Industrial Relations Commission Decision 1563/1993;

Industrial Relations Act 1988

Conciliation and Arbitration Act 1904 s.25 notifications of industrial disputes

The Private Hospitals' and Nursing Homes' Association of Australia and others (C No. 00606 of 1983)

The Queen in right of the State of Queensland and others (C No. 01076 of 1983)

Galilee Lodge Nursing Home and others (C No. 01272 of 1984)

Attorneys - General of the Commonwealth of Australia

Industrial Relations Act 1988 s.99 notification of industrial dispute s.107 reference of dispute to Full Bench

The Queen in right of the State of Queensland and others (C No. 30537 of 1991)

s.45 appeal against decision [Print K6053] and award [Print K6359 [N175]]

The Queen in right of the State of Victoria and others (C Nos 32611 of 1992 and 30277 of 1993)

NURSES (VICTORIAN HEALTH SERVICES) AWARD 1992 (ODN C No. 00606 of 1983) [Print K6359 [N175]]

Various employees Health and welfare services

SENIOR DEPUTY PRESIDENT MARSH DEPUTY PRESIDENT MACBEAN COMMISSIONER SMITH MELBOURNE, 8 DECEMBER 1993 Industrial dispute - ambit - procedural fairness - wage fixation principles - claim by employer that denied natural justice not need be decided as s.111(1A) has operation to exclude refrain from hearing argument which did not exist at time of hearing - Commission considered clauses in award and determined a number were not within ambit - Commission not prepared to rule on submissions put by parties on wage fixing principles as parties not heard in relation to principles arising out of October 1993 Review of Wage Fixing Principles - integrity and validity of award as a paid rates award is in question - matter to be relisted for further submissions.

The matters which fall for determination by way of this decision came to this Full Bench by way of different statutory paths. C No. 32611 of 1992 and C No. 30277 of 1993 are subject to a s.45 appeal by the Victorian Government (the appellants) against an award made by a decision issued by Riordan SDP on 23 December 1992 (the appeal matter). The award made by His Honour is entitled the Nurses (Victorian Health Services) Award 1992 [Print K6359 [N175]] and it regulates the terms and conditions of employment of a large number of nurses in Victoria. C No. 30537 of 1993 is a s.107 reference matter (the reference matter) which was referred by His Honour the President in a decision dated 15 March 1993. In summary terms the reference covers an application made by the Australian Nursing Federation (ANF) and the Health Services Union of Australia

(HSUA) (the Unions) for the making of an award to cover employees in Victorian community health centres.

The award sought is in almost identical terms to the award made by Riordan SDP in the appeal matter. The Department of Health and Community Services (the Victorian Government) is opposed to the making of the award.

In an interim decision dated 3 August 1993, which dealt with an application by the ANF for a correction order to be issued, the background to the two matters before us was outlined in detail. We see no point in repeating that background other than in updated summary form:

. The appellants sought the granting of a stay order in the appeal matter which was refused by His Honour the President in a transcript decision on 31 March 1993.

. The matter is subject to High Court proceedings (M12). An application for an order nisi was accepted by His Honour McHugh J in a decision dated 8 March 1993. A stay application was rejected.

The matter has been referred to a Full Bench of the High Court along with other matters. The issues before the High Court relate to constitutional issues. Similar issues form grounds (1) and (2) of the appeal matter. Given the foreshadowed High Court proceedings the appellants did not argue those grounds on appeal before us.

. The constitutional validity of the dispute finding on which the reference matter is grounded is subject also to High Court proceedings and formed (M10) in Justice McHugh's decision [(1993) [1993] HCA 8; 112 ALR 177]. A stay order was rejected but an order nisi was granted. . At page 6 of transcript the appellants asked us to adjourn the reference matter at least until a Full Bench dealing with a number of applications for adjournment handed down its decision.

. On 27 April 1993, the first day of proceedings, the appellants sought a ruling that the Commission would hear and determine the appeal grounds pertaining to a denial of natural justice as a

. The ANF supported by the HSUA opposed this procedural course.

