Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission

Federal Court of Australia (Full Court)|2007-07-01|Before: Adam P, Commission J, Cowdroy JJ

The application for leave to amend the application is dismissed.
The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NEW SOUTH WALES DISTRICT REGISTRY NSD 2157 OF 2005

AND: AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

REASONS FOR JUDGMENT THE COURT: Introduction 1 On 21 May 2003 the Construction, Forestry, Mining and Engineering Union (CFMEU) lodged notification of an industrial dispute, attaching a log of claims, with the Australian Industrial Relations Commission (Commission). The dispute was said to exist between the CFMEU and a number of companies listed in an attachment to the notification. One of the companies was Dyno Nobel Asia Pacific Limited (Dyno Nobel). That company manufactures, assembles, transports and sells explosives largely for use in the mining industry in Australia. The CFMEU claimed in its notification that, with one immaterial exception, the companies listed in the attachment were either bound by the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 directly or through roping in orders or were not bound by any award. 2 The matter came on before Senior Deputy President Drake of the Commission in Sydney on 22 October 2003. Evidence was taken on 10, 11 and 25 November 2003 and submissions on 3 February 2004, at which time the Commission reserved its decision. 3 Dyno Nobel objected that its employees did not work in or in connection with the coal industry and were therefore not within the relevant eligibility rule of the CFMEU. Drake SDP rejected that contention in a decision given on 2 November 2004 which gave rise to a formal finding made on 23 December 2004. She found that Dyno Nobel employees at depots at or near coal mines were engaged in the preparation and delivery of explosives to blasting points and in shot firing at the mine sites. On this basis they were working in or in connection with the coal industry. 4 The Full Bench allowed an appeal from the decision of Drake SDP on 14 July 2005. On 5 September 2005 the CFMEU filed an application in the original jurisdiction of the High Court seeking an order that the Commission show cause why certiorari should not issue to quash the appeal decision and mandamus to require the Commission to hear and/or determine the matter in accordance with law. By consent, the matter was remitted by the High Court to this Court for hearing. 5 The effect of amendments to the Workplace Relations Act 1996 (WRA 1996), which came into operation on 27 March 2006, is that even if the decision of the Full Bench were quashed the appeal proceedings in the Commission have lapsed and cannot be revived. The Full Bench decision now has no legal consequences. If its decision were quashed there is no surviving duty on the part of the Full Bench to determine the appeal. There is therefore no duty which is enforceable by mandamus. In the jurisdiction enlivened by the remitter, certiorari is only available as an ancillary remedy. Absent an entitlement to mandamus it cannot issue in that jurisdiction. 6 Certiorari may be claimed as a stand alone remedy in the jurisdiction that the Court has in any matter arising under a law of the Commonwealth Parliament. But given the absence of legal consequences attaching to the Full Bench decision it is not an appropriate remedy in this case. 7 After the hearing commenced the CFMEU sought leave to amend its application to include a claim for declaratory relief to the effect that Dyno Nobel employees are entitled to be members of the CFMEU. The introduction of a claim for such relief would put these proceedings on an entirely different footing beyond the scope of judicial review to a substitutive determination about the present position with respect to Dyno Nobel employees. 8 For the preceding reasons, more fully elaborated below, leave to amend the application should be refused and the application should be dismissed. Dyno Nobel's objection in the Commission 9 Dyno Nobel submitted at the hearing before Drake SDP that the Commission had no power or jurisdiction to find the existence of an industrial dispute between it and the CFMEU on the basis that the CFMEU's eligibility rule did not entitle it to represent the employees of Dyno Nobel. The relevant part of the eligibility rule of the CFMEU (r 2D) was in the following terms: Without limiting the generality of the foregoing and without being limited thereby the Union shall also consist of an unlimited number of employees engaged in or in connection with the coal and shale industries together with such other persons whether employees in the industries or not as have been appointed officers and admitted as members. Dyno Nobel submitted that it was well established that a rule expressed in such terms is construed as relating to the industry of the employer. In order for persons to be eligible to be members of the organisation they must be employed in an industry carried on by their employer which satisfies one or more of the descriptions in the eligibility clause. The company submitted that on the evidence before the Commission it was engaged in the chemical explosives industry which was separate and distinct from the mining industry. It had been so recognised by the Commission as evidenced by the making of a distinct explosives industry award. 10 The CFMEU on the other hand argued that Dyno Nobel employees performed work on a number of coal mines in Queensland. They provided drill and blast crews including shot firers and were therefore mine workers under the Coal Mining Industry (Production and Engineering) Consolidated Award 1997. A proper examination of the work which they performed at coal mines in Queensland showed that they were engaged in, or in connection with, the coal industry. Relevant findings of the Commission at first instance 11 The reasons for decision of the Senior Deputy President incorporated a table produced by Mr David Wyllie, the Manager, Operations-East for Dyno Nobel. It summarised the nature of the work done by Dyno Nobel employees at various depots owned by the company at mine sites, including coal mine sites, around Australia. The table disclosed that employees at the Collie Depot and the Collie coal mine would mix raw materials to make explosives for the mine at the site, they would deliver the mixed materials to the site and then load them into explosive holes. In describing the nature of the work performed by the company's employees at a coal mine at Ravensworth in New South Wales, Mr Wyllie's table stated: Manufacturing plant at Warkworth manufactures emulsion. Emulsion is delivered to coal mines direct, the Cadia gold mine and the depots. The manufacturing plant also stores some ammonium nitrate. Four shot firers operate at the open cut coal mines. Shot firing involves priming and stemming of the holes, tie-up and firing the shot. Raw materials, including ammonium nitrate, fuel oil and emulsion, are loaded onto the bulk explosives vehicle, mixed in the truck and delivered to the mine site. The materials are then loaded into the explosives holes. 12 Mr Wyllie's table also disclosed that the company had a depot in Queensland at Peak Downs and a depot at a coal mine site at Gregory. Shot firing was performed by three employees of the company at the Gregory mine and by 5 of the 12 permanent employees and a casual employee based at the Peak Downs depot and other coal mines in the area. Shot firing was to be performed at the Hale Creek mine until that mine's blaster was operational. The Gregory mine was the only mine where the company was contractually engaged to perform shot firing. At the other mines in the area shot firing was only performed on an as required basis. Shot firing was also performed by company employees at the New Hope coal mine. The employees were based at the company's depot at the mine where they were responsible for ensuring that stock is stored correctly and where they mixed the raw materials to make the explosive and deliver it to the mine site. 13 Senior Deputy President Drake, whose findings of primary fact were not challenged before the Full Bench, found (at [353]) that the work performed by Dyno Nobel employees at various coal mines and at depots on coal mine leases or nearby included the following: . Ensuring that stock at the depots is stored correctly, properly accounted for and adequately and safely maintained. . Consulting with the mine site operator as to how the shot is to be planned and what product is to be used and applied. . Delivering materials to the mine site. . Loading raw materials on to the bulk explosives vehicle. . Mixing raw materials in the truck. . Loading mixed materials into explosive holes. . Backfilling explosive holes. . Shotfiring . Preparation of the drill and blast design at Gregory by an employee from Peak Hill who works solely on coal mining work. . Providing training to mine staff in the safe use of Dyno Nobel products. . Maintaining depots. . Maintaining the truck, including calibration on a monthly basis. . Maintaining the safety and maintenance quality systems. The Senior Deputy President found that Dyno Nobel employees did not designate where blasting was to occur and did not drill blast holes. They completed the explosives manufacturing process by turning inert products on the explosives truck into an explosive by mixing the products as they went into the holes on the mine site. At [360] to [362] she said: [360] Blasting and shotfiring are identified as advanced competencies in the P & E Award. Blasting and shotfiring is work performed on coal leases across Queensland, New South Wales and in Western Australia. In New South Wales there is a specific award for shotfirers and deputies which applies to employees of employers who are members of the New South Wales Coal Association. [361] I accept that the past practice in coal mining was for direct mine site employees to perform explosives work with materials supplied by the explosives suppliers. That work previously performed by direct mine site employees has not disappeared. It is now predominately performed by the contractors who supply the explosives, such as Orica and Dyno Nobel. [362] I have concluded that removing the overburden is an essential element of open cut coal mining. It is a critical input to the cost of open cut coal mining. It involves a huge capital investment. How well the mechanical process of removing the overburden progresses, and the cost of the explosives involved, are essential considerations in the overall economics of the production of coal at open cut mines. Drake SDP found the mixing of the inert components supplied by Dyno Nobel in the explosives truck and pouring that explosive down the hole was also an essential component of removing the overburden. If there were no "down the hole process" and no consequent explosion there could be no removal of the overburden. Without the removal of the overburden there could be no open cut mining. She continued (at [364]): Secondary blasting, if it takes place, is the same physical activity as the first down the hole process. It is engaged in to either amend an unsatisfactory first blast or to remove an impediment in the exposed coal seam. It is an adjunct to the initial down the hole task. In my opinion secondary blasting is work performed in the coal industry. 14 The Senior Deputy President found that shot firing is work performed within the coal industry. It is governed by coal mining legislation and regulations, particularly in relation to safety. Certification for shot firing is a pre-requisite for its performance. Employees trained by Dyno Nobel in shot firing or any part of the "down the hole process" tended to remain in that work. It is recognised as a coal mining activity in various awards and agreements of the Commission. The Senior Deputy President said (at [366]): I have concluded that the activities engaged in by Dyno Nobel employees on coal mining leases, or on the depots located either on site or nearby, is work performed within the coal industry. The substantial character of this work performed by Dyno Nobel is work in the coal industry. This does not include the activities of Dyno Nobel engaged in at their various manufacturing plants or off coal mining sites or depots in other industries. She did not accept the proffered description of shot firing as "an adjunct service" to the manufacturing of explosives. She said (at [368]): The work engaged in by Dyno Nobel employees on site or at these depots is essential to the mining of coal. Without these functions the mining of coal could not be achieved. The activities are integral to the processes of the coal industry. They are not peripheral activities provided to the coal industry such as those the subject of the decision in Poon Bros. Although the work of Dyno Nobel is a service provided to the coal industry by contractors, the work is work performed in the coal industry. I have not drawn this conclusion because the client of Dyno Nobel is the coal industry. I have drawn this conclusion because of the nature of the work itself. It is not in the provision of fuel or food or the provision of some other extraneous service. If the work were not in the coal industry it was work "in connection with" the coal industry (at [371]). Based on this finding and similar findings in relation to two other companies, the Senior Deputy President said (at [406]): I intend to find an industrial dispute exists between the three employer respondents and the CFMEU in relation to the work I have found to be work in the coal industry or in connection with the coal industry. The Senior Deputy President's finding 15 The formal record of the Senior Deputy President's finding published on 23 December 2004 was in the following terms: RECORD OF FINDING The Commission pursuant to section 101 of the Workplace Relations Act 1996 (the Act) DETERMINES, RECORDS AND FINDS as follows: 1. That there is in existence an industrial dispute within the meaning of the Act between the Construction, Forestry, Mining and Energy Union and the respondents listed in Schedule A, with leave reserved in respect to the companies listed in Schedule B. 2. The subject matters which are in dispute, in so far as they are in industrial matters within the Act, are set out in the Letter of Demand attached hereto and marked "D" with that Log of Claims amended in conformity with the Decision PR952134 and now attached as Schedule C hereto. The companies named in the attachment to the record of finding included Dyno Nobel.

