of employees, registered pursuant to the Workplace Relations Act 1996 (Cth). 2 The notice of motion also sought an order that the application for the writs be remitted to the Federal Court of Australia for hearing. In the exercise of its power derived from s 44(1) of the Judiciary Act 1903 (Cth) and s 412(3) of the Workplace Relations Act 1996 (Cth), the High Court of Australia remitted the matter to this Court. The order remitting the matter was made on 6 November 2000 by consent. Apparently as a result of an oversight, the reference to a writ of prohibition, found in the notice of motion (although not in the title to the proceeding), was omitted from the order for remittal. The order therefore was that further proceedings in the application for an order nisi for a writ of mandamus and a writ of certiorari be remitted to the Federal Court of Australia, Perth Registry. The result of this form of the order is that this Court is not able to exercise jurisdiction with respect to the whole of the matter. 3 It is necessary to set out in some detail the facts and the legislative provisions (including the legislative history) out of which the matter arises. In the case of many legislative provisions, only a paraphrase or summary is necessary. By summarising or paraphrasing a provision, however, it is not intended to make a definitive pronouncement as to the meaning or effect of the provision.

[14]

The Industrial Relations Act 7 The service of the log of claims, the finding of a dispute and the making of the three interim awards occurred when the Industrial Relations Act 1988 (Cth) ("the IR Act") was in force. Part VI of the IR Act contained provisions relating to the manner in which industrial disputes were to be dealt with by the AIRC. To a considerable extent, these provisions were similar to those formerly found in the Conciliation and Arbitration Act 1904 (Cth), which was repealed and replaced by the IR Act. By s 89(a), the functions of the AIRC were to prevent and settle industrial disputes so far as possible by conciliation and, where necessary, by arbitration. Section 99 imposed a duty on an organisation or an employer becoming aware of the existence of an alleged industrial dispute affecting the organisation or its members, or affecting the employer, to notify the AIRC of that dispute. Section 100 provided for an industrial dispute to be referred for conciliation unless the relevant presidential member of the AIRC was satisfied that conciliation would not assist the prevention or settlement of the alleged industrial dispute. If the alleged industrial dispute was not referred for conciliation, the AIRC was obliged to deal with it by arbitration. Section 101 provided for the AIRC, if it considered that the alleged industrial dispute was an industrial dispute, to determine the parties to it and the matters in dispute and to record its findings. 8 Section 103 of the IR Act provided that, in the event that agreement was not reached, a conciliation proceeding came to an end if there was no likelihood of agreement. In that event, s 104(1) operated. That subsection was in the following terms: "When a conciliation proceeding before a member of the Commission in relation to an industrial dispute is completed but the industrial dispute has not been fully settled, the Commission shall proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration."

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(i) a provisional award or order; or (ii) an interim award or order; … (f) set aside, revoke or vary an award (except a certified agreement or enterprise flexibility agreement), order, direction, determination or other decision of the Commission; (g) dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears: (i) that the industrial dispute or part is trivial; (ii) that the industrial dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State arbitrator; (iii) that further proceedings are not necessary or desirable in the public interest; (iv) that a party to the industrial dispute is engaging in conduct that, in the Commission's opinion, is hindering the settlement of the industrial dispute or another industrial dispute; or (v) that a party to the industrial dispute: (A) has breached an award or order of the Commission; or (B) has contravened a direction or recommendation of the Commission to stop industrial action". 10 Section 111(1A) and (1B) contained particular provisions about the exercise of the powers of the AIRC in relation to matters in which the terms and conditions of employment of employees had been dealt with under State law but were no longer regulated by such law by means of compulsory arbitration or agreement. Section 111(1D) made particular provisions about the matters to be considered by the AIRC in making interim awards. 11 Section 113(1) of the IR Act contained a general power for the AIRC to set aside an award or any of the terms of an award. Section 113(2) gave the AIRC a general power to vary an award and imposed a duty to vary an award if the AIRC considered it desirable for the purpose of removing ambiguity or uncertainty. Section 114 provided as follows: "The fact that an award or order has been made for the settlement of an industrial dispute, or that an award or order made for the settlement of an industrial dispute is in force, does not prevent: (a) a further award or order being made for the settlement of the industrial dispute; or (b) an award or order being made for the settlement of a further industrial dispute between all or any of the parties to the earlier award or order, and whether or not the subject-matter of the further industrial dispute is the same (in whole or part) as the subject-matter of the earlier industrial dispute." 12 The IR Act also contained provisions which bore no resemblance to those found in earlier legislation. These included Pt VIB, introduced by the Industrial Relations Reform Act 1993 (Cth). By s 170LA(1), the objects of Pt VIB were: to facilitate the making and certifying of certified agreements; to facilitate the making, and approval of the implementation of, enterprise flexibility agreements; and to encourage the use of agreements, particularly at the workplace or enterprise level. 13 Among the provisions of Pt VIB was s 170PD. This permitted an employer or an organisation of employees wishing to negotiate a certified agreement in relation to employees employed in a single business or part of a single business, or at a single place of work, to initiate what was called a bargaining period for negotiating the proposed agreement. The bargaining period was to be initiated by the giving of written notice to the other proposed party or parties and to the AIRC, stating the intention to try to reach agreement in settlement of an industrial dispute and to have the agreement certified. Section 170PE provided for the notice to be accompanied by particulars of certain matters. Section 170PF provided that the bargaining period was to begin at the end of seven days after the day on which the notice was given.

