Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

s.99 notification of industrial dispute

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

Dispute about a matter arising under a certified agreement - appeal s.45(1)(g) - time to institute appeal extended - appeals competent - no error in the characterisation of the dispute - error in determination of inconsistency between agreement and relevant award - not a jurisdictional error in the context of s.45(1)(g) - leave refused - appeal dismissed.

[1] This decision deals with two appeals by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) from decisions by Commissioner Foggo on 11 April 2003[1] and 18 June 2002[2].

[2] The origins of this matter may be traced back to the introduction of new shift arrangements in part of the South Australian operations of Holden Limited (Holden).

[3] Prior to 5 September 1999 the shift arrangements which operated in the Press Shop in Plant 4 of Holden's South Australian plant were as follows:

[4] There were three breaks during the course of each shift - two paid relief breaks[3] in the first and latter parts of each shift, and an unpaid break, about mid-way through each shift, called a `lunch' break. During the `lunch' break employees were free to leave the plant. But employees were not permitted to leave the plant during their relief breaks without a `pass out'.[4]

[5] On 5 September 1999 Holden commenced a trial of a new shift arrangement in the Press Shop in Plant 4. The introduction of the new arrangement was approved by a significant majority of the relevant employees and the Site Bargaining Committee.[5] The trial was initially scheduled to run from 5 September to 4 December 1999.

[6] Under the new shift arrangements the shift start and finish times were as follows:

[7] Consistent with the previous arrangements, two paid relief breaks were provided during each shift and employees were unable to leave the worksite during these breaks without a pass out. However the unpaid `lunch' break was now taken at the end of each shift, allowing employees to finish their shift earlier than had been the case under the previous arrangements.

[8] Towards the end of the trial the AMWU asserted that the new shift arrangements were in breach of clause 16 of the Holden Limited Consolidated Award 1998[6] (the Award). Clause 16 states:

"16 MEAL BREAKS (excluding engineer and scientist employees)

(a) Meal breaks for trades, non trades and HEC supervisor employees shall be for a period of not less than twenty minutes and not more than 60 minutes. Meal breaks for technical and clerical employees shall be for a period of not less than thirty minutes and not more than 60 minutes.

(b) Except as provided in sub-clause (d) hereof, trades, non trades and supervisor employees shall not be required to work more than six hours without a break for a meal. A trades, non trades and supervisor employee working beyond six hours shall be paid at the rate of time and one-half until he/she receives a break.

Except as provided in sub-clause (d) hereof, technical and clerical employees shall not be required to work more than five hours without a break for a meal. A technical and clerical employee working beyond five hours shall be paid at the rate of time and one-half until he/she receives a break.

(c) Except as provided in sub-clause (d) hereof, all work done during meal breaks and thereafter until a meal break is allowed shall be paid for at the rate of time and one-half.

(d) This clause shall not apply to employees on continuous work shifts."

[9] The AMWU contended that employees working under the new shift arrangements were required to work more than six hours without a break for a meal and as such they were entitled to be paid time and a half for all time worked beyond six hours.

[10] The trial arrangement continued while the parties had discussions in relation to the AMWU's claim. The discussions failed to resolve the matter.

[11] On 25 February 2000 the AMWU notified a dispute under s.99 of the Workplace Relations Act 1996 (Cth) (the WR Act). The dispute notification relevantly provided:

"... concerning: a breach of clause 16(c) of the Holden Limited Consolidated Award 1998. This clause states: `Except as provided in sub-clause (d) hereof, all work done during meal breaks and thereafter until a meal break is allowed shall be paid for at the rate of time and one half.'

Employees have been working for more than six hours without a meal break and are not being paid the penalty rate of time and one-half for all time worked after six hours.

We request that an urgent conference of the parties be called.

The award binding on the parties to the dispute is: Holden Limited Consolidated Award 1998."

[12] A conference was chaired by Commissioner Huxter on 1 March 2000. On 8 March 2000 the Commissioner issued a statement clarifying the outcome of the conference, in the following terms:

"In reference to your facsimile transmission of 7 March 2000, the Commission's unedited notes taken on March 1st of the voluntary conference indicate the following recommendations made by the Commission:

That the parties should maintain the status quo ie The new hours arrangements as operative since last year.

That the parties should discuss any variation sought to satisfy the union of no breach of the award.

