See also at 462 per Gaudron and Gummow JJ, and at 469 - 470 per Kirby J.
27 In the present case the Commission, as we have noted, considered that it would be obtuse for it not to accept that the whole of the agreement could properly be said to be made between the parties to an industrial situation. But even if the Commission's conclusion is put to one side it is clear, in our opinion, that the Commission did have jurisdiction to certify the agreement.
28 It may well be that the particular disputes notified on 29 March 1996 and 23 April 1996 were of the most immediate importance when the agreement was submitted for certification, but they were not the only outstanding disputes between these parties upon which the agreement had an impact and the agreement must be considered in its industrial context. At the time of certification there was still outstanding the resolution of the interstate industrial dispute found by the Commission on 16 October 1995 consequent upon the service and rejection of the demands made in a log of claims served on 31 August 1995. The effect of cl 32 of the certified agreement was that no further claims could be made during the life of the agreement with the consequence that unresolved claims that were the subject of the October 1995 interstate industrial dispute could not be pursued until 1 April 1998. Moreover, the agreement, with its no extra claims provision, by its terms replaced "in total" the terms and conditions of the 1993 consent award made in settlement of an interstate industrial dispute, and it was in itself a new means for preventing an industrial situation from giving rise to an interstate industrial dispute between the parties.
29 The contention by Gordonstone that the dispute found on 16 October 1995 had no connection with the certified agreement in the sense that the agreement was not intended to resolve the issues in that dispute ignores the purpose and effect of the certified agreement.
Clauses 21 and 22 - problem resolution procedure
30 Gordonstone submitted that cls 21 and 22 were in any event invalid since they were manifestly concerned with local disputes which may arise independently of any interstate dispute. It submitted that a dispute about a procedure for the settlement of local disputes was not an industrial dispute within the meaning of the Constitution or the Act, and an award establishing such a procedure was not within the jurisdiction of the Commission. Reliance was placed upon The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 255-256 per Menzies J and The Queen v Portus; Ex parte City of Perth (1973) 129 CLR 312 at 316, 318-319.
31 Gordonstone further submitted that for a disputes settlement provision to be a valid part of a certified agreement it had to relate to matters arising under the agreement and this agreement did not do so. Moreover, the Commission's involvement under such a valid clause was limited to disputes about the application of the agreement.
32 In our view Gordonstone's attack on cls 21 and 22 must fail for the reason that, properly construed, cls 21 and 22, to the extent that they provide for disputes to be referred to the Commission for determination, are limited to disputes about the application of the agreement and are not impermissibly wide in their scope.
33 Section 170MC(1)(c) of the Act specified, as one of the requirements for certification, that an agreement include procedures for preventing and settling disputes between employers and employees covered by the agreement "about matters arising under the agreement" and s 170MH provided:
"Procedures in an agreement for preventing and settling disputes between employers and employees covered by the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint of board of reference as described in section 131 for the purpose of settling such disputes."
34 When the agreement is considered as one which the parties intended should be certified by the Commission under Div 2 of Part VIB of the Act, it is not difficult to conclude that their intention was to reflect s 170MH and to empower the Commission to settle disputes over the application of the agreement. The language of the clauses points to this conclusion. Clauses 21 and 22 should be seen as providing for a staged process of problem resolution and, so viewed, it can be seen that the differences that were intended to be dealt with by the procedure are those that can, if necessary, move through the whole of the process to be resolved ultimately by "a decision determined by the AIRC" under cl 22(b). Disputes of this nature are "disputes over the application of the agreement" which, by reason of s 170MH, the parties can empower the Commission to settle.
35 The impugned clauses thus operate to enliven the Commission's power under s 170MH(2) only to the extent of enabling the settlement by decision of disputes that are "disputes over the application of the agreement". In this regard we consider the observations of Mason J in The Queen v Hegarty; Ex parte The Corporation of the City of Salisbury (1981) 147 CLR 617 at 629-630 to be apposite and particularly the observations at 629 that:
"Where there is an interstate industrial dispute as to the means by which differences as to the classification of employees are to be determined, that dispute may be validly settled by an award which provides that all future such differences shall be resolved by a Board of Reference, so as to bind the parties to the dispute. Such an award is a settlement of the original dispute. The settlement is the more effective and enduring because it provides procedures and continuing machinery for the resolution of classification issues, the mode of resolution being germane to the original interstate dispute. These procedures and that machinery apply to the parties bound by the award wherever they may be, including an employer and an employee in a single State, in the same way that other provisions of the award apply to an employer and an employee in a single State. The application of the procedures results in a determination that an employee is within a particular classification, a factum on which the provisions of the award then operate.