[17]

The WROLA Act 14 The Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the WROLA Act") effected a large number of amendments to the IR Act. One of those was to change the name of the IR Act to the Workplace Relations Act 1996 (Cth) ("the WR Act"). The amendments were enacted by means of a number of schedules dealing with different subjects. Each schedule contained details of provisions of the IR Act that were repealed, the text of provisions that were substituted for repealed provisions, and the text of provisions that were added. These amendments were usually found in Pt 1 of the schedule. Many schedules contained transitional provisions, application and transitional provisions, or transitional and saving provisions. These provisions were generally found in Pt 2 of the relevant schedule. 15 The amendments effected by the WROLA Act brought about major changes to the system of conciliation and arbitration that had previously operated under the IR Act. The new scheme diminished the role of awards, and expanded the role of certified agreements, in the regulation of the terms and conditions of employment of employees. The amendments came into operation at various times from the date on which the WROLA Act received the Royal Assent (25 November 1996), but all were in force by 25 May 1997 and the dates of effect of specific amending provisions are not material to this proceeding. 16 The amendments to Pt VI of the IR Act and related provisions were effected by Sch 5 to the WROLA Act. In substance, they provided that awards were to become a "safety net" of fair minimum wages and conditions of employment. A new s 89A provides that, for the purposes of dealing with an industrial dispute by arbitration, preventing or settling an industrial dispute by making an award or order, or maintaining the settlement of an industrial dispute by varying an award or order, an industrial dispute is taken to include only certain specified matters. These are twenty in number and have become known as "allowable award matters". Section 89A(7) makes provision for any other matter, referred to as an "exceptional matter" not to be excluded from an industrial dispute if the AIRC is satisfied as to a number of issues. One matter of which the AIRC must be satisfied is that it is appropriate to settle the exceptional matter by arbitration. 17 Sections 99, 101, 103, 104 and 114 were left unamended. Sections 100 and 113 were amended by provisions not material to this proceeding. Section 111 was amended. For the purposes of this proceeding, it is only necessary to have regard to a minor amendment to s 111(1)(g)(ii) (substituting the words "State industrial authority" for the words "State arbitrator"), the repeal of subss (1A) and (1B), and an amendment to subs (1D), the terms of which are not material. 18 Part 2 of Sch 5 to the WROLA Act contained transitional provisions. Items 46 - 51 in that part introduced a scheme pursuant to which existing awards are to be amended, so as to provide only for allowable award matters and any exceptional matters. Awards are also to be converted to provide only for minimum rates of pay, if they are not already so providing. The scheme is to be effected, so far as practicable by agreement between the parties to awards, and by variations during an eighteen month period after the coming into operation of s 89A. Where at the end of that period, an award has not been varied so as to conform with the scheme, it is to cease to have effect to the extent that it provides for matters other than allowable award matters or any exceptional matters. After the end of the period, the AIRC is required to review awards, to bring them into conformity with the scheme. 19 Item 55 in Pt 2 of Sch 5 provided as follows: "The repeal of subsection 111(1A) of the Principal Act does not apply to any proceedings before the Commission that commenced before the commencement of the repeal."

[18]

20 By Sch 8 of the WROLA Act, item 19, Pt VIB of the IR Act was repealed in its entirety. A new part, dealing with certified agreements, was inserted. Within that new part are several provisions relevant to the present proceeding. Some are similar to provisions in Pt VIB of the IR Act. 21 By s 170MI, an employer, an organisation of employees, or an employee acting on his or her own behalf and on behalf of other employees, may initiate a bargaining period for negotiating a proposed agreement in relation to employees who are employed in a single business or a part of a single business. The bargaining period is initiated by the giving of written notice to each other negotiating party and to the AIRC, stating the intention to make an agreement and to have it certified. By s 170MJ, certain particulars are to accompany the notice. By s 170MK, the bargaining period begins at the end of seven days after the giving of notice to the last of the persons to whom it is given. 22 By s 170MV, a bargaining period ends if an agreement is made, the initiating party withdraws in writing from the negotiation, or the AIRC terminates the bargaining period. The exercise of the power to suspend or terminate a bargaining period is regulated by s 170MW. 23 Crucial to the present proceeding is s 170N, a new provision. In its original form in the WROLA Act, that section provided as follows: "During a bargaining period, the Commission must not exercise its arbitration powers under Part VI in relation to a matter that is at issue between the negotiating parties." That provision is now subs (1) of s 170N. The Workplace Relations and Other Legislation Amendment Act 1997 (Cth) added what is now subs (2), which provides that subs (1) does not prevent the AIRC exercising its arbitration powers to deal with an application to vary an award by making a safety net wage adjustment. 24 Part 2 of Sch 8 to the WROLA Act contains what are described as "Application and Transitional" provisions. For the purposes of this proceeding, it is necessary only to have regard to item 23(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 the commencement of this Schedule."

[19]