That in the alternative the parties could vary the EBA to formally override the award - including any understanding/agreement re: pass outs etc.

The Commission also indicated that any issue of underpayment arising from changes to hours that could not be resolved was a matter for the Industrial Court.

The Commission also granted liberty to the parties to apply for the relisting of this matter for further conference if required."[7]

[13] By the end of July 2000 all issues between the parties in relation to the changed shift arrangements were resolved, except for the union's claim for underpayment pursuant to clause 16 of the Award. A permanent change to shift hours was introduced which involved a paid break in the first half of the shift, an unpaid meal break approximately mid shift, with a further paid break at the end of the shift but where the employees were able to leave the plant and go home.

[14] The outstanding issue relates to a claim for underpayment for the period from when the three month trial ended until the other issues were resolved in July 2000.

[15] In August 2001 the AMWU filed an application pursuant to s.14 of the Industrial and Employees Relations Act 1994 (SA) in the Industrial Court of South Australia alleging a breach by Holden of clause 16 of the Award. The underpayment claim was brought on behalf of one employee, Mr Brain Willis, as a test case.

[16] On 21 March 2002 Industrial Magistrate Hardy accepted the submission by counsel for Holden that:

(i) it was at least arguable that clause 29 of the Holden Ltd Enterprise Agreement (1998 - 2001)[8] (the Agreement) was applicable in the circumstances; and

(ii) the dispute resolution procedure contained in the Agreement had not been fully pursued.

[17] On that basis his Worship adjourned the proceedings observing that `... It's not as though I'm disposing of the matter forever, but it seems to me it's just a process that has to be gone through ...'.[9]

[18] On the same day that Mr Hardy IM adjourned the union's underpayment claim the AMWU filed a further dispute notification pursuant to s.99 of the WR Act. The notification is in the same terms as the earlier notification of 25 February 2000, save for the inclusion of the following:

"This dispute remains unresolved from when the Commission was initially notified on 25 February 2000 and was listed for Conference in Chambers of Commissioner Huxter on 1 March 2000 (C No. 50634/2000).

We request that this dispute be listed for Arbitration so a resolution can be achieved."

[19] This dispute was given a different matter number (C2002/585) to the previous matter before Commissioner Huxter (C No. 50634 of 2000).

[20] The dispute in matter number C2002/585 came on for hearing before Commissioner Foggo on 14 May 2002. After referring to the decision of Mr Hardy IM, Ms Smith, who appeared for the AMWU, went on to state:

"So what we seek today, Commissioner, is an order that the dispute is not within the jurisdiction of the Commission and pursuant to section 413 and 413A of the Act resolution, final resolution is only going to be obtained in the Industrial Court. For your information, Commissioner, the dispute has been resolved to the satisfaction of both parties. There's about some 5 months underpayment of wages claim which depends on the interpretation of the awards in the agreement."[10]

[21] The following exchange then took place between the Commissioner and Ms Smith:

"THE COMMISSIONER: Well, on what basis did the notification of dispute come in? I mean it quite clearly says that you seek arbitration in this matter.

MS SMITH: Yes, I apologise. That is my error, Commissioner. Initially that was before I had done research and I am now of the opinion that the Australian Industrial Relations Commission does not have jurisdiction to arbitrate on the points in issue in accordance with section 413 and 413A of the Act. I wasn't aware at that time that I filed the notification of dispute."[11]

[22] In her decision of 18 June 2002[12] Commissioner Foggo characterised the dispute before her as `concerning the payment for lunch breaks for a period of five months for early 2000' and relating to `flexible work patterns contained in clause 29 of the agreement'.[13] In relation to clause 29 the Commissioner said:

"The matter in dispute between the parties, based on the submissions before the Commission, relates to flexible work patterns contained at clause 29 of the agreement. That clause, in my view, makes clear the intent of the parties to provide for specific issues to be determined through an agreed process."[14]

[23] The Commissioner went on to reject the AMWU's submission that the Commission did not have jurisdiction to deal with the dispute and said:

"[57] On the basis of that finding, I intend to list the application for further hearing in order to provide the parties with an opportunity to put further submissions before the Commission, should they require to do so, on the dispute concerning the payment for lunch breaks for the five month period in 2000.

