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

BETWEEN: IN THE MATTER of an Application for Writs of Prohibition, Mandamus and Certiorari against a Full Bench of the AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of the Honourable Senior Deputy President John MacBean, the Honourable Senior Deputy President Colin Polites and Commissioner Ken Bacon

EX PARTE: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

AND: THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of the Honourable Senior Deputy President John MacBean, the Honourable Senior Deputy President Colin Polites and Commissioner Ken Bacon

The Honourable Senior Deputy President ANN HARRISON

REASONS FOR JUDGMENT 1 WILCOX and MADGWICK JJ: These reasons for judgment relate to two industrial proceedings that were heard together. The proceedings give rise to many issues, some of them long familiar to industrial lawyers, some arising out of novel provisions of the Workplace Relations Act 1996 ("the Act").

The proceedings 2 The earlier of the two proceedings (matter N41 of 1999) commenced as an application by Construction, Forestry, Mining and Energy Union ("CFMEU"), an industrial organisation registered under the Act, for writs of prohibition, mandamus and certiorari directed to three members of the Australian Industrial Relations Commission ("the Commission"), Senior Deputy President MacBean, Senior Deputy President Polites and Commissioner Bacon. These three people, who were named as first respondents to the application, constituted a Full Bench that, on 18 December 1998, allowed an appeal by Gordonstone Coal Management Pty Limited ("Gordonstone" or "GCM") against a decision of Commissioner Hodder to make an "exceptional matters" award in relation to increase in hands at Gordonstone mine, located near Emerald, Queensland, which was then managed by Gordonstone. This proceeding was initiated by the solicitors for CFMEU filing a Notice of Motion in the High Court of Australia on 7 January 1999. Pursuant to s44 of the Judiciary Act 1903, on 18 January 1999 McHugh J remitted further proceedings in that application to this Court. 3 At the time of institution of the proceeding, there were advanced negotiations between ARCO Coal Australia Inc ("ARCO") and Rio Tinto Mining Co Ltd ("Rio Tinto") for the sale by ARCO to Rio Tinto of its 80% interest in the joint venture that owned the mine. Rio Tinto proposed that, if the negotiations were successful, its subsidiary, Mine Management Pty Limited ("Mine Management"), would take over management of the mine from Gordonstone, an ARCO subsidiary. Accordingly, the solicitors for Mine Management asked CFMEU's solicitors to keep them informed of developments in relation to the High Court proceeding. 4 After remittal of the proceeding to this Court, the solicitors for CFMEU learned that the negotiations between ARCO and Rio Tinto had been successfully concluded and applied for an order joining Mine Management as third respondent in the proceeding. Beaumont J acceded to that application. However, on service of his Honour's order on Mine Management, that party filed a Notice of Motion seeking an order setting aside Beaumont J's order. This motion was supported by an affidavit made by Mine Management's solicitor in which he referred to an agreement certified by the Commission on 1 February 1999 and contended that, even if: (a) the application for prerogative relief succeeded and Commissioner Hodder's Increase in Hands award was revived; and (b) on its proper interpretation, that award would otherwise apply to Mine Management as a successor to Gordonstone; s170LY of the Act would preclude its application to Mine Management. 5 Mine Management's motion came before us on 24 February 1999. Mr W R Haylen QC and Ms C Howell appeared for CFMEU and Mr R J Buchanan QC for Mine Management. There was no appearance for Gordonstone or, consistently with the usual practice, the first respondents. It quickly became apparent that there were significant questions extending beyond the correctness of the Full Bench's decision and its vulnerability to prerogative relief. They included the questions whether, if the Full Bench's decision were quashed and Commissioner Hodder's award thereby revived, as a matter of construction, it had any application to a successor in business of Gordonstone; and, if so, the application of the award to Mine Management in the face of a recent decision of Senior Deputy President Harrison to certify an agreement between Mine Management and its employees pursuant to Part VIB of the Act. Mr Buchanan said that, if his client's contentions on any of these matters were accepted, the fate of the Full Bench's decision would become a matter of merely academic interest; therefore, the Court ought to refuse prerogative relief on discretionary grounds. On the other hand, as Mr Haylen responded, if none of Mine Management's contentions succeeded, the Full Bench's decision was of considerable practical importance; and Mine Management would have a vital interest in the question whether it was appropriate for the Court to grant prerogative relief. 6 We were not persuaded that Mine Management ought not to have been joined as a party and dismissed its Notice of Motion. Both parties then before the Court sought an early hearing of the principal proceeding and we fixed 7 April for that purpose. We also indicated our view that it would be undesirable for a hearing of the existing proceeding to leave unresolved other legal issues between the parties. We invited the parties to consider the possibility of one or both of them making application for declaratory relief. We suggested any new proceeding might be heard with the existing proceeding. 7 On the following day, 25 February 1999, Mine Management instituted the second of the two proceedings now before us (matter N166 of 1999). It filed an Application in which it named CFMEU and Gordonstone as respondents and sought the following orders or declarations: "1. Section 149 of the Workplace Relations Act 1996 (Cth) does not have the effect that the Gordonstone Mine Employment Award 1998 (the Award), if it were to be in operation, would apply to the Applicant, Mine Management Pty Limited. 2. The terms of the Award would not, if in operation, impose obligations on Mine Management Pty Limited with respect to the employment by it of any persons. 3. While the Mine Management Pty Limited certified agreement, certified by the Australian Industrial Relations Commission on 1 February 1999, is in operation it prevails over the terms of the Award, if in operation, with respect to the employment by Mine Management Pty Limited of any person to whom the Award might otherwise apply." 8 After consulting with the Chief Justice, and pursuant to a direction by him, Wilcox J made orders that this proceeding be considered by a Full Court and consolidated for hearing purposes with matter N41 of 1999. 9 On 19 March 1999 CFMEU filed a Notice of Motion, returnable on 7 April 1999, for leave to amend its draft order nisi by adding Senior Deputy President Harrison as the fourth respondent and seeking the following declarations: "1. A declaration that the Mine Management Pty Limited Certified Agreement 1998, certified by the Australian Industrial Relations Commission on 9 February 1999 operative from 1 February 1999, was made in circumstances not authorised by the Workplace Relations Act 1996 was made beyond the jurisdiction of the Commission and is void and of no effect. 2. A declaration that the Gordonstone Mine Employment Award 1998, to the extent that it has effect, is binding upon Mine Management Pty Ltd. 3. A declaration that on or after 10 February 1999 Mine Management Pty Ltd is required to comply with the terms of Clause 4 of the Gordonstone Mine Employment Award 1998 with respect to the employment of extra hands. 4. In the alternative to the declaration contained in paragraph 1 above, a declaration that there is no inconsistency between the terms of the Gordonstone Mine Employment Award 1998 and the Mine Management Pty Limited Certified Agreement 1998 such as would require the Certified Agreement to prevail over the terms of the award pursuant to the provisions of the Workplace Relations Act 1996." 10 In order to obtain the evidence necessary to support the proposed declarations, the solicitors for CFMEU issued subpoenas requiring production of documents by various persons. The requirements of the subpoenas were onerous and some of the documents were considered commercially sensitive. Application was made to set aside the subpoenas. This application was ultimately resolved on the basis of an agreed statement by counsel for CFMEU and Mine Management in the following terms: "1. Mine Management Pty. Ltd. is the successor to the business of Gordonstone Coal Management Pty. Ltd. which was a party to the Gordonstone Mine Employment Award 1998 at the time it was made. 2. Mine Management Pty. Ltd. seeks to argue, however, that because of the terms and the circumstances in which the Gordonstone Mine Employment Award 1998 was made, that award was in terms of s.149 of the Act an award which is 'subject to any order of the Commission' such that it and its terms applied only to Gordonstone Coal Management Pty. Ltd. and not to any successor to the business of Gordonstone Coal Management Pty. Ltd. 3. Should the Court reject the arguments and submissions of Mine Management, Mine Management Pty. Ltd. accepts that s.149(1)(d) of the Workplace Relations Act applies to it in respect of the Gordonstone Mine Employment Award 1998." 11 The two principal proceedings came on for hearing on 7 April 1999. Mr Haylen QC and Ms Howell again appeared for CFMEU, Mr J West QC and Mr F Parry appeared for Gordonstone and Mr Buchanan QC again appeared for Mine Management, this time with Mr H T Dixon. 12 By consent, the Court acceded to CFMEU's application to amend its draft order nisi. As argument proceeded, other issues emerged. They included the application and effect of the privative provision of the Act (s150) and the exercise of the Court's discretion having regard to errors attributed by counsel to Commissioner Hodder. No point was taken about the Courts' jurisdiction to make any of the declarations sought by Mine Management or CFMEU; but the Court would need to be satisfied on that score before making any declaration. In the result, there appear to be eight matters that may require consideration: (a) whether the decision of the Full Bench of the Commission to quash the award made by Commissioner Hodder was erroneous in law; (b) if so, whether the error was a "jurisdictional" error that, subject to the operation of s150 of the Act, would attract prerogative relief; (c) if so, whether s150 applied in terms; (d) if so, whether s150 operated to protect the decision from prerogative relief; (e) if (c) or (d) is answered in the negative, whether relief should be withheld on discretionary grounds, on the basis that Commissioner Hodder's order was itself affected by legal error; (f) if prerogative relief should issue, so that the Full Bench's decision would be quashed and the award of Commissioner Hodder revived, whether there was an inconsistency between that award and the terms of the agreement certified by Senior Deputy President Harrison; (g) whether the certification order was validly made; and (h) whether the Court has jurisdiction to make a declaration concerning the invalidity of the certification order. Before we address these issues it is necessary to set out some facts.

The background facts 13 As at July 1997 Gordonstone employed 312 production and engineering ("P.E.") staff at the mine "in a two longwall mode of coal production". Almost all P.E. staff were members of CFMEU. On 24 July Gordonstone notified CFMEU of a decision to reduce the mine to one longwall and one development unit, with the result that the workforce would be reduced by an estimated 150 employees. At that time Gordonstone and CFMEU were parties to a certified agreement, Gordonstone Mine UNW Enterprise Agreement 1995, which contained the following "last in, first off" ("LIFO") clause: "24. Should the need arise, the parties will endeavour to agree how any reduction in hands will be achieved. If agreement is not possible, a reduction will be according to 'last to come, first to go' in respective streams and sub-streams according to length of service at the mine." Gordonstone made no attempt to negotiate the manner of achieving a reduction of hands. Instead, its officers recommended to ARCO that the LIFO principle be circumvented by retrenching the entire P.E. workforce and advertising for a new production workforce of 190 employees. ARCO adopted this recommendation and the decision was announced to CFMEU on 18 August 1997. 14 CFMEU applied to the Commission and, on 21 August 1997, Commissioner Hodder issued an interim decision and interim orders restraining retrenchments until 1 October 1997 and requiring Gordonstone to consult with CFMEU as to measures to avert or minimise terminations and mitigate the adverse effects of any terminations on the workers concerned. 15 Apparently there were consultations but to no avail; CFMEU insisted on compliance with cl 24 of the certified agreement, Gordonstone refused to apply the LIFO principle. The Commission was unwilling to extend the interim order. CFMEU made an application in this Court but Burchett J held the Court had no jurisdiction to restrain a breach of the certified agreement: see Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Limited [1997] FCA, 30 September 1997. On the following day, 1 October 1997, Gordonstone retrenched all its P.E. employees, effective from that day. 16 In the period immediately after the dismissals, two separate types of applications were made to the Commission. First, 282 of the dismissed P.E. employees made applications under s170CE of the Workplace Relations Act seeking relief in respect of the termination of their employment. Section 170CE(1) permits "an employee whose employment has been terminated by the employer" to apply to the Commission for relief in respect of the termination on the ground (amongst other grounds) "that the termination was harsh, unjust or unreasonable". Unless the matter is settled by conciliation (s170CF), the Commission must arbitrate the claim (s170CG). If the Commission determines that the termination was harsh, unjust or unreasonable and the remedy to be ordered is appropriate (s170CH (1) and (2)), it may "make an order requiring the employer to reinstate the employee by: (a) reappointing the employee to the position in which the employee was employed immediately before the termination. (b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination." If the Commission orders reinstatement, it may also make ancillary orders regarding continuity of employment and lost remuneration (s170CH(4)). If the Commission thinks reinstatement is inappropriate, it may order the employer to pay compensation (s170CH (6)) subject to specified maxima (s170CH (8) and (9)). 17 Before any hearing of the 282 applications under s170CE of the Act, on 1 November 1997, Gordonstone issued a media release announcing it had put a proposal to the owners of the mine to re-open the mine on a trial basis using "existing and temporary employees". Four days later, CFMEU applied to the Commission for an Increase in Hands Award. CFMEU recognised this would have to be an "exceptional matters" award under s89A(7) of the Act. Briefly, s89A(1) limits the matters that may be included in an award made by the Commission. However, s89A(7) provides that subs (1): "… does not exclude a matter (the exceptional matter) from an industrial dispute if the Commission is satisfied of all the following: (a) a party to the dispute has made a genuine attempt to reach agreement on the exceptional matter; (b) there is no reasonable prospect of agreement being reached on the exceptional matter by conciliation, or further conciliation, by the Commission; (c) it is appropriate to settle the exceptional matter by arbitration; (d) the issues involved in the exceptional matter are exceptional issues; (e) a harsh or unjust outcome would apply if the industrial dispute were not to include the exceptional matter. " 18 By the time CFMEU's application came before Commissioner Hodder on 18 November 1997, Gordonstone had already placed newspaper advertisements for P.E. employees. 19 Commissioner Hodder heard the application for an Increase in Hands Award over several days. On 8 December 1997 he made an interim award that was to operate from that date until 7 February 1998. It provided: "4 INCREASE IN HANDS [a] Subject to [b] when an increase in hands is decided upon by the employer former employees who were retrenched and who apply shall be re-engaged in order of length of service at Gordonstone Mine prior to their retrenchment on 1 October 1997 according to their length of service at the mine. [b] The numbers of employees to be employed who are required to hold mechanical trade skills, electrical trade skills or production skills shall be determined by Gordonstone Coal Management Pty Ltd. Nothing herein shall prevent a former employee who is re-employed in accordance with this order and who holds skills in one of the foregoing three general categories from exercising or being trained to exercise a skill or skills in one or both of the other two general categories. 5. Any dispute as to the application of this award shall be referred to the Australian Industrial Relations Commissioner for determination." 20 In the meantime, on 4 December 1997, the 282 s170CE applications came before Commissioner Hingley for directions. It was decided seven applications would be selected for hearing; apparently, the idea was that the resolution of these claims might lead to agreement regarding the others. Commissioner Hingley heard these claims between 9 and 18 December and reserved his decision. 21 During Commissioner Hingley's hearing on 10 December, Gordonstone issued a media release announcing withdrawal of offers of employment and its intention to seek leave to appeal against Commissioner Hodder's interim award. The application for leave to appeal came before a Full Bench of the Commission on 15 January 1998. On 28 January the Full Bench refused leave to appeal.