Events after the WROLA Act 25 On 28 January 1998, an officer of the Chamber of Commerce and Industry of Western Australia (Inc), on behalf of the employers and other parties, wrote to the union attaching a copy of a proposed final award to replace the three interim awards. The union is opposed to the making of an award in the terms desired by the employers and those other parties. On 12 February 1998, the employers and other parties made application to the AIRC for the making of a single award (characterised as a final award) to replace the three interim awards. This application became proceeding C No 60515 of 1998. 26 In June 1998, the employers and other parties filed applications to have each of the interim awards simplified in accordance with the scheme laid down in Pt 2 of Sch 5 to the WROLA Act. The three award simplification applications became C No 00462, C No 00463 and C No 00464 of 1998 and were joined with proceeding C No 60515 of 1998, apparently at some time during 1998. 27 During 1998, the union, the employers and other parties negotiated over the terms of a single award to replace the three interim awards, and also with respect to the simplification of the interim awards. The aim of the negotiations was to see if the parties could agree on a single award that related only to allowable award matters, to replace the three interim awards. Also in 1998, Deputy President Duncan of the AIRC exercised the conciliation function of the AIRC with respect to proceeding C No 60515 of 1998. On 10 September 1998, the Deputy President made a formal finding that conciliation was at an end with respect to that proceeding. On 12 November 1998, Deputy President Duncan commenced to hear all of the relevant matters together. 28 At some time (precisely when does not appear from the material before the Court), what purported to be a notice initiating a bargaining period was served on the employers and on other relevant parties. In the course of the hearing before Deputy President Duncan, the union submitted that s 170N of the WR Act operated to prevent the AIRC from arbitrating in proceeding C No 60515 of 1998 because of the existence of a bargaining period initiated by the notice. 29 On 2 February 1999, Deputy President Duncan gave a decision. He held that no bargaining period had been initiated because the notice was given on behalf of "the Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, WA Branch" and not on behalf of the union. The entity in whose name the notice was given was an entity registered under the law of Western Australia and not an organisation for the purposes of the WR Act. On the assumption that the union would give notice in accordance with s 170MI to initiate a bargaining period, the Deputy President then went on to look at the question whether s 170N would prevent him from arbitrating in the proceeding if that event were to occur. In so doing, he dealt with an argument on behalf of the employers and other parties to the effect that they had an accrued right to have their application for an award dealt with under the Act as it stood before the introduction of s 170N, by the operation of s 8 of the Acts Interpretation Act 1901 (Cth), in the absence of a contrary intention in the WROLA Act. The Deputy President rejected that argument and held that, if there were a bargaining period, s 170N would prevent the AIRC from exercising its arbitral function. 30 On or about 10 February 1999, the union gave to the employers and to other relevant parties written notice pursuant to s 170MI of the WR Act. It is common ground between the union and the employers that this notice was effective to initiate a bargaining period seven days after its service on the last of the parties on whom it was served. It is also common ground between the union and the employers that that bargaining period has not been terminated. Having served its notice, the union re-agitated its submission to Deputy President Duncan that s 170N of the WR Act operated to prevent him from continuing with arbitration in proceeding C No 60615 of 1998. On 26 February 1999, Deputy President Duncan made a decision that s 170N of the WR Act now prevented the AIRC using its arbitral power in that proceeding. 31 The employers appealed. On 23 July 1999, a Full Bench of the AIRC, consisting of Vice President Ross, Deputy President Fielding and Commissioner O'Connor, granted leave to appeal but dismissed the appeal. The Full Bench reached the conclusion that the making of the three interim awards in 1996 gave rise to an accrued right to have the relevant dispute finally heard and determined on its merits. In its decision, found in AIRC's Print No R 7367, the Full Bench said: "It is apparent from the observations of Commissioner Dight to which we have referred that her decision to make the interim awards was intended to provide the employees concerned with protection for an 'interim period' as a step in the process of arbitrating final awards. The interim awards were in the nature of interlocutory relief pending the final hearing and determination of the relevant matter. We agree with the appellant's submission that it would be manifestly unjust if the repealing Act was to adversely affect the right to have the matters subject to interim relief finally heard and determined. To conclude otherwise would mean that parties would continue to be bound indefinitely by interim awards which were sought and made pending the making of final awards. Was there a contrary intention? The Full Bench in Re: Teachers (Victorian Government Schools) Conditions of Employment Award 1995 dealt in detail with this issue and reached the following conclusion: 'We are unable to discern in the WROLA Act anything that should cause us to hold it to be different from other repealing legislation that alters or abrogates statutory powers to operate comprehensively but with the retrospective effects limited by the operation of section 8 of the Acts Interpretation Act. In the circumstances, we consider that section 8 of the Acts Interpretation Act applies to any relevant rights accrued or acquired under the repealed provisions of the IR Act.' We respectfully adopt those conclusions. We conclude that the parties to the three interim awards made by Commissioner Dight in 1996 have a right under s.8(c) of the Acts Interpretation Act 1901 (Cth) to have applications for final relief heard and determined without regard to the operation of s.170N." 32 The Full Bench went on to hold, however, that the application in proceeding C No 60515 of 1998 did not enliven the accrued right, because the award sought was not a final award to complete the proceedings in which the interim awards were made, but an entirely new award based on a new and different dispute, and because the employer parties to proceeding C No 60515 of 1998 were not the same as the employer parties who were respondents to the three interim awards. 33 As a result of the Full Bench decision, on 13 August 1999, the employers made two new applications to the AIRC, each seeking to have a final award made, in the form contained in a schedule to the application, to replace one of the interim awards. These two new applications became proceedings C No 61050 of 1999 and C No 61051 of 1999. On 14 September 1999, Deputy President Duncan made a decision in which he concluded that those two applications successfully enlivened the employers' accrued right to seek final awards and that those applications were not subject to s 170N of the WR Act. The union appealed from this decision. By a decision made on 21 December 1999, a Full Bench, again consisting of Vice President Ross, Deputy President Fielding and Commissioner O'Connor, refused leave to appeal and dismissed the appeal. 34 As forecast by the Full Bench in its decision of 23 July 1999, the Commissioner, by an application filed by the Union pursuant to s 111(1)(g) of the WR Act, was requested to refrain from further dealing with the matter on the ground that further proceedings were not necessary or desirable in the public interest. Deputy President Duncan heard that application. On 1 May 2000, he made a decision rejecting the union's application. On that occasion, Deputy President Duncan also gave a direction that proceedings C No 61050 and 61051 of 1999 and proceedings C No 00462, 00463 and 00464 of 1999 be joined. This direction had the effect of consolidating the employers' applications for final awards to replace the interim awards with the applications for simplification of the interim awards to allowable award matters. 35 The union appealed from the rejection of its application based on s 111(1)(g)(iii). On 14 September 2000, a Full Bench, again constituted by Vice President Ross, Deputy President Fielding and Commissioner O'Connor, refused to grant leave to appeal and dismissed the appeal. 36 Upon that decision having been made, in the view taken by the AIRC, there was no impediment to the exercise of the power to arbitrate in respect of the employers' applications in proceedings C No 61050 of 1999 and C No 61051 of 1999. Subsequently, further hearings have taken place before Deputy President Duncan in respect of those two proceedings, in conjunction with the award simplification proceedings. The union applied unsuccessfully on 12 October 2000 to Senior Deputy President Duncan (as he had by then become) for a stay of proceedings pending the outcome of its proposed application to the High Court of Australia. Senior Deputy President Duncan dismissed the application for a stay. For present purposes, it is unnecessary to set out the subsequent history of the matters. On 1 November 2000, the union applied to the High Court of Australia for the order nisi by which this proceeding was commenced.

