The Industrial Relations Amendment Act 1994, s4, provides that s3 of the Principal Act is "amended" by "omitting paragraph (a) of the definition of industrial dispute and substituting the following paragraphs ... [as set out above]". Notwithstanding the difference of opinion between Windeyer J and Gibbs J (as he then was) in Mathieson v Burton (1970 - [1971] HCA 4; 1971) 124 CLR 1 at 11 and 22 respectively, that case is authority for the proposition that the Industrial Relations Amendment Act 1994 repealed par(a) of the definition of industrial dispute within the meaning of that word as enacted in the Acts Interpretation Act, s16(1). See also Goodwin v Phillips [1908] HCA 55; (1909) 7 CLR 1; Ku-ring-gai Municipal Council v Attorney-General for the State of (NSW) (1957 - [1957] HCA 61; 1958) 99 CLR 251 at 265_._

What then was the nature of the appellant's claimed right at the time part of the definition of industrial dispute was repealed and the new definition substituted? It is inappropriate to describe that right merely as a right to a hearing before a Commissioner. That right, conferred by the Act, s29(1) remained unaffected by the repeal of part of the definition of industrial dispute. The appellant exercised the right conferred by s29(1) five days after the repeal. The President convened a hearing in consequence of the exercise of that right. Any person referred to in the Act, s29(1) was, and still is, entitled to apply to the President in respect of an alleged industrial dispute. The critical right which the appellant claims accrued to her was the right to relief, which the Commissioner, in the exercise of his discretion, could grant to settle or prevent an industrial dispute. It seems to me that until the appellant applied to the President in accordance with the Act, s29(1), it could not be said that she accrued any relevant right at all. The following oft cited passage is taken from the advice to Her Majesty in Abbott v The Minister for Lands [1895] AC 425 at 431:

In Continental Liqueurs Proprietary Limited v G F Heublein & Bro Incorporated (1959 - [1960] HCA 37; 1960) 103 CLR 422, Kitto J held that the filing of an application for an order for the removal of a trademark from the Registrar was "an act done by an individual towards availing himself of the right to have an order made for the removal of the mark from the register" (427). His Honour expressed the view (426) that but for the application pending at the time of the repeal of the Act under which it was brought, the applicant would have had no acquired right to any relief. He went on to say at 427:

Further, it is difficult to identify the nature of the right which the appellant claims had accrued to her on the repeal of part of the definition of industrial dispute. Relevantly, the Act, s31(1), conferred a discretionary power on a Commissioner after a hearing under s29, to order that something be done or action be taken for the purpose of settling the industrial dispute. After the hearing, a Commissioner might decide to make no order at all, thereby conferring no right upon the appellant. With respect to accrued rights to the exercise of discretionary powers, the Privy Council in Director of Public Works & Anor v Ho Po Sang and Others [1961] AC 901, observed at 920 that the grant of the certificate in respect of which the respondent claimed a right was dependent upon a favourable exercise of the Governor's discretion. At 921 - 922, their Lordships said:

See also Azevedo v Secretary, Department of Primary Industries and Energy [1992] FCA 84; (1992) 106 ALR 683 at 699 - 700. The jurisdiction of the Commissioner was limited to making orders "for the purpose of ... settling the industrial dispute." The exercise of that discretion did not depend solely upon facts and events that had occurred at the time the dispute arose. The exercise of that discretion depended in part on all the events that had occurred until immediately prior to the moment the Commissioner was asked to make an order. The Commissioner's power to make any order was correctly categorised by Mr Tracey as arbitral, not judicial.

Accordingly, I am of the opinion that at the time the Industrial Relations Amendment Act 1994 came into operation, no rights had accrued to the appellant and that the jurisdiction of the Commissioner to exercise his discretion and make an order was dependent upon there being an industrial dispute as defined by the Act, as amended by Act No 90/1994. The position is exactly the same at common law. See Maxwell v Murphy (1956 - [1957] HCA 7; 1957) 96 CLR 261.

The substance of this passage was referred to by the Full Court of the Industrial Relations Court in Fisher v Edith Cowan University, unreported, 2 April 1997. This case is of particular assistance in the present matter. It concerned a lecturer at the Western Australian Academy of Performing Arts, Edith Cowan University. Ms Fisher commenced her employment on 1 January 1993 pursuant to a written contract. The contract provided that the appointment was for one year and contained a clause to the effect that although it may be extended by a further contract, there was no entitlement to continued employment beyond the date of completion of the contract. Ms Fisher entered into two subsequent contracts and accordingly was employed by the University until the expiration of the last contract on 31 December 1995. Her position was advertised and filled by another for the year commencing 1996. As a preliminary point of law, the court was required to determine whether there was jurisdiction to make any order and this depended upon it being established that Ms Fisher's employment had been terminated within the meaning of the Commonwealth Act. The Court referred to the observations made by the High Court in Victoria v The Commonwealth of Australia that I have set out above and added that whether an employment relationship continues to exist is a question of fact (Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 428). Then, with respect to termination of employment and short term contracts, their Honours referred to the Convention and the Recommendation and said:

(1997) 7 Tas R 154

(1996) 138 ALR 129

(1987) 77 ALR 79

(1909) 7 CLR 1

(1988) 14 NSWLR 685

(1992) 106 ALR 683

(1995) 185 CLR 410