Commissioner Hingley's orders 22 On 2 February 1998 Commissioner Hingley announced his decision concerning the seven selected s170CE cases heard by him in December. He was highly critical of Gordonstone. The Commissioner described the decision to terminate as "provocative and unnecessary", given the terms of the enterprise agreement, including a clause relating to problem resolution procedure that provided for ultimate referral to the Commission. He said "the terminations of employment had to do with the capacity and conduct of Senior Management not that of employees, and more specifically, an intent on the part of Senior Management to avoid its statutory obligations." The Commissioner found "[i]t had been held out to employees in their earlier experience that they were well trained co-operative miners capable of delivering record tonnage." He went on: "That that high morale and performance was not sustained by the employees is not surprising. That industrial relations became irreconcilable, was a self-fulfilling outcome of an aggressive industrial relations strategy aimed at avoiding the LIFO Enterprise Agreement terms and diminishing union influence. It was a disaster of GCM's own making." 23 Commissioner Hingley noted a concession by counsel for Gordonstone that no blame attached to any of the seven applicants. He held there was no valid reason for the terminations, related to the capacity or conduct of the employees or the operational requirements of the employer's undertaking. He also held Gordonstone had denied procedural fairness: "… because there were formalised procedures for downsizing which were not genuinely followed by the employer and termination of the applicants' employment was not a genuine operational requirement. They were also not advised of the real reasons for termination." 24 When he turned to the matter of remedy, Commissioner Hingley noted that counsel for the applicants sought reinstatement without loss. He responded: "This is practicable because the mine is currently capable of operation and there are industrial conditions for genuine redundancy and engagement. However since all have received redundancy termination payments, and perhaps would again face redundancy, logic makes the compensation alternative to reinstatement, overwhelmingly compelling and appropriate. Reinstatement in my view is not appropriate. On the balance of fairness, in my opinion all seven of the applicants up until the decision conveyed on 24 July 1997 to downsize, had every reasonable expectation of working at Gordonstone until they retired. Since neither LIFO or an agreed alternative nor the Problem Resolution Procedure was applied, it is not possible to speculate which of the applicants would have been made redundant or when. All received redundancy payments with their differing housing arrangements terminating. In my opinion for reasons I have set out in relation to the invalidity of the terminations, each of the applicants are entitled to receive a further compensation for lost remuneration in addition to redundancy payments already made, equal to full salary up to the date of this decision, less where appropriate, income otherwise earned. The parties are asked to confer and agree on relevant payments due. I chose the date of this decision because I am unable to speculate as to employee continuity of employment as a result of this decision or the terms of any sale or extent of any trial. I do not propose to reduce the amount of compensation because of the redundancy payments because if I were to order reinstatement without loss as I am entitled, I am unable to determine who or how many of the applicants would be again made redundant. This order is for lost remuneration only. A conference of the parties will now be convened by the Commission at an early convenient date to discuss the outstanding applications." 25 On 4 February 1998 Commissioner Hingley made a formal order, pursuant to s170CH of the Act, that Gordonstone pay to each of the seven applicants, within 30 days, "a compensation for lost remuneration in addition to redundancy payments made, equal to full salary from the date of termination of employment, 1 October 1997 to the date of the decision, 2 February 1998, less where appropriate, income otherwise earned." 26 On 24 February 1998 Commissioner Hingley presided over a conference to consider compensation payable to all 282 applicants. He recommended that the 282 s170CE applications, and the Federal Court proceeding, be withdrawn; current picket action cease; and that a total of $4.65 million be distributed to the 282 claimants in accordance with a schedule provided by CFMEU. The parties accepted these recommendations. On 2 March 1998 Commissioner Hingley rescinded his order of 4 February 1998 in respect of the seven selected applicants. Subsequently, deeds of settlement were executed as between Gordonstone and CFMEU and Gordonstone and each of its 282 former employees. The CFMEU deed contained a release of all proceedings other than proceeding C No.24069 of 1997, the application to the Commission for an Increase in Hands Award.

Commissioner Hodder's permanent award 27 On 28 May 1998 Commissioner Hodder sought information from the parties as to the current position. Although Gordonstone objected to providing any information, the Commissioner apparently learned that the mine remained closed and Gordonstone was not recruiting employees. Under those circumstances, on 26 June 1998 he held that conversion of the interim award orders into an exceptional matters award "would not seem to serve any purpose". Accordingly, he dismissed the application for the award. 28 Within three weeks Gordonstone advertised for applications for 50 P.E. positions. CFMEU immediately applied to the Commission for an order setting aside the dismissal order of 26 June 1998. This application was granted by Commissioner Hodder on 27 July and the Commissioner proceeded to hear the application for a permanent Increase in Hands Award. 29 On 26 August 1998 Commissioner Hodder made an award styled Gordonstone Mine Employment Award 1998. It contained clauses 4 and 5 that were identical to those in the interim award, quoted in para 19 above. This award was to operate from 26 August 1998 and remain in force for twelve months. The parties to the award were identified as Gordonstone and CFMEU. 30 Commissioner Hodder published reasons for his decision to make the award. He canvassed in detail the history of the dispute between CFMEU and Gordonstone regarding the retrenchments and dealt at some length with the evidence before, and findings of, Commissioner Hingley. Commissioner Hodder, also, was extremely critical of Gordonstone's conduct. The Commissioner then addressed each of the elements in s89A(7) of the Act, the provision that empowers the Commission to make an exceptional matters award. He rejected a submission, based on s120A(5) of the Act, that the interim award made in December had exhausted the Commission's power to make an exceptional matters award in the terms sought by CFMEU.

The Full Bench decision 31 Gordonstone applied for leave to appeal against Commissioner Hodder's award. The application was heard by a Full Bench comprising of the first respondents to CFMEU's application for prerogative writs. All three members of the Full Bench joined in granting leave to appeal but, by majority (Senior Deputy President MacBean and Senior Deputy President Polites, Commissioner Bacon dissenting), the appeal was dismissed. 32 The majority members of the Full Bench wrote joint reasons for decision in which they dealt with three "technical points" raised by counsel for Gordonstone. The first point was that Commissioner Hodder had no power to make the award because of his interim award in December 1997. Gordonstone's argument was based on s120A(5) of the Act which provides: "(5) An exceptional matters order ceases to be in force 2 years after it is made, and cannot be extended." The argument was that the substance of Commissioner Hodder's August 1998 order was to extend the December 1997 award. The Full Bench pointed out that the argument was inconsistent with the terms of the Supplementary Explanatory Memorandum provided to Parliament in respect of the Bill for the 1996 amendments that introduced s120A(5) into the Act. That document said: "New subsection 120A(5) provides that an exceptional matters order ceases to be in force 2 years after it is made, and cannot be extended. The purpose of limiting the life of an exceptional matters order is to encourage the parties to reach agreement on the matter concerned. However, where agreement cannot be reached, a new exceptional matters order may be made in relation to the same matter, provided that the requirements of subsection 89A(6) and section 120A are satisfied." 33 The majority members referred to a submission that the Full Bench was not entitled to look at the Explanatory Memorandum because the amending legislation was not ambiguous and commented: "We are of the view that the Act is not ambiguous but that it does not bear the construction contended for by Mr West [counsel for Gordonstone]. In our view there is nothing in s.120A of the Act which compels the view that the Commission cannot make a second exceptional matters order in relation to the same subject matter upon the expiry of an existing exceptional matters order. All that subsection (5) precludes is the extension of an existing exceptional matters order. There is no warrant for giving the words 'cannot be extended' a meaning other than their normal meaning. However, if we are wrong and there is a doubt as to the meaning of those words then it is permissible to use s.15AB of the ActsInterpretationAct 1901 to permit the introduction of extrinsic material to clarify the expression. When reference is made to the Explanatory Memorandum in relation to this section … any doubt as to the meaning of the words is removed. There is accordingly no substance in this point." 34 The majority members then dealt with Gordonstone's second "technical point": the claim relied upon by CFMEU as the jurisdictional basis of the exceptional matters award did not make a demand about a matter pertaining to the relationship between employers and employees. CFMEU had apparently relied on claim 48 of a log of claims dated August 1998. The claim read: "Reduction or increase in hands at any site shall be regulated in such a manner as is satisfactory to the CFMEU." After referring to authority, the majority said: "The question of whether the demand is capable of giving rise to an industrial dispute really turns upon the characterisation of the demand. In our view, properly characterised the demand in the log before us relates to the regulation of reduction of hands. It is true that the demand seeks that such regulation be to the satisfaction of the CFMEU, but nevertheless the substance of the demand appears to us to be that reductions or increases in hands be regulated. That demand we think, relates to an industrial matter." The majority cited further authority and concluded: "… it seems to us that the demand here is … for the regulation of increases or reduction in hands or albeit in a manner approved by the union. However, unlikely that claim is to be granted by the Commission it nevertheless gives rise to an industrial dispute. Accordingly, we conclude that there was a dispute of sufficient breadth to justify the making of the award by Hodder C." 35 Finally, the majority dealt with, and rejected, an argument that the award created an impermissible preferred class of persons. This led them to the conclusion that "there is no substance in any of the appellant's technical points". 36 The majority then turned to what they called "the merits of the argument". They mentioned the history of the proceedings before Commissioner Hodder and arguments put to the Full Bench by Gordonstone that it was not open to Commissioner Hodder to be satisfied pursuant to s120A(2) of the Act "that making the order is in the public interest and consistent with the objects of this Act". They set out the arguments but felt able to put aside the question whether Commissioner Hodder could have been satisfied as to what they called the "jurisdictional prerequisites" of the award. The majority explained: "We take this view because of the conclusion to which we have come in relation to what we regard as the appellant's substantive argument on appeal in relation to the merits of the order made by Hodder C on appeal. This argument was restated in a number of forms by Mr West during his submissions. It may conveniently be summarised as follows: . It is accepted that the appellant decided to terminate its P&E workforce and place the mine on a care and maintenance basis. . If in sacking its P&E workforce the appellant broke in law [sic], its obligations and responsibilities in that regard fell to be determined by appropriate Tribunals. . Employees who were terminated took action in the Commission under the Act as was their right. . Hingley C found in those proceedings (in respect of a representative group of employees) that the dismissals were unfair, but he declined to reinstate the employees: rather he awarded compensation. Mr West submitted it was not open to Hodder C, in the light of the decision of Hingley C, to make the award he did. …" The majority quoted, and then summarised, one version of this submission: "In short it was argued that it was unacceptable that the former employees should receive both compensation for their unfair termination and their jobs back. We turn to examine this argument." 37 The majority then set out the final three paragraphs of Commissioner Hingley's reasons, quoted at para 24 above. They went on: "It can be seen from those passages that Hingley C having found reinstatement was practicable expressly declined to reinstate employees and instead awarded substantial compensation. That decision was not appealed as the result of a settlement between the parties. It is true the settlement excepted in express terms the proceedings then before Hodder C in relation to the application for an exceptional matters order. Notwithstanding this exception however, and accepting the position that the whole purpose of the appellant's action in terminating all P&E employees was to 'get around' the certified agreement, it is in our view impossible to form the view that the matter 'of employees getting their jobs back' was not determined by Hingley C. As we have noted above Hingley C held the employees were unfairly terminated and awarded them compensation. However, he refused to reinstatement them. We think in the face of this conclusion by Hingley C it was an error to conclude on the merits that the unfair termination by the appellant of its employees justified the making of an exceptional matters order requiring in effect that when the appellant reopened the mine the employees who were terminated and who applied should be re-engaged on a preferential basis. Put another way, having regard to the express finding of Hingley C in relation to the employees terminated that reinstatement was inappropriate and his award of compensation for their termination a decision to compel their re-engagement on a preferential basis was wrong in principle. We consider that this error is of the type contemplated in House v The King (1936) 55 CLR 504. In our view the decision of Hodder C involves a miscarriage of his discretion. In particular we think it an error of principle for Hodder C to have taken into account in relation to the making of an award covering future rights past conduct which has been the subject of a previous order by the Commission. This is particularly so when an order having the same practical effect as the award was declined by the Commission and there was no appeal from that decision. In reaching this decision we would not wish to be taken as endorsing in any way the actions taken by the appellant in relation to its P&E workforce and in particular the mass termination of that workforce for the reasons identified by Hingley C. Rather, our view is that the matter of the appropriate remedy for that treatment of the workforce was considered by Hingley C who made appropriate orders in that regard and for the reasons given above it is not appropriate to rely on those same facts and circumstances to justify the making of an exceptional matters order." 38 Commissioner Bacon agreed with the majority in respect of the "technical points" but not with their conclusion on the merits. In relation to the argument that Commissioner Hodder's award had the same practical effect as the order that Commissioner Hingley refused to make, he said: "I am unable to conclude that Hodder C's award carries any of the characteristics or effects contained in ss.170CH(3) and (4) which are the orders Hingley C refused to make. Hodder C's award does not reinstate the employees by re-appointing them to the position in which the employees were employed immediately before the termination, nor does it require reinstatement by the appointment of the employees to other positions on terms and conditions no less favourable than those on which the employees were employed immediately before the termination. Further, the Hodder award does not make any prescription for the maintenance of the employees' continuity of employment or for payment to employees for lost remuneration because of the termination. The operation of the Hodder award does not carry the same effect as the orders which Hingley C refused to make. For the above reasons, as well as for the following reasons, I do not believe the Hodder award has the same practical effect as the order Hingley C refused to make. One of the characteristics of the Hodder award is to provide a discretion to the appellant regarding the number and timing of the engagement of employees. Such a discretion would not exist if Hingley C had made an order for the reinstatement of the 282 applicants. The Hodder award only has application to retrenched employees who apply for a vacancy which the appellant wishes to fill. The obligation on the retrenched employee to make application to fill a vacancy in order to receive the benefit (ie preference in engagement) of the Hodder award is substantially different to the practical effect of any reinstatement order that Hingley C refused to make. Such an order, if made, would have seen all applicants reinstated as from a date determined by Hingley C. The Hodder award makes no prescription for continuity of service. The practical effect of this does not conflict with Hingley C's decision. Any retrenched employees subsequently re-employed by the appellant, in accordance with the Hodder award (as in the absence of it) will have had their continuity of service broken by the termination of their employment on 1 October 1997. The Hodder award makes no reference to the terms and conditions of employment for employees re-engaged in accordance with it, nor does it cause the appellant to pay any employee an amount in respect of remuneration lost due to the terminations. To this extent there is no practical effect that is inconsistent with the Hingley C decision. There is one exception on this point. The Hodder award specifically prescribes as a condition of employment that a level of multiskilling be made available to the appellant by employees who are successfully re-engaged as a result of the operation of the award. Such an award (or order) could not have been by Hingley C given that he was exercising the powers of Part VIA, Division3 of the Act. The remedies available to Commissioner Hingley are found in ss170CH(3), (4) and (6) of the Act. None of the subsections on my reading would allow an order of the type contained at subclause 4(b) of the Hodder award and the decision of Hingley C not to make certain orders. In any event, the history of this matter would hardly lead one to conclude that the employees would view clause 4(b) of the Hodder award as a benefit or advantage that they had derived as a result of the termination of their employment. Rather, the subclause provides the appellant with workplace flexibilities which it had previously agreed to forego in its certified agreement. In my view there is nothing in the foregoing which supports the appellant's submission that the practical effect of the Hodder award is to do what Hingley C refused to do." (Original emphasis) 39 Commissioner Bacon then dealt with a submission that Commissioner Hodder "fell into error in substantially relying on the Hingley C finding of unfairness and no others (specifically the compensation paid as a result of the Hingley proceedings)". He commented this submission "would carry significant weight if it could establish that as a result of the two proceedings the employees gained some windfall that advantaged them to an extent beyond their entitlements had they not been terminated". After dealing with some other matters, he pointed out this was not the position. "It is approximately 62 weeks since the employees were terminated. Hingley C's decision provided for compensation of approximately 17 weeks wages. Employees who were terminated would in most cases have had to move from their homes (owned by the appellant) and in many cases had to move from Emerald with the consequent disruptions to their families. Given these factors I have formed the view that an employee who ultimately is re-engaged by the appellant at Gordonstone and has benefited from the Hingley C proceedings and the Hodder award has not profited from their experiences with the appellant over the last fourteen months. The appellant has not convinced me that the operation of the Hingley decision/Deed of Release and the Hodder award visits on its former employees some windfall which should be corrected on appeal." 40 Commissioner Bacon specifically rejected the argument that Commissioner Hodder made an error of principle in taking into account the findings of Commissioner Hingley. He said: "There has not emerged in this appeal anything that leads me to conclude that provided there is no windfall of the type described earlier it is wrong in principle to consider facts or to attach weight to facts in proceedings for the making of an award pursuant to Part VI of the Act simply because those facts have been considered and orders made in proceedings pursuant to Part VIA. Rather, the facts underlying the applications before the two Commissioners establish that circumstances can arise when the same facts are relevant and necessary considerations in determining the outcome of applications made under the separate Parts of the Act. In any event the appellant had an opportunity to limit the Hodder proceedings when it negotiated the Deed of Release settling the unfair termination applications. The appellant failed to secure such an outcome." (Original emphasis) Commissioner Bacon then considered other arguments before concluding that leave to appeal should be granted but the appeal should be dismissed. 41 On 18 December 1998 the Full Bench issued a document, styled an "Order", which said: "A. Further to a the decision of the Full Bench of the Commission on 18 December 1998 … the Gordonstone Mine Employment Award 1998 … issued by Commissioner Hodder in C No.24069 of 1997 on 26 August 1998 … is hereby quashed. B. This order shall come into force on 18 December 1998 and shall remain in force for a period of three years." 42 As previously mentioned, on 7 January 1999 CFMEU filed a Notice of Motion in the High Court. The Notice of Motion was supported by an affidavit made by Anthony Michael Slevin, National Legal Officer of the Mining and Energy Division of CFMEU, to which he annexed a draft order nisi seeking writs of prohibition, certiorari and mandamus. The draft contained ten grounds: "1. The First Respondents failed in their duty to hear and determine in accordance with law the appeal from the decision and award of Commissioner Hodder dated 26 August 1998. 2. The First Respondents erred in law in allowing the appeal from the decision and award of Commissioner Hodder dated 26 August 1998 and in quashing the decision and award of Commissioner Hodder dated 26 August 1998. 3. The First Respondents in allowing the appeal from the decision and award of Commissioner Hodder dated 26 August 1998 and in quashing the decision and award of Commissioner Hodder dated 26 August 1998 exceeded their authority and/or powers. 4. The decision and/or order of the First Respondents was a decision and/or order that no reasonable tribunal could have reached on the material before them. 5. The First Respondents in their decision and/or order on 18 December 1998 fell into jurisdictional error and constructively failed to exercise their jurisdiction. 6. The First Respondents erred in deciding that Commissioner Hodder made an error of principle and that his discretion miscarried in making an exceptional matters award requiring re-engagement if the Second Respondent was employing persons in circumstances where Commissioner Hingley had previously made a decision refusing reinstatement of some of those persons at a time when the Second Respondent was not employing persons. 7. The First Respondents erred in taking into account the decision of Commissioner Hingley not to reinstate any persons which was decided in different factual circumstances and which dealt with a different application and remedy for a limited number of persons. 8. The First Respondents erred in taking into account the decision of Commissioner Hingley not to reinstate persons despite the Second Respondent and the Prosecutor having previously agreed by Deed of Release that the proceedings before Commissioner Hingley be discontinued and that the proceedings before Commissioner Hodder could continue. 9. The First Respondents erred in deciding that the exercise of the normal discretion that Commissioner Hodder had as to making of the exceptional matters award was precluded by the decision of Commissioner Hingley. 10. The First Respondents erred in deciding that any exercise of the discretion that they might have on appeal as to making of the exceptional matters award was precluded by the decision of Commissioner Hingley."