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Enlargement of time 37 The effect of O 55 r 17 of the High Court Rules is that an order nisi for a writ of certiorari is not to be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding in respect of which the writ is sought. Similarly, O 55 r 30 requires that an application for a writ of mandamus or an order in the nature of mandamus to a judicial tribunal to hear and determine a matter should be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the High Court or a Justice of the High Court. Order 60 r 6 of the High Court rules allows "A Court or Justice" to enlarge the time appointed by the High Court Rules for doing an act. By s 44(1) of the Judiciary Act 1903 (Cth), where the High Court remits a matter to a court, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which the matter is remitted. 38 The employers contended that the application for an order nisi was made to the High Court outside the time limits laid down in O 55. It should be noted that no time limit is laid down in respect of an application for a writ of prohibition, so that so much of the application to the High Court as sought a writ of prohibition was not subject to any time limit. If it should be necessary for it to do so, the union applied for an enlargement of the time. The power of this Court to extend time, found in O 3 r 3(1) of the Federal Court Rules, is limited to a power to extend any time fixed by those rules or by any judgment or order. Section 23 of the Federal Court of Australia Act 1976 (Cth) provides that this Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. In addition, s 38 provides as follows: "(1) Subject to any provision made by or under this or any other Act with respect to practice and procedure, the practice and procedure of the Court shall be in accordance with Rules of Court made under this Act. (2) In so far as the provisions for the time being applicable in acordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court. (3) In this section, practice and procedure includes all matters in relation to which Rules of Court may be made under this Act." 39 A combination of s 23 of the Federal Court of Australia Actand O 60 r 6(1) of the High Court Rules (with its specific reference to "A Court") appears to give to this Court power to enlarge the times fixed by O 55 of the High Court Rules if it should be appropriate to do so. Alternatively, the effect of s 38(2) of the Federal Court of Australia Actis to fill any gap in the Federal Court Rules by making applicable the High Court Rules. On either view, this Court can exercise the power to enlarge the time. 40 There is some difficulty in ascertaining exactly what is the subject of the application for writs of mandamus and certiorari, and therefore of ascertaining exactly when the time began to run. The focus of the union's complaint is the reasoning of the Full Bench in its decision given on 23 July 1999. It must be remembered, however, that the decision of the Full Bench on that date was not against the union. Because it held that the employers had not enlivened their accrued right in proceeding C No 60515 of 1998, the Full Bench dismissed the appeal from Deputy President Duncan's decision not to use the arbitration powers in that proceeding. There is only the expression of opinion in the reasons for decision of the Full Bench, to the effect that the making of the interim awards gave the employers an accrued right to have the dispute dealt with in accordance with the law as it stood before the WROLA Act, and that the WROLA Act did not express a contrary intention. No writ of certiorari or mandamus could lie against the Full Bench in respect of the expression of opinion in its reasons for decision. For a writ of certiorari to lie, there must be a decision which can be quashed. 41 It was only on 14 September 1999 that a decision was made the correctness of which could be challenged. On that date, Deputy President Duncan reached the conclusion that proceedings C No 61050 of 1999 and C No 61051 of 1999 were not seeking to create a new dispute and successfully enlivened the employers' accrued right to seek final awards, so that those proceedings were not subject to s 170N. On that date, however, the Deputy President did not give any decision, other than to indicate that he would refer the matter to the President of the AIRC, pursuant to s 107 of the WR Act, for a determination whether the further hearing of the proceeding should be conducted before a Full Bench. If this were a decision, Order 55 r 17 of the High Court Rules gave the union six months from that date, ie. until 14 March 2000, to apply for a writ of certiorari. On the assumption that the proposal by Deputy President Duncan to exercise the jurisdiction of the AIRC by arbitrating the dispute despite s 170N can be characterised as a constructive refusal to exercise jurisdiction (ie. a refusal to exercise jurisdiction according to law), O 55 r 30 of the High Court Rules required the application for a writ of mandamus to be made by 14 November 1999. The application for an order nisi was filed in the High Court of Australia on 1 November 2000. It was therefore out

[22]