. The Commission ruled "that as a matter of procedure, and in the interests of expedition, we have decided to proceed with the

hearing of the appeal in its totality". [transcript p.43]

. In resumed proceedings on 24 June 1993 the appellants indicated that on the basis of a High Court decision (SPSF) which had been handed down in the interregnum the Victorian Government had examined logs of claims "with a view to ensuring and satisfying itself whether or not they have been able to create a dispute". The conclusion was that the ANF log in the reference matter (C No.

30537 of 1991) is incapable of creating a dispute and as such the Government was seeking a revocation of the dispute finding. No submission was made in relation to the ANF 1983 log (C No. 00606 of 1983) or the HSUA log (C No. 01272 of 1984).

. Following a procedural debate the Full Bench ruled in relation to the ANF logs:

". . . we have considered the issues, and we note that there is no application before us in C No. 00606 of 1983 which seeks to revoke the dispute finding; that is, in relation to

the 83 log. We are therefore prepared to hear the appeal which relates to that. In relation to the so called 1991 log, that is C No. 30537 of 1991, given the foreshadowed application made by Mr Kaufman on behalf on his clients an application should be lodged in the registry and the matter will be processed in accordance with the normal procedures of the Commission." [transcript p.184]

. Subsequently an application to revoke the 1991 ANF log (C No. 30537 of 1991) was made and heard by Riordan SDP on 26 July 1993 at which hearing a s.107 reference was sought. In a decision dated 12 August 1993 the President refused the reference application.

. The ANF supported by the HSUA applied for a correction order to be issued by the Full Bench. That application was rejected on 3 August 1993 for the reasons set out in Print K8570.

. At the completion of oral submissions on 25 June 1993 the Commission made a procedural ruling which directed the parties to complete outstanding submissions in writing. We also indicated that, if deemed desirable, the matter would be called back on. This

has not occurred for reasons which become apparent in this decision. In summary, both matters are before the High Court on constitutional grounds. The validity of ANF log in the reference matter is being processed, at this stage within the appropriate panel. As such we do not intend to deal with that matter to finality in this decision. The grounds of the appeal matter are centred on groupings of areas relating to: constitutional issues; issues of ambit; denial of natural justice; proper application of the wage fixing principles. The award made by Riordan SDP has not been stayed by this Commission or by the High Court.

The High Court proceedings cover a number of constitutional issues which form part of the grounds on which the appeal matter was lodged. On page 19 McHugh J stated:

"Although it is theoretically possible that these four proceedings could

be decided in favour of the applicants without a determination by the Full Bench of the constitutional issues, they cannot be determined in favour of the respondents without those issues being determined by the Full Bench. However, in other proceedings, the Full Bench has already effectively rejected the proposition for which the applicants contend in

the present proceedings. It would be futile and a waste of time and money and the resources of the Commission to require the applicants to litigate these issues once again before the Full Bench. Furthermore, if the jurisdictional issue is decided in favour of the applicants, the other issues are irrelevant. The first argument of the respondents in support

of the proposition that the applications are premature must be rejected."

As such the Victorian Government in the proceedings before us did not rely upon the overlapping constitutional grounds.

The appellants submitted that the overall characterisation of its submission made in relation to s.111(1)(g) was that an application was made "with an application that time be allowed for evidence to be obtained to support that application" [transcript p.15]. It was wrong to argue that the submission was for an application for an adjournment to allow the appellants to

make an application under s.111(1)(g). The enactment of the Employee Relations Act 1992 in Victoria created a changed circumstance on which to base a fresh s.111(1)(g) argument. Time was requested to survey potential respondents to obtain evidence in support of the application. SDP Hancock's decision was made in relation to an application lodged by the two unions and is distinguishable by the changed circumstance brought about by legislative developments in Victoria. The appellants sought to distinguish between the validity of making a s.111(1)(g) application at the time an award is made and making such an application once the award is made. Whether or not His Honour treated the application as being made in proceedings before him "we were not given the opportunity to run with it". Even if a formal application had not been made an adjournment should have been granted to allow the appellants to prepare its application. In either instance it was submitted natural justice was denied.