[58] One feature of this case is that there is agreement between the parties on the vast majority of the history to the dispute. The Commission intends that the previous detailed documentation, which has been provided by the parties, will be central to the case to be run by the parties, but does not expect that this documentation needs to be the subject of repeat submissions."[15]

[24] The matter subsequently came back on for hearing on 6 November 2002 and 11 February 2003. The Commissioner made the following findings on the basis of the evidence before her in those proceedings:

1. It was the intent of the parties, in reaching agreement over the conduct of a trial for the shift arrangements in 1999, to adopt the working hours which were agreed by Holden, the employees and the Site Committee.[16]

2. Members of the Site Committee fully considered the proposal concerning the changes in shift and decided to proceed with them. That decision was made free from coercion or pressure from the company and, in fact, with the overwhelming support of the employees.[17] The consultative processes were inclusive of all employees and was satisfactorily carried.[18]

3. The AMWU raised concerns regarding the penalty payments relating to the absence of a designated lunch break, at the time the trial was to commence. But `the union did not act with haste in seeking legal advice and when it did finally respond to the company, that response was not sufficiently clear ... to provide reason to halt the trial or to not continue with the new arrangements after the trial concluded'.[19]

[25] The Commissioner dismissed the AMWU's claim, in the following terms:

"The company and the union resolved the outstanding issues in June 2002 except for payment for the loss of pay which was incurred by some employees when they left the site during the crib break. The reasons above go to the intent of the parties at the time of making the decision to change shift arrangements, the authority resting with the Site Committee to make decisions at site level concerning flexible working hours, and the practical resolution to the problem of not having a designated lunch break within six hours of the commencement of work. On the basis of those reasons, I am unable to grant the application made by the union."[20]

[26] The Commissioner then went on to deal with the position of those employees who had their wages docked during the period December 1999 to June 2000 for leaving their worksite during their crib break.[21] That aspect of the Commissioner's decision is not relevant to the determination of the appeals.

[27] We now turn to consider two threshold issues before considering the substantive arguments advanced in respect of the appeals.

[28] Two threshold issues arise for determination:

· whether to extend the time available for the filing of the appeal in respect of the Commissioner's decision of 18 June 2002; and

· whether an appeal lies from the Commissioner's finding that she had jurisdiction to determine the dispute.

[29] As we have already noted the AMWU has filed two appeals. The appeal from Commissioner Foggo's decision of 18 June 2002 was instituted well outside the 21 day time period prescribed in rule 11(2)(a) of the Commission's rules. The AMWU has filed an application for an extension of time. That application is opposed by Holden.[22]

[30] In her decision of 18 June 2002 Commissioner Foggo decided that:

"... the dispute between the parties ... has not exhausted the options open to the parties through their agreed disputes prevention clause of the agreement ...

The final option to be followed by the parties bound to the agreement has not been exercised, in that arbitration of an unresolved dispute, has not proceeded."[23]

[31] The Commissioner concluded her decision by indicating that she intended to list the AMWU's application `for further hearing in order to provide the parties with an opportunity to put further submissions before the Commission, should they require to do so, on the dispute...'.[24]

[32] In support of its extension of time application the AMWU says that it believed that the Commissioner's decision of 18 June 2002 was preliminary only and did not finally determine the matters in dispute between the parties. As a result the AMWU did not file an appeal against the decision. Given the parts of the Commissioner's decision to which we have referred, we accept that such a belief was reasonably based.

[33] After hearing further evidence on 11 February 2003 the Commissioner made a final decision in respect of the dispute between the parties. It is apparent from that decision that it is to be read in conjunction with the earlier decision of 18 June 2002. At paragraphs 51-52 of her final decision the Commissioner says:

"[51] The power of the Commission to exercise arbitration powers is well canvassed in the decision of the High Court in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (and another) [2001] HCA 16; [178 ALR 61 @ 69 - 70]. In a decision which is known as the `private arbitration case', the power of the Commission to arbitrate matters which are the subject of an agreement is settled. The decision also refers to the power to arbitrate in matters which are non allowable matters pursuant to s.89A of the Act, or non allowable mattes which are contained in the agreement.

[52] Similarly, the decision of Senior Deputy President Lacy in Maritime Union of Australia v Australian Plant Services Pty Ltd [PR918667] on the power of the Commission regarding arbitration."

[34] In the somewhat unusual circumstances of this case we have decided to extend the time period for the institution of an appeal against Commissioner Foggo's decision of 18 June 2002, pursuant to Rule 11(2)(c). It seems to us that the earlier decision was simply a step in the process of resolving the dispute between the parties. The clear inter-relationship between the two decisions also supports extending time.

