The manner in which Justice Boulton exercised the power conferred by s 170MW
The decision of Justice Boulton to terminate the bargaining period and the orders terminating it were made on 7 November 1997 on the application of CFMEU, AMWU and CEPU. There had been a hearing on 4 and 5 November 1997 and both the applicant unions and Coal & Allied asked that the application to terminate be decided as soon as possible. In these proceedings counsel for the applicants have, in their written submissions, summarized the decisions of Justice Boulton and the Full Bench. That summary was commented on in the written submissions of counsel for Coal & Allied. The summary provides a convenient means of setting out the reasons for decision of Justice Boulton (and later the Full Bench) and what follows (and follows later) is an adaptation of that summary.
The grounds on which the application to terminate the bargaining period were made were summarized by Justice Boulton in his reasons for decision:
The grounds relied upon by the unions in the applications relate to industrial action and associated developments which have taken place at the Mine since June this year. These include a six week strike by workers which took place in June and July 1997, strike action which commenced on 9 September 1997 and is continuing, retaliatory action by the Company, and picketing of access roads and rail lines leading to the Mine.
More particularly, the grounds relied upon for the termination of the bargaining periods are:
(a) that there exists or existed circumstances under s.170MW(3)(a) in that the industrial action taken by the CFMEU, AMWU and CEPU, and the retaliatory action of the Company, and the further industrial action threatened to be taken by the trade union movement in the Newcastle and Hunter regions to support or advance claims in respect of the proposed agreement, had threatened or is further threatening to endanger the welfare of part of the population, being in particular the population of the Newcastle and Hunter regions;
(b) that there exists or existed circumstances under s.170MW(3)(b) in that the industrial action taken by the CFMEU, AMWU and CEPU, and the retaliatory action of the Company, and the further industrial action threatened to be taken by the trade union movement in the Newcastle and Hunter regions to support or advance claims in respect of the proposed agreement, is causing and is threatening to cause significant damage to the Australian economy, or part of the Australian economy, being that part which is comprised of the Newcastle and Hunter regions;
(c) that circumstances exist or existed generally under s.170MW(3) which warrant the Commission suspending or terminating the bargaining period.
Justice Boulton then observed that the circumstances in which the applications were being made were that there had been strike action and picketing by workers at the mine since 9 September 1997. Justice Boulton set out the background to the applications and referred to matters adverted to in this judgment as the background facts concerning the history of proceedings in the Commission. His Honour referred to the Commission of its own motion considering on 17-19 September 1997 whether the bargaining periods should be terminated under s 170MW(3). His Honour also referred to a strike at the mine that had lasted for approximately six weeks commencing on 10 June 1997. Justice Boulton indicated the background of disputation at the mine was relevant as it explained the general circumstances and context in which the applications were made. Justice Boulton noted that the parties had relied on submissions and evidence presented in earlier proceedings before the Commission constituted by him, and in particular C. Nos. 35882, 23521 and 37394 of 1997, and evidence and submissions before another member of the Commission (Commissioner Harrison) in C. Nos. 23689, 23690, 23691, 23693, 23694 and 23698 of 1997 as well as evidence which was led in the Supreme Court proceedings before Justice Bruce.
Justice Boulton stated that the applications to terminate the bargaining periods needed to be determined according to whether the requirements for their termination under s. 170MW(3) had been made out. Justice Boulton noted the Commission must be satisfied that, relevantly, either of the circumstances identified in s. 170MW(3) must exist or have existed. He also noted that if the Commission was so satisfied then a discretion arose under s 170MW(1) to make an order terminating the bargaining period.
Two competing interpretations of s 170MW(3) had been put to Justice Boulton. The first interpretation ("the narrow view") was propounded by the Commonwealth and Coal & Allied. The narrow view was that the Commission in applying the terms of the section was only entitled to have regard to protected industrial action being taken by a negotiating party as the relevant industrial action which was threatening the endangerment or damage referred to in paragraphs (a)-(b) of s 170MW(3). It was argued that it was not sufficient for the protected industrial action indirectly to bring about the effects identified in either of those sections. Thus sympathy action or an escalation of the action involving other workers was not relevant to the Commission's satisfaction of the existence of the situations identified in the section. The CFMEU, AMWU and CEPU as well as the State of New South Wales, which had intervened in the proceedings, argued that the reference to industrial action in s. 170MW(3)(a) and (b) was not qualified or restricted and that the Commission in forming the requisite satisfaction was required to have regard both to the direct and indirect consequences of the industrial action that was taking place ("the broad view").