The entry of Mine Management 43 In his affidavit, Mr Slevin mentioned the likelihood "that a company called Mine Management Pty Ltd, a subsidiary of Pacific Coal Pty Ltd, will be employing P & E employees at the mine in the near future". He referred to various newspaper reports and letters and an offer of employment by Mine Management to a CFMEU member. He also referred to statements made to the Commission on 17 December 1998 by Russell Allen, solicitor for Pacific Coal. He summarised these statements as follows, with transcript references we have deleted: "(i) that a conditional contract for the purchase of Arco's interest in the Gordonstone joint venture was entered into by Rio Tinto (a major shareholder of Pacific Coal Pty Ltd) in October 1998; (ii) that the Gordonstone joint venture parties, Mitsui and MLC had the right to purchase Arco's interest in the Gordonstone mine, which rights they might exercise before 1 January 1999, which was the original proposed date of sale; (iii) that if Rio Tinto's bid was successful, it would be inappropriate for an Arco company to continue to manage the mine; (iv) that what would have to occur if Rio Tinto's bid was successful was for the joint venture parties to have a meeting to decide who would manage the Gordonstone mine; (v) that upon becoming appointed as manager of the Gordonstone mine, Mine Management Pty Ltd would become bound by the terms of the Gordonstone Mine Employment Award 1998; (vi) that Rio Tinto had formed Mine Management Pty Ltd to put together a small team of people with the necessary technical and management expertise for an underground mine, who would be available to carry out the statutory functions, to keep the Gordonstone mine on a care and maintenance basis and do the feasibility work for the eventual mine re-opening some time in the second quarter of 1999." 44 According to evidence later placed before Senior Deputy President Harrison, Mine Management employed 22 employees as from 21 December 1998. Although the negotiations between ARCO and Rio Tinto had not yet resulted in a binding agreement, on or about 6 January 1998 Mine Management put before those employees an agreement intended to be the subject of an application for certification under Part VIB of the Workplace Relations Act. According to the same evidence, the agreement was approved by these employees. On 7 January 1998 Mine Management filed in the Commission an application for certification in the following terms: "Application is made for the Commission to determine an appropriate award or awards for the purpose of deciding whether a certified agreement passes the no-disadvantage test. The kind of work that the persons under the proposed agreement are engaged in is mine operations and management. To the best of my knowledge and belief, the following awards may be appropriate for the purpose of deciding whether the agreement passes the no-disadvantage test: . Gordonstone Coal Mine Consent Award 1993; . Coal Mining Industry (Supervision and Administration) Consent Award 1990 (the Staff Award); . Gordonstone Staff Agreement 1996 made pursuant to clause 32 of the Staff Award. The Applicant seeks an urgent hearing of the application." 45 On 11 January 1999 Mine Management applied to the Commission under Division 2 of Part VIB of the Act for certification of an agreement made under s170LK of the Act. Without that application Mine Management submitted a statutory declaration made by Paul William McCrea, the company's Employee and Community Relations Manager. This declaration supplied additional information about the agreement. Mr McCrea gave these answers to questions about the company's business: "2.1 What is the single business or part of a single business covered by the agreement? The operation and management of coal mines 2.2 Name of business or place of work that is the single business covered by this agreement Mine Management Pty Limited 2.3 Address of the place of work, or at which the business is carried out Currently 33 Hospital Road, Emerald and if appointed as Manager, Gordonstone Mine, Lilyvale Road, via Emerald. 2.4 Does this agreement apply to the whole or only to a part of a single business? The whole of the business" Mr McCrae stated that 20 employees voted in favour of the agreement on 6 January 1999, there being a total of 22 employees covered by the agreement. 46 The agreement is entitled Mine Management Pty Limited Certified Agreement 1998. The parties are stated to be Mine Management ("the Company") and the "employees of the Company working in production, engineering, supervision and administrative roles (the employees)". Subclause 4.1 provides that the agreement "replaces in their entirety all awards and agreements applying to the parties", including four specified awards or agreements. The sub-clause makes no reference to the Gordonstone Mine Employment Award 1998 made by Commissioner Hodder. Clause 5 deals with contracts of employment. Subclause 5.3 includes the following: "The Company may: . use contractors on any work as required to meet the needs of the business; . recruit new employees or select current employees for internal transfers on the basis of the best person for the job; . utilise staff, production or engineering employees to perform any tasks within their competence, including any operating or maintenance tasks subject to safety and statutory requirements." 47 On 1 February 1999 Senior Deputy President Harrison heard Mine Management's application for certification of the agreement. The application was opposed by CFMEU, the Australian Council of Trade Unions and the Australian Colliery Staff Association. At the conclusion of the hearing, the Senior Deputy President announced the agreement would be certified, operative from that day for two years, and she would give reasons as soon as possible. 48 Although there is no direct evidence about the matter, it appears ARCO and Rio Tinto reached an agreement about the sale of ARCO's interest in the mine at some time between 10 and 14 February 1999. Mine Management then became manager of the mine in place of Gordonstone. 49 On 25 February 1999 Senior Deputy President Harrison announced her reasons for certifying the agreement. She referred to a determination made by her on 28 January 1999 that the awards that had to be considered in determining whether the agreement passed the "no-disadvantage" test provided by Part VIE of the Act were Gordonstone Coal Mine Consent Award 1993 and Coal Mine Industry (Supervision and Administration) Interim Consent Award 1990 Queensland, including Annexure 2 - Clause 32 Enterprise Agreement - The Gordonstone Staff Agreement 1996. Senior Deputy President Harrison noted and rejected a submission by CFMEU that the agreement was not capable of certification before Mine Management commenced to operate and manage the mine; that the effect of the definition of "single business" in s170LB of the Act was to require that the business project or undertaking be carried on by the employer when the agreement was made. She said: "I do not see s.170LB as serving a purpose other than to define what types of businesses or activities will be considered to be a 'single business'. In this case the business that is 'carried on' by MMPL is described as the operation and management of coal mines. The evidence of Mr McCrea shows that MMPL has commenced that business and engaged employees. Its activities had not however at the time the application was filed extended to work being done at the Gordonstone coal mine. A business which encompasses the management of a coal mine would not necessarily need to be geographically situated at the coal mine. Work and training preparatory to putting a workforce in a position to undertake work at the mine site is though nonetheless part of the business of MMPL and these activities have been carried on by it since at least December 1998. I am of the opinion that the business of MMPL, the operation and management of coal mines, comes within the definition of single business in s.170LB(1)."