The appeal to the Full Bench - the grounds 16 On 13 January 2005 Dyno Nobel gave notice of appeal to the Full Bench of the Commission against the finding by Senior Deputy President Drake. The grounds of appeal were: (a) that the Commission erred in law and in its interpretation of the CFMEU's eligibility rule as it relates to Dyno Nobel, its business and its employees; (b) that on the basis of the error set out in (a), the Commission acted without jurisdiction, or in excess of its jurisdiction, in finding that an industrial dispute exists between Dyno Nobel and the CFMEU as a consequence of the service of, and non-accession to, the log of claims. The reasons for decision of the Full Bench 17 The appeal came on for hearing before a Full Bench of the Commission comprising Lawler VP, Hamberger SDP and Lewin C on 24 March 2005. On 14 July 2005 the Commission allowed the appeal. In their joint judgment Lawler VP and Hamberger SDP said that on the evidence before Drake SDP Dyno Nobel employees were not engaged in or in connection with the coal industry within the meaning of r 2D of the eligibility rules of the CFMEU. They said, inter alia (at [59]): The predominant purpose of the single integrated business operated by Dyno Nobel is the manufacture and supply of explosives. This confers a "substantial character" that places the business of Dyno Nobel in the explosives industry or, more generically, the chemical industry. The issue comes down to whether, because a small number of Dyno Nobel employees perform some work that can be regarded as work in the coal industry (the backfilling of shot holes and shot firing work performed by between 8 and 14 employees and the devising of blast patterns by one technical adviser), the single integrated business of Dyno Nobel also has a "substantial character" that places it in or in connection with the coal industry within the meaning of Rule 2D of the CFMEU rules. In our view, the fact 8 out of some 160 operational employees perform shot firing as a relatively small part of their overall work for Dyno Nobel, that a further 6 employees occasionally perform shot firing on an ad hoc or relief basis and that one technical adviser sometimes devises blast patterns for coal mining companies (which together accounts for about one quarter of one percent of Dyno Nobel's revenue) does not give the single integrated business of Dyno Nobel an additional "substantial character" as a business in or in connection with the coal industry. When considered in the context of the business of Dyno Nobel as a whole, these activities are too minor and incidental to confer an additional character on the business of Dyno Nobel that could properly be described as "substantial". Rather, these activities are properly to be seen as the supply of a service to employers in one industry by an employer whose business is in another industry … The orders made by the Full Bench 18 The orders made by the Full Bench on 14 July 2005 were in the following terms: The Commission orders:

Leave to appeal be granted.
The Appeal be allowed.
The finding of dispute between the Construction, Forestry, Mining and Energy Union and Dyno Nobel Asia Pacific Limited made by Senior Deputy President Drake on 23 December 2004 pursuant to the decision in PR952859 and the supplementary decision in PR954681 be quashed. The application in the High Court 19 In its application to the High Court the CFMEU sought certiorari to quash the decision of the Full Bench allowing the appeal against the decision of Drake SDP and the order of the Full Bench quashing the finding of an industrial dispute in relation to Dyno Nobel. The CFMEU also sought mandamus requiring the Full Bench "to hear and/or determine in accordance with law the proceedings in the matter the subject of the appeal decision and the order". 20 There were nine grounds set out in the application. These could have been reduced to one, namely that the Full Bench misconstrued the relevant eligibility rule and in so doing committed a jurisdictional error. 21 The elements of the alleged misconstruction of the CFMEU eligibility rule were identified in ground 7 which alleged: The Full Bench misconceived its duty and/or identified the wrong issue and/or applied the wrong test and/or asked the wrong question by determining whether there was eligibility of employees of the Second Defendant under the Plaintiff's Rules: (a) on the basis that the "substantial character" and the "predominant purpose" of the business of the Second Defendant must be determined by reference to all employees of the Second Defendant and the business of the Second Defendant as a whole, (b) by disregarding its finding that some employees of the Second Defendant could be regarded as working in the coal industry, (c) placing any, or at least undue, emphasis on the small number of employees of the Second Defendant that could be regarded as working in the coal industry compared to the total number of employees employed by the Second Defendant, or, alternatively, by disregarding other employees who were so regarded by Senior Deputy President Drake, (d) by not giving any effect to the words "in connection with" in the eligibility rules of the Plaintiff. Paragraph (c) does not appear to expose any legal error. The remitter order 22 The remitter order was made by Gleeson CJ by consent on 28 October 2005 in the following terms: The Application to Show Cause be remitted to the Federal Court of Australia for hearing. The statutory framework - the Workplace Relations Act 1996 before the 2006 Work Choices Amendments 23 At the time that the CFMEU notification was lodged with the Commission the WRA 1996 dealt with Dispute Prevention and Settlement in Pt VI. That Part comprised Divisions 1A to 7. The objects of Pt VI, set out in s 88A, included ensuring that wages and conditions of employment were protected by a system of enforceable awards established and maintained by the Commission. Division 1, dealing with the functions of the Commission generally, comprised ss 88B to 98. Division 2 concerned the Powers and Procedures of the Commission for dealing with industrial disputes. It comprised ss 99 to 110. The term "industrial dispute" was defined in s 4 thus: Industrial dispute (except in Part XA) means: (a) an industrial dispute (including a threatened, impending or probable industrial dispute): (i) extending beyond the limits of any one State; and (ii) that is about matters pertaining to the relationship between employers and employees; or (b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); and includes a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State); 24 Section 99 provided for notification of an industrial dispute to the Commission thus: (1) As soon as an organisation or an employer becomes aware of the existence of an alleged industrial dispute affecting the organisation or its members or affecting the employer, as the case may be, the organisation or employer shall notify the relevant Presidential Member or a Registrar. … (3) Where a Registrar is notified of an alleged industrial dispute, or a member of the Commission who is not the relevant Presidential Member becomes aware of the existence of an alleged industrial dispute, the Registrar or member shall inform the relevant Presidential Member. 25 Section 101, under which Drake SDP made her finding of 23 December 2004, provided: '(1) Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute: (a) determine the parties to the industrial dispute and the matters in dispute; and (b) record its findings; but the Commission may vary or revoke any of the findings. … (3) A determination or finding of the Commission on a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by the question. 26 Section 45 of the WRA 1996 dealt with appeals to the Full Bench in respect of matters arising other than under the Registration and Accountability of Organisations Schedule. It provided, inter alia: (1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against: (a) a decision of a member of the Commission by way of a finding in relation to an industrial dispute or alleged industrial dispute; and … (g) a decision of 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. … (7) On the hearing of the appeal, the Full Bench may do one or more of the following: (a) confirm, quash or vary the decision or act concerned; (b) make an award, order or decision dealing with the subject- matter of the decision or act concerned; (c) direct the member of the Commission whose decision or act is under appeal, or another member of the Commission, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Full Bench; Subparagraph (d) is not material for present purposes. 27 Section 166 of the WRA 1996 established the entitlement of a person to become a member of an organisation of employees where the person was eligible under the eligibility rules of the organisation relating to the occupations in which, or the industry or enterprise in which, its members are to be employed. Section 167 provided that applications could be made to the Federal Court for a declaration as to the entitlement of that person under s 166 to be admitted as a member of an organisation. Statutory framework - The Workplace Relations Act 1996 after the 2006 Work Choices Amendments 28 The WRA 1996 was substantially amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act). The bulk of the amendments and those relevant to these proceedings came into effect on 27 March 2006. The definition provision, s 4, was repealed and a new definition provision substituted which contained no definition of "industrial dispute". By Item 71 of Schedule 1 to the Work Choices Act, Pt VI of the WRA 1996 was repealed along with Pts VA and VIAAA. New Pts VA, VB, VC, VI and VIAA were substituted. The Work Choices Act also repealed s 45(1)(a). Section 45(1)(g) remained unaffected. 29 Schedules containing transitional provisions including transitional provisions for parties bound by existing federal awards and existing pre-reform federal agreements (Schedules 13 and 14) were added to the WRA 1996. These are not material for present purpose. 30 Schedule 4 to the Work Choices Act also contains transitional provisions and in Item 1 authorises the Governor-General to make regulations "… dealing with matters of a transitional, saving or application nature relating to amendments made by this Act". Statutory framework - the Workplace Relations Regulations 2006 31 Chapter 7 of the Workplace Relations Regulations 2006 (Workplace Regulations) deals with transitional and other provisions for the Work Choices Act. Its purpose is described in Reg 7.1 thus: For item 1 of Schedule 4 to the Work Choices Act, this Chapter provides for matters of a transitional, saving or application nature relating to amendments made by that Act. Part 2 of Ch 7 is entitled "Regulations for Transitional etc Provisions and Consequential Amendments - Act ". Division 13 of Pt 2 is entitled "Compliance". Regulation 7.2.19 provides: Enforcement of rights and obligations (1) Unless the contrary intention appears in a provision of: (a) the Act; or (b) the Work Choices Act; or (c) regulations made under the Act or the Work Choices Act; the amendments made by the Work Choices Act do not affect the enforcement in a court of rights and obligations that arose under the pre-reform Act. (2) Subregulation (1) applies whether or not proceedings had been commenced in a court before the reform commencement. 