Justice Boulton preferred the broad view. However he observed that even if the industrial action referred to in s 170MW(3) was limited to protected industrial action, sympathy and associated action might be relevant in considering whether a circumstance identified in s. 170MW(3) had arisen.
Despite his preference for the broad view, Justice Boulton indicated it was unnecessary to make any final decision favouring either the narrow or broad view because there was evidence and material before the Commission that satisfied him that the circumstances as referred to in the subsection exist or existed.
Justice Boulton stated that his satisfaction as to the existence of circumstances identified in s 170MW(3) came about having regard to all of the material and evidence presented to him. He then identified some particular evidence and material that had been considered. These included:
(a) the material, evidence and submissions put before the Commission in the proceedings and in other proceedings regarding industrial action and picketing at the mine and the consequences of that action and also regarding the negotiations for an enterprise agreement at the mine;
(b) the evidence given by witnesses called by Coal & Allied in the proceedings before Justice Bruce and in particular the affidavits sworn by Mr Davies, the general manager (operations) of the mine, Mr Ian McPhee, Coal & Allied's executive general manager for marketing and Mr Tony Moore, manager, supply for Rio Tinto Coal (NSW) Pty Ltd. The affidavits dealt with the difficulties experienced by Coal & Allied in the operations of the mine and the supply of coal to customers as a result of the industrial action and picketing.
(c) the personal intervention of the Premier of New South Wales in the dispute and the statements made by the Premier and the Attorney-General for New South Wales regarding the impact of the industrial action and the disputation;
(d) the debate in the Legislative Assembly of New South Wales on 21 October 1997 in which a motion was passed concerning the dispute. Two sections of the motion were supported by both Government and Opposition parties and one of them was in terms of a warning of the "devastating impact upon the New South Wales and national economy of a further prolonged or escalated dispute";
(e) the concern expressed by local shire and city councils about the impact of the dispute on local communities in the Hunter Valley region.
Justice Boulton then turned to consider the circumstances identified in s 170MW(3) and whether an identified circumstance had been made out. Justice Boulton said:
On the basis of the material before me, I am satisfied that the strike action being taken at the Mine is threatening to endanger the welfare of part of the population, namely the people of the Hunter Valley region.
This is plainly an expression of satisfaction that the identified circumstance presently exists.
Justice Boulton then referred to factual matters that supported his conclusion. They were that the strike action was taking place at one of the largest coal mines in the region and involved almost 400 workers, that the action had been continuing for over 8 weeks, and that there had been previous action in June and July 1997 over a period of some 6 weeks. Justice Boulton said that there were reasonable grounds upon which it could be assumed that the action might continue for some considerably longer period. Justice Boulton referred to the evidence about the impact of the action on workers and others providing services to the mine and about the divisions and social tensions it was causing within local communities and the effect on local businesses. He noted that the newsletter from the general manager operations at the mine, which was forwarded on 19 June 1997 to all employees and their families, stated in respect to the earlier 6 week stoppage that the strike was hurting everyone, namely, the employees, their families, Coal & Allied and the Hunter Valley, and that it was currently costing one million dollars a day in lost income to the mine and that that money would have gone back into the pockets of employees, suppliers and contractors who lived locally.
Having regard to the length of the dispute, the number of workers and families involved, the concerns expressed about its effect, the potential for the continuation of the disputation, Justice Boulton found that "it would be difficult to conclude that the strike action which has taken place at the mine and which may continue is not threatening the welfare of the people of the Hunter Valley". His Honour then said:
For the above reasons, and regardless of whether a broad or narrow construction of s. 170MW(3) is adopted, I am satisfied that a circumstance for the termination of the bargaining period exists or existed under s. 170MW(3)(a).
It is to be noted that his Honour refers to the circumstance as one that exists or existed and, in so doing, was simply repeating the language of s 170MW(1).