It is not to the point that the difference between the prosecutor and Tyler is not in itself an interstate dispute or that the Award is so expressed that a Board of Reference is authorized to deal with that difference. What is the point is that the provisions constitute the settlement of an interstate industrial dispute and that the procedures and machinery prescribed for the resolution of a person's classification are designed to ensure that the settlement of that dispute is effective and enduring."
36 We do not think it necessary to determine whether the clauses might have a wider operation that would not involve the exercise of any power by the Commission.
Section 89A of the Workplace Relations Act
37 Gordonstone submitted that s 89A of the Workplace Relations Actoperated in any event to limit the jurisdiction of the Commission to deal with any matter coming before it for decision under cls 21 or 22. Section 89A is in these terms:
"89A(1) Industrial dispute normally limited to allowable award matters For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3):
(a) dealing with an industrial dispute by arbitration;
(b) preventing or settling an industrial dispute by making an award or order;
(c) maintaining the settlement of an industrial dispute by varying an award or order."
Section 89A(2) specifies allowable award matters.
38 Gordonstone submitted that s 89A(1)(a) was directly applicable to any decision-making process that may result from the operation of either of the clauses and that the Commission's jurisdiction was effectively confined by the section. It contended that to the extent that the Commission had any role in the procedures provided for by cls 21 and 22 that was necessarily by way of conciliation or arbitration and that where the Commission's role involved a determination of a matter in contest, that role was necessarily one of arbitration. In such a case s 89A would apply.
39 The Union submitted that s 89A did not apply to the certified agreement because it was not a certified agreement for the purposes of s 4(1) of the Workplace Relations Act; Div 4 of Pt VIB of that Act only applied to agreements entered into after the commencement of sch 8 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth): see item 23 of sch 8. It followed, said the Union, that the comprehensive amendments made to Pt VIB of the Workplace Relations Act pursuant to sch 8 did not apply to the agreement certified on 21 October 1996 because the date of commencement of sch 8 was 25 November 1996. The consequence was that the agreement was not a certified agreement for the purposes of s 4(1) of the Workplace Relations Act. Schedule 5 introduced s 89A into the Workplace Relations Act on 1 January 1997.
40 The Union submitted in the alternative that the determination of issues arising under cls 21 and 22 of the agreement in the exercise of power derived from s 170MH of the Act, was not subject to s 89A(1) because what was involved was in truth the exercise of conciliation powers and these were outside the scope of s 89A. The Union also submitted that s 170MH contained, in any event, a comprehensive and independent source of power to determine disputes and that it was not intended that s 89A should apply to s 170MH or its counterpart in the Workplace Relations Act, s 170LW.
41 We reject the submission that the agreement is not a certified agreement for the purposes of the Workplace Relations Act. Although the provisions of sch 8 may not be applicable to the certified agreement because they only apply to agreements made after the commencement of sch 8 (see item 23 in sch 8), s 89A is contained in sch 5 and is not so limited and is generally applicable in respect of all certified agreements whenever made.
42 We also reject the Union's submission that the determination by the Commission of a dispute arising under the certified agreement and referred to it pursuant to cls 21 and 22 is outside the operation of s 89A(1)(a). It is true that s 170MH of the Act was a broad grant of power to the Commission to enable it to settle disputes over the application of certified agreements and it is also true that such a grant included powers of both conciliation and arbitration. Nevertheless, we see no sufficient indication of any intention to deny s 89A its full effect when the Commission is exercising arbitral powers, albeit arbitral powers committed to it by virtue of the grant of power in s 170MH.
43 The fact that the parties have agreed, by a certified agreement and through the enabling provisions of s 170MH of the Act, to give the Commission powers to settle disputes does not deny those powers their arbitral character when what is involved is a binding decision in settlement of a dispute, not consensual in its nature, but made in the exercise of an independent judgment after the consideration of the differences between the parties.
44 We are therefore of the opinion that the Full Bench of the Commission was in error when it determined that any action taken by the Commission under cl 22 could not be seen as action which fell within s 89A(1) of the Workplace Relations Act.
45 It follows that although the applicant's primary challenges to the Commission's jurisdiction have failed, it has in one respect succeeded. The parties did not address the Court about the relief, if any, that should be granted if this was the conclusion we reached and we consider that they should now have an opportunity to do so. They should also have an opportunity to make submissions on the question of costs. We therefore direct that the applicant file written submissions as to the nature of the relief (if any) that should be granted in the circumstances and also as to the question of the costs, such submissions to be filed and served within seven days. We direct that the second respondent file and serve written submissions within seven days of the service upon it of the applicant's submissions.
I certify that this and the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment herein of the Honourable Chief Justice Black, and the Honourable Justices Heerey & Goldberg