32 Part 4 of the Workplace Regulations is also entitled "Regulations for Transitional etc Provisions and Consequential Amendments - Part Heard Matters". Regulation 7.4.1 defines "appeal" as including an application for leave to appeal. 33 Regulation 7.4.2 provides, inter alia: Appeals against findings in relation to industrial disputes (1) An appeal to a Full Bench in relation to a decision mentioned in paragraph 45(1)(a) of the pre-reform Act that: (a) has been instituted but not finally determined before the reform commencement; and (b) relates to an employer; lapses, to the extent that it relates to the employer, on the reform commencement. (2) An appeal to a Full Bench in relation to a decision mentioned in paragraph 45(1)(a) of the pre-reform Act, to the extent that the decision relates to an employer, must not be instituted after the reform commencement. Subregulations 7.4.2(3) and (4) relate to "transitional employers" and are not material for present purposes. 34 Regulation 7.4.14 sets down general rules relating to continuing appeals thus: (1) This regulation applies to an appeal that continues, or may be instituted, under this Division. (2) The Full Bench may determine that an appeal should not be heard, or further heard, to the extent that the Full Bench believes that: (a) a decision to uphold the appeal could not be effectively implemented under the Act; or (b) the matter has no practical application under the Act. (3) If an appeal has not been finally determined within 6 months after the reform commencement, it lapses at the end of that period. 35 Specifically relevant to decisions relating to industrial disputes is Reg 7.4.20 which provides: Dealing with disputes (1) Subject to subregulation (2), if an alleged industrial dispute was notified under section 99 of the pre-reform Act before the reform commencement, but the matter was not finally determined before the reform commencement, proceedings in relation to the matter lapse, to the extent that the matter relates to an employer, on the reform commencement. … (4) For subregulations (1) and (3) a matter was finally determined before the reform commencement if: (a) the Commission made a determination under section 101 of the pre-reform Act that the alleged industrial dispute was not an industrial dispute; or (b) the industrial dispute was fully settled by conciliation under sections 102 and 103 of the pre-reform Act; or (c) the Commission dealt with the industrial dispute, or matters remaining in dispute, by arbitration under section 104 of the pre-reform Act. Statutory Framework - jurisdiction 36 Section 75(v) of the Constitution confers the relevant original jurisdiction on the High Court in the following terms: In all matters- … (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction. 37 Section 44 of the Judiciary Act 1903 (Cth)provides: (1) Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted. Subsections (2), (2A), (3) and (4) are not directly material for present purposes. 38 Section 39B of the Judiciary Act provides, inter alia: (1) Subject to subsections (1B), (1C) and (1EA) the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. … (2) The reference in subsection (1) … to an officer or officers of the Commonwealth does not include a reference to: (a) a person holding office under the Workplace Relations Act 1996 or the Coal Industry Act 1946; 39 Section 847 of the WRA 1996 (formerly s 412) relevantly provides: (1) The Court has jurisdiction with respect to matters arising under this Act in relation to which: (a) applications may be made to it under this Act; or (b) actions may be brought in it under this Act; or (c) questions may be referred to it under this Act; or (d) appeals lie to it under section 853 [formerly s 422]; or (e) penalties may be sued for and recovered under this Act; or (f) prosecutions may be instituted for offences against this Act. (2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946. (3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903. Subsection (4), which was added by the Work Choices Act, is not material for present purposes as it relates only to the Federal Magistrates Court. 40 Reference should also be made to the powers conferred on the Federal Court by s 23 of the Federal Court of Australia Act 1976 (Cth) in matters in which the Court has jurisdiction. Section 23 provides: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. The power to award certiorari in proceedings under s 75(v) of the Constitution, s 39B(1) of the Judiciary Act and s 847(3) of the WRA 1996 41 The jurisdiction conferred upon the Federal Court by s 39B(1) of the Judiciary Act makes it a court to which the High Court can remit matters of the kind referred to in s 75(v) of the Constitution. That is because it has jurisdiction "with respect to the subject matter and the parties" - Cowen and Zines, Federal Jurisdiction in Australia (3rd Edition, Federation Press, 2002) at 82-83. However, by virtue of s 39B(2)(a) the grant of jurisdiction under s 39B(1) does not extend to officers of the Commonwealth who hold office under the WRA 1996. That deficiency is remedied by s 847(3) of the WRA 1996, previously numbered s 412(3) in the pre-amendment WRA 1996. 42 In the ordinary course, on a remitter to the Federal Court of a proceeding commenced in the High Court under s 75(v) of the Constitution, the Federal Court exercises the statutory jurisdiction conferred on it by s 39B of the Judiciary Act. Where the remitted proceeding is brought against a person holding office under the WRA 1996 then the Federal Court's jurisdiction derives from s 847 of that Act. As discussed later in these reasons the Court may, on the remitter, also exercise such other relevant jurisdiction as it may have subject to any limitations on the scope of the remitter or directions accompanying it. 43 The jurisdiction conferred on the High Court by s 75(v) of the Constitution and on the Federal Court by s 39B(1) of the Judiciary Act and s 847(3) of the WRA 1996 is defined by reference to the classes of remedies sought and the classes of persons against whom they are sought. It does not, in terms, depend for its existence upon the success of the proceedings but rather the fact that they are commenced. The Court may refuse any of the relief sought in such proceedings, but it does not thereby decide that it lacks jurisdiction. 44 The power to grant all necessary remedies in the exercise of the jurisdiction conferred by s 75(v) or by s 39B(1) or s 847(3) may be implied from the grant and extends to remedies other than those which define the jurisdiction provided that they are ancillary to it. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ said (at 90): The power of this Court to issue certiorari is not stated in Ch III of the Constitution. Rather, in a matter such as the present, the conferral of jurisdiction to issue writs of prohibition and mandamus implies ancillary or incidental authority to the effective exercise of that jurisdiction. In the circumstances of this matter, that includes authority to grant certiorari against the officer of the Commonwealth constituting the Tribunal. The matter may also attract the exercise of the powers conferred in general terms by s 31 of the Judiciary Act 1903 (Cth). 