[35] Finally we note that even if we declined to extend time that would not dispose of the issues raised on appeal. Implicit in the decision of 11 April 2003 - in respect of which the appeal was instituted within the prescribed time - is a determination that the Commission had jurisdiction to decide the matter.

[36] Holden contends that no appeal lies pursuant to s.45(1)(g) because the Commissioner's finding of jurisdiction was not based upon any source of power under the WR Act, rather the Commissioner was exercising a power of private arbitration. The appellant contends to the contrary.

[37] The arguments advanced in support of the competing contentions were not fully developed in the proceedings before us. In the circumstances, and having regard to the conclusion we have reached in respect of the substantive issues, we are prepared to assume, without deciding the question, that the appeals lie pursuant to s.45(1)(g).

[38] In essence the appellant's submissions are directed at two propositions:

1. The Commissioner failed to properly characterise the dispute before her which led her to err in finding that the Commission had jurisdiction to hear and determine the dispute notified (the characterisation issue); and

2. The Commissioner erred in finding that clause 29 of the Agreement was inconsistent with clause 16 of the Award and that by the operation of s.170LY of the WR Act, clause 29 of the Agreement prevailed (the inconsistency issue).

[39] We propose to deal with each of these issues in turn.

[40] As we have noted the Commissioner found that:

"The matter in dispute between the parties, based on the submissions before the Commission, relates to flexible work patterns contained at clause 29 of the agreement."[25]

[41] In the 18 June 2002 decision the Commissioner said:

"[54] On the basis of the submissions before the Commission thus far, I have reached the view that the clause containing provisions for flexible working patterns relates precisely to the issue in the unresolved dispute between the parties. I am unable to accept the argument by the union that the Commission can only rely on the clause in the award because it is the relevant clause under which this dispute must be considered. The separation sought by the union appears not to be a sustainable argument. Where the agreement is silent on a matter, it is the scheme of the Act that the award provisions apply but, in this case, the process regarding flexible work patterns is contained in the agreement and that provision takes precedence over the award." [26] [emphasis added]

[42] The Commissioner further found that she had power to arbitrate the dispute pursuant to clause 16 of the Agreement. The Commissioner said that `the dispute prevention clause is clearly applicable where a dispute arises over a matter in the agreement',[27] the relevant `matter' in this case being the application of the flexible patterns of work clause.

[43] Clause 16 of the Agreement relevantly provides:

"Dispute and problem resolution on all matters contained in this agreement will be through consultation and negotiation between the parties and failing resolution through conciliation and/or arbitration within the AIRC. To ensure the proper application of this process and to prevent industrial action, the status quo shall prevail while this process proceeds. No employee shall lose pay whilst this process is being followed as long as normal production proceeds."

[44] The appellant contends that, contrary to the Commissioner's finding, the correct characterisation of the dispute in this case is that it concerns the non-observance of clause 16 of the Award. This construction is said to be supported by:

(ii) the fact that the sole concern of the AMWU at the time the dispute notification was filed with the Commission was that of the non-observance of the Award by Holden which manifested in a failure to pay the penalty rates prescribed by clause 16 of the Award.[28] There was no dispute between the parties as to the continuation of the relevant changed shift time arrangements;[29] and

(iii) the fact that this issue was not resolved between the AMWU and Holden prior to the filing of the dispute notification.

[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is `over the application of the agreement' within the meaning of s.170LW of the WR Act.[30] As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

"A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. ..."[31]

[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores that:

"...what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement."[32]

[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd[33] the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power `a court should review the entire factual background to properly characterise the claim and the power sought to be invoked.'[34]

[48] Hence the AMWU's dispute notification should be seen in context. As Holden correctly observes, at the time of the notification the AMWU was well aware that Holden's position was that there was no breach of clause 16 of the Award because the new shift arrangements were introduced pursuant to clause 29 of the Agreement and the Agreement prevailed over the Award. It will be recalled that the s.99 notification was lodged shortly after Mr Hardy IM decided to adjourn the union's application alleging a breach by Holden of clause 16 of the Award. Holden's position - that clause 29 of the Agreement was applicable in the circumstances and prevailed over clause 16 of the Award - had been put in the proceedings before the Industrial Magistrate.