An accrued right 44 In its decision on 23 July 1999, the Full Bench expressed the view that the making of the interim awards gave rise to an accrued right of the parties to those interim awards to have applications for final relief heard and determined without regard to the operation of s 170N. In this Court, counsel for the employers argued that this view was correct. In the alternative, he argued that, irrespective of the making of interim awards, the existence of an industrial dispute prior to the coming into operation of the WROLA Act gave rise to an accrued right of the parties to that dispute to have it resolved in accordance with the provisions of the IR Act, unless the WROLA Act demonstrated a contrary intention. He argued that no contrary intention appeared in the WROLA Act. 45 The notion of an accrued right comes from s 8 of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). So far as is relevant, that section provides: "Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not: … (c) affect any right …accrued …under any Act so repealed; or … (e) affect any investigation legal proceeding or remedy in respect of any such right … and any such investigation legal proceeding or remedy may be instituted continued or enforced … as if the repealing Act had not been passed." 46 Section 8A of the Acts Interpretation Act provides: "A reference in section … 8 to the repeal of an Act or of a part of an Act includes a reference to: (a) a repeal effected by implication; (b) the abrogation or limitation of the effect of the Act or part; and (c) the exclusion of the application of the Act or part to any person, subject-matter or circumstance." 47 In its decision of 23 July 1999, the Full Bench identified s 170N as a repealing provision. The contrary was not argued in this Court. To the extent to which s 170N limits the effect of s 104 and excludes the application of s 104 to specified subject-matter (a matter that is at issue between the negotiating parties) in specified circumstances (during a bargaining period), it is appropriate to regard s 170N as a repeal within the meaning of s 8A(b) or (c) of the Acts Interpretation Act. 48 The authorities bearing upon the notion of a "right … accrued" within the meaning of provisions such as s 8 of the Acts Interpretation Act are many. It would be burdensome to attempt to canvass all of them, but reference may be made to some as illustrating the kinds of cases in which accrued rights have been held to exist, and as containing statements of the principles to be applied. In Director of Public Works v Ho Po Sang [1961] AC 901, a lessee of premises applied for a rebuilding certificate in respect of the leased premises. At the time of the application, such a certificate gave the lessee the right to evict sub-lessees of the premises. The government official responsible for issuing rebuilding certificates notified the lessee of his intention to give a certificate. The legislation then changed, so that the lessee became obliged to compensate sub-lessees if they were evicted. The Privy Council held that the lessee had no accrued right to the certificate at the date when the legislation changed. At 922, the Privy Council said: "The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects." 49 The leading authority in Australia is Esber v The Commonwealth (1992) 174 CLR 430. This case concerned the impact of amending legislation on an application by an injured serviceman to redeem payments of compensation by means of a lump sum. The amending legislation came into effect after the serviceman had applied to the Administrative Appeals Tribunal for review of an original decision that the liability of the Commonwealth should not be redeemed. The High Court held that the serviceman had an accrued right, for the purposes of s 8 of the Acts Interpretation Act. At 440, Mason CJ, Deane, Toohey and Gaudron JJ said: "If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in N.S.W. Aboriginal Land Council v. The Minister [The Winbar Claim]: 'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.' Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment'. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent'. This was such a right." 50 In Lee v Secretary, Department of Social Security (1996) 68 FCR 491, a Full Court of this Court dealt with a controversy over recovery of overpayments of social security. On 15 April 1993, the recipient of the overpayments requested the department to exercise its discretion to waive the debt arising from the overpayments. On 13 December 1993, a decision was made to refuse the recipient's application for waiver and to seek recovery of the overpayments. The recipient applied to a review officer. One day later, amending legislation replaced the previously unfettered discretion to waive debts with a discretion subject to certain limits which, if applied, rendered a decision in favour of the recipient unlikely, if not impossible. By majority, the Full Court held that the recipient had an accrued right. The right was characterised by Cooper J at 503 - 504 in the following terms: "Neither at 15 April 1993 nor 13 December 1993 did the applicant have a right to an exercise by the Secretary of the discretionary power contained in s 1237 to waive the overpayment. At best she had the opportunity to take advantage of the power by requesting the Secretary to exercise it in her favour and had done so by Mr Morris' request on her behalf. If exercised in her favour by the Secretary, the power to waive would then have created a right in the applicant to thereafter be released from repayment of the sum owing to the Commonwealth. Until the favourable exercise of the discretion the applicant had no right to a waiver of the debt conferred on her by the Act. Until a decision on the request for waiver was made by the Secretary or a delegate, she had no accrued right of any type under the Act for the purpose of s 8(c) of the Acts Interpretation Act 1901 (Cth): Mathieson v Burton (1971) 124 CLR 1; Robertson v City of Nunawading [1973] VR 819; Director of Public Works v Ho Po Sang [1961] AC 910. On the other hand the applicant did have some rights in relation to the exercise of the administrative discretion vested in the Secretary (or the delegate) under s 1237 of the Act as it then stood which gave rise to the decision to refuse to waive or write off the debt and as to the review process in respect of that decision. The nature of those rights was considered in Esber v Commonwealth (1992) 174 CLR 430."

[23]

After discussing Esber, his Honour went on at 505, to characterise the right of the recipient as a right to have her claim to waiver determined in her favour if the first decision-maker had wrongly refused her claim. At 515, Moore J characterised Esber as standing for the proposition that "a statutory right to seek a review of a decision made under a repealed Act is a right for the purposes of s 8". His Honour expressed the view that Esber was inconsistent with Ho Po Sang. At 516, his Honour said: "It is not entirely clear whether it was critical to the reasoning of the majority that the application by Esber for review by the Tribunal had been made prior to the repeal of the 1971 Act. However, the statements in the passage quoted that '…the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined …' and later 'Once the appellant lodged an application to the Tribunal … he had a right …', indicate it was. In the present case the appellant had made application under s 1240 prior to the amendment to s 1237. But until that application had been determined and determined unfavourably to the appellant, no application could have been made by the appellant under s 1247 to the SSAT and thereafter to the Tribunal under s 1283. In my opinion, both the right to have the decision further reviewed by the SSAT and reviewed again by the Tribunal are conditional rights of the same character as the right to apply for review considered in Esber. That is so because the Act itself established the condition precedent to the exercise of that right, namely the making of an adverse decision by a person or body exercising a power of review at an earlier stage in the process of review. Thus the Act, prior to its amendment, conferred the right to apply for a review to the SSAT and the Tribunal conditionally. Though relied upon for a slightly different purpose, the observations of Hope JA in the NSW Aboriginal Land Council case quoted with approval by the majority in Esber, and the later reference by the majority to an 'inchoate or contingent' right indicate that a conditional right is protected by s 8. Thus the right to apply for a review by the SSAT, and thereafter the Tribunal, of a decision made under s 1237 in its unamended form was preserved by s 8 subject to any contrary intention being manifest. It was preserved on the basis that the review would be determined by reference to the power conferred by s 1237 in its unamended form.