45 Absent any proper basis for the grant of mandamus or prohibition certiorari will not be available as a fallback position under s 75(v). In Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 the Bishops Conference commenced proceedings in the High Court for writs of mandamus and certiorari to quash a decision of a judge of the Federal Court. The application was dismissed by a majority of the High Court because there was no matter founding the exercise of its original jurisdiction. The application had invoked the jurisdiction conferred on the Court by s 30(a) of the Judiciary Act in matters arising under the Constitution or involving its interpretation. That is a jurisdiction conferred pursuant to s 76(i) of the Constitution. Gleeson CJ nevertheless discussed the remedies available in the exercise of jurisdiction under s 75(v) and said (Re McBain 209 CLRat [19]): Since no jurisdictional error is attributed to Sundberg J, no officer of the Commonwealth is alleged to have acted in excess of jurisdiction, and no basis for prohibition has been shown. Certiorari under s 75(v) of the Constitution is ancillary to the jurisdiction to grant prohibition, mandamus, or an injunction. Accordingly, there being no jurisdiction under s 75(v) it becomes necessary to turn to s 76(i) and to ss 30(a) and 32 of the Judiciary Act. Gaudron and Gummow JJ noted that no reliance had been placed on s 75(v) and said (at [54]): No reliance is placed upon s 75(v) of the Constitution; the applicants do not assert any jurisdictional error by the Federal Court. They accept that the errors of which they complain, if made, were errors within jurisdiction and there is no remedy under s 75(v) to which certiorari might be appended. See also the discussion by Hayne J at [261] to [265]. 46 McBain 209 CLR 372 was not a case in which grounds for the issue of the constitutional writs were asserted. It was never a case about s 75(v). But it seems from the observations of Gleeson CJ and those of Gaudron and Gummow JJ that if mandamus or prohibition were sought with no allegation of the kind of error necessary to support the grant of such remedies it could not be said that the jurisdiction was engaged. In a like case, in the Federal Court, an objection to competency might be expected. 47 Where the jurisdiction has been properly invoked in the sense that grounds are asserted which might support the issue of mandamus or prohibition or an injunction other relief may be granted in lieu of mandamus or prohibition where it is more appropriate for practical reasons. In Pitfield v Franki (1970) 123 CLR 448 an application was made for prohibition directed to the Commonwealth Conciliation and Arbitration Commission to quash a decision to register the United Fire Fighters Union as a union under the Conciliation and Arbitration Act 1904 (Cth). Certiorari issued to quash the registration of the union. Barwick CJ (with whom Owen J agreed) held that the lack of authority to register the union "… would ground equally prohibition or certiorari dependent upon the state of affairs when the prerogative writ was sought" (at 460). The proper writ to issue was certiorari. McTiernan J observed, without elaboration, that "the proper remedy is certiorari" and added that the situation could not be "likened to an application for a writ of prohibition to restrain further proceeding on an award" (at 463). Menzies J held that "the proper order to make is to grant certiorari and quash the decision of the Commission …" (at 467). Walsh J dissented. Pitfield 123 CLR 448 appears to have been a case in which there was no issue that the jurisdiction under s 75(v) had been properly invoked. The Court regarded certiorari as the remedy most appropriate in the circumstances. The existence of a bona fide claim for prohibition was later thought by Mason J to have been the basis upon which the Court asserted its power to grant certiorari despite the absence of any reference to that remedy in s 75(v): R v Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595 at 609. 48 Certiorari issued where prohibition and certiorari had been claimed in the alternative in R v Cook; Ex parte Twigg (1980) 147 CLR 15. The proceedings were brought by way of challenge to a conviction for contempt entered against a solicitor by a judge of the Family Court. It was put to the Court by counsel for the solicitor that although s 75(v) was invoked on the basis that prohibition was sought against an officer of the Commonwealth, certiorari was the most appropriate remedy to expunge the conviction. Gibbs J, with whom Barwick CJ agreed, said that s 75(v) does not confer original jurisdiction on the High Court "in a matter in which certiorari is sought" (at 25). He quoted Windeyer J in R v District Court; Ex parte White (1966) 116 CLR 644 at 655, who said it was: …at least questionable whether certiorari to quash proceedings of an inferior tribunal can issue from this Court as a substantive remedy not ancillary to some proceeding otherwise within the original jurisdiction of the Court. As to Pitfield 123 CLR 448, Gibbs J noted that prohibition and certiorari were there claimed in the alternative. He thought, like Mason J in Federated Clerks Union of Australia 132 CLR 595, that a possible explanation of the decision was that (at 26): … once the Court was seized of jurisdiction because prohibition was sought against an officer of the Commonwealth, not merely colourably, but in good faith, the Court, in the exercise of that jurisdiction, had power, under s 31 of the Judiciary Act, to grant the more appropriate remedy of certiorari. He noted that the case might also have been regarded as one involving the interpretation of the Constitution. 49 Gibbs J held on the merits, in Cook 147 CLR 15, that it was clear that the conviction and sentence were not to be allowed to stand and that no injustice would be done by granting certiorari. He said (at 26): In all these circumstances it seems appropriate to adopt the view of Pitfield v Franki suggested above, and to hold that the Court has power to grant certiorari in the present case if we consider that the grounds for the issue of that writ have been established. This will, of course, not preclude the Court from examining the correctness of Pitfield v Franki in a future case. Stephen J relied upon Pitfield v Franki to support the issue of certiorari. Although Mason J had some doubt as to whether relief by way of certiorari was appropriate, he agreed with the order proposed by Gibbs J. Murphy J also agreed with the orders proposed by Gibbs J. Aickin J found the precise basis of the decision in Pitfield 123 CLR 448 "not easy to discern" (at 32). He observed, however, that it was a case in which prohibition and certiorari were claimed as alternative remedies. He said (at 32): It seems to me that the narrowest basis for the granting of a writ of certiorari in the present case is that it is one in which a writ of prohibition could properly issue, and not one where all that can be said is that it was sought "not merely colourably, but in good faith". Aickin J regarded the case before the Court as one in which an order for prohibition could be made but that such an order would be an inadequate remedy. Certiorari in those circumstances could be used as an adjunct to an order for prohibition to make it fully effective. At 34 he put it thus: For the reasons which I have indicated I find it necessary in the present case to go at least as far as saying that the Court has jurisdiction to grant certiorari in a case in which prohibition would be available and in which certiorari is necessary in order to make more effective or complete the remedy which prohibition would provide. Wilson J agreed with Gibbs J. 50 In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Barwick CJ characterised Pitfield 123 CLR 448 as a case in which the Court had jurisdiction to grant prohibition for lack of jurisdiction in a lower court. He said (at 477): Thus, s 32 of the Judiciary Act was available to justify certiorari not because, independently, the Court had jurisdiction to entertain an application for the prerogative writ but because, having jurisdiction to grant prohibition, the writ of certiorari was a convenient, indeed a more convenient, mode of exercising the jurisdiction which undoubtedly, in my opinion, the Court had. He regarded Aickin J in Cook 147 CLR 15 as expressing the same opinion (at 477). 