Given the subsequent legislative changes to s.111(1)(g) in the event that natural justice was found to have been denied it was submitted two courses existed for the Full Bench: quash the order and adjourn the matter pending the outcome of the High Court proceedings; quash the order and remit the matter back to a single member of the Commission to deal with an application which

will be made pending the outcome of the High Court proceedings, "Because the only way, if we have had our rights denied, would appear to be to await the quashing or a ruling by the High Court that s.111(1A) is unconstitutional and then we will be able to put the s.111(1)(g) argument;" [transcript p.35].

If natural justice has not been denied the award should nevertheless be

quashed to permit the requirements of s.111(1B) to be met: in the appellants view we are not entitled to conclude that because this section did not come into effect until after His Honour completed the matter that it is not now apposite.

The ANF strenuously denied that the appellants had been denied natural justice. The submission stressed the ruling of Hancock SDP on an earlier s.41(i)(d) application (under the Conciliation and Arbitration Act 1904) in relation to the State of Victoria, the failure of the appellant to formulate a s.111(1)(g) application before Riordan SDP, the extensive time frame foreshadowed in pursuing the s.111(1)(g) matter and the need, in this context, to address the balance of convenience. The union submitted that His Honour in

awarding a leave reserve clause had reserved all future rights of the parties. It is a term of the award that the respondent may apply pursuant to s.187 of the Act to set the award aside. A further opportunity was accorded the parties on 8 February 1993 when the matter was listed to settle the order. This opportunity was deliberately not taken up by the appellants who refused to contribute in those proceedings because this appeal had been lodged.

The Industrial Relations Act 1988 (the Act) has been amended since Riordan SDP handed down his decision and issued the Award. The effect of the relevant amendment is the introduction of s.111(1A) which states:

"(1A) Subparagraph (1)(g)(iii) does not apply to proceedings so far as

they may affect terms and conditions of employment of a particular kind that are applicable to a particular class of employees, if:

(a) at any time after 7 December 1992, terms and conditions of that kind and application have been regulated by an order, award, decision or determination of a State industrial

authority (whether made before, on or after that date); and

(b) terms and conditions of that kind and application:

(i) cannot be dealt with by a State arbitrator by compulsory arbitration (but not merely because an order, award, decision or determination of a State arbitrator cannot be changed during a particular period); and

(ii) are not regulated by an employment agreement; and

(iii) are not regulated by an award under this Act.

(b) regulated terms and conditions of employment of a particular kind and application that, if the agreement had not been entered into, could have been regulated by a State arbitrator by compulsory arbitration; and

(c) prevails over any inconsistent order, award, decision or determination of a State industrial authority; and

(d) during a particular period, but only during that period, prevents terms and conditions of that kind and application from being regulated by a State arbitrator by compulsory arbitration."

The appeal matter falls within the terms of the subsection.

In our view we are obliged as an appeal Full Bench to exercise our powers on the basis of the statute in its current formation. We have no power to consider the validity of Commonwealth laws. [(1975) [1975] HCA 37; 132 CLR 595 @ 609]

A Full Bench commented in another matter dealing with the application of s.111(1A) in the context of the constitutional challenge which has been made in the High Court.

"With one qualification to which we will later refer, it appears to us

that the challenge to the validity of s.111(1A) and the issue of the order nisi in the circumstances we have just described are not, of themselves, a sufficient basis for the Commission not to continue to deal with this alleged dispute. The appropriate course for us to follow is to give effect to the will of Parliament as expressed in s.111(1A). In our view the matter should be dealt with as quickly as practicable by the Commission and on the basis that s.111(1A) is a valid law of the Commonwealth." [Print K7459 p.6]

Another Full Bench dealing with a different matter concluded:

"The IR Act has recently been amended to limit the operation of s.111(1)(g) in certain circumstances. While the Constitutional validity

of this provision is the subject of challenge in the High Court, we should proceed on the basis that the legislation is validly enacted (see Brennan J in Re Adams and The Tax Agents' Board). The operation of s.111(1)(g)(iii) is limited by s.111(1A). That latter provision removes the power of this Commission to refrain from exercising jurisdiction in

relation to an industrial dispute on grounds relating to the public interest in circumstances, speaking generally, where the dispute is not able to be dealt with by a State industrial authority exercising powers of compulsory arbitration." [Print K7272 p.10]

We do not consider that the award should be set aside pending the outcome of the High Court proceedings. In forming this view we adopt the reasoning of the Full Bench decision referred to above (in Print K7459) set out in the following passage:

"The preceding discussion concerned the revocation of a dispute finding to enable consideration of the exercise of the power under s.111(1)(g). If this matter proceeds to a stage where an award is made prior to any decision of the Court on the validity of s.111(1A) but the Court subsequently holds that sub-section to be invalid, we see no reason why a similar approach cannot be adopted by the Commission in relation to the award. The Commission could, in the same way we have discussed in relation to a dispute finding, exercise its power under s.113 to set aside the award to permit consideration of the exercise of the power under s.111(1)(g) or hear submissions as to why that latter power should

be exercised and if a persuasive case is made out, set aside the award and refrain from further exercising jurisdiction.

Given the existence of these powers under s.101 and s.113 and the manner in which they might be exercised, we do not consider that Victoria or any employer party to the dispute will suffer any substantial prejudice such as to warrant this matter being adjourned because of the challenge to the validity of s.111(1A). [pages 7-8] . . . .

The applications under s.111(1)(g) foreshadowed earlier in the proceedings may still be desired to be made but cannot now sensibly be made by virtue of the operation of s.111(1A). If the Commission proceeds to make an award in the matter applying to employees in Victoria and s.111(1A) is later held to be invalid, then we see no reason why the procedures we earlier described when considering the first matter cannot be availed of so as to permit submissions that the power arising under s.111(1)(g) should be exercised. There is nothing before us that suggest that if such an opportunity arises as a result of s.111(1A) being declared invalid, it is more likely than not that the Commission will

exercise the power under s.111(1)(g) and refrain from exercising jurisdiction. We do not propose to adjourn this matter." [page 13]

While the statutory limitations facing Riordan SDP were distinguishable from the above situation because at the time he heard the matter s.111(1)(g) formed part of the statute, the situation facing us is not. The Act no longer permits a finding of denial of natural justice being redressed by the Commission refraining from exercising its jurisdiction under s.111(1)(g). If

s.111(1A) is found to be invalid then application can be made under the leave reserve clause to have the Commission refrain from exercising its jurisdiction

• an option made clear by His Honour's decision:

"Is not to say, of course, that a respondent is prevented from making a further application for the Commission to exercise its discretion not to make an award pursuant to section 111(1)(g). It is merely an indication that there are several factors which may be appropriate for consideration

about whether the making of an award should be further delayed, particularly in the circumstances of this case, caution needs to be exercised to ensure procedural fairness to both sides.

Of course, the employers concerned when they are ready, and should they so decide, may produce such information as they wish to the Commission in support of any application they may wish to make to set aside the award that is made. In the circumstances, substantial justice

will be achieved if the employer's right to do so is reserved, that is to say, any employer may move to set aside this award during its currency on the ground that it is more appropriately dealt with by a State industrial authority." [Print K6053]

The leave reserve clause of the award (Clause 9) states:

"Employers bound by this award shall have leave reserved to make an application to set aside this award during its currency."

The broadness of the clause does not limit an application to one made under s.111(1)(g) (although His Honour's decision does). As such application can be made pursuant to s.113 (or s.187) to have the award set aside to permit an application to be heard pursuant to s.111(1)(g)(iii).

In the circumstances of this case an opportunity can only exist under s.111(1)(g) if the power to exercise the Commission's discretion is not qualified by s.111(1A). This depends on the High Court decision in the matters before it.

In the circumstances facing us, and for the reasons stated, because the power under s.111(1)(g)(iii) is not available we see little point in deciding whether or not natural justice was denied by His Honour in declining to adjourn the proceedings to permit argument to be put pursuant to s.111(1)(g)(iii) which at that time was not subject to the terms of s.111(1A). As such we decline to grant leave to appeal on this ground.