[24]

51 In State of Queensland v Australian Industrial Relations Commission [2000] FCA 1654, (2000) IR 35, a Full Court of this Court dealt with issues arising out of the amendments made to the IR Act by the WROLA Act. The case concerned three pending proceedings in the AIRC. The relationship between an attempt to have an award made by arbitration pursuant to the IR Act and existing regulation of terms and conditions of employment under State legislation was relevant in each case. The WROLA Act introduced s 111AAA into the WR Act. That section required the AIRC to cease dealing with an industrial dispute in relation to employees whose wages and conditions of employment were governed by a State award or a State employment agreement. In each case, the Court held that the party concerned had an accrued right to have the application for an award dealt with on the basis that s 111AAA did not apply. At [34], the Court said that the identification of a right for the purpose of s 8 of the Acts Interpretation Act did not depend on an application of the distinction between judicial and arbitral power. At [35], the Court went on to say: "However, the fact that a right requires confirmation, or creation, by an administrative or arbitral decision maker is what makes it 'contingent or inchoate' to adopt the High Court's gloss in Esber on a conditional right as explained by Hope JA in NSW Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 at 694." At [36], the Court identified the right as being not a right to have an award made, but to have the AIRC determine, after exercising all appropriate discretions, including those indicated in s 111(1)(g), whether or not to make an award. At [37] - [39], the Court drew attention to the mandatory nature of the arbitration power conferred on the AIRC by s 104 of the WR Act, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398 and the judgment of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399. At [40], the Court said: "To paraphrase the joint judgment of the High Court in Esber quoted at para 22 above, once each of the TWU and the CFMEU had been found to be parties to an industrial dispute, each of them had a substantive right, however contingent or inchoate, to have the dispute arbitrated by the Commission." At [44], the Court said: "In our view, both the administrative decision considered in Esber, and the decision which the Commission was required to make in the present case (after a finding of a dispute) whether to make an award, involved the exercise of a discretion. Accordingly, it cannot be said that a contingent or inchoate right of the kind protected by s 8(c) of the Acts Interpretation Act must be one

[25]

which crystallises only after a finding of pre-existing facts and which does not depend at all on an exercise of discretion by the decision-maker." The Court went on to hold that no contrary intention appeared in the WROLA Act. 52 One feature common to Ho Po Sang, Esber, Lee and State of Queensland is that each person claiming to have an accrued right had taken a step the effect of which was to seek the exercise of the decision-making power, the existence of which was held to constitute an accrued right. In Ho Po Sang, the lessee had made an application for a rebuilding certificate and had even been told to expect a favourable decision. Notwithstanding these facts, no accrued right was held to exist. In Lee at 516, Moore J expressed the view that it was not entirely clear whether it was critical to the reasoning of the majority in Esber that the serviceman had applied for review of the primary decision prior to the repeal of the relevant legislation, but expressed the view that passages in the majority judgment indicated that it was. The passage set out above from the judgment of the majority in Esber tends to suggest that the making of the application was crucial. In particular, the sentence beginning "once the appellant lodged an application to the Tribunal …" suggests that the serviceman would have had no accrued right had he not taken this step. In Lee, both Cooper J and Moore J expressly based their reasons for judgment on the proposition that the accrued right of the recipient of the overpayment of social security arose upon the making of the primary decision not to waive the claim for repayment. It was strictly unnecessary for their Honours to do so, as the recipient had made an application for review of the primary decision prior to the date of operation of the amending legislation. On one view, this application for review set in train the possibility of further review by the Social Security Appeals Tribunal and the Administrative Appeals Tribunal, if the review did not result in a decision favourable to the recipient. An obvious distinction can be drawn between a case in which the first step in a chain of review entitlements has been taken before amending legislation, and one in which, so far as can be ascertained, a person who could have sought review has apparently accepted the primary decision, at least up to the date of operation of the amending legislation. 53 In Yao v Minister for Immigration & Ethnic Affairs (1996) 69 FCR 583 at 590, Black CJ and Sundberg J expressed the view that the majority in Esber appeared to have based their conclusion on the fact that the serviceman had lodged his application for review before the repealing legislation came into operation. Their Honours referred to Lee and expressed the view that the approach in that case did not appear to be consistent with Ho Po Sang and the cases that have applied it and that the High Court in Esber relied on Ho Po Sang, among other cases, for the proposition that inchoate and contingent rights can be protected by s 8 of the Acts Interpretation Act. Their Honours did not express a concluded view on the matter. In State of Queensland, the Court appears to have taken the view (at [40]) that a finding by the AIRC that an industrial dispute existed gave rise to a substantive right in each party to that dispute to have the dispute arbitrated by the AIRC. Again, it was not strictly necessary for the Court to go to that length because, in each of the cases before it, a step had been taken by a party to the relevant industrial dispute to have the dispute settled by arbitration. 54 Counsel for the employers in the present case relied on State of Queensland to found their argument that, once the AIRC had made a finding pursuant to s 101 of the IR Act that an industrial dispute existed, any party to that dispute had a substantive right (if the dispute were not settled by conciliation) to have the AIRC settle it by arbitration pursuant to s 104. Counsel drew attention to the use of the word "shall" in s 104(1), contending that s 104 made it mandatory for the AIRC to exercise its arbitral power. The right to have the industrial dispute resolved by arbitration was said to be the accrued right protected by s 8 of the Acts Interpretation Act, in the absence of a contrary intention in the WROLA Act. 55 If this argument were to be accepted, it would have drastic consequences. The creation of "paper" disputes, in order to obtain awards from the AIRC (and its predecessors) has been a common practice for many years. It has been recognised at least since the 1950s that the creation of a dispute by service of a document called a log of claims and by the subsequent failure of the party served to accede to the demands made in that document is capable of resulting in the creation of an industrial dispute. See the remarks of Windeyer J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 268. Further, the practice has been to frame the demands with such width that successive awards may be made in settlement of the dispute until the "ambit" of the dispute becomes exhausted. This process can take decades. The power to make further awards in settlement of an industrial dispute is expressly given to the AIRC by s 114 of the WR Act. 56 If the argument put on behalf of the employers were to be accepted, the AIRC would be required to continue to settle every industrial dispute found to exist in accordance with the legislation as it stood at the date of the finding, disregarding any subsequent repeal of that legislation, unless the repealing Act disclosed a contrary intention. At the very least, this would make the already difficult task of the AIRC considerably more difficult. 57 It is true that s 104 of the IR Act (now s 104 of the WR Act) is expressed in mandatory terms. The better view, however, is that it imposes a duty on the AIRC to exercise its arbitral function if a party to an industrial dispute seeks the exercise of that power when the dispute has not been settled by conciliation. To view s 104 in this way is not to deny the mandatory nature of the duty, nor to derogate from previous authorities. In Ozone Theatres at 398, the High Court said: "the [Commonwealth Court of Conciliation and Arbitration] upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter". (Emphasis added) Similarly, in Queensland Electricity Commission, Deane J at 399 spoke of "the prima facie right of a party who has invoked the [Commission's] jurisdiction" (emphasis added). It has been recognised for many years that an industrial dispute can be settled in part by an award. The part settled may relate only to some of the terms and conditions of employment sought by a log of claims, a particular geographical area, a particular employer or employers, or particular employees. See Federated Engine-Drivers' and Firemen's Association of Australasia v Adelaide Chemical and Fertiliser Co Ltd (1920) 28 CLR 1, R v Blackburn; Ex parte Transport Workers' Union of Australia (1953) 88 CLR 125 and R v Isaac; Ex parte State Electricity Commission of Victoria (1978) 140 CLR 615. If the duty of the AIRC to settle an industrial dispute by arbitration were to be construed as operative irrespective of the taking of a step by a party to the dispute to have it so settled, part settlement would not appear to be possible.