Whether the Full Bench decision was erroneous in law 50 In para 37 above we set out the five concluding paragraphs of their reasons in which Senior Deputy President MacBean and Senior Deputy President Polites explained why they had decided to set aside the Increase in Hands Award of Commissioner Hodder. Counsel for CFMEU criticise this reasoning as "effectively raising an estoppel against the award sought by [CFMEU] and ultimately granted by Commissioner Hodder". They say the principle of estoppel is inimical to the concept and processes of conciliation and arbitration and cite authority to that effect. According to counsel, the approach adopted by the majority caused them to apply a wrong test and fail to consider the true question for resolution: whether Commissioner Hodder erred in the exercise of the Commission's discretion to make an award. 51 Counsel for CFMEU point out that the majority reasons contain no reference to s170HA of the Workplace Relations Act. That section appears in Division 3 of Part VIA of the Act, the Division dealing with termination of employment pursuant to which were made the 282 applications that came before Commissioner Hingley. Section 170HA is one of three sections in Subdivision F of the Division entitled "Other rights relating to termination of employment". It provides: "170HA Subject only to the operation of sections 170HB and 170HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment." 52 Section 170HB precludes an application under s170CE on the basis that a termination of employment was harsh, unjust or unreasonable if a similar claim has been made in proceedings taken under another statutory provision. Section 170HC excludes an application under s170CE on the ground of contravention of s170CK (the anti-discrimination provision) if a similar application has been made under other legislation. Counsel say these are the only cases where the seeking of one remedy bars an application for another remedy, and the majority of the Full Bench was wrong in creating another exclusion; Commissioner Hingley's decision did not preclude Commissioner Hodder making an Increase of Hands Award that might confer benefits on some of the persons who had made s170CE claims. 53 Counsel for CFMEU point out that Gordonstone settled the s170CE claims upon the basis that CFMEU was free to proceed with its application for an Increase of Hands Award. They draw attention to the differences between the relief able to be granted by the two Commissioners; their submissions echo the observations of Commissioner Bacon set out in paras 38 and 39 above. Counsel say that, having regard to these differences, it was wrong for the majority to say that Commissioner Hodder erred in principle in taking into account "past conduct which has been the subject of a previous order of the Commission"; in particular, it was wrong to describe Commissioner Hodder's award as "an order having the same practical effect as the award … declined" by Commissioner Hodder. 54 Counsel for Gordonstone say it is incorrect to characterise the majority decision as one effectively raising an estoppel against the proposed award; the majority did not hold that the decision of Commissioner Hingley precluded the maintenance of CFMEU's application or the making of the desired award. Rather, they contend, the majority recognised the Full Bench was dealing with an appeal against the exercise of a statutory discretion; they concluded that Commissioner Hodder had made an error in the exercise of that discretion. Counsel say: "It is clear that the Full Bench in exercising its appellate jurisdiction was considering the challenge to the exercise of discretion by Commissioner Hodder and looking to see if it demonstrated error. The reference to being 'wrong in principle' is clearly a reference to being wrong as a matter of merit and not legal principle. This was not a jurisdictional argument. There was no jurisdictional error. The Full Bench was clearly of the view that the fact that Commissioner Hingley had dealt with a group of employees who were representative of the class as a whole and made findings and determinations in respect of that group and thereafter, in light of those findings and determination, all the relevant employees then took the benefit of a settlement, was a very significant consideration. In short, the Full Bench was satisfied that the decision and award of Commissioner Hodder on the material before him, demonstrated mistake of a type which House v The King … required them to correct;" 55 In relation to s170HA, counsel for Gordonstone argue their opponents have confused a right to maintain an application with a right to a particular outcome from the application; the Full Bench did not hold that CFMEU was disentitled to seek an Increase in Hands Award or that Commissioner Hodder's award was beyond his jurisdiction. Counsel say the orders of Commissioner Hingley were clearly relevant to the decision the Full Bench was required to make; although the Commissioner had determined only seven applications, these seven cases were selected as representative of the whole batch of 282 cases, and the Full Bench was entitled to proceed on that basis; under those circumstances the decision of Commissioner Hingley to refuse reinstatement orders was highly significant. 56 We agree with aspects of both parties' submissions. It is not necessary to deal with all the points made by counsel. However, we are of the opinion that the majority of the Full Bench fell into legal error in their characterisation of the orders sought in the two sets of proceedings. As the majority said, Commissioner Hingley made a determination about "the matter of employees getting their jobs back". He did this in the course of considering whether he ought to accede to the employees' application for reinstatement under s170CH(3). But he did so in the context of the situation that then existed; the mine was closed, there was no certainty it would re-open but, if it did, only about half the previous number of P.E. employees would be required. When Commissioner Hodder came to consider whether to make a permanent Increase in Hands Award, it appeared the mine would re-open. It was still the position that fewer P.E. employees would be needed. However, unlike Commissioner Hingley, Commissioner Hodder was not called upon to decide the employment future of particular employees; it was sufficient for him to establish a selection procedure for whatever number of P.E. employees the employer might think necessary. In our opinion there was no inconsistency between Commissioner Hingley's refusal to reinstate all employees and Commissioner Hodder's conclusion, in the words of the Full Bench majority, "that the unfair termination by [Gordonstone] of its employees justified the making of an exceptional matters order requiring in effect that when the appellant reopened the mine the employees who were terminated and who applied should be re-engaged on a preferential basis". It follows it was incorrect to say that Commissioner Hodder's "decision to compel [the P.E. employees'] re-engagement on a preferential basis was wrong in principle". 57 For the same reason, it was erroneous for the majority to describe the order made by Commissioner Hodder as "having the same practical effect" as a reinstatement order under s170CH(3). It did not, as Commissioner Bacon pointed out. First, Commissioner Hodder's award did not ensure anybody would be re-employed at the mine. It applied only "when an increase in hands is decided upon by the employer". This would not occur unless, and until, the mine was about to be reopened and there was no certainty this would occur. If it did occur, it was highly probable that the employer would engage fewer than 282 P.E. employees; so it was most unlikely that all of the claimants before Commissioner Hingley would benefit from Commissioner Hodder's award. Secondly, a reinstatement order under s170CH(3) would usually (although not necessarily) carry with it orders under s170CH(4) for maintenance of the employee's continuity of employment and payment of remuneration lost up to the time of reinstatement. Where such orders are made, an employee is protected against economic loss arising out of the termination of employment. But Commissioner Hodder's award could not have saved any employee from economic loss. Even an employee who benefited from the award would have suffered a loss of income between the date of the Hingley decision, 2 February 1998, and the date of any re-engagement pursuant to the Hodder award of 26 August 1998. There was no possibility of a combination of the two Commissioners' decisions providing a double financial benefit. 58 Further, it was erroneous for the majority of the Full Bench to describe the facts before Commissioner Hodder as "those same facts and circumstances" as before Commissioner Hingley. They were not; Commissioner Hodder had evidence of the prospective reopening of the mine, Commissioner Hingley did not. This was a matter of great importance. 59 The penultimate paragraph in the extract from the majority decision quoted in para 37 contains particular difficulties. It is true Commissioner Hodder took into account the conduct of Gordonstone in relation to the dismissal of the P.E. employees and this was a matter considered by Commissioner Hingley in connection with the s170CE claims, and reflected in his decision to give relief to the s170CE applicants, though not relief by way of reinstatement. However, in the absence of a relevant statutory provision, this would not preclude the same conduct being taken into account, if otherwise relevant, in relation to a different application before Commissioner Hodder. It might also have been considered relevant in ascertaining whether, and if so to what extent, CFMEU was seeking the duplication or repetition of benefits already provided by the decision of Commissioner Hingley. It might be a principle of industrial fairness, which a Full Bench of the Commission could propound and apply in appellate proceedings, that employees should not receive double compensation or double amelioration for a position of unfair disadvantage arising from an employer's conduct. It might be a principle of administrative efficiency and convenience within the Commission, as well as industrial fairness, that the Commission should decline to entertain a second time what, in substance, is the same arbitral claim. 60 It is open to an appellate Full Bench to find that a discretionary decision has miscarried because the decision maker has not appreciated, or not sufficiently appreciated, an arbitral principle, even one enunciated by that Bench for the first time. But there cannot be a principle such as that espoused by the majority of the Full Bench in the present case, and relied on by them to find an "error of principle" on the part of Commissioner Hodder: that an arbitrator under the Act may not take into account evidence of past conduct which has been considered in a previous arbitration; assuming, for the moment, that Commissioner Hingley had been engaged in arbitration of the same character. In principle, in proceedings that might lead to the making of an award adjusting the future rights of the parties, the Commission must take into account all relevant matters that are identified and relied on by the parties. A relevant matter cannot become, or be declared to be, irrelevant merely because consideration was given to that same matter when some past order or award was made by an arbitrator. This is not a case of the majority of the Full Bench loosely expressing antipathy to something in the nature of double compensation. That is apparent from the fact that they failed to engage in any close analysis of the extent to which there was double compensation or whether, by a variation of the award made by Commissioner Hodder, for example by making re-engagement of an employee who had received compensation conditional on effective repayment of all or part of it, double compensation might be avoided entirely. 61 The weight to be accorded a relevant matter is for the arbitrator to determine. A principle of industrial fairness of the kind we have mentioned may possibly limit the weight to be given to a particular matter, although no such principle was identified by the majority in the present proceedings. However, it was an error of law for the majority to criticise Commissioner Hodder for having taken into account the evidence put before him regarding Gordonstone's conduct. That evidence was relevant to the application then before him. It did not matter that Commissioner Hingley had already considered that conduct in determining the s170CE claims. 62 There is an additional and more fundamental reason why the majority of the Full Bench erred in their approach to the use made by Commissioner Hodder of the evidence of Gordonstone's conduct: the Full Bench failed to recognise that the powers exercised by Commissioner Hingley and Commissioner Hodder were materially different. We discuss this issue in more detail when we consider whether the error was jurisdictional.