Justice Boulton went on to indicate that he was also satisfied that the industrial action at the Mine was threatening to cause significant damage to an important part of the Australian economy. It is relatively clear that this is a reference to the regional economy of the Hunter Valley. His reasons for reaching this conclusion were:
The strike action at the Mine has lasted for more than fourteen weeks. On the material presented and having regard to the circumstances of this particular dispute and the coal industry, it is unlikely that the disputation will be brought to an end quickly or that the matters in issue between the parties will be resolved by further negotiation. As stated in earlier proceedings, there is every sign that both the Company and the workers and unions involved have become resigned to a war of attrition extending over a considerable period of time before an outcome is achieved. This would mean a continuation of strike action by almost 400 workers at one of the largest coal mines in the Hunter Valley for an indefinite period. Given this potential, I am satisfied that the strike action being taken is threatening to cause significant damage to the economy of the Hunter Valley region.
Justice Boulton said that the evidence for this conclusion included the evidence he had earlier referred to and the assessment he had made based on his own knowledge of the coal industry of the potential for the disputation and the strike action to continue. Justice Boulton referred to evidence of Dr Paradise who was the research director of the Hunter Valley Research Foundation regarding the economic interrelationship between various activities in the Hunter region. That evidence related to the potential for a strike in one industry to have multiplier effects on other sectors. Justice Boulton said that where there was room for argument about the precise impact of the industrial action, "a prolonged stoppage at such a mine may well have the potential through its direct and associated effects to cause significant damage to the regional economy."
Justice Boulton then said:
However if the broader view of s 170MW(3) is taken, and the potential for the escalation of the dispute at the Hunter Valley No. 1 Mine to include other coal mines and workers in other industries is considered, there is a basis for concluding that the industrial action at the Mine is threatening to cause significant damage to the Australian economy, to the New South Wales economy, to the economy of the Hunter Valley region or to the coal industry.
Justice Boulton then noted the potential for escalation of the dispute and observed that the dispute at the mine had already led to one stoppage at other coal mines in the region and had the potential to spread to other areas including railways and ports. He referred to the fact that the Premier of New South Wales had been involved personally and to the debate that had occurred in the New South Wales Parliament. He also referred to the evidence given in the Supreme Court proceedings about damage caused by the strike to the trading reputation of Coal & Allied and that the damage may extend to other Australian exporters of coal especially if there is an escalation of the dispute in the coal industry. Justice Boulton indicated that whatever might be the cause of the strike it was evident the dispute had assumed a significance beyond that of a strike affecting a single workplace. This development was another reason for concluding that there was a very real potential for the dispute at the mine to escalate to involve other workers in the coal industry and indeed workers in other industries. He concluded:
In all these circumstances I am satisfied that the industrial action being taken at the mine is threatening, through its potential for escalation, to cause significant damage to the Australian economy or an important part of it.
Justice Boulton described the dispute as "a battle between titans, in which the stakes are considered to be high and in which there is a determination on both sides to be seen to win". He said the hard fought dispute had already caused significant loss to the company, the workers and the local community and it had a "potential to cause wider economic and social damage".
Justice Boulton indicated that he was satisfied that whether a broad construction of s. 170MW(3) was adopted or not, one or more of the circumstances existing under the subsection allowed him to exercise his discretion to suspend or terminate the relevant bargaining periods. He determined that it was appropriate to terminate the bargaining periods applying at the mine. He made declarations and orders giving effect to these conclusions.
The nature of an appeal to a Full Bench of the Commission
It is to be recalled that the orders of Justice Boulton were quashed by the Full Bench exercising the appellate jurisdiction of the Commission arising under s 45 of the WR Act. It is desirable to consider the nature of the appellate jurisdiction before dealing with the way the Full Bench approached the matter in the present case. Section 45 provides:
45(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:
(a) a decision of a member of the Commission by way of a finding in relation to an industrial dispute or alleged industrial dispute;
(b) an award or order made by a member of the Commission, other than an award or order made by consent of the parties to an industrial dispute;
(c) a decision of a member of the Commission not to make an award or order;
(d) a decision of a member of the Commission under paragraph 111(1)(g);
(e) a decision of a member of the Commission refusing to certify an agreement under Division 4 of Part VIB;
(ea) an opinion formed by a member of the Commission under section 127A or a decision by a member of the Commission not to form such an opinion;
(eb) an order made by a member of the Commission under section 127B or a decision by a member of the Commission not to make such an order;
(ec) (Repealed)
(ed) a decision of the Commission to vary, or not to vary, an award that has been referred to the Commission under section 50A of the Sex Discrimination Act 1984;
(f) a decision (other than in relation to a prescribed matter) in a proceeding before a designated Presidential Member acting in that capacity; and
(g) a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under this Act.