51 In R v Ross Jones; Ex parte Green (1984) 156 CLR 185 the High Court issued prohibition and certiorari to quash interlocutory orders made in the Family Court. Wilson and Dawson JJ referred to the issue of certiorari in that case as "… being necessary as an ancillary remedy to quash the order for an interlocutory injunction which was made against the prosecutor" (at 215). 52 The availability of certiorari in aid of the exercise of the jurisdiction under s 75(v) was assumed in Re Coldham; Ex parte Brideson (1989) 166 CLR 338 by Wilson, Deane and Gaudron JJ who observed that "the jurisdiction of this Court to grant certiorari, other than as an ancillary remedy in proceedings otherwise within the original jurisdiction of the Court, is not free from doubt" (emphasis added) (at 348). In that case certiorari issued as ancillary to a grant of mandamus (at 350). A like assumption may have underpinned the observation in Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 that prohibition was "a sufficient remedy in the circumstances" and "[n]o separate case was made for writs of certiorari" (Brennan CJ, Deane and Dawson JJ at 644). 53 Brennan CJ cited Pitfield 123 CLR 448, Cook 147 CLR 15and Re Coldham 166 CLR 338,in his judgment in Re Jarman; Ex parte Cook (1997) 188 CLR 595, for the proposition that "… the conferral of jurisdiction on this Court to issue writs of mandamus and prohibition to judicial officers of the Commonwealth implied the conferral of an ancillary jurisdiction to grant certiorari" (at 604). Toohey and Gaudron JJ in the same case said that "[i]t may well be that certiorari may issue where it is an ancillary remedy to mandamus or prohibition, in the sense discussed by Aickin J in R v Cook; Ex parte Twigg [147 CLR 15] and by Wilson and Dawson JJ in R v Ross-Jones; Ex parte Green [156 CLR 185]". However their Honours found it "unnecessary to resolve that issue" in the case before them (at 618). 54 McHugh J in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 485 dismissed an application for mandamus, prohibition, injunction and certiorari in relation to a decision of the Refugee Review Tribunal affirming a decision of the Minister's delegate to deny a protection visa under the Migration Act 1958. McHugh J discussed the availability of the constitutional writs. While observing that the Court had not decided whether it had jurisdiction to grant certiorari other than as an aid to the exercise of a jurisdiction expressly conferred upon it, he regarded it as clear that the Court had no such jurisdiction. He said (at 415): As Brennan CJ has pointed out, because the power to grant certiorari is merely ancillary to the jurisdiction conferred by s 75(v) of the Constitution, it does "not expand the occasions when a writ of mandamus or prohibition would issue" [Re Jarman; Ex parte Cooke at 604] under that paragraph of the Constitution. The ancillary nature of the power to grant certiorari means that the power can be exercised only when it is necessary to effectuate the grant of some other aspect of the court's jurisdiction conferred by or pursuant to ss 75 and 76 of the Constitution. Accordingly, unless the prosecutor can demonstrate that he is entitled to obtain an injunction, mandamus or prohibition against the respondents or one or more of them, the court has no power to grant certiorari quashing the decision of the tribunal. 55 The preceding observations would not preclude the grant of certiorari alone when the applicant for relief is otherwise entitled to one of the constitutional writs or to an injunction under s 75(v). There may be circumstances in which, despite that entitlement, certiorari is, as a practical matter, more appropriate and on that basis issued in lieu of the primary relief claimed. If however the primary relief were refused on a discretionary ground such as the availability of alternative remedies, then it is difficult to see how certiorari could issue. This would probably be a question of power but at the very least discretionary considerations relevant to the refusal of mandamus or prohibition would be relevant to the refusal of "ancillary" relief. 56 The Full Court of the Industrial Relations Court of Australia considered the availability of certiorari in a s 75(v) proceeding remitted to it by the High Court in Re Keeley; Ex parte Kingham (1995) 129 ALR 255. Wilcox CJ (with whom Spender and Ryan JJ agreed) reviewed the authorities on the availability of certiorari and concluded (at 280): It is not easy to reconcile all the decisions in the High Court about certiorari. But it seems clear that the court has no power to issue a writ of certiorari where this is the only prerogative relief sought; particularly if the error of the inferior tribunal is of a non-jurisdictional nature. On the other extreme, the better view seems to be that, where there is jurisdictional error, there is power to issue certiorari in conjunction with prohibition or mandamus. That is the present case. Prohibition and mandamus are sought and are appropriate to be granted. But, without certiorari, jurisdictionally incompetent orders will remain on the record and be required to be obeyed. I conclude therefore that this court, exercising the powers of the High Court, may issue certiorari in this case. 57 An objection was taken before Hill J in Klewer v Dutch (2000) 99 FCR 217 that the Court did not have jurisdiction under s 39B(1) of the Judiciary Act to grant an order in the nature of certiorari, the relief provided for being mandamus, prohibition and injunction. He referred to what McHugh J had said in Durairajasingham 168 ALR 407; 74 ALJR 405 and quoted the passage set out above. He went on to note however that the Federal Court has jurisdiction under s 39B(1A)(c) to determine a matter arising under any law made by the Commonwealth parliament. He added (Klewer 90 FCR at [53]): It may well be that just as the conferral of jurisdiction on the High Court to issue writs of mandamus and prohibition implied the conferral of an ancillary jurisdiction to grant certiorari … the conferral of jurisdiction on this Court to issue writs of mandamus and prohibition may imply the conferral on this Court of ancillary jurisdiction to grant certiorari. His Honour said that once the Court has jurisdiction conferred upon it by the Commonwealth Parliament that jurisdiction extends to the determination of the entire controversy between the parties of which the federal claim forms part. He said (Klewer 90 FCR at [54]): Hence, even if s 39B did not carry with it, by inference, jurisdiction in this Court to issue a writ of certiorari, the accrued jurisdiction of this Court would, where the Commonwealth jurisdiction was initially attracted by the application for a writ of prohibition, extend to the grant of certiorari. In principle, the fact that the application for the writ of prohibition was unsuccessful would not prevent the Court from exercising its accrued jurisdiction, so long as so to do would involve the Court determining the whole controversy or matter. His Honour could see no reason in principle why certiorari could not be granted by the Court ".. in exercising its accrued jurisdiction provided that it does so in the resolution of a matter in respect of which jurisdiction is conferred upon it by the Commonwealth Parliament". 58 An important point of distinction between the High Court and the Federal Court emerges from this decision. The High Court does not have conferred upon it the general jurisdiction conferred upon the Federal Court by s 39B(1A)(c) "in any matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter". 59 Although there are some aspects of the jurisdiction conferred on the High Court by s 75(v) which remain unresolved in a binding way, there is a weight of authority in its decisions supportive of a number of propositions which can and should be applied to the like jurisdiction conferred on this Court by s 39B(1) of the Judiciary Act and s 847(3) of the WRA 1996:

The above conclusions are applicable to the exercise by the Federal Court of the jurisdiction conferred upon it by s 39B(1) of the Judiciary Act and s 847(3) of the WRA 1996. 60 When the High Court remits a matter to this Court which was commenced under s 75(v) of the Constitution this Court derives its jurisdiction not from the Constitution but from statute - either s 39B(1) of the Judiciary Act or, as in this case, s 847(3) of the WRA 1996. The remitter which excites that jurisdiction does not exclude the possibility that relief may be granted in the exercise of some other relevant jurisdiction conferred upon the Court. This Court, as Hill J pointed out in Klewer 99 FCR 217, also has jurisdiction under s 39B(1A)(c) in any matter arising under any laws made by the Parliament. Whether, in the circumstances of a matter which also answers that description, the jurisdiction is accrued or primary, is immaterial. If the matter is also one arising under a law made by the Parliament then the applicant may, in appropriate cases, and subject to limitations imposed by the terms of the remitter, establish an entitlement to certiorari or other relief such as declaratory relief in the exercise of that jurisdiction. This is further discussed in the next section. The scope and nature of the Federal Court's jurisdiction upon a remitter of a matter from the High Court 61 It has been said that where a matter has been remitted from the High Court to the Federal Court this Court "relevantly stands in the jurisdictional shoes" of the High Court: McCauley v Hamilton Island Enterprises Pty Ltd (1986) 69 ALR 270 at 275-276 (Mason J). That is a metaphor which should not be taken to confine the Federal Court, in dealing with a remitted matter, to the head of jurisdiction which justified the remitter. 62 It is important to appreciate that when the High Court makes an order under s 44 of the Judiciary Act remitting a matter to this Court, that order does not of itself confer jurisdiction on this Court. The High Court in making a remitter order does not exercise a constitutional power. It exercises statutory power conferred upon it by s 44 of the Judiciary Act. It is only the Parliament which can confer jurisdiction on the Court in the exercise of its legislative power to do so under s 77 of the Constitution. In adjudicating upon a remitted matter this Court exercises either the "jurisdiction with respect to the subject matter and the parties" already in existence, which is a necessary condition of the remitter to it under s 44(1) or jurisdiction which is enlivened by the fact of remitter. Statutory provisions which enliven jurisdiction upon remitter are ss 44(3)(a) of the Judiciary Act and s 847(3) of the WRA 1996. 63 Where a matter is commenced in the High Court in its exclusive jurisdiction conferred by s 38(a) to (d) of the Judiciary Act the Court is empowered to remit the matter or a part of it to the Federal Court or any court of a State or a Territory. By virtue of s 44(3)(a) the remitter enlivens the jurisdiction of the court receiving the matter. In a similar way the jurisdiction of this Court to entertain a remitted proceeding in which mandamus, prohibition or an injunction is claimed against an officer holder under WRA 1996 is enlivened by s 847(3) of that Act. 64 The operation of s 44(3) was discussed by Gummow J in Cook 188 CLR at 633. His Honour said: It should be observed that where, pursuant to s 44(2) or (2A), the High Court remits a matter or part of a matter, s 44(3) states that the receiving court has "jurisdiction in the matter, or in that part of the matter". Section 44(3) thus operates, as appropriate to the case, as a law under s 77(i) of the Constitution defining the jurisdiction of a federal court other than the High Court, or as a law under s 77(iii) of the Constitution investing any court of a State with federal jurisdiction. And further (at 633): What is presently significant is that s 44(3) operates to confer jurisdiction upon a federal court or to invest a State court with federal jurisdiction, as the case may be, upon fulfilment of a condition in the particular case, namely, the making by this Court of an order of remitter under s 44(2) or (2A). 65 Where the remitter is of part of a matter and/or subject to directions by the High Court under s 44(1), the exercise of the receiving court's jurisdiction may be constrained. Where however, as in this case, the whole matter is remitted without directions the Court has jurisdiction to deal with it in its entirety. To the extent that additional jurisdiction is relevant over and above the jurisdiction which justified or was enlivened by the remitter, there is no reason in principle why the Court cannot exercise that additional jurisdiction. 66 The Federal Court has jurisdiction under s 39B(1A)(c) in any matter arising under any laws made by the Parliament other than criminal matters. The courts of the States, by virtue of s 39(2) have a like jurisdiction which does not exclude criminal matters. If a remitted matter, commenced in the High Court under s 75(v) of the Constitution, also happens to be a matter arising under a law of the Commonwealth Parliament then, subject to any constraint imposed by the terms of the remitter or directions accompanying it, the receiving court may exercise that additional jurisdiction. If the matter can be characterised as falling under that additional jurisdiction then the limitations on the relief which can be granted in the exercise of the jurisdiction under s 847(3) of the WRA 1996 (by reference to the limitations applicable to s 75(v) of the Constitution) will not apply. On that basis a claim for certiorari as a stand alone remedy or for declaratory relief could be raised in the remitted proceedings even though it might not have been able to be raised in the High Court. The grounds upon which such relief can be made available may however depend upon the existence of privative provisions limiting the scope of judicial review. In this case the relevant privative provision is that found in the former s 101(3) of the WRA 1996. The effect of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) and the Workplace Regulations 2006 on the availability of relief under s 412 of the WRA 1996 67 It is common ground between the parties that the proceedings in the Commission so far as they relate to the question whether an industrial dispute exists between them have lapsed. It is desirable to consider the correctness of that common position. It is relevant to the question whether any relief is available to the CFMEU in this case. 68 Section 101 of the WRA 1996 prior to its amendment provided for the Commission to determine, in proceedings in relation to an alleged industrial dispute, whether such a dispute existed. An appeal lay to the Full Bench under s 45(1)(a) from such a determination. Following the amendments the definition of industrial dispute no longer appears in the Act other than in transitional provisions which are not material for present purposes. Section 101 as it stood has been repealed. There is no equivalent provision. Section 45(1)(a) has also been repealed. 69 By force of reg 7.4.2 of the Workplace Regulations appeals to the Full Bench from decisions of the Commission dealing with the existence of an industrial dispute lapse if they had not been finally determined at the time that the amendments came into effect. After that date it was not possible to institute appeals to the Full Bench on such questions. By force of reg 7.14.2 an appeal which has not been fully determined by the Full Bench within six months of 27 March 2006 lapses at the end of that period. 70 There are general provisions in the Acts Interpretation Act 1901 (Cth) which deal with the effect of repeals on continuing proceedings. Section 8 of that Act provides, inter alia: Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the appeal shall not: … (b) affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or (d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed. The application of s 8 is subject to a contrary intention in the repealing statute. In this case the relevant transitional provisions are found in the Workplace Regulations which are authorised by Item 1 of Schedule 4 to the Work Choices Act. That authorisation appears generally to extend to an authority, in transitional matters, to give effect to a contrary intention which has the result that the general provisions of s 8 of the Acts Interpretation Act do not apply. 71 The constructional question is whether the application to the Full Bench would be regarded, for the purposes of reg 7.4.2(1) or 7.4.14 as "not finally determined" if the Full Bench decision were to be quashed by way of certiorari. If that is the correct construction, then s 8, in its own terms, does not apply because of the relevant contrary intention in the regulations made under the Work Choices Act. If that is so, it would follow that there would be no duty enforceable by mandamus requiring the Full Bench to proceed to determine the appeal. 72 In Hicks v Aboriginal Legal Service (2001) 108 FCR 589 the Full Court considered the consequences of a judgment of the Court setting aside a decision by an Aboriginal representative body to refuse funding for legal representation where the application for funding was remitted to the representative body. On 30 June 2000, and before the representative body had reconsidered the funding application, the provisions of the Native Title Act 1993 (Cth), from which it derived its authority to provide that funding, were repealed. The former representative body successfully resisted an attempt to require it to determine the remitted application. The Full Court, after considering the operation of s 8 of the Acts Interpretation Act, said (at [61]): The present case is not one in which there was on foot as of 30 June 2000 an application for review of an administrative decision made by the ALS before that date, but rather an application to the ALS to make a decision in favour of the group. The fact that, before the repeal of s 202 of the Act, Carr J had conducted a judicial review of a decision made by the ALS in respect of that application, and had ordered that the ALS carry out afresh the making of its decision on that application, did not bring the case within the principles applied in Esber or the four subsequent decisions referred to above by Full Courts of this Court. The order of Carr J had the effect of re-enlivening the application so that it became undetermined at the date of his order. The application remains so until 30 June 2000, when the power (and duty) of the ALS to determine it ceased. 73 Were the decision of the Full Bench in this case to be quashed by way of certiorari the appeal, like the funding application in the Hick's case, would become "undetermined" and so attract the lapsing provisions of the Workplace Regulations. Section 8 of the Acts Interpretation Act would have no purchase. There would be no basis upon which mandamus could issue to require the Full Bench to reconsider the matter. 74 The CFMEU accepted in its written submission in reply to Dyno Nobel that if mandamus were granted and the Full Bench were compelled to rehear the appeal from Drake SDP according to law, it would have to find that the proceedings had lapsed. This, it was submitted, would not mean that there was no longer "jurisdiction" to grant mandamus. 75 The question is whether there is power to grant mandamus to enforce a legal duty which no longer exists. The question answers itself. If the decision of the Full Bench were quashed by certiorari the appeal to the Full Bench would remain undetermined and, by virtue of the Workplace Regulations, it would lapse. There would be no duty to be performed by the Full Bench. Whatever the legal merits of the Full Bench decision mandamus will not lie. Absent any basis for granting mandamus the jurisdiction of the Court under s 847(3) is such that certiorari will not lie in the exercise of that jurisdiction. Contentions on whether certiorari or declaratory relief could be granted as stand alone remedies 76 While accepting that the proceedings in the Commission will lapse by virtue of the Workplace Regulations, the CFMEU contended that "various rights of organisations under WR Act continue to depend on having valid legal members or persons eligible to be members". The central issue as to eligibility was said to be "an ongoing source of controversy between the CFMEU and Dyno Nobel in relation to matters other than the question of the finding of an industrial dispute". In particular it was submitted that there are ongoing issues as to whether the eligibility rule of the CFMEU permits it to exercise rights under the WRA 1996 such as the rights to enter into agreements with Dyno Nobel and to initiate bargaining periods to take protected action against Dyno Nobel. On that basis it was said that it would be appropriate if the CFMEU's case were made out on the merits, to quash the decision of the Full Bench. In the alternative, the CFMEU sought a declaration to resolve the ongoing issue. A notice of motion for leave to amend the application, in order to seek a declaration was filed by them. It was supported by an affidavit of Judith Ann Gray, the National Legal/Industrial Officer for the Mining and Energy Division of the CFMEU. 77 Dyno Nobel submitted that even if the Court did have jurisdiction to issue certiorari, it should not do so because: (a) there would be no utility in quashing the impugned decision of the Full Bench in circumstances where the Court could not compel the Commission to deal with a matter which was the subject of the proceedings before it or Drake SDP; and (b) the Court could not substitute its own decision for that of the impugned decision of the Commission.