Was the error jurisdictional? 63 The question whether a particular error of law attracts prerogative relief is often one of difficulty. Relevant authorities were collected and discussed in Re Keely; ex parte Kingham (1995) 1 IRCR 311 at 333-339. To them should be added the later decision of the High Court of Australia in Craig v South Australia (1995) 184 CLR 163. Craig has the advantage of being a unanimous decision, unlike each of the cases discussed in Keely, but it focuses upon the position of an inferior court, rather than an administrative tribunal. The High Court Justices went to some trouble to emphasise that, in determining what constitutes "jurisdictional error", it is necessary to distinguish between the position of inferior courts and administrative tribunals, of which the Australian Industrial Relations Commission is an example, if an unusual one. 64 Notwithstanding this circumstance, it seems to us the decision in Craig provides some assistance in the present case. At 178 the Court referred to an important passage in Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 at 171. Lord Reid said: "… there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly." 65 The High Court made the point that the respondent Commission, in Anisminic, was an administrative tribunal and said Lord Reid's comments should not be understood as referring to a court of law. The reason was that an administrative tribunal ordinarily lacks authority to determine legal issues. The Court then said (at 179): "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 66 One academic commentator has read this passage as erasing the distinction between "jurisdictional" and "non-jurisdictional" errors of law. In a Case Note on Craig published in volume 3 of the Australian Journal of Administrative Law at 179, Mr Chris Finn commented that, in the light of the High Court's statement: "Any error of law made by an administrative tribunal would appear to be reviewable, thus equating the position at common law to that applicable in statutory review of Commonwealth decision-making under the Administrative Decisions (Judicial Review) Act." 67 Professor Margaret Allars expressed a more ambivalent view in an article, Reputation, Power and Fairness: A Review of the Impact of Judicial Review upon Investigative Tribunals, published in volume 24 of the Federal Law Review at 235. At 250 she said: "In contrast to its approach to review of inferior courts, the High Court in obiter in Craig apparently accepted that Anisminic applies to tribunals in Australia. If these obiter dicta prevail, judicial review of tribunal decisions will be equivalent to a statutory appeal on any question of law, a result which Mahoney P in the New South Wales Court of Appeal has on many occasions resisted as an unacceptable and judicially interventionist outcome. On the other hand, such a course brings the general law position into line with that which applies under the ADJR Act, where judicial review is available in respect of all errors of law, whether or not they appear on the face of the record. Interpreted more conservatively, the High Court's obiter dicta in Craig's case could be understood as acceptance of no more than the liberal version of traditional jurisdictional error which has been evident in earlier jurisdictional fact cases decided by the High Court." 68 If the High Court Justices did not intend to obliterate the distinction between "jurisdictional" and "non-jurisdictional" error, it is puzzling that they emphasised the constitutional inability of federal administrative tribunals to make binding determinations of law. That emphasis tends to suggest that all legal determinations by such tribunals are vulnerable to review. However, notwithstanding that circumstance, we cannot read Craig as an obliteration of the distinction. Had their Honours intended to take this step, they would surely have said so in plain terms. Such a step would represent a major departure from well-settled law. It would not appropriately be taken by ambiguous dicta. Moreover, if the Court had intended to take this step, it would logically have omitted from the passage quoted in para 65 the words "at least in some circumstances". If there was no distinction, it would always suffice for an applicant to demonstrate that the error of law had caused the tribunal to make an erroneous finding or to reach a mistaken conclusion. 69 This leaves the question: what are the circumstances in which an error of law leading to an erroneous finding or mistaken conclusion will open the way to prerogative relief? The High Court did not indicate this in terms, but we think the clue lies in its apparent approval of the application to tribunals (as distinct from inferior courts) of the cited passage in Lord Reid's Anisminic speech. Lord Reid spoke of the tribunal having done, or failed to do, something "which is of such a nature that its decision is a nullity". Mere error is not enough. Lord Reid gave examples of what he meant: bad faith, lack of power, failure to accord natural justice, mistake as to the nature of the tribunal's jurisdiction, failure to take into account a relevant matter, reliance on an extraneous consideration. These are all defects in the inquiry process, as distinct from erroneous conclusions. Unlike Lord Pearce in the same case (see 195), Lord Reid gave no support to the view that any error of law, affecting the tribunal's decision, would justify prerogative relief. 70 This understanding of the situation is consistent with the High Court's decision in Public Service Association (SA) v Federated Clerks' Union (SA Branch) (1991) 173 CLR 132, discussed in Re Keely at 336-339. That case concerned a decision of a tribunal, the Full Industrial Commission of South Australia. The decision was immune from review except "on the ground of excess or want of jurisdiction". The Supreme Court of South Australia held that the Full Commission erroneously characterised a decision of the Registrar of the Commission as a discretionary decision and the High Court affirmed its grant of relief. Although the members of the High Court divided as to the result, they all proceeded on the basis that it was necessary for the applicant before the Supreme Court to establish that the Full Commission had done more than reach an erroneous result by means of an error of law. 71 In considering whether the Full Bench's error of law was "jurisdictional", within the expanded understanding of that term expressed by Lord Reid in Anisminic, it is necessary to bear in mind a fundamental distinction between the applications heard by Commissioner Hingley and the application before the Full Bench. 72 As already mentioned, the applications brought before Commissioner Hingley were founded on Division 3 of Part VIA of the Workplace Relations Act. Although a registered organisation may seek a remedy under this Division on behalf of a dismissed employee, any remedy granted under the Division is an individual one; it involves the vindication of the statutory rights of a particular employee. The sources of the Commonwealth's power to enact Division 3, and create the remedy, are a range of provisions in the Constitution, but not s51(xxxv), the provision conferring on the Commonwealth Parliament legislative power in respect of conciliation and arbitration for the prevention and settlement of interstate industrial disputes. However, the Commission, one of the two repositories of the power to grant the remedy, is a creature of s51(xxxv) of the Constitution. It is a body established in aid of the prevention and settlement of interstate industrial disputes. 73 A breach by an employer of the obligation, impliedly created by Division 3, not to terminate employment harshly, unjustly or unreasonably may give rise to proceedings in the Commission to enforce rights which are quite unlike proceedings of the type with which the Commission (and its predecessors) has been traditionally involved, namely proceedings to prevent and settle, by conciliation and arbitration, industrial disputes extending beyond the limits of a State. Proceedings under Division 3 involve the enforcement of individual rights by reference to past events. They involve a process of hearing and determination which is (at least) quasi-judicial in character. The Commission must ascertain what the relevant facts are and whether the established facts demonstrate contravention of the standard established by Division 3 and, if demonstrated, what the statutory remedy should be. 74 The Act uses the word "arbitration" to describe the adjudication undertaken by the Commission under Division 3: see ss170CG and 170CH. However, the use of that word does not mean the Commission's power under that Division is arbitration of the type referred to in s51(xxxv) of the Constitution. The word might have been adopted in order to signify that the Commission was not being invested with judicial power. The process of hearing and determination under Division 3 is not the same as the arbitral process which involves the Commission determining what quasi-legislative regime should regulate the future industrial relationship between an employer and its existing and future employees. The industrial arbitral power is primarily exercised, not for the purpose of vindicating rights having regard to past conduct, but rather to prevent or settle a dispute that may cause future difficulties or losses. The purpose is consistent with the objective stated in s3(h) of the Act. 75 The Act in its present form limits the exercise of the industrial arbitral power by restricting the class of matters that may, for the purposes of arbitration, be treated as a matter in dispute. Those matters are identified in s89A(2) as "allowable award matters". The industrial arbitral power may be exercised, in relation to a matter not identified in s89A(2), only if it is an "exceptional matter" within the meaning of s89A(7). If it is an exceptional matter, then the exercise of the industrial arbitral power is constrained by s120A, which requires that an exceptional matters order be made only if the Commission is satisfied that the making of the order is in the public interest and consistent with the objects of the Act: see s120A(2). Even so, the power exercised by the Commission, in making an exceptional matters order, is the industrial arbitral power; the Commission is making an order to settle a dispute and to prevent further disputes concerning that matter. In relation to an exceptional matter, the Commission must have reached the point of exercising the industrial arbitral power because conciliation had failed and it was appropriate to settle the matter by arbitration - see s89A(7)(a), (b) and (c) - and a harsh or unjust result would otherwise arise - see 89A(7)(e). As with the exercise of the Commission's historic industrial arbitral power, the power to make an exceptional matters order is exercised to create a quasi-legislative regime to regulate future conduct. 76 An early judicial comparison of the industrial arbitral power and judicial power was made by Isaacs J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 10 CLR 266 at 318: "If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties - in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with sanctions for non-conformity - then the determination that so prescribes, call it an award, or arbitrament, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it." While his Honour was in dissent, his observations on this point have been frequently cited with approval. As to the circumstances in which the industrial arbitral power is ordinarily exercised, the settlement of an industrial dispute, Isaacs J said in George Hudson Ltd v Australian Timber Workers Union (1923) 32 CLR 413 at 441: "The very nature of an 'industrial dispute', as distinguished from an individual dispute, is to obtain new industrial conditions, not merely for the specific individuals then working from the specific individuals then employing them, and not for the moment only, but for the class of employees from the class of employers limited by the ambit of disturbance or dislocation of public services for which has arisen or which might arise if the demand were not acceded to and observed for a period really indefinite. The concept looks entirely beyond the individuals who are actually fighting the battle. It is a battle by the claimants not for themselves alone and not as against the respondents alone, but by the claimants so far as they represent their class, against the respondents so far as they represent their class." 77 In the context of arbitration, the prior conduct of an employer will often be relevant in assessing what future constraints should be imposed on the employer, by the arbitrated order or award, in order to ensure a just and enduring outcome. Specifically, in relation to an exceptional matters order, the need for a just outcome is reinforced by s89A(7)(e). The outcome can operate for up to two years: see 120A(5). In the present case, Commissioner Hodder thought the prior conduct of the employer to be relevant in determining what regime should apply in the future by way of an exceptional matters order. 78 In the context of proceedings under Division 3, the prior conduct of the employer is relevant in ascertaining whether an identified statutory standard has been met. If it has not, then statutory rights conferred on an employee may be available to the employee and a remedy obtained. The relevance of the prior conduct of the employer is of a materially different kind if the Commission is exercising its industrial arbitral powers rather than exercising the quasi-judicial powers conferred by Division 3. This distinction was not recognised by the majority of the Full Bench. The majority appears to have proceeded on the basis that, because the same tribunal was exercising functions, the difference between those functions was not important. 79 This was an error of law that fundamentally affected the exercise by the Full Bench of its power to determine Gordonstone's appeal against Commissioner Hodder's award. If the majority had appreciated that Commissioner Hingley had exercised a quasi-judicial power, when he made orders in respect of the individual rights of the 282 dismissed employees who brought claims under Division 3 of Part VIA of the Act, whereas Commissioner Hodder had been concerned with the proper exercise of the Commission's arbitral power in respect of an industrial dispute between CFMEU and Gordonstone, they could not logically have criticised Commissioner Hodder for taking into account Gordonstone's past conduct, or spoken of a reinstatement order under Division 3 of Part VIA as "having the same practical effect" as the reinstatement orders declined by Commissioner Hingley . Not only were there important conceptual differences between a reinstatement order and Commissioner Hodder's award, they were (or would have been) the fruit of the exercise of fundamentally different powers, which happened both to be vested in the Commission. In being asked to quash Commissioner Hodder's award, the Full Bench was being asked to perform a function different to that performed by Commissioner Hingley, but the majority obviously did not appreciate that fact. This was an error affecting the Full Bench's exercise of jurisdiction; it was a "jurisdictional" error attracting prerogative relief, subject to s150 of the Act to which we now turn.

The application of s150 80 Section 150 of the Act provides: "150(1) Subject to this Act, an award (including an award made on appeal): (a) is final and conclusive; (b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus or injunction in any court on any account. (2) An award is not invalid because it was made by the Commission constituted otherwise than as provided by this Act." 81 This section operates on an "award", a term which includes an "award made on appeal". The first question in considering the operation of s150 is whether the order made by the Full Bench on 18 December 1998 is such an award. The terms of the order are set out in para 41 above. The substantive part of the order (para A) quashes the award made by Commissioner Hodder on 26 August 1998. Paragraph B provides for the substantive order to come into force on 18 December 1998 and remain in force for three years. 82 "Award" is defined in s4 of the Act in the following terms: "award" means an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA." 83 Section 143(1) of the Act provides: "143(1) Where the Commission makes a decision or determination that, in the Commission's opinion, is an award or an order affecting an award, the Commission shall promptly: (a) reduce the decision or determination to writing that: (i) expresses it to be an award; (ii) is signed by at least one member of the Commission; and (iii) shows the day on which it is signed; and (b) give to a Registrar: (i) a copy of the decision or determination; and (ii) a list specifying each party who appeared at the hearing of the proceeding concerned." 84 Section 143(1) operates on a decision or determination which, in the Commission's opinion, is an award or an order affecting an award. Section 143 is part of Division 6 of Part VI of the Act which contains a number of other provisions dealing with the form of an award and the manner in which, and the terms on which, awards operate. That Division includes s150. The operation of that Division, and what is meant by "an award or order affecting an award", was recently considered by a Full Court of this Court in Construction Forestry Mining & Energy Union v Comalco Aluminium Limited [1998] FCA 1536. In issue was whether an order made under s118A was an order on which s148 operated. The Full Court said: "It can be seen that s 143(1) required the Commission to take specified steps in relation to a decision or determination which, in its opinion, was an award or an order affecting an award. It had to be reduced to writing in the way specified in s 143(1)(a) and a copy and related information given to the Registrar: see s 143(1)(b). It had to be expressed to be an award: see s 143(a)(i). Similar obligations were imposed by s 143(2) in relation to a decision or determination that, in the Commission's opinion, was not an award though they did not include, for obvious reasons, that it be expressed to be an award. When the C&A Act [the Conciliation and Arbitration Act 1904]was enacted in 1904, it did not contain a definition of award. The word was first defined by an amendment made in 1947 as meaning "an award made under this Act". By Act No 44 of 1956 the words "and includes an order" were added. Those additional words comprehended an order varying an award: see Vehicle Builders' Federation of Australia v General Motors Holdens Pty Ltd (1977) 32 FLR 100 at 106. Between at least 1947 and 1988 the C&A Act contained objects which made reference to the making or enforcement of awards in settlement of industrial disputes. The form of definition changed with the enactment of the IR Act (the Industrial Relations Act (the Industrial Relations Act 1988). No reason for the change was given in the explanatory memoranda or second reading speech but the answer may well lie in the extremely broad meaning given to the word 'order' in the definition by the High Court in 1985 in R v Ludeke Ex parte Customs Officers Association of Australia, Fourth Division (1985) 155 CLR 513 at 519 and 526. The definition adopted in the IR Act may have been an attempt to ensure that the notion of award and, for the purposes of Division 6 and the enforcement procedures, an order affecting an award, were confined to awards and related orders prescribing wages and conditions and otherwise preventing and settling industrial disputes. Indeed s 3(e) identified the objects of the IR Act and spoke of one of them as involving the 'observance and enforcement of … awards made for the prevention or settlement of industrial disputes'. Against this statutory background it is necessary to consider whether an order made under s118A(1) could have been 'an order affecting an award' for the purposes of Division 6. It may be accepted that the word 'affect' (or derivatives of it) can be a word of wide meaning: see Shanks v Shanks (1942) 65 CLR 334 at 335, Hepples v Deputy Commissioner of Taxation (1990) 22 FCR 1 at 32 and (1991) 102 ALR 497 at 520 and Tana v Baxter (1986) 160 CLR 572 at 577. However the expression 'an order affecting an award' has to be construed in the statutory context in which it appears and the appropriate meaning given to the word 'affecting'. It is readily apparent that s 143(1) and (2) created a dichotomy. The Commission was required to take particular steps in relation to a decision or determination which was 'an award or an order affecting an award' and other, though substantially the same, steps in relation to a decision or determination that was 'not an award'. It is comparatively clear that in the expression 'not an award' in s 143(2)(a), the word 'award' was a reference to a decision or determination not comprehended by s 143(1). That is, a decision or determination that was not an award or an order affecting an award. This dichotomy is of some significance as s 144, s 145, s 146, s 147 and s 148 were sections which operated on "an award". It is also comparatively clear that those sections operated on an award of the type referred to in s 143(1), namely an award or an order affecting an award. That meaning of the word 'award' in those sections is also in conformity with the definition of 'award' in s 4. However the requirement in s 147 that the award specify the period for which it was to operate was conditioned by a requirement that the Commission consult with the parties to the industrial dispute concerned. This requirement suggests that an award, which for the purposes of s 147 would include an order affecting an award, was an instrument made in relation to the prevention or settlement of an industrial dispute. This construction of the word 'award' as comprehending 'an award' or 'an order affecting an award' made in prevention or settlement of an industrial dispute is reinforced by the provisions of s 148(3) where the supervening award, which brought to an end the statutory continuation of the period of the award (which would include any order affecting the award), was said to be made '(in) settlement of a further industrial dispute between the parties'. … The language and structure of Division 6 points to the word "award" in s 148(1) as meaning an award made in prevention or settlement of an industrial dispute or an order of the same character. That is, an order which is varying the terms upon which a dispute has been prevented or settled by the making of an award. On this construction of s 148(1) an order of the Commission which was not made in prevention or settlement of an industrial dispute would not be an 'award' for the purposes of s 148(1) even if, as a matter of fact, it might be thought that the order in some way affected an award. An order which was an order affecting an award and made in prevention and settlement of an industrial dispute would be an order varying an award. This construction of Division 6 and its application to an order under s 118A(1) is consistent with its history. Prior to the enactment of the IR Act there were found in the C&A Act provisions in similar terms to ss 144 to 148 inclusive (see ss 56 to 58 at the time of the repeal of the C&A Act in 1988). However there was in the C&A Act no provision equivalent to s 143. When s 143 was enacted with the enactment of the IR Act, there was no power conferred on the Commission to make an order of the type contemplated by s 118A other than in prevention or settlement of an industrial dispute. This tends to suggest that Parliament did not then intend that the expression 'award or an order affecting an award' concerned an order made under s 118A." 85 The Full Bench of the Commission in the present case did not, in terms, express the opinion that its order quashing the award of Commissioner Hodder was itself either an "award" or "order affecting an award". The order was not expressed to be either of these things, as required by s143(1)(a). However, it can be inferred that the Full Bench considered the order was an award, within the meaning of s143. Paragraph B, giving the order a life of three years and a commencing date, was necessary (under ss146 and 147) only if the Full Bench regarded its order as an award for the purposes of s143 and related provisions, including ss146 and 147. An order quashing an award plainly affects the award; it nullifies its legal effect. The award of Commissioner Hodder was one made in prevention and settlement of an industrial dispute. 86 The powers committed to a Full Bench by s45 of the Act in respect of an appeal draw a distinction between an order quashing a decision or act and the making of an award or order dealing with the subject matter of the decision or act. Section 45(7) relevantly provides: "45(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; …" 87 Having regard to this distinction, it might be thought that the expression "an award made on appeal" in s150(1) refers to an award of the type referred to in s45(7)(b), not an order made under s45(7)(a) quashing the decision or act the subject of the appeal; in the present case, the making of the award by Commissioner Hodder. However, the better view is that the definition of "award" in s150 is to be applied in that section without qualifications implied from the language and structure of s45. That means, for the purposes of s150, an "award made on appeal" is a decision or determination on appeal that the Commission has concluded was an order affecting an award, which has been reduced to writing in accordance with s143(1). Also, while the order made by the Full Bench repeats the language of s45(7)(a), it may, in any event, be regarded as an award of the type referred to in s45(1)(b), given the definition of "award" discussed earlier and the fact that the Full Bench order affected an award by quashing it. We conclude that the order of the Full Bench is, for the purposes of s150, an award made on appeal. The section applies to it.