[49] The AMWU's contention that the dispute solely concerns the non-observance of clause 16 of the Award, and that such an issue can be meaningfully separated from whether clause 16 had any operation at all due to the operation of clause 29 of the Agreement, is, we think, highly artificial. In our view the substance of the dispute is clearly over the application of the agreement.

[50] The appellant has failed to persuade us that an arguable case exists in support of the proposition that the Commissioner erred in her characterisation of the dispute. We now turn to the second proposition advanced by the appellant.

[51] At issue in the proceedings at first instance was whether clause 29 of the Agreement prevailed over clause 16 of the Award such that there was no entitlement to the payments sought by the AMWU.

[52] Clause 16 of the Award is set out above (at paragraph 8). It relevantly provides that employees are not required to work more than six hours without a break for a meal. An employee who works for more than six hours without a break for a meal is to be paid at the rate of time and a half until they receive such a break.

The parties agree that changes to work patterns will be dealt with by the appropriate Plant or Site Committee or specific Committees created for that purpose."

[54] During the course of their submissions in the proceedings below the parties addressed the relationship between clause 29 of the Agreement and clause 16 of the Award. Ms Smith said:

"It is our submission that although the flexibility clause gives the respondent the ability to change working hours this clause does not enable the respondent to ignore the entitlements of employees under the award. It is also our submission that there is no inconsistency whatsoever between the penalty provisions of the award and the flexibility clause of the enterprise agreement. These are separate and distinct provisions dealing with separate and distinct topics.

Had the respondent not wished to pay penalty payments to workers who worked more than six hours without a break for a meal they had the option of putting in an application to vary the award. No such application was made by the respondent. The second issue to be determined, in our submission, Commissioner, is does clause 29 of the agreement permit the respondent to alter the award rates of pay paid to its employees through the site committee, plant committee or any other committee without making a variation to the award?"[35]

[55] Mr Dowd deals with this issue in the following terms:

"What we have heard is that matters were raised very early on that plant 4 EB committee or site committees didn't come to terms with it terribly quickly and that a problem arose. Now, none of that goes to why a consequence of the introduction of an altered work pattern pursuant to clause 29 of the agreement isn't that that new work pattern and its consequences take precedence over the award.

What I'm saying is if you introduce a new work pattern in accordance with clause 29 of the agreement through the appropriate committees and a consequence of the introduction of that work pattern happens to be that penalty rates are not being paid and that is accepted during that trial period, then that consequence in exactly the same way as the introduction of the pattern takes precedence over the award, because of section 170LY of the Act, also takes precedence."[36]

[56] In the 18 June 2002 decision the Commission said:

"[55] The claim by the union that the change which was made to working patterns breaches the award, fails to recognise the intent of clause 29 of the agreement and the meaning arising from that clause, that the "appropriate Plant or Site Committees or specific committees created for that purpose" will deal with changes to work patterns. In my view, the words and ordinary meaning derived from the "flexible working patterns" clause in the agreement, encompass precisely the change to shift times or patterns which have occurred. The fact that a primary object of the shift change was to remove shift overlap further supports this view."[37]

[57] Section 170LY of the WR Act 1996 states:

" (1) While a certified agreement is in operation:

(a) subject to this section, it prevails over an award or order of the Commission, to the extent of any inconsistency with the award or order; and

(b) it has no effect to the extent of any inconsistency with another agreement certified before it, whose nominal expiry date has not passed.

(a) an award is made under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); and

(b) before the award is made, or after it is made but before its nominal expiry date passes, a certified agreement is certified; and

(c) the employment of at least one employee is subject to both the award and the certified agreement;

the certified agreement does not operate at any time while the award operates.

(3) An exceptional matters order prevails, to the extent of any inconsistency, over a certified agreement that was certified before the order was made."_

[58] The Commissioner determined, in effect, that clause 29 of the Agreement was inconsistent with clause 16 of the Award and to the extent of that inconsistency the Agreement prevailed. We think the Commissioner's conclusion in this regard was wrong. In our view there is no inconsistency between clause 16 of the Award and clause 29 of the Agreement. The respective clauses deal with different subject matters. Clause 29 of the Agreement deals with changes to work patterns, not with meal breaks, their timing and penalty rates (the latter being the subject matter dealt with in clause 16 of the Award).