45(2) A Full Bench shall grant leave to appeal under subsection (1) if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
45(3) An appeal under subsection (1) may be instituted:
(a) in the case of an appeal under paragraph (1)(b) that is not against an order under Part VIA - by an organisation or person bound by the award or order;
(aa) in the case of an appeal under paragraph (1)(b) against an order under Part VIA - by a person entitled under section 170JF to institute the appeal;
(b) in the case of an appeal under paragraph (1)(e) - by a person who made the agreement;
(bb) in the case of an appeal under paragraph (1)(ed) - by a party to the review of the award under section 111A;
(c) in the case of an appeal under paragraph (1)(f) - by a party to the proceeding; and
(d) in any other case - by an organisation or person aggrieved by the decision or act concerned.
45(4) Where an appeal has been instituted under this section, a Full Bench or Presidential Member may, on such terms and conditions as the full Bench or Presidential Member considers appropriate, order that the operation of the whole or a part of the decision or act concerned be stayed pending the determination of the appeal or until further order of the Full Bench or Presidential Member.
45(5) A Full Bench may direct that 2 or more appeals be heard together, but an organisation or person who has a right to be heard in relation to one of the appeals may be heard in relation to a matter raised in another of the appeals only with the leave of the Full Bench.
45(6) For the purposes of an appeal under this section, a Full Bench:
(a) may admit further evidence; and
(b) may direct a member of the Commission to provide a report in relation to a specified matter.
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;
(c) direct the member of the Commission whose decision or act is under appeal, or another member of the Commission, to take further action to deal with the subject-matter of the decision or act in accordance with the directions of the Full Bench;
(d) in the case of an appeal under paragraph (1)(d) - take any action (including making an award or order) that could have been taken if the decision under paragraph 111(1)(g) had not been made.
45(8) Where, under paragraph (6)(b), a Full Bench directs a member of the Commission to provide a report, the member shall, after making such investigation (if any) as is necessary, provide the report to the Full Bench.
45(9) Each provision of this Act relating to the hearing or determination of an industrial dispute extends to the hearing or determination of an appeal under this section.
A Full Bench of the Commission consists of at least three members including at least two Presidential members: see s 30(2). Presidential members may be legally qualified but need not be: see s 10, though Presidential members have the status, rank and precedence of a judge of this Court: s 9(2).
It can be seen from s 45(1) that an appeal lies to a Full Bench only with the leave of the Full Bench. Section 45(1) confers a power on the Full Bench to grant leave and s 45(2) requires a Full Bench to grant leave if it forms the opinion that the matter is of such importance that in the public interest leave should be granted. The formation of that opinion dictates that leave be granted. Section 45(2) does not prescribe the test for the grant of leave. It requires the Full Bench to grant leave, if the Full Bench forms the requisite opinion. The conventional considerations for the granting of leave, including whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Bench, or whether substantial injustice would result if leave were refused, supposing the decision to be wrong, are not replaced by a different test: rather, s 45(2) provides a further, and obligatory, basis for the grant of leave.
The range of matters that may be the subject of an appeal is not narrow and covers disparate powers or functions exercised or undertaken by a member of the Commission sitting alone. The powers of the Commission are ordinarily exercisable by a single member: see s 31, though some may only be exercised by a Presidential member.
In ascertaining the nature of the appellate jurisdiction of the Commission arising under s 45 it is instructive to consider the legislative history of that provision. It is sufficient to commence that consideration with the creation in 1956 of the predecessor of the Commission, the Commonwealth Conciliation and Arbitration Commission ("C&A Commission") and the nature of the appellate jurisdiction conferred on it. Jurisdiction was conferred on the C&A Commission to hear and determine two classes of appeals. The first was an appeal under what became s 35 (it was initially s 16U) of the Conciliation and Arbitration Act 1904 (C&A Act) and the second under s 88F of that Act.