The operation of s150 88 The operation of s150 in this case must be considered in the context of a challenge to the order of the Full Bench arising under s75(v) of the Constitution. This Court is exercising, on remitter under s44 of the Judiciary Act 1903, the jurisdiction conferred on the High Court by s75(v). The challenge involves a direct, not collateral, attack on the order and decision of the Full Bench. 89 A convenient discussion of the effect of a privative clause like s150 is found in the joint judgment of Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Central Authority (1997) 191 CLR 602 at 631-633 (omitting footnote references): "… it is well settled that a privative clause cannot oust the jurisdiction of this Court to review decisions and orders which exceed Constitutional limits. Nor can it oust the jurisdiction conferred on this Court by sub-ss (iii) and (v) of s 75 of the Constitution with respect to matters '[I]n which the Commonwealth, or a person … being sued on behalf of the Commonwealth, is a party' and '[i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. The various legislative powers conferred by s 51 of the Constitution are all expressed as being 'subject to' the Constitution and thus to the provisions of s 75. Thus, it has been said that a privative clause cannot prevent this Court from reviewing decisions which involve the refusal by officers of the Commonwealth to discharge 'imperative duties' or which go beyond 'inviolable limitations or restraints'. On the other hand, it has been acknowledged that such a clause can protect against ' mere defect or irregularity which does not deprive the tribunal of the power to make the award or order', or 'some procedural defect which would otherwise result in invalidity'. In R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section, Dixon J, speaking of s 32(1) of the Conciliation and Arbitration Act 1904 (Cth) and speaking in the context of s 75(v) of the Constitution, put the matter this way: '[Section] 32(1) operates to protect an order or award … from invalidation on the ground that the [tribunal] has not fulfilled the requirements prescribed … for its proceedings or for the exercise of its powers or upon the ground that the limits of the relevant power … as expressed in the definition of the power or in some restriction upon it have been exceeded if it appears that the order or award is reasonably capable of reference to a power belonging to the [tribunal] and relates to the subject matter of the jurisdiction and amounts to a bona-fide attempt to exercise an authority possessed by [it].' It is to be noted that … Dixon J distinguishes between power and jurisdiction. It is a significant distinction in the context of s 75(v) of the Constitution which, as already mentioned, confers 'jurisdiction' in 'all matters' in which '[m]andamus or prohibition or an injunction is sought against an officer of the Commonwealth'. These are constitutional expressions and their place in s 75 gives them a significance and operation beyond that understood at common law. Thus, questions of standing arise within consideration of the term 'all matters'. Mandamus and prohibition are remedies which are granted in cases of jurisdictional error - refusal to exercise jurisdiction, in the case of mandamus, and excess of jurisdiction, in the case of prohibition. The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful. The Hickman principle has been treated as applying in respect both of the limits of the constitutional competence of the legislature in question and of the ambit or nature of the power conferred by a valid law". 90 In the application of these principles to the present case, it is necessary to ascertain whether the error of the Full Bench, although jurisdictional, led to the making of an award of the type that s150 would not protect because it fell outside the category of orders or awards described by Dixon J in the passage quoted by Gaudron and Gummow JJ. There is here no question of constitutional invalidity. Nor is there any suggestion that the decision of the majority, resulting in the Full Bench's award, was not a bona fide attempt to exercise the powers conferred on the Full Bench of the Commission by s45. The award clearly relates to the subject matter of the legislation. The only basis on which counsel suggested s150 would not protect the Full Bench's award was that its making was not reasonably capable of reference to the power conferred by s45. However, while the majority of the Full Bench misunderstood or overlooked the differences between the Commission's relevant powers, and thereby fell into jurisdictional error in exercising the Full Bench's powers under s45(7), the actual exercise of power is capable of reference to the powers conferred on a Full Bench. It involves, on its face, an exercise of the power conferred by s45(7): see The King v Hickman: Ex parte Fox and Clinton (1945) 70 CLR 598 at 617. Thus s150 operates to protect the award from prerogative relief.

Whether Commissioner Hodder's order was affected by legal error 91 Having regard to the conclusion just expressed, this question is not one of practical importance. However, we record our view that the Full Bench was correct in rejecting the three "technical points" raised by counsel for Gordonstone, summarised in paras 32 to 35 above. We agree with the views expressed by Senior Deputy President MacBean and Senior Deputy President Polites in respect of those points.

Whether there was an inconsistency between the Hodder award and the certified agreement 92 Our conclusion that s150 immunises the order of the Full Bench from challenge also makes it unnecessary to determine whether there was an inconsistency between the Commissioner's award and the agreement certified by Senior Deputy President Harrison. The validity of the certification order will be discussed shortly. The issue of inconsistency turns on the proper interpretation of the award and the certified agreement, assuming each has effect. As that question was fully argued, we will set out our views about it. 93 The issue of inconsistency was raised by Mine Management because of s170LY(1) of the Act. That subsection provides: "170(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 passed." 94 It is first necessary to consider whether Mine Management is bound by the Gordonstone Mine Employment Award 1998. The substantive clauses of that award are referred to in para 29 above. As recorded above in para 10, it is agreed between CFMEU and Mine Management that Mine Management is the successor to the business of Gordonstone. Thus, subject to the argument referred to in para 2 of the agreement, s149 of the Act binds Mine Management to the award. That section lists the persons bound by an award. Subject to any order of the Commission, they include "any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer". However, Mine Management submits it was not bound by the award because of its terms: see CFMEU v Botany Cranes & Forklift Services Pty Ltd (1997) 73 IR 44 at 51. 95 Clause 2 of the award is entitled "Parties Bound". It identifies the parties as Gordonstone and CFMEU. Although cl4(a) of the award refers to an increase in hands being decided upon "by the employer", cl4(b) refers to Gordonstone by name. Consequently, counsel argue, the award should be read as applying only to Gordonstone, not Mine Management or any other successor to the business. We see the force of this submission; and we recognise that the award came into existence only because of Gordonstone's conduct. However, it is not apparent that Commissioner Hodder intended the award not to apply to a successor of Gordonstone. To impute that intention to the Commissioner would be to assume he was willing to allow the interests of the former employees, which he sought to protect, to be defeated by a transmission of the business. The reference to Gordonstone in cl4(b) can readily be understood as a reference to the operator for the time being. As Moore J said in ACTEW Corporation Ltd v Media Entertainment and Arts Alliance (Industrial Relations Court, unreported, 7 August 1997) at 7: "…The first point to be made about the operation of s 149 is that it should be beneficially construed so that employers do not 'avoid the settled rights of employees': see George Hudson Ltd v Australian Timber Workers' Union (1923) 32 CLR 413 at 435-436, per Isaacs J. Thus, in my opinion, whether there has been succession, transmission or assignment of a business should not be approached on some narrow basis. …" 96 Only in compelling circumstances should the Court construe an award in such a way as to allow its frustration by transmission of the business. We do not find such circumstances in this case. 97 We turn to the question of inconsistency. The award made by Commissioner Hodder requires Gordonstone (and any successor), if it decides on an increase in hands, to engage former employees and to select them by reference to length of prior employment, subject to certain conditions. Counsel for Mine Management say this requirement is inconsistent with the certified agreement, both because the agreement evinces an intention to cover the field and because of a direct inconsistency between the terms of the two documents. They submit an intention to cover the field is manifested in clause 4.1 of the agreement which provides: "RELATIONSHIP TO AWARDS AND AGREEMENTS 4.1 Previous Awards and Agreements This Agreement replaces in their entirety all awards and agreements applying to the parties, including; …" 98 In T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 at 184, the High Court held that whether there is an inconsistency between an award and a State law is to be determined by reference only to the terms of the award itself; reasons given by a commissioner when making an award are irrelevant in determining that question. While clause 4.1 is a term of the agreement, it is a bare declaration of the legal effect of the agreement, as perceived and intended by the parties. A mere declaration by the parties, about the legal effect of an agreement, may not create the type of inconsistency on which s170LY operates. We need not determine that point. Here there is a more direct inconsistency between the award and the certified agreement, arising out of sub-clause 5.3 of the agreement. That sub-clause provides a basis for selection of employees, the best person for the job, which is inconsistent with para 4 of Commissioner Hodder's award. Sub-clause 5.3 provides no preference to former employees; length of prior employment (if any) is irrelevant. 99 Section 170LI enables agreements to be made about matters pertaining to the relationship between the employer and persons who, at any time when the agreement is in operation, are employed by the employer in its single business. The basis upon which an employer recruits employees is a matter that pertains to the relationship between the employer and existing employees. So much is apparent from Re Cram; Ex parte NSW Colliery Proprietor's Association Ltd (1987) 163 CLR 117 at 135 in which the High Court discussed what matters affecting the relationship of employer and employee might be "industrial matters", a term that was defined as including matters pertaining to the relations of employers and employees. The Court instanced matters that pertained to that relationship: "A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both these matters." 100 It is open to parties to a validly certified agreement to make an agreement in terms of sub-clause 5.3. The award derogates in a direct way from the operation of that clause and is inconsistent with it. Accordingly, if the agreement was validly certified and Commissioner Hodder's award had remained in operation, s170LY would have deprived the award of operation to the extent that it precluded the employer from recruiting new employees on the basis of the best person for the job; the award would have had no effective area of operation.