[59] We are not persuaded by Holden's contention that if clause 29 is to be read down so that it would only operate in such manner as to not conflict with any award obligation, then it has no effective operation. It seems to us that it is clearly conceivable that there may be changes in work patterns introduced pursuant to clause 29 of the Agreement which are not inconsistent with provisions in the Award.

[60] We have concluded that the Commissioner erred in her consideration of this issue. We now turn to whether that error is jurisdictional in nature.

[61] It is important to recognise that this is an appeal pursuant to s.45(1)(g), which states:

"(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:

... (g) a decision by a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction in a matter arising under this Act."

[62] This head of appeal was introduced by the passage of the Industrial Relations Bill 1988. The relevant part of the Explanatory Memorandum to that bill read:

"Clause 45: Appeals to Full Bench Sub-clause (1) provides that a Full Bench may grant leave to appeal against certain specified decisions of members of the Commission.

It should be noted that a Full Bench is expressly empowered to hear an appeal against a decision by a member of the Commission that the member has jurisdiction to deal with a matter under this Act or a refusal or failure of a member of the Commission to exercise jurisdiction.

This provision, which complements the right of appeal against a finding in relation to an industrial dispute under clause 101, is intended to enable a party to a matter who considers that the Commission is mistaken about the existence or non-existence of jurisdiction to be able to have the matter re-examined within the Commission without having to resort to judicial review of the decision concerned.

Under sub-clause (2) leave is to be granted if a Full Bench considers it is in the public interest to do so. The persons or organisations that may institute appeals are set out in sub-clause (3)." [38]

[63] In order to succeed the appellant must show that the Commissioner erred in deciding she had jurisdiction or in refusing or failing to exercise jurisdiction. It is not enough for the appellant to show that the Commissioner fell into legal error. The error must be jurisdictional in nature.

[64] The question of whether a particular error constitutes an excess of jurisdiction or a failure to exercise jurisdiction is often difficult to determine.[39] The mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute constructive failure to exercise jurisdiction.[40]

[65] But as Jordan CJ said in Ex parte Hebburn Ltd; Re Kearsley Shire Council[41] `there are mistakes and mistakes'. If a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of its jurisdiction and to apply `a wrong ... and inadmissible test'[42] or `not to apply itself to the question which the law prescribes'[43] or `to misunderstand the nature of the opinion which is to be formed'[44], then the error will be jurisdictional in nature.

[66] These circumstances may be contrasted with instances where the tribunal asks the right question, but reaches the wrong answer. Such errors are errors within jurisdiction.

[67] An illustration of a case of this type is Walker v Industrial Court of New South Wales & anor[45] in which the NSW Court of Appeal unanimously held that the NSW Industrial Court had fallen into error of law but, by majority that error was not jurisdictional in nature. The reason for this distinction was explained by Sheller JA, speaking for the majority (at 153-154). His Honour concluded that the Industrial Court had understood the nature of the jurisdiction they had to exercise. The error made was the failure to give sufficient weight to an argument advanced before them. In the circumstances of that case such an error was not a jurisdictional error.

[68] The question of what constitutes a jurisdictional error in the context of s.45(1)(g) was considered by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Tweed Valley Fruit Processors[46] and, on motion for the issue of prerogative writs from this decision, the Industrial Relations Court judgment in Tweed Valley Fruit Processors Pty Ltd v Ross and others.[47]

[69] In the Tweed Valley Case the Full Bench decided that it had jurisdiction under s.45(1)(g) to determine an appeal from a decision of Redmond C to approve the implementation of an enterprise flexibility agreement. The Industrial Relations Court refused prerogative writ relief from the decision of the Full Bench to quash Commissioner Redmond's decision. In our view the Court's conclusion is encapsulated in the following passage of the joint judgment of Wilcox CJ and Marshall J (with whom Moore J concurred):

"The finding that Commissioner Redmond fell into error does not necessarily lead to the conclusion that the Full Bench had jurisdiction to quash his decision. The Full Bench had jurisdiction to take that course only if his error amounted to a failure to exercise jurisdiction. If he had asked himself the right question, the Full Bench would not have been entitled to interfere with his decision, even though its members thought he had come up with the wrong answer; for example, if he had appreciated that, having regard to the terms of the EFA, para.(a) of s.170NC(2) was satisfied and he needed to consider para.(b), but he had reached a conclusion about public interest with which the Full Bench disagreed. This would be an error within jurisdiction, if it was an error at all, and not susceptible to attack under s.45(1)(g) of the Act."[48] [emphasis added]

[70] It seems to us that the error made by the Commissioner in her consideration of the inconsistency issue was not a jurisdictional error within the context of s.45(1)(g). The Commissioner asked herself the right question, but came up with the wrong answer. This is an error within jurisdiction and is not susceptible to attack under s.45(1)(g) of the WR Act.