[26]

58 The AIRC's duty to settle an industrial dispute by arbitration therefore does not require the AIRC to embark upon the settlement of the entire dispute by the single exercise of its arbitral power. The jurisdiction of the AIRC must be invoked from time to time during the life of an industrial dispute before the exercise of the power becomes mandatory. The fact of the exercise of the power on one occasion neither prevents nor requires its exercise on another occasion. Whether the jurisdiction is invoked formally, by written application, in the form prescribed by the rules of the AIRC, or by less formal means, it must be invoked. 59 For these reasons, the making of a finding that an industrial dispute exists gives rise only to an ability to take advantage of a statute and not to an accrued right for the purposes of s 8 of the Acts Interpretation Act. Before an accrued right exists, it is necessary for a party to the industrial dispute to take a step which involves invoking the power of the AIRC pursuant to s 104 to settle the dispute by arbitration. (See Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483 at [51] - [62].) 60 The question, then, is whether the making of the interim awards was such a step. Once again, the power to make successive awards conferred by s 114 and the power to settle part of a dispute are relevant. The nature of interim awards stems from the circumstances in which they are made. The specific power to make an interim award, found in s 111(1)(b)(ii) is conditioned on the satisfaction of the AIRC as to the matters referred to in s 111(1D), a provision amended by the WROLA Act. Its precise content at any particular date is not material to this issue. The important point is that what differentiates an interim award from any other award is the matters about which the AIRC must be satisfied before making an interim award. It is true to say, as Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ said in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379 at 384 that an interim award "is no more than a step along the way to a final award dealing generally with wages and conditions for employees", or as Deane J said in the same case at 404 that an interim award is "no more than a step along the way towards a final settlement of the industrial disputes". These comments emphasise the circumstances in which an interim award is made. 61 Once made, an interim award is an award. It is subject to all of the provisions to which any other award is subject. It can be set aside or varied under s 113. All of the provisions of Div 6 of Pt VI of the WR Act apply to it. These include provisions relating to the coming into force and continuation of an award, the persons bound by it, its immunity from challenge and its capacity to prevail over State laws and State awards. Like any other award, an interim award is subject to appeal pursuant to s 45(1)(b) of the WR Act. Most importantly, a further award may be made in substitution for it, in the exercise of the power conferred on the AIRC by s 114. This is the way in which the further settlement of an industrial dispute in which an interim award has been made will be pursued, if it is pursued at all. 62 It follows, therefore, that, in the context of the question whether there exists an accrued right to have the arbitral power in respect of an industrial dispute exercised, an interim award is in no different position from any other award made in part settlement of an industrial dispute. The real question is whether the making of an award in part settlement of an industrial dispute gives rise to an accrued right to have a further award made in part settlement or settlement of that dispute. If the mere fact that an industrial dispute has been found to exist does not confer an accrued right to have it settled by arbitration without the taking of some step to invoke the arbitral power, then it is difficult to see how the making of an award could confer such a right without the taking of such a step. The making of an award, including an interim award, simply leaves unsettled the remainder of the ambit of the dispute. The AIRC is not obliged to exercise its arbitral power in relation to the remaining matters in dispute unless invited to do so by one or more of the parties to the dispute. 63 For these reasons, the making of the three interim awards by Commissioner Dight did not result in any party to the industrial dispute having an accrued right to have that dispute further settled by arbitration. If a step had been taken (whether by formal application or otherwise) to invite the AIRC to exercise its arbitral power in relation to the dispute prior to the coming into operation of the relevant provisions of the WROLA Act, the situation would have resembled that in State of Queensland, and an accrued right would have existed. No such step was taken until the employers made the applications that became proceeding C No 61050 of 1999 and proceeding C No 61051 of 1999. By that time, all of the amendments brought about by the WROLA Act were in operation.

[27]