The second major ground of appeal relates to the appellants' submissions that the ANF "1983 log" does not provide ambit for a number of clauses made in settlement of the dispute. As such it is argued those clauses must be set aside by the Full Bench.

We have examined these arguments of the appellants within the accepted framework for dealing with such contentions as established in Queen v. Galvin where the High Court stated:

"An award cannot give a form of relief that is not relevant to a matter in dispute, that is not reasonably incidental or appropriate to the settlement of that part of the dispute and that has no natural or rational tendency to settle the particular question in dispute. But the award need not adhere to the remedy or relief proposed or claimed in the course of the dispute or in a demand forming a source of the dispute, so long as the provision in the award is related to the dispute or its settlement in the manner stated." [(1952) [1952] HCA 29; 86 CLR 34 @ 40]

And in Queen v. Holmes; Ex parte Victorian Employers' Federation:

"Its purpose is not to determine the validity of a claim or log of claims, but to ensure that there exists an appropriate relationship between the dispute, especially a paper dispute, and the award which settles that dispute. It must appear that the provisions of the award constitute a

settlement, if not a prevention, of an industrial dispute extending beyond the limits of one State. The provisions will have this character in the case of a paper dispute if they are within the ambit or scope of the log of claims. If the provisions are outside this ambit or scope they cannot be characterized as a settlement of the dispute. It has been said that a provision will be within ambit if it is 'relevant' or 'reasonably incidental' or 'appropriate' to the settlement of the differences constituting the dispute or if it has a rational or natural tendency to dispose of the question at issue [R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [(1938) [1938] HCA 41; 60 CLR 507 @ p.538] Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [(1952) [1952] HCA 29; 86 CLR 34 @ pp. 40-41]]." [(1980) [1980] HCA 37; 145 CLR 68 @ 76]

This doctrine was recently alluded awarded to by Toohey J in the SPSF case when dealing with the ETU log of claims.

"It would be premature for the court to intervene at this stage of the proceedings in the Commission unless it were quite clear that the Commission lacked jurisdiction to make an award based on the log of claims. That is by no means clear. Such an award may be 'relevant' or 'reasonably incidental' or 'appropriate' to the settlement of the differences between the parties [See Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd [1989] HCA 10; (1989) 166 CLR 311, per Mason CJ at 317; 84 ALR 80]. What has already been said about the interstate nature of any dispute and the notion of the integrity of the States and discrimination against them applies with equal force here. This application should be refused." [(1993) [1993] HCA 30; 113 ALR 385 @ 413]

Turning to the contested demands in the log we have reached the following conclusions:

The clause providing for advertising of nursing positions is reasonably incidental to the demand in clauses 3 and 44 of the log and hence is within ambit.

This clause is incidental to clause 3 covering salaries in that it relates to the determination of differential salary rates within a

This is covered in clauses 2, 3, 13, 17 and 20 and cover demands for contract of employment, hours of work, ordinary work on public holidays and shift work. Rosters is an application of the amalgam of the clauses and as such is incidental to the demands cited.

The Summer time clause is covered by clause 13 Hours of Ordinary Work and is within ambit.

5. Clause 24(g), 63(e), 96(g) - Telephone Allowance

The clause is incidental to clause 21 in the log (stand by)(ii) at home;

or (iii) "at or near a point where contact by a telephone may be effected; shall be paid etc.", as such it is within ambit.

6. Clause 31(b), 70(b), 103(b) - Paternity Leave

This clause is beyond ambit. Clause 28 of the log relied upon by the ANF relates to an entitlement to "ten days" special unpaid leave in any one year: provided that an employee shall be paid up to ten days leave related to union business: This does not cover the entitlement to the test case standard for paternity leave.

We have considered the ANF's submission that relied upon Justice Gaudron's comments made in Vista in relation to matters which fall into the category of national regulation.