Validity of the Harrison certification order 101 Part VIB of the Workplace Relations Act deals within certified agreements. Division 1 (ss170L to 170LG) deals with preliminary matters. They include the object of the Part, stated in s170L to be "to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business". In relation to the private sector, the term "single business" is defined by s170LB(1) to mean "a business, project or undertaking that is carried on by an employer". Section 170LB(3) says: "a part of a single business includes, for example: a geographically distinct part of the single business; or a distinct operational or organisational unit within the single business". 102 Section 170LE deals with the concept of "valid majority". It relevantly provides: "For the purposes of this Part, a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement: (a) make or genuinely make the agreement; or (b) approve or genuinely approve: (i) the agreement; or (ii) … (iii) … if: (c) the employer gives all of the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval; and (d) … (ii) if the decision is made by a vote - a majority of the persons who cast a valid vote; decide, or genuinely decide, that they want to make the agreement or give the approval." 103 Division 2 of Part VIB relates to the making of agreements between employers who are constitutional corporations (as is Mine Management) or the Commonwealth, on the one hand, and organisations of employees or employees on the other. Section 170LJ(1) provides that, for an application to be made to the Commission about such an agreement, it must be an agreement in writing "about matters pertaining to the relationship between (such an employer) and all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement". 104 Section 170LK(1) provides: "The employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement." Subsection (2) requires that the employer take reasonable steps to ensure that every person employed at the time, whose employment will be subject to the agreement, has at least 14 days' notice in writing of the intention to make the agreement. Under subs (4) the notice must also state that if: "(a) any person whose employment will be subject to the agreement is a member of an organisation of employees; and (b) the organisation is entitled to represent the person's industrial interests in relation to work that will be subject to the agreement; the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement". Subsection (5) obliges the employer to give such an organisation a reasonable opportunity to "meet and confer with" the employer about the agreement before it is made. 105 Division 3 of the Act concerns agreements about industrial disputes and industrial situations. It is not presently material. 106 Division 4 deals with certification. The key provision is s170LT. It provides that, if an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, "the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met". The first of those requirements is that the agreement must pass the "no-disadvantage test". That term is explained by Part VIE of the Act. The main provision of that Part is s170XA which provides (in subs (1)) that "[a]n agreement passes the no-disadvantage test if it does not disadvantage employees in relation to their terms and conditions". Subsection (2) states that, subject to ss170XB, 170XC and 170XD, "an agreement disadvantages employees in relation to their terms and conditions of employment only if its approval or certification would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under: (a) relevant awards or designated awards; and (b) any other law of the Commonwealth, or of a State or Territory, that the … Commission … consider relevant." 107 A "relevant award" is an award: "(a) regulating any term or condition of employment of persons engaged in the same kind of work as that of the person under the agreement; and (b) that, immediately before the initial day of the agreement, is binding on the person's employer." A "designated award" is one selected by the Commission, in the absence of any relevant award, as appropriate for deciding whether the agreement passes the no-disadvantage test. 108 The other important requirement of s170LT is that, if the agreement was made in accordance with s170LK, "a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement": see subs (6). 109 Section 170LU provides further criteria which an agreement must satisfy. In the main these deal with issues of freedom of association and discrimination. 110 Section 170LV provides that if, under s170LT or s170LU, the Commission has grounds to refuse to certify an agreement, it may nevertheless certify it on an undertaking that meets the Commission's concerns. Further, "(b) in any case, before refusing to certify the agreement, the Commission must give the persons who made the agreement an opportunity to take any action that may be necessary to make the agreement certifiable." 111 Division 5 of Part VIB specifies the effect of certification. Section 170LX(1) provides that a certified agreement comes into operation when it is certified and, subject to the section, remains in operation thereafter. Subsections (2), (3) and (4) of that section deal respectively with cessation of operation, termination and the employer ceasing to be a constitutional corporation. 112 Under s170LY a certified agreement generally prevails over any award or order of the Commission. Section s170LZ permits it to prevail over most State laws and industrial instruments, and also over certain Commonwealth legislation. 113 Some facts relevant to the validity of Senior Deputy President Harrison's certification order have already been stated: see paras 43 to 49 above. It may be recalled that, from 21 December 1998, Mine Management employed 22 employees. None of those employees was involved in the operation of the mine, which was still being managed by Gordonstone. Notwithstanding that fact, on that day Mine Management gave to its 22 employees what purported to be "notices of intention to make an agreement" under s170LK(2) of the Act. The agreement was approved by a ballot conducted on 6 January 1999. On the following day, Mine Management made application C No.40017 of 1999 asking the Commission "to determine an appropriate award or awards for the purpose of deciding whether a certified agreement passes the no-disadvantage test". It identified the kind of work that the persons under the proposed agreement are engaged in as "mine operation and management". 114 In connection with that application, on 21 January 1999, Mine Management's Employee and Community Relations Manager, Mr McCrea, declared that: (a) Mine Management is a subsidiary of Pacific Coal Pty Limited which in turn is a subsidiary of Rio Tinto. (b) Rio Tinto, through an associated company, had entered into a conditional contract for the purchase of ARCO's interest in the Gordonstone Joint Venture. (c) If Rio Tinto is successful in finalising the purchase of ARCO's interest in the Gordonstone Joint Venture then it will propose that the Gordonstone Joint Venture terminate the arrangement with Gordonstone to manage the mine and install Mine Management as the manager of the Gordonstone Joint Venture. In those proceedings Mr McCrea gave oral evidence that: · Mine Management had 26 employees, 23 of those being production, engineering and staff employees. · At the time of giving evidence the "work" of the production and engineering employees consisted of induction, first aid courses, and training courses. · Mine Management had also offered employment to 22 other persons whose employment would commence on the day that the company began managing the mine. Those persons would perform production, engineering and staff functions at the mine. · After being appointed the manager of the mine, Mine Management would implement a timetable for recruitment at the mine. The timetable involved appointing 20 employees per month for the first three months and then continuing to recruit every two months until the workforce reached 150. 115 The following statements were also made to the Commission on 21 January 1999 on behalf of Mine Management: "Mine Management is a subsidiary of Pacific Coal which is in turn a subsidiary of Rio Tinto. As the Commission may be aware Rio Tinto is purchasing ARCO's interest in the Gordonstone Joint Venture. However the purchase arrangements has [sic] yet to be completed, its still a conditional arrangement and we still cannot assist the Commission in explaining when that is going to occur. There are still technical issues being sorted out between the parties. We are hopeful it will be soon. … [I]f the purchase had been completed, there would not be any need to designate any award because Mine Management would have become the successor to Gordonstone Coal Management Pty Ltd. As that has not occurred, and we do wish the certification of the agreement to proceed, it is therefore a statutory requirement for us to seek the designation of these awards. These are the very awards that would apply to Mine [M]anagement Pty Ltd if it was a successor today. It will, touch wood, become a successor when the sale is completed, shortly. Mine Management is a company established for the singular purpose of being the manager of the Gordonstone Joint Venture when the purchase by Rio Tinto is finalised…In our submission the role of its employees will be to work at that mine." It was not suggested that the employees were, at the time of hearing, working at Gordonstone mine, or that this would be possible before completion of the purchase from ARCO. 116 On 28 January 1999 Senior Deputy President Harrison issued a Decision and Determination with respect to the application C No.40017 of 1999, finding the application to be competent and consistent with the provisions of s170XF and designating the Gordonstone Coal Mine Consent Award 1993 and the Coal Mining Industry (Supervision and Administration) Interim Consent Award 1990, Queensland - Clause 32 Enterprise Agreement - The Gordonstone Staff Agreement 1996 as appropriate awards for the purpose of the no disadvantage test. 117 As mentioned in para 47 above, Senior Deputy President Harrison heard the certification application on 1 February 1999. At the conclusion of the hearing she announced the agreement would be certified, operative from that day for two years. A formal order was issued on 9 February. ARCO had still not sold its interest in the mine to Rio Tinto. This event apparently took place at some time between 10 and 14 February. 118 It will be apparent from the foregoing that all steps taken in relation to certification of the agreement occurred before Mine Management acquired any role in the operation of the business to which it was designed to relate. Counsel for CFMEU argue that, under those circumstances, the certification order was invalid. They say that, leaving aside a "greenfields agreement", covered by s170LL, Division 2 of Part VIB is concerned with agreements in respect of existing businesses. They point to the definition of "single business", cited in para 101 above, which is couched in the present tense and they emphasise the words in s170LK(1) "a valid majority of the persons employed at the time whose employment will be subject to the agreement". More generally, counsel argue any other conclusion would be inimical to the policy of the Act. The Act contemplates that employees will continue to have the benefit of awards, subject only to their exclusion by Australian Workplace Agreements, made and approved pursuant to Part VID of the Act, or agreements made, and certified by the Commission, under Part VIB. The notion underlying the certified agreement provisions, counsel argue, is that a valid majority of employees may elect to substitute for their award rights and benefits available to them under a certified agreement. In order to ensure this is an informed decision, the Act requires the employer to give not less than 14 days notice of intention to make the proposed agreement and gives employee organisations a right of access to relevant information. These protections would be rendered nugatory, say counsel, if an employer was free, before taking over a business, to make an agreement with a small number of employees and have the result bind all employees subsequently employed by that employer in the business. There is no guarantee, say counsel, that the employees involved in the agreement will be representative of the range of persons subsequently employed in the business; they may be only a small number of senior staff who enjoy special rights under the agreement. 119 Counsel for Mine Management argue this case falls squarely within the terms of the Act; the agreement was made, as the Act requires, with "a valid majority of the persons employed at the time whose employment will be subject to the agreement" (s170LK(1)); it was, accordingly, duly certified. As such, it bound the employer and "all persons whose employment is, at any time when the agreement is in operation, subject to the agreement": s170M(1). It would prevail over the Hodder award to the extent of any inconsistency: s170LY(1). 120 We accept the submissions of CFMEU on this issue. It is clear the intention of the parties to the agreement was that it should apply to the employment of persons in "production, engineering, supervision and administration roles" (cl 3 of the agreement) at the Gordonstone mine. It was suggested in argument that Mine Management had a "single business" of the operation of coal mines generally. However, this suggestion cannot stand with the contemporaneous evidence and understanding of Mine Management's representatives. In any case, in January 1999 no employee was shown to be working in the operation of any coal mine. 121 The question is, therefore, whether an agreement regulating terms and conditions of employment in a proposed single business, made with employees who may, in the future, be employed in that business but are not yet so employed, qualifies as an agreement that may be certified under the Act. In our view, the preferable conclusion, as a matter of both textual and purposive interpretation of the Act, is that it does not. 122 Textual matters that cast some light on the subject are these. When s170LK(1) says that "the employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement", the phrase "the time" clearly means the time of making the agreement. The phrase "whose employment" equally clearly means the employment of the persons employed at that time. The natural meaning of a reference to the employment of such persons is to the type or nature of that employment at that time. Thus the natural meaning of s170LK(1) is that the agreement may be made with employees whose employment is then of a type or nature that will be subject to the agreement. 123 This conclusion is fortified by Part VIB's reference to a "single business". The Part does not envisage certified agreements operating in an abstract way. For an agreement to be the subject of an application to the Commission, it must be an agreement pertaining to the relationship between the employer and "all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer …". Leaving aside the greenfields situation for which the Part makes special provision, it would be a strange result if the relevant agreement could be made with persons who were not yet employed, and might never be employed, in the relevant single business. 124 In the present case it can be said that any employee bound by the terms of the certified agreement would be an employee who participated in the ballot or a person who sought employment at the mine after the agreement was made; and who therefore, knew - or at least had the opportunity of knowing - the terms of the agreement. But this is true only because of the unusual circumstance that the mine was closed at the time of Mine Management's assumption of responsibility. If Mine Management's legal argument is correct, it would equally apply to a take-over of an operating business. Consider, for example, a business actively operated by company X. X employs a large number of employees who work under award conditions. X agrees to sell the business to company Y. Before completion of the agreement, Y enters into an agreement with its existing handful of employees (all senior administrative staff) in relation to the terms and conditions of employment that will apply in the business. Y has the agreement certified by the Commission pursuant to Part VIB of the Act and then completes its purchase. If the argument for Mine Management is correct, the terms of the agreement displace the terms of the award, not only in relation to the handful of employees who participated in the ballot at which it was approved, but also in relation to the much greater number of persons who were employed in the business at the date of take-over but had no say on the issue of approval. 125 Further, application of the "no-disadvantage" test appears to be predicated upon the assumption that there will be employees in the relevant employment - that is, the single business - at the time of certification. Section 170XA(2) speaks of employees being disadvantaged if "…certification would result, on balance, in a reduction in the overall terms and conditions of those employees under [relevant or designated awards and other legal sources of employment conditions]". A non-existent quantity can hardly be "reduced". 126 Section 170LT(6) requires that a "valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement". This plainly betokens a concern with the authenticity and, as it were, the moral authority of the agreement. It is perfectly understandable - indeed, one might reasonably think, plainly necessary - this be so. The principal object of the Act as a whole, as set out in s3, is "to provide a framework for cooperative workplace relations" by, among other things, "(d) providing the means: (i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level upon a foundation of minimum standards; and (ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment; and (e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them" (emphasis supplied) There can hardly be fair agreement-making between employer and employees about wages and employment conditions in a workplace (a mine is a good example) before both sets of parties have actual experience of the work and its place of performance. Without that, cooperative workplace relations are unlikely to be achieved. An agreement prematurely made is unlikely to be effective; measuring effectiveness in this context by such matters as durability, aptness and comprehensiveness. Established "safety net" standards are less likely to be respected and maintained, because the range of conditions in relation to which such standards exist may not have been fully comprehended. 127 In short, the Act clearly indicates a concern for fairness and efficacy in agreement-making, as well as flexibility. The subject matter of the Act makes it understandable Parliament had such concerns. A consideration of those concerns supports the interpretation we consider preferable on more narrow grounds. 128 It follows that the agreement submitted to the Commission in January 1999, and certified by Senior Deputy President Harrison on 1 February 1999, was not an agreement of the type contemplated by Part VIB of the Workplace Relations Act. There was no valid application for certification before the Commission. The certification order made by Senior Deputy President Harrison was ineffective. No certified agreement came into existence as a result of the proceedings before her. 129 It remains only to add that the opportunities for rectification of a defective application provided by s170LV are inapplicable. Section 170LV(1) operates where, "under s170LT or s170LU, the Commission has grounds to refuse to certify an agreement"; but here there is no relevant agreement. The agreement proferred to the Commission is uncertifiable for reasons more fundamental than non-compliance with s170LT or s170LU.

Jurisdiction to make a declaration of invalidity 130 It was accepted by all parties, correctly we think, that s150 does not immunise the certification of agreements under Part VIB of the Act. A certified agreement is not an "award" within the meaning of s150: see s4 - "award" definition, s143(1) and (1A). This Court therefore, has the same jurisdiction to review the process of certification and the validity of certified agreements as it has in relation to analogous processes and documents under other Commonwealth legislation. That jurisdiction includes "jurisdiction in any matter: … arising under any laws made by the Parliament": Judiciary Act 1903 s 39B(1A)(c). The validity of the certification order so arises. That means the Court has jurisdiction to make an appropriate declaration of right.

Orders 131 It follows from the above reasons that CFMEU's claim for prerogative relief fails. However, CFMEU is entitled to a declaration that the certification order made by Senior Deputy President Harrison is invalid. Otherwise proceeding N41 of 1999 must be dismissed. 132 The first two declarations sought in proceeding N166 of 1999 relate to the effect of the Gordonstone Mine Employment Award 1998 - that is, Commissioner Hodder's Increase in Hands Award - if it is in operation. However, the Full Bench set aside the award. Although that order involved jurisdictional error, s150 causes the order to remain effective. It follows that Commissioner Hodder's award is no longer in operation. So there is no relevance in either of the first two proposed declarations. 133 The third declaration deals with the position of the certified agreement vis-ŕ-vis the Increase in Hands Award. As the certification of the agreement is invalid and the award no longer operative, this issue does not arise. 134 Having regard to the views we have reached on the substantive issues, it would not be appropriate to make any of the declarations sought in proceeding N166 of 1999. That proceeding should be dismissed. 135 Because of a disagreement on one point, Moore J does not join in these reasons for judgment. However, we wish to acknowledge the considerable contribution he has made to their formulation. I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox and Madgwick.