An appeal under s 35 was heard and determined by not less than three members of the C&A Commission two of whom had to be Presidential members. The matters that might be subject to such an appeal were identified in s 35(2) in the following way:
(a) An award made by the Commission constituted by a Commissioner;
(b) A decision of the Commission, constituted by a Commissioner, certifying, or refusing to certify, a memorandum under section thirty-one of this Act;
(c) A decision of the Commission, constituted by a Commissioner, under paragraph (d) of section forty-one of this Act refraining or refusing to refrain from further hearing or from determining an industrial dispute on the ground that the industrial dispute has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority.
Section 35(3) provided that an appeal did not lie unless, in the opinion of the Commission, the matter was of such importance that, in the public interest, an appeal should lie. This provision is to be contrasted with s 45(2) of the WR Act.
It can be seen that decisions amenable to appeal lay from members of the Commission sitting alone, and were limited to the decisions of the kind specified. Those decisions concern powers which involve the exercise of a discretion. However, by 1983, the decisions amenable to appeal had been expanded, and included a decision of a member of the C&A Commission by way of finding as to the existence of or the parties to an industrial dispute. This amendment was made by the Conciliation and Arbitration Act 1972 to overcome the decision of a Full Bench in Federated Ironworkers Association v Alcoa of Australia Pty Ltd (1966) 115 CAR 920 in which the Full Bench concluded it had no power to entertain an appeal concerning the scope of a finding of the existence of an industrial dispute. The relevance of this amendment was that it could ground an appeal against an act of a member of the Commission which did not involve the exercise of a discretionary power. Section 24(1) of the C&A Act, imposing a duty on the Commission to make a finding as to its jurisdiction both as to parties and as to subject matter, createda procedural bar to the exercise of powers capable of affecting substantive rights and liabilities: see Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 517.
The role of a Full Bench exercising the appellate jurisdiction under s 35 was considered by a Full Bench in The Australian Workers' Union v Poon Bros (WA) Pty Ltd (1983) 289 CAR 269. The Full Bench reviewed earlier Full Bench decisions concerning the appellate function under s 35. The approach that had been consistently adopted was that if leave had been given, the Full Bench did not exercise again the powers of the Commission without regard to the manner in which the member of the Commission sitting alone had exercised those powers. After undertaking that review and considering the decision of the High Court in Warren v Coombes (1979) 142 CLR 531, the Full Bench said at 277-278:
There are of course, appeals when questions of jurisdiction are raised and must be determined, but in the great majority of cases, the decisions brought before a Full Bench on appeal have come up from a single member who has been required to exercise a discretion in reaching his conclusion. In our opinion, the approach to those decisions should accord with the principles stated and applied by Full Benches of the Commission for many years. These basically follow the principles published in House v King which have been affirmed by the High Court on a number of occasions since 1936 (see for example, Attorney-General (NSW) v Grant (1975-76) 135 CLR 587 at 611; Aickin J in Gronow v Gronow (1979) 144 CLR 513 at 534.
Thus the Full Bench was repeating the approach that had consistently been adopted by the Commission that an appeal under s 35, in so far as it constituted an appeal against the exercise of a discretionary power, was an appeal in which the appellant had to demonstrate that the single member of the Commission had made an error in exercising the discretion. Such an error would occur, to use the language in the well known passage in House v King (1936) 55 CLR 499 at 504:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration …
In addition to the appellate jurisdiction conferred on a Full Bench under s 35 there was an appellate jurisdiction conferred on a single member of the C&A Commission under s 88F of the C&A Act. That concerned an appeal from an act or decision of the Industrial Registrar which included a Deputy Industrial Registrar. Leave was required to appeal. The Industrial Registrar was a statutory office holder but was not a member of the Commission. Industrial Registrars exercised a range of administrative powers in relation to registered organizations including their registration and alterations to their eligibility or industry rules. The appellate jurisdiction conferred by s 88F was exercisable by a Presidential member or the President. Section 88F was inserted into the C&A Act by an amendment made by the Conciliation and Arbitration Act 1958. The terms of s 88F will be referred to in more detail shortly.