"Emphasis on the 'paper dispute' has two unfortunate consequences. The first is the nature and extent of the claims sometimes made, particularly wage claims which are often for amounts intended to ensure that the Commission has power to vary rates so as to maintain their purchasing power in periods of inflation. The seeming extravagance of these claims sometimes invites speculation as to whether the claimant organisations could seriously entertain any intention of pursuing them. In my view and save in the case

where the claim apparently allows for the effects of inflation, a wage claim should ordinarily be understood as including a claim for the maintenance of the purchasing power of the wages claimed. And, in my view, claims with respect to matters in which national standards have been set by the Commission, eg hours of work, annual

leave and long service leave, should be understood as comprehending a claim for not less than the national standard as set from time to time. Were claims to be thus understood, there would be less scope for claims which have only a tenuous connection with the immediate industrial interests of the organisation concerned and which, on that account, are sometimes thought to lack 'genuineness'." [48 IR 221 @ 232]

The framing of clauses in this manner, in our view, does not negate the requirement that a demand must be capable of acceptance or rejection by the employer upon whom it is made. As stated in the High Court in the Queen v. The Association of Professional Engineer of Australia: Ex Parte The State of Victoria and Others:

"It surely must be sufficient that the party to whom they are addressed ought fairly to understand what he is requested to do on the specific matters which form the subject matter of the alleged grievance." [(1957) [1957] HCA 95; 100 CLR 155 @ 162]

In our view to properly meet the terms of Her Honour's observations would require an employer to fairly understand from the wording of the demand, that the particular subject matter was intended to comprehend a claim for not less than the national standard as set from time to time. We agree also with the appellants that Her Honour's observation cannot be construed to deal with test case provisions covering similar but distinguishable subject matter. A claim for 12 months parental leave (and associated demands) for an employee who becomes a father cannot be said to be understood by an employer served with a log containing provision for "an employee who becomes a mother". In our view the clause is beyond

A period of 12 months adoption leave is beyond the scope of clause 28 in the log and leave beyond ambit. However adoption leave for mothers would fall into the ambit of clause 30 - Maternity Leave. Adoption leave for fathers would not. As such the clause as framed is beyond ambit. The clause will be deleted from the award. 8. Clause 33, 71 - Trade Union Training Leave

• Public Sector

This provision is covered by clause 28 Special Leave and clause 29 Paid Study Leave and is within ambit.

The ANF accepted that these clauses should be amended to relate to the private sector only (as set out in exhibit H10). This amendment will be made. Subject to further evidence we are currently satisfied that the clause falls within the scope covered by clause 2(b) of the demand on the log.

10. Clause 35, 76, 105 - Prevention and Settlement Of Disputes

We agree with SDP Riordan that this issue falls within the category of issues which pertains to the need to protect the integrity of the award even though they may not be covered by the log.

This clause falls in the same category as the clauses in point 10 above.

12. Clause 37(d)-(l), 107(d)-(m) - Redundancy - Private Sector

13. Clause 38, 79, 108 - Termination of Employment [transcript pp. 310-311].

The demand in clause 39 of the log

• Severance - does not adequately cover the ambit of these award clauses. We adopt the reasoning and conclusion reached in relation to point 6 above. On the basis of the submissions put and our examination of the log, we are unable to conclude

that the demand in clause 39 is framed in a manner which is capable of being understood by the employer as being intended to reflect changes in national standards from time to time. Therefore the demand cannot be accepted or rejected by the employer and thus it cannot form the basis of a matter in dispute.

This clause is reasonably incidental to the demand in clause 13(4) of the log and is within ambit.

This clause is reasonably incidental to the demand in clause 13 Hours of Work and clause 3 Salaries or Wages of the log and is within ambit.

16. Clause 60 - Injuring an Employee On Account Of Industrial Action

This clause falls within the scope of clause 6 Special Rates as being reasonably incidental to the demand for payment for dangerous work.

17. Clause 63(k) - Red Cross Mobile Unit Allowance

This clause falls within the demand made in clause 9(3) (In Duty Allowance) and clause 3 (Wages).

The above clause falls within the demand made in clause 9(3) Industry Allowance and clause 3 (Wages).