BETWEEN: IN THE MATTER of an Application for Writs of Prohibition, Mandamus and Certiorari against a Full Bench of the AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of the Honourable Senior Deputy President John MacBean, the Honourable Senior Deputy President Colin Polites and Commissioner Ken Bacon

EX PARTE: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

AND: THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of the Honourable Senior Deputy President John MacBean, the Honourable Senior Deputy President Colin Polites and Commissioner Ken Bacon

The Honourable Senior Deputy President ANN HARRISON

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent

MOORE J 136 The reasons for judgment of Wilcox and Madgwick JJ were prepared with my involvement though I am not able to agree with them in all respects on certain issues. Accordingly it is necessary for me to express my views about the issues in question though without repeating the facts recounted by Wilcox and Madgwick JJ. In my opinion the only error apparent in the reasons of the majority of the Full Bench that can be characterized as a legal error is their treatment of the use Commissioner Hodder made of the prior conduct of Gordonstone. My description of the error has been adopted by Wilcox and Madgwick JJ and incorporated into their reasons as paras 72 to 78 inclusive. I will not repeat my description and I will shortly explain why, in my opinion, that legal error was a jurisdictional error. However before doing so, I should explain why that error is the only legal error in the reasons of the majority. 137 The usual starting point in proceedings by way of judicial review when considering the reasons of an administrative tribunal is the legal principle discussed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. As Brennan CJ and Toohey, McHugh and Gummow JJ said at 271-272: In [Collector of Customs v Pozzolanic (1993) 43 FCR 280] a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. 138 See also the observations of Kirby J at 291. 139 While the Australian Industrial Relations Commission and its predecessor have not been treated as being of entirely the same character as a bare administrative tribunal: see R v Moore: Ex parte Australian Telephone and Phonogram Officers Association (1982) 148 CLR 600 at 613 and Construction Forestry Mining and Energy Union v Guidice (1998) 159 ALR 1 at 28 - 29, the principle of law conditioning the consideration of an administrative decision-maker's reasons discussed by the High Court is an apt one, in my opinion, when considering the Commission's reasons. Over-zealous judicial review is to be eschewed. 140 The first issue to be considered in relation to the reasons of the majority of the Full Bench in the present case is whether any legal error attended the identification or consideration by the majority of the relevant facts. On the first page of their reasons the majority commence to set out, in summary form, a chronology of events leading to the decision and award of Commissioner Hodder of 26 August 1998. In that chronology they refer to facts concerning the treatment of the workforce and whether Gordonstone might reopen the mine and resume production. In particular they noted: · On 1 October, 1997 the appellant retrenched approximately 300 employees, including all the P&E workforce. · On 1 November, 1997 the appellant issued a media release announcing it would advertise on 12 November, 1997 for 30 temporary employees to start production at the mine. · On 8 December, 1997 Hodder C made an interim award known as the Gordonstone Mine Interim Employment Award 1997 [Print P7273 [G0751]]. · … · Approximately 282 of the dismissed employees lodged applications under s.170 of the Workplace Relations Act 1996 (the Act). Hingley C heard a sample of those applications and on 2 February, 1998 found the terminations were harsh, unjust or unreasonable [Print P7786]. However, Hingley C declined to reinstate the employees but did award compensation. He indicated that his reasons were equally applicable to all 282 employees. · … · On 17 July, 1998 the appellant advertised for persons to form a production workforce of some 50 employees. … 141 There was no suggestion in these proceedings that this account of events was wrong. Nor, in my opinion, can it be suggested the majority were not mindful of the events concerning why Gordonstone had treated its workforce and steps it had taken to introduce a new workforce as a prelude to the mine reopening which had occurred before Commissioner Hodder made the award on 26 August 1998. 142 In that part of their reasons where their conclusions were expressed, the majority of the Full Bench said: In reaching this decision we would not wish to be taken as endorsing in any way the actions taken by the appellant in relation to its P&E workforce and in particular the mass termination of that workforce for the reasons identified by Hingley C. Rather, our view is that the matter of the appropriate remedy for that treatment of the workforce was considered by Hingley C who made appropriate orders in that regard and for the reasons given above it is not appropriate to rely on those same facts and circumstances to justify the making of an exceptional matters order. 143 The expression "those same facts and circumstances" was plainly a reference to the circumstances identified in the first sentence of the passage just quoted. So much is clear from the use of the word "those". That is, it was a reference to the actions of Gordonstone in relation to the treatment of its P&E workforce and, in particular, the mass termination of that workforce. Those facts and circumstances were the same, and necessarily so because they occurred before December 1997, when Commissioner Hingley dealt with the applications before him and Commissioner Hodder later dealt with the application for an exceptional matters order. Indeed Commissioner Hodder, in his reasons for decision of 26 August 1998, quoted a very lengthy passage from the reasons for decision of Commissioner Hingley of 2 February 1998. In the quoted passage, Commissioner Hingley dealt, in detail, with Gordonstone's treatment of its workforce. The observations of the majority when they refer to "those same facts and circumstances" are, in my opinion, unexceptionable if, as I consider they do, they relate to Gordonstone's treatment of its workforce. 144 If the view I have taken about what the majority meant by "those same facts and circumstances" is too narrow and thus unduly benevolent, I remain unconvinced that it manifests legal error. It might be thought that when Commissioner Hodder was considering the application for an exceptional matters order before giving his decision of 26 August 1998, he was confronting a situation that had not existed earlier. That is, Gordonstone then intended to reopen the mine but had not earlier. However it is clear, in my opinion, that it had also been apparent to Commissioner Hingley that the mine would be reopened either by a purchaser or by Gordonstone. In his reasons of 2 February 1998, Commissioner Hingley said (and this is part of the passage that Commissioner Hodder quoted): I have no doubt that having avoided statutory obligations the Joint Venturers intended to return to production, if the alleged current sale negotiations did not proceed. The evidence of Mr Norington [transcript 4/12/1997], an experienced newspaper Industrial Editor, the witness evidence of Mr Yerbury [transcript 13/12/1997, p.530 at 5‑15], the success of the trial operation [transcript p.523 at 25-32] and the tape recorded minutes of the Joint Venturers meeting [Exhibit A55] support this view. Indeed following the terminations, positions were advertised for which several of the former P & E employees applied and were accepted [Mr Parry, transcript 11/12/1997, pp.294‑295 at 40 and 1-5] 145 It is true that between February 1998 and August 1998 events occurred which led Commissioner Hodder to believe that the mine would not reopen. However when Commissioner Hingley heard and determined the applications under s 170CE and when Commissioner Hodder finally heard and determined the application for an exceptional matters order, both were aware that the mine might well reopen. It is unnecessary to address the further issue of whether, even if the majority proceeded on a misunderstanding of the facts, their consideration of them led them into legal error that would found prerogative relief. 146 I now turn to consider whether legal error is evident in the reasons of the majority any relating to their characterisation of the orders Commissioner Hingley might have made and the award made by Commissioner Hodder, or in their characterisation of the two sets of proceedings before the respective Commissioners. 147 The following is, as I perceive it, the effect of the decision of Commissioner Hingley. He heard the applications of seven of the individual applicants in the context of directions he had given on 4 December 1997. Those directions provided that he would determine the seven applications and a conference would then take place with the legal representatives of the parties "to discuss process (sic) for final determination of the remaining applications and the Commission directions in relation thereto". While the purpose of the conference was expressed in these terms it is likely, in my opinion, that both the parties (by that I mean Gordonstone and the CFMEU) and the Commissioner understood that a procedure was being put in place that would enable the parties to reach agreement (if possible), assisted by the Commissioner, about the future employment of the remaining 275 applicants. They would do so in the light of the approach the Commissioner had decided on in the arbitration of the seven individual applications. Had the Commissioner decided to reinstate the seven individuals, then the discussions may well have been directed to whether all or only some of the remainder would be reinstated. If they were all to be reinstated, consideration would have been given to the terms of their reinstatement. If only some were to be reinstated, the basis on which they would be selected and what further payments, if any, would be made to those who were not reinstated would have been considered. However had the Commissioner decided not to reinstate the seven individuals, as happened, then the discussions concerning the remainder would fairly clearly have been directed, as they were, to securing for the remainder at least such further payments that the seven individuals had secured as a result of the Commissioner's decision. 148 In the course of his reasons Commissioner Hingley said, after referring to the submission by counsel for the seven individuals that reinstatement without loss should be ordered: This (reinstatement) is practicable because the mine is currently capable of operation and there are industrial conditions for genuine redundancy and engagement. However since all have received redundancy termination payments, and perhaps would again face redundancy, logic makes the compensation alternative to reinstatement, overwhelmingly compelling and appropriate. Reinstatement in my view is not appropriate. On the balance of fairness, in my opinion all seven of the applicants up until the decision conveyed on 24 July 1997 to downsize, had every reasonable expectation of working at Gordonstone until they retired. Since neither LIFO or an agreed alternative nor the Problem Resolution Procedure was applied, it is not possible to speculate which of the applicants would have been made redundant or when. All received redundancy payments with their differing housing arrangements terminating. In my opinion for reasons I have set out in relation to the invalidity of the terminations, each of the applicants are entitled to receive a further compensation for lost remuneration in addition to redundancy payments already made, equal to full salary up to the date of this decision, less where appropriate, income otherwise earned. The parties are asked to confer and agree on relevant payments due. I chose the date of this decision because I am unable to speculate as to employee continuity of employment as a result of this decision or the terms of any sale or extent of any trial. I do not propose to reduce the amount of compensation because of the redundancy payments because if I were to order reinstatement without loss as I am entitled, I am unable to determine who or how many of the applicants would be again made redundant. This order is for lost remuneration only. A conference of the parties will now be convened by the Commission at an early convenient date to discuss the outstanding applications. 149 It is clear from this passage and earlier remarks of the Commissioner that he had in mind that if he ordered that the seven individuals be reinstated, some or all of them might thereafter be made redundant. He must have understood that if this was true of the seven individual applicants, it would be equally true of the remaining 275 dismissed employees. Indeed the fact that the seven individuals might be made redundant, even if reinstatement was ordered, was one factor identified by the Commissioner in the above passage from his reasons for not ordering reinstatement. 150 It would have been in this context that the majority of the Full Bench characterised, correctly, the decision of Commissioner Hingley as determining the matter "of the employees getting their jobs back". 151 The majority of the Full Bench did not expressly characterise the proceedings leading to the award of Commissioner Hodder in the same way as they characterised the proceedings before Commissioner Hingley. Indeed their reasons contain a bare assertion about the similarity of "practical effect" with no explanation about why they reached that conclusion. However, it is fairly clear from their reasoning that the majority proceeded on the basis that the award made by Commissioner Hodder could be treated as determining the same matter as that dealt with by Commissioner Hingley. That is, determining whether the dismissed employees should get their jobs back. This is made most apparent from the majority's assertion, just referred to, to the effect that had Commissioner Hingley ordered the reinstatement of the seven individuals (and indirectly and most probably the reinstatement of all or part of the remainder), it would have had the same practical effect as Commissioner Hodder's award. While this may not have been so immediately, it would have, in a general sense, become the position if all the employees had been reinstated by order of Commissioner Hingley and some, as the Commissioner contemplated might happen, had thereafter been made redundant. Alternatively, after the scheduled conference, reinstatement of only some of the workforce may have been ordered. On either approach, at that point the practical effect of the orders and the award would have been substantially the same if the mine had recommenced operating as had been expected by both Commissioners. Gordonstone would then either be using the workforce it had acquired by the reinstatement orders excluding any employees it might later have made redundant, or it would be using a workforce it had recruited according to Commissioner Hodder's award. The practical effect of reinstatement orders and an increase in hands award would have been the same in that some, but not all, of the workforce that had earlier been dismissed would be engaged in operating the mine but in numbers (by reference to trade skills) which had been determined by Gordonstone. While the analysis of the majority of the Full Bench concerning the character and effect of the orders that might have been made and the award and the decisions of the two Commissioners is regrettably brief, it is not an analysis that manifests legal error. I should add that no issue was raised, directly, about the adequacy of the reasons themselves. 152 It is, of course, possible to identify dissimilarities in the legal effect of orders Commissioner Hingley might have made and the award made by Commissioner Hodder to sustain a conclusion that their practical effect was not the same. This is what Commissioner Bacon did in his detailed and considered reasons. However the fact that dissimilarity of legal effect can sustain a conclusion that the practical effect is different does not mean that a conclusion that the practical effect is the same manifests legal error. There is, in the present context, an inherent imprecision in the notion of "practical effect". All the more so if one is considering, in part, the practical effect of orders that were not, in fact, made. Different but legitimate views could be formed about the practical effect of the orders that might have been made (indeed different views could be taken about what orders, in detail, might have been made). Different views about practical effect could arise because of differences in the perceived relative importance of the effect, in detail, of the range of orders that might be made under s 170CH and the increase in hands award made by Commissioner Hodder. Different views about practical effect could also arise because of the need, in ascertaining the practical effect of orders that might have been made and the award, to engage in speculation about the factual context in which they would operate. In particular, speculation would be necessary about what would have occurred if reinstatement orders had been made by Commissioner Hingley (including how many might have been reinstated and, if they were all the previously dismissed workforce, how many were later made redundant and on what basis) and what would have occurred if Commissioner Hodder's award was to take practical effect. Because speculation is needed views could legitimately differ about the factual context in which the orders and the award might operate. 153 In my opinion, as I indicated earlier, the only legal error that is evident in the majority's reasons is their failure to recognize the materially different functions being performed by Commissioner Hingley, on the one hand, and Commissioner Hodder on the other. By not recognizing that difference the majority of the Full Bench was able, erroneously, to criticize Commissioner Hodder for taking into account past conduct of Gordonstone on the basis that the conduct had already been considered and acted on by Commissioner Hingley. The reasoning of the majority is somewhat obscure as to what the error of principle of Commissioner Hodder was. However it appears to be founded on the use the Commissioner made of, or reliance he placed on, the past conduct of Gordonstone. That appears, in the majority's view, to have led to some process of duplication of consideration of the same matter by the Commission differently constituted. It is probable, though the brevity of the majority's reasons makes it difficult to say with any certainty, that had the majority recognized the differences in the functions that had been performed and not treated them as the same, they would not have identified an error of principle on Commissioner Hodder's part. If that were so, then in the absence of any identified error of principle, the power of the Full Bench to correct error in a discretionary decision would not have been enlivened: see Construction Forestry Energy and Mining Union v Guidice (supra) at 43 - 44. By identifying an error of principle founded, and seemingly fundamentally so, on a false legal premise, power to correct discretionary error was, in effect, created. In this way the legal error of the majority was jurisdictional in character. 154 However for the reasons appearing in the joint judgment of Wilcox and Madgwick JJ, s 150 of the Act protects, for present purposes, the order of the Full Bench quashing the award of Commissioner Hodder. 155 As to other matters, I generally agree with the reasons of Wilcox and Madgwick JJ. I agree with the orders they propose. I certify that the preceding one hundred and thirty-six to one hundred and fifty-five (136-155) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Counsel for the Applicant: G W Haylen QC and C Howell

Solicitor for the Applicant: R L Whyburn & Associates

Counsel for the Second Respondent: J West QC and F Parry

Solicitor for the Second Respondent: Corrs Chambers Westgarth

Counsel for the Third R J Buchanan QC and H J Dixon Respondent:

Solicitor for the Third Freehill Hollingdale & Page Respondent:

Date of Hearing: 7 and 8 April 1999