These two appellate jurisdictions, one arising under s 35 and the other under s 88F, continued until the abolition of the C&A Commission by the repeal of the C&A Act and the creation of the Commission by the enactment of the Industrial Relations Act 1988 (which in 1996 was renamed the Workplace Relations Act). At the time of its repeal the C&A Act provided that the classes of matters against which an appeal could be brought under s 35 were those that had appeared in s 35 when enacted in 1956 (originally as s 16U), a decision concerning the finding of the existence of an industrial dispute and an order by a Presidential member, or the refusal to make an order, under s 142A (being an order of the character of a demarcation order). The nature of the appeal under s 88F remained essentially the same as it had been since 1958 though at the time of the repeal of the C&A Act the appeal could also be heard by a Full Bench.
The Industrial Relations Act 1988 continued a scheme for appeals from the Industrial Registrar to the Commission (a Presidential member or a Full Bench): see s 81, and a scheme for appeals from single members of the Commission to a Full Bench: see s 45. However under that Act the functions and powers of an Industrial Registrar relating to the registration of organizations of employees or employers and alterations to their eligibility rules were vested in a member of the Commission, a designated Presidential Member, and were not exercisable by an Industrial Registrar. Section 45 provided for appeals from a decision of a designated Presidential Member. This had the effect of conferring on a Full Bench an appellate jurisdiction of the same character that had arisen under s 88F but in the same statutory provision as the appellate jurisdiction that had existed under s 35.
The significance of this change emerged when the High Court gave judgment in Re Coldham; Ex parte Brideson (1990) 170 CLR 267 ("Brideson (No 2)"). Judgment was given after the enactment of the Industrial Relations Act 1988 but it related to the provisions of the C&A Act and, in particular, s 88F. The judgment of the Court concerned a matter which had been considered by the Court in another context a year earlier: see Re Coldham; Ex parte Brideson (1989) 166 CLR 338 ("Brideson (No 1)"). In Brideson (No 2) the High Court considered the nature of the jurisdiction of theC&A Commission under ss 88F of the C&A Act. That section provided:
(1) The Commission may grant leave to appeal to the Commission from an act or decision of the Registrar in relation to a matter and may hear and determine an appeal in respect of which leave is so granted.
(2) Where leave to appeal has been granted under this section, the Commission may, on such terms and conditions as it thinks fit, make an order that the operation of the act or decision of the Registrar be stayed pending the determination of the appeal or until further order of the Commission.
(3) The Commission may take further evidence for the purposes of an appeal under this section.
(4) Upon the determination of an appeal under this section by the Commission, the Commission shall make such order as it thinks fit and may confirm, quash or vary a decision of the Registrar appealed from.
(5) The powers of the Commission under this section in respect of an appeal to the Commission are exercisable by the Commission constituted by the President or by a presidential member of the Commission assigned by the President for the purpose of the appeal or, in a case in which the President so directs, by a Full Bench.
(Emphasis added)
Brideson (No 1) was decided against the following background. Three associations of employees made application for registration as organizations of employees under s 132 of the C&A Act. Objections were made to each application. The Industrial Registrar registered each association. Objectors to the application of two of the associations for registration appealed against the Industrial Registrar's decision. That appeal was heard by a Full Bench which took the view that the Industrial Registrar's decision to register one of the associations, the Teacher's Association of Australia ("TAA"), should be quashed. It did so on the basis that the registration of TAA might result in competition for membership between registered organizations.
The C&A Act and regulations identified the bases upon which registration might be refused and the grounds on which an objection to registration might be maintained. The ground relied upon by the Full Bench for refusing to register TAA was not an identified ground for refusing registration nor a ground of objection identified in the C&A Act or regulations. The High Court concluded in Brideson (No 1) at 348:
It follows that the Commission erred in holding that registration could be refused by reference to considerations not expressly directed by the Act and Regulations. And, in so far as the Commission quashed the decision of the Registrar by reference to such considerations it did so by reference to impermissible considerations.
The High Court issued a writ of mandamus compelling the Full Bench to deal with the application for registration of TAA.