In opposing the motion for declaratory relief, Dyno Nobel submitted that the source of jurisdiction had not been identified, the proposed declaration substantially changed the nature of the proceedings and there were, in any event, powerful discretionary considerations against its grant.

Whether certiorari can be awarded as a stand alone remedy 78 The question arises whether there is a head of jurisdiction under which certiorari could be granted other than s 847(3) of the WRA 1996.. 79 The Court is given specific jurisdiction in particular classes of matter arising under the Act by s 847(1). Section 847(1) does not confer on the Court a general jurisdiction in matters arising under the Act. The general jurisdiction conferred on the Court by s 39B(1A)(c) in matters arising under laws of the Parliament post dated the grant of jurisdiction conferred on the Court by the predecessor to s 847(1). The specification in that section of particular classes of matter in which the Court has jurisdiction does not detract from the application of the general language of s 39B(1A)(c) to matters arising under the Act. 80 A matter arises under a Federal law "… if the right or duty in question in the matter owes its existence to Federal law or depends upon a Federal law for its enforcement whether or not the determination of the controversy involves the interpretation (or validity) of the law": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154. The matter presently before the Court concerns the proper interpretation of an eligibility rule of a registered organisation under the WRA 1996. It concerns its interpretation by the Full Bench of the Commission exercising the appellate function conferred upon it by the Act as it stood prior to the Work Choices Act. Part of the matter is said to involve the question whether the Full Bench has fulfilled its duty under the Act in determining whether Drake SDP was correct in her interpretation of the rule. The matter can therefore be said to be one which arises under the WRA 1996 and in respect of which this Court has jurisdiction by virtue of s 39B(1A)(c). 81 The question that follows is whether, in the exercise of that jurisdiction, this Court could issue certiorari if the Full Bench were found to have committed a jurisdictional error. That class of error is necessary for the relief: see Craig v South Australia (1995) 184 CLR 161. 82 In order that certiorari issue the decision to which it is directed must have legal consequences. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 mandamus and certiorari were sought to quash the report of the Criminal Justice Commission of Queensland which included adverse findings in relation to certain companies. The High Court refused relief as the Criminal Justice Commission was under no duty to investigate and report about the persons against whom its adverse recommendations were made. Certiorari did not lie because no legal consequences attached to the report. In their joint judgment Mason CJ, Dawson, Toohey and Gaudron JJ said (at 580): The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report … has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. 83 In the present case the proceedings in the Commission are at an end by virtue of the Workplace Regulations. They will not be revived if the Full Bench decision is quashed. Although prior to the amendments to the WRA 1996 the decision had legal consequences in relation to the proceedings of which it formed a part, it no longer has those or any other legal consequences. 84 In other proceedings or negotiations the decision of the Full Bench may have some persuasive effect but there is no res judicata nor any issue estoppel generated by what was an administrative and not a judicial decision. For these reasons certiorari to quash the decision of the Full Bench cannot issue. Alternatively, given the lack of any legal consequences flowing from the decision, it should not issue. Whether declaratory relief can be given. 85 At the hearing the CFMEU moved for leave to amend its application to claim declaratory relief in the following terms: Employees of Dyno Nobel Asia Pacific Limited performing the following work at coal mines and at depots on or close to coal mines are entitled to be members of the Construction, Forestry, Mining and Energy Union: (i) Ensuring that stock at the depots is stored correctly, properly accounted for and adequately and safely maintained. (ii) Consulting with the mine site operator as to how the shot is to be planned and what product is to be used and supplied. (iii) Delivering materials to the mine site. (iv) Loading raw materials on to the bulk explosives vehicles. (v) Mixing raw materials in the truck. (vi) Loading mixed materials into explosive holes. (vii) Backfilling explosive holes. (viii) Shotfiring (ix) Preparation of the drill and blast design at the Gregory Mine by an employee from the Peak Hill Mine who works solely on coal mining work. (x) Providing training to mine staff in the safe use of Dyno Nobel products. (xi) Maintaining depots. (xii) Maintaining the truck, including calibration on a monthly basis. (xiii) Maintaining the safety and maintenance qualify systems. The listed activities are taken from the finding by Drake SDP (at [353]) of activities included in the work performed by Dyno Nobel employees at coal mines and depots on coal mine leases. 86 In moving for declaratory relief the CFMEU sought leave to introduce additional evidence by way of the affidavit of Judith Ann Gray. Ms Gray is the National Legal/Industrial Officer for the Mining and Energy Division of the CFMEU. In her affidavit Ms Gray said that the CFMEU has members working for Dyno Nobel in the Bowen Basin in Central Queensland and at Collie in Western Australia. She referred to certified agreements between the CFMEU and Dyno Nobel which expired in 2002. In the course of negotiations for a replacement agreement Dyno Nobel maintained that the CFMEU did not have the right to represent its employees. Protected industrial action had been threatened by the CFMEU in January 2005 although following further discussions had not been carried out. After the Full Bench decision Dyno Nobel said it would not be prepared to enter into a certified agreement with the CFMEU but would be prepared to consider negotiations for a non-Union certified agreement. Such an agreement was made in August 2005. A copy of it was tendered in evidence. The affidavit of Ms Gray referred to further negotiations at Collie in Western Australia in 2005. Dyno Nobel maintained in those negotiations that it was not engaged in or in connection with the coal industry. 87 The CFMEU did not identify in its submissions a head of jurisdiction under which the declaratory order which it sought could be granted. No doubt s 39B(1A)(c) of the Judiciary Act would provide jurisdictional support for a declaratory order. However the declaration sought in this case would require the Court to make its own determination that certain employees of Dyno Nobel are within the eligibility rule of the CFMEU. The proposed mode of identifying those employees is by reference to things they do, it not being clear from the terms of the proposed declaration whether those things are conjunctively or disjunctively expressed. Quite apart from the fact that the bulk of the relevant evidence related to the position at the time the Full Bench allowed the appeal in 2005, the claim for declaratory relief would significantly alter the nature of these proceedings. What was sought by way of mandamus and/or certiorari was necessarily dependent upon the establishment of a jurisdictional error on the part of the Full Bench not least because of the effect of the former privative clause contained in s 101(3) of the pre-amendment WRA 1996. In this case the Court is asked to perform a substitutive role and to make a finding different from that which was made by the Full Bench. That relief is not open in these proceedings and even if it were, it would not be appropriate. For the preceding reasons any consideration of the legal merits of the Full Bench decision is futile. The issues considered by the Full Bench can be raised again in the appropriate factual setting (which may very well be different in material particulars from those which underpinned that decision). The motion for leave to amend the application will be dismissed. The application itself should also be dismissed. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, French and Cowdroy.

Counsel for the Applicant: Mr S Crawshaw SC and Mr A Slevin

Solicitor for the Applicant: Slater and Gordon

Counsel for the Second Respondent: Mr H Dixon SC and Mr AR Moses

Solicitor for the Second Respondent: McCullough Robertson

Date of Hearing: 17 and 18 May 2006

Date of Judgment: 19 March 2007

Judiciary Act 1903(Cth)s 44, s

Parliament Workplace Relations Act 1996(Cth)s 4, s

Workplace Relations Amendment (Work Choices) Act 2005(Cth)

Conciliation and Arbitration Act 1904(Cth)

Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2007] FCAFC 32

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