[71] The appellant has failed to persuade us that an arguable case exists in support of the proposition that the Commissioner erred within the context of s.45(1)(g) in the decisions subject to appeal. Nor in our view are there any other considerations which would warrant the granting of leave to appeal.

[72] Having regard to all the circumstances we have decided to refuse leave to appeal and dismiss the appeal.

A. Lawrence of Counsel with A. Sachinidis for the Automotive, Food, Metals, Engineering,

J. Bourke of Counsel with E. McCarthy for Holden Limited.

Printed by authority of the Commonwealth Government Printer

3 See clause 21 of the Holden Ltd Consolidated Award 1998.

4 Appeal Book Tab 15, Statement of Mr Ian Hutchings at paragraphs 3, 5, 9, 10 and 12.

7 Exhibit H3 in the proceedings before Commissioner Foggo in C2002/585 on 14 May 2002.

9 Exhibit H3 in the proceedings before Commissioner Foggo in C2002/858 on 14 May 2002, Transcript of the proceedings before Mr Hardy IM, Matter 5956/01, 21 March 2002 on page 50.

10 Transcript C2002/585 of 14 May 2002 at paragraph 45.

13 Ibid at paragraphs 45 and 50.

23 PR919040 at paragraphs 45 and 49.

28 In this context the appellant referred to the Commissioner's decision of 11 April 2003 at paragraph 6; Statement of Mr Ian Hutchings at paragraphs 36-38; Statement of Mr Jonathan Gee at paragraphs 13-24 and the Statement of Mr John Camillo at paragraphs 11-19.

29 See paragraphs 217-253 and 933-942, Appeal Book 15 paragraph 37.

30 Shop, Distributive and Allied Employees Association v Big W Discount Department Stores, PR924554, 12 November 2002 per Watson SDP, Kaufman SDP and Foggo C. Also see Warkworth Mining Ld v CFMEU, Print PR916526, 8 April 2002 per Harrison SDP, Cartwright SDP and Cargill C at paragraph 19; ASU v Qantas, Print T0301, 7 September 2000 per Munro J, Polites SDP and Cribb C at paragraph 24.

31 PR922053, 3 September 2002 per Munro J and Cribb C at paragraph 75; Adopted by the Full Bench in National Tertiary Education Industry Union v University of Wollongong, PR930177, 9 April 2003 per Harrison SDP, Drake SDP and Harrison C at paragraph 19.

32 PR924554 at paragraph 23. Also see ASU v Qantas, Print T0301, 7 September 2000 per Munro J, Polites SDP and Cribb C.

33 [1998] 1022 FCA per Olney, Drummond and Moore JJ.

38 AFMEPKIU v Tweed Valley Fruit Processors (1995) 61 IR 212 at 225.

39 As illustrated by the division of opinion in Public Service Association (SA) v Federated Clerks' Union (SA Branch) [1991] HCA 33; (1991) 173 CLR 132.

40 R v Minister of Health [1939] 1 KB 232 at 245-246; R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 268 per Aicken J.

41 [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at 420.

42 Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917.

43 R v War Pensions Entitlement Appeal Tribunal [1933] HCA 30; (1933) 50 CLR 228 at 242-243.

44 R v Connell (1944) 49 CLR 407 at 432.

45 (1994) 53 IR 121 per Meagher and Sheller JJA.

46 (1995) 61 IR 212.

47 (1996) 137 ALR 70.

48 (1996) 137 ALR 70 at 94-95 per Wilcox CJ and Marshall J. Applied in Re People Leadership and Performance Improvement Agreement [1998], Print Q4886, 17 August 1998 per McIntyre VP, Duncan DP and Raffaelli C; AWU v Delta Facilities Management Pty Ltd, Print Q6691,25 September 1998 per McIntyre VP, Coleman DP and O'Connor C; Re: Peter Whitehead Group of Companies Certified Agreement 2003, PR935332, 25 July 2003 per Ross VP, Kaufman SDP and Gay C.