The appeal from the original decision of the Industrial Registrar, in so far as it related to the application by TAA for registration, was heard again by the Full Bench. That hearing took place in circumstances where the other two associations had secured registration and thus were registered organizations of employees. Section 142 of the C&A Act provided that an Industrial Registrar should ordinarily refuse to register any association if there was already registered an organization of employees to which the members of the applicant association might conveniently belong. A critical question then became whether the Full Bench should deal with the application before it, namely TAA's application for registration, having regard to the circumstances as they existed before the Industrial Registrar or the circumstances as they existed before the Full Bench. In the former situation there was no registered organization to which the relevant employees could conveniently belong though in the latter situation there was. It was in these circumstances that the High Court had to consider in Brideson (No 2) the nature of the appellate jurisdiction conferred on a Full Bench by s 88F. In the joint judgment of Deane, Gaudron and McHugh JJ their Honours discussed at 100 observations of McHugh JA in Strange-Muir v Corrective Services Commission [1986] 5 NSWLR 234. The observations of McHugh JA will be referred to in more detail shortly. However the following was then said in the joint judgment in Brideson (No 2) about the nature of the appellate jurisdiction arising under s 88F (at 273-275):
Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621-622.
In the present case, the enactment of s 88F(3) -"take further evidence", the terms of s. 88F(4) -"make such order as it thinks fit", and the nature of many of the issues which came before the Commission on appeal from the Registrar point irresistibly to the conclusion that the Commission was required to decide the case on the facts and law which existed at the date of its decision.
In appeals against decisions to register associations as organizations for the purposes of the Act, one of the issues which the Commission often had to determine under s. 88F was whether the association had complied with the prescribed conditions. Another issue which often had to be determined was whether, by reason of the provisions of s. 142 of the Act, registration should be refused. It seems most unlikely that the legislature intended that, on an appeal under s. 88F, the Commission had to register or confirm the registration of an association notwithstanding that, at the date of the appeal, the association no longer complied with the prescribed conditions. Furthermore, as this Court pointed out when the present case was previously before it:
"The history of industrial regulation in this country has shown the desirability of ensuring that industrial representation is structured in the interests of employees and the industry in which they are engaged, both for the purpose of avoiding demarcation disputes and for the purpose of ensuring effective industrial representation."
The effective administration of the Act made it a matter of importance that an association should not be registered if its members might conveniently belong to a registered organizaiton unless in all the circumstances it was undesirable to refuse registration. It would seem most unlikely, therefore, that the legislature intended that the Commission should register or confirm the registration of an association if, at the date of the appeal, there was an organization to which the members of the association might then conveniently belong and the Commission did not think it was undesirable to refuse registration to the association.
In our opinion, upon the correct construction of s. 88F, the Commission was bound to make its own decision on the evidence before it, including evidence of events which had occurred since the Registrar's decision. As Higgins J. said in Federated Carters and Drivers' Industrial Union of Australia v Motor Transport and Chauffeurs' Association of Australia (1912) 6 C.A.R. 122, at p. 123:
"the appellant is entitled to have … a re-hearing, a 'review' of the decision … He is entitled to such judgment as I can bring to bear upon the question, independently of the Registrar, although, of course, I should attach a good deal of weight to the Registrar's view."
This statement was made when the predecessor of s. 88F contained the word "review". Nevertheless, it is equally applicable to s. 88F. Consequently, the statement of the Full Bench in Re Federated Miscellaneous Workers Union of Australia (1974) 157 C.A.R. 623, at p. 631 that "the principles relating to the function of a tribunal sitting on appeal from the exercise of a discretion should be applied" in an appeal under s. 88F cannot be accepted as a correct description of the Commission's functions under that section. That is not to say, however, that those principles could not be brought to bear on the question whether leave to appeal should be granted. In determining whether leave to appeal should be granted under s. 88F(1), it would have been appropriate for the Commission to refuse leave unless it thought that there was an arguable case that the Registrar had acted upon a wrong principles, given weight to irrelevant matters, failed to give sufficient weight to relevant matters or made a mistake as to the facts or that the decision was plainly unreasonable or unjust. But once leave was granted, the Commission was bound to make its own decision on the evidence before it, including any further evidence admitted pursuant to s. 88F(3).
It follows from what has been said above that the Commission had jurisdiction to permit the objections under s. 142 to be raised. Consequently, the order nisi to review its decisions had to be discharged.