A contrary intention 64 It is only necessary to ask whether the WROLA Act disclosed a contrary intention if the conclusion that there is no accrued right otherwise preserved by s 8 of the Acts Interpretation Act is wrong. On the assumption that an accrued right existed, counsel for the employers argued that there was no contrary intention shown. His argument was based heavily on the absence from Pt 2 of Sch 5 to the WROLA Act of any express transitional provisions, save for item 55, which related only to the repeal of s 111(1A) of the IR Act. 65 A contrary intention for the purposes of s 8 of the Acts Interpretation Act need not be found in a single, express provision. It can be ascertained from the terms of the repealing Act generally. 66 The scheme laid down by items 46 - 51 in Pt 2 of Sch 5 to the WROLA Act are plainly intended to operate with respect to awards existing at the date when those provisions came into operation. The validity of those provisions was challenged unsuccessfully on this basis in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union [2000] HCA 34, (2000) 172 ALR 257. The scheme for the reduction of existing awards to the allowable award matters, and any exceptional matters, was enacted in conjunction with the enactment of s 89A, under which an industrial dispute is taken to include only the allowable award matters, subject to the possibility that the AIRC might find that exceptional matters also exist. It is plain that s 89A is intended to relate to all industrial disputes, including those existing at the date when s 89A came into operation. In Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission [1999] FCA 298, (1999) 93 FCR 153, at [39] - [41], a Full Court of this Court held that s 89A was generally applicable in respect of all certified agreements whenever made. The Full Court ordered that a writ of prohibition issue, restraining the AIRC from dealing with a matter otherwise than in accordance with s 89A. On appeal, in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16, (2001) 178 ALR 61, at [36] - [39], the High Court overruled the decision that prohibition lay. It did so, however, not on the footing that the Full Court was wrong in saying that s 89A operated irrespective of the date at which the subject-matter on which it operated came into effect, but on another basis altogether. The effect of s 89A, in conjunction with other provisions in Pt VI of the WR Act, is to ensure that future awards (ie. awards made after the coming into operation of the WROLA Act amendments) will provide only for the allowable award matters and any exceptional matters. This effect conforms with the scheme of the WROLA Act to shift the emphasis from awards to agreements. 67 It would be an absurd result if all pre-existing industrial disputes fell outside s 89A. The result would be that the AIRC would have before it two streams of industrial disputes. Industrial disputes found to exist after the coming into operation of the WROLA Act amendments would be limited to the allowable award matters and any exceptional matters and awards made in settlement of those disputes would be similarly limited. The other stream would comprise industrial disputes found to exist before the coming into operation of the WROLA Act. Awards already made in part settlement of those disputes would be caught by the scheme to reduce them to the allowable or award matters and exceptional matters, laid down in items 46 - 51 of Pt 2 of Sch 5 to the WROLA Act. There would remain, however, in respect of this stream of industrial disputes, an accrued right to have the AIRC determine the disputes by making new awards not restricted to the allowable award matters and exceptional matters. Such a dual system is so obviously at odds with the scheme of the WROLA Act that it was unnecessary to insert an express transitional provision to ensure that it would not occur. (See Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226, (2000) 104 FCR 454 at [25].) The scheme of the WROLA Act makes it clear that the amendments restricting the exercise of the AIRC's power to settle industrial disputes by arbitration were intended to operate with respect to all industrial disputes, existing and future. If any accrued right existed to have an industrial dispute dealt with under the provisions of the IR Act, the WROLA Act made it clear that such a right was removed. 68 The argument put on behalf of the employers rested heavily on the absence of transitional provisions in Pt 2 of Sch 5 to the WROLA Act. This argument overlooked one crucial fact. That is that s 170N did not find its way into the WR Act through Sch 5 of the WROLA Act, but through Sch 8. Part 2 of Sch 8 to the WROLA Act did contain specific transitional provisions, including that in item 23(1). The effect of item 23(1)(b) was to bring into effect the amendments made by Sch 8 in relation to a bargaining period initiated after the commencement of the schedule. If an express contrary intention were required to override an accrued right to have an industrial dispute arbitrated by reference only to the provisions of the IR Act, item 23(1)(b) of Sch 8 to the WROLA Act constituted such an express contrary intention. Once the bargaining period resulting from the notice served on or about 10 February 1999 was initiated, the provisions of Pt VIB of the WR Act, which include s 170N, operated with respect to that bargaining period. Any right to the exercise by the AIRC of its arbitration powers under Pt VI of the WR Act in relation to a matter at issue between the negotiating parties then ceased to exist.

[28]

The appropriate remedy 69 It follows that the Full Bench of the AIRC was wrong in its reasons for decision dated 23 July 1999, in reaching the conclusion that the employers had an accrued right to have the dispute determined by arbitration without the operation of s 170N and that the WROLA Act did not disclose a contrary intention. Deputy President Duncan was wrong in his reasons for decision dated 14 September 1999 in following that view. In effect, both the Full Bench and Deputy President Duncan have acted on that view since that time and proposed to continue to act in accordance with it. The evidence is that the hearing of the consolidated proceedings before Deputy President Duncan is scheduled to continue in early July 2001. 70 Because of the way the dispute has been dealt with in the AIRC, the question of the appropriate remedy becomes difficult. It can be said that the AIRC has announced its intention to proceed to deal with the industrial dispute between the union and the employers by arbitration, notwithstanding that to do so would infringe s 170N of the WR Act. If the remedy of prohibition were available, it could be granted to prohibit the AIRC from exceeding its jurisdiction. The announcement of the AIRC's intention can be traced to the decision of Deputy President Duncan of 14 September 1999. All that the Deputy President did after announcing his view was to announce arrangements for the determination by the President of the AIRC pursuant to s 107 of the WR Act as to whether the proceeding should be dealt with by a Full Bench. The actual decision made, while based on an error of law, gives rise to doubt as to whether the error went to the jurisdiction of the AIRC and is amenable to the remedy of a writ of certiorari. In any event, there seems to be little point in quashing such a decision by a writ of certiorari. In the absence of a decision to quash, counsel for the union had some difficulty in formulating an appropriate order for a writ of mandamus directed to the AIRC to exercise its jurisdiction according to law. 71 Section 21 of the Federal Court of Australia Act 1976 (Cth) gives the Court power to make a binding declaration of right in any matter in which the Court has original jurisdiction. The exercise of the power to make a declaration of right in the present case appears to be appropriate. A declaration would bind not only the union and the employers, but also the members of the Full Bench of the AIRC and Deputy President Duncan. A declaration is also appropriate because it can express the basis on which the union and the employers are able to have the dispute dealt with for so long as the bargaining period subsists. 72 The Court should therefore make a declaration that, for so long as the bargaining period initiated by the union by service of a notice on or about 10 February 1999 subsists, the AIRC must not exercise its arbitration powers under Pt VI of the WR Act in relation to any matter that is at issue between the union and each of the employers.