This clause falls within the demand made in clause (3) wages and arises out of the Structural Efficiency Principle package.

This clause arises out of the demands in 17 (Ordinary Work on Private Holiday, Saturday and Sunday) and clause 26 (Shiftwork) of the log.

The secondary position of the appellants in the event that we do not find there has been a denial of natural justice and quash the award, is that the award should nevertheless be quashed because it fails to meet the Commission's wage fixing principles. It is submitted that once the award is quashed the Commission should sit to hear submissions on the form of an award which meets these principles.

We have considered the submissions put by all parties on wage fixing principles and we are not prepared to rule on all the submissions at this stage. This is because we have not heard the parties in relation to the principles of wage fixation which formed part of decisions arising out of the October 1993 Review of Wage Fixing Principles [Prints K9700 and K9940]. It is those principles which must now be met in applications by consent or arbitration for the making of new awards. We indicate to the parties that we are not yet satisfied that the award made meets the principles of wage fixation. However a number of matters cause us concern and combine to lead us to the view that leave to appeal should be granted in relation to the grounds advanced going to the form of the federal award. In this context we note His Honour the President's decision on the stay application:

"There are a number of unusual aspects of the numerous cases before this Commission which concern the transfer of employees previously covered by awards of the Industrial Relations Commission of Victoria. A number of matters are before a Full Bench which is considering an application to adjourn those matters indefinitely pending decisions by the High Court.

The decision in the Full Bench proceedings will be relevant to these proceedings. On the material before me I do believe that in several respects the Victorian Government has an arguable case. In particular I refer to the submissions made regarding first award principles. I am not sure of the significance of those submissions but I am of the view that

those matters can be adequately dealt with by the Full Bench constituted to deal with the merits of the appeal.

In the particular circumstances of this case, I am of the opinion that on balance the balance of convenience favours a refusal of the stay application. The application is therefore refused. The application can be renewed by the Victorian Government in the light of any decision by the Full Bench which calls for a reconsideration of this decision.

The Commission will adjourn to a time and date to be fixed." [transcript pp. 67-68 31 March 1993]

In particular we are not yet satisfied that the necessary requirements for the making of a paid rates award are met in the circumstances before us.

. The employer does not consent to a paid rates award: as such we are not clear how the requisite statutory declarations attesting to the paid rates character of the award can be forthcoming.

"(c) Commitments will be required from all parties to paid rates award to the effect that the integrity of those awards will be preserved.

(d) The Commission on each occasion an application is before it for the variation of a paid rates award, will inquire whether

the integrity of the award has been preserved." [Print K9700 p.39]

. Moreover, the material presented before His Honour the President in the stay proceedings [exhibit K3] indicates that over award

payments are made. The October 1991 National Wage Case decision explicitly rejected the concept of hybrid awards.

"We do not accept this submission. Nor do we consider that there is any case for a third category of award type. If a paid rates award is found to be associated with overaward benefits (that is,

benefits over and above those specified in the award) then the conversion of such a lapsed paid rates award into a minimum rates award will involve a valuation of classifications in it by comparison with similar classifications in other minimum rates awards. A hybrid award will only erode the distinction between minimum rates and paid rates awards and lead to instability in the relationship between minimum rates awards." [Print K0300 at p.10; 1991/10 CAR 722]

These two factors, neither of which were raised before Riordan SDP, are sufficient in our view to bring into question the integrity and validity of the award being made as a paid rates award. This issue then raises the relationship between the terms of a Victorian award which is minimum rates in character and the objective, supported for some years by the Commission, of achieving nationally consistent rates and conditions for nurses via the making of paid rates awards. Implicit in the application of that objective are a number of conditions matters which were raised with us on appeal including the annual leave issue for shift workers and the annual leave loading. Additionally, our decision on ambit means that a number of award clauses governing conditions

will be set aside pending the processing of new logs. We also remind the parties that His Honour the President raised the spectre of s.106 in relation to some conditions matters covered by the award. [transcript p.15]

In a federal context of nurses regulation both wage rates and conditions matters are inextricably linked with the status of the award. The parties are aware of that history since 1987. We do not intend to quash the award because we have not yet determined the merit of this part of the appeal and because to do so would be to destroy the "status quo" relied on by McHugh J as an important feature of this matter in rejecting a stay order. In any event even if the appeal was upheld on this point we are not necessarily obliged to quash the award. A Full Bench sought to avoid disruption to a school by reintroducing the circumstances prevailing at the time the award was made, and decided not to quash the award although it found that the appellants had been denied natural justice. Instead the Full Bench concluded:

"Given our concern to maintain stability in the school and the fact that sec. 45(6) authorises the receipt of further evidence for the purposes of an appeal and that any question of a denial of natural justice at first instance may be remedied by permitting the appellant to adduce evidence of the appeal (see the decision of Mason J. (as he then was) in The Queen v. Marks; Ex parte BLF [(1981) [1981] HCA 33; 147 CLR 471]), we have decided to direct Peterson J to receive further evidence and submissions from the parties on the merits of the question whether in the light of all the material, the award is justified or whether it should be quashed and to report to this Full Bench on that matter." [Munro, Peterson JJ, and Sheather C Print J4576]

However, as indicated earlier in our decision we must act in accordance with the statute as decided by Parliament. The Industrial Relations Act now includes a new s.111(1B) as an adjunct to s.111(1A). Section 111(1B) states:

"(1B) In considering whether to make an award (other than an interim or provisional award) under subsection(1) regulating terms and conditions of employment of a kind and application to which subsection (1A) applies, the Commission:

(a) must have regard to the outcome of any consultation between an organisation of employees that is a party to the dispute and employees who would be affected by the award on the

question whether the employees wish their terms and conditions of employment to be regulated by an award under this Act; and

(b) must consider whether, in the circumstances, the view of the

employees, or of the employees in sections or classes of the employees, who would be so affected should be ascertained by a secret ballot, and, if so, must refrain from deciding whether to make the award until:

(i) the employees in question have had a reasonable opportunity to vote on the question in a secret ballot: and

(ii) the Commission has been informed of the result." In all the circumstances we intend to sit further to hear submissions relating to:

1. The appropriateness or otherwise of s.111(1B) to this matter.

2. The further status of the federal award in light of the finding of

Exhibit K3 and the expressed view of employers that they do not consent to a paid rates award being made.

3. The final terms of any award in the context of the history of federal decisions pertaining to national regulation of nurses rates and conditions of employment. In particular we would expect the respondent employers to address us on the structure and form of a minimum rates award for wage rates and conditions.

Before relisting the matter we direct the parties to confer on the outstanding issues on the basis of our conclusions set out in this decision. We

also indicate that if required the assistance of the Full Bench (or a member of it) can be available at short notice. The matter will be relisted for hearing at 10.00 a.m. on 8 March 1994 in Melbourne.

We refuse to grant leave to appeal in relation to denial of natural justice in relation to s.111(1)(g)(iii) arguments.

We grant leave to appeal in relation to ambit issues: our decision denotes two matters (parental leave and termination change and redundancy which are beyond ambit). These clauses will be set aside. Clauses 34, 73 and 104 will be amended to relate to the private sector.

Leave to appeal is granted in relation to the form of the award to apply. The Full Bench will sit again in relation to this issue before deciding the appropriate variations (if any) which should be made to the award.

The appeal matter will be listed on 8 March 1994 to hear argument on issues identified in this decision.

The reference matter will be relisted in light of (3) above and the outcome of the proceedings in relation to the revocation of the ANF

The matter may be relisted, notwithstanding points 1-5 above as a result of any High Court ruling which has relevance to the matters before us.

G. Giudice with L. Kaufman (of counsel) for the Crown in right of the State of Victoria and a number of hospitals and community health centres.

R.W. Hinkley (of counsel) for the Australian Nursing Federation.

J. Murray with D. Langmead and A. Duffy for the Health Services Union of Australia.

R. Goller of The Australian Chamber of Manufactures (intervening).