McCarthy v Law Society of NSW

AND: THE HONOURABLE JUSTICE GEOFFREY MICHAEL GIUDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT COLIN GEORGE POLITES, COMMISSIONER LEONARD NORTON HINGLEY AND COMMISSIONER JOHN GRAHAM HOLMES, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, AUTOMOTIVE FOOD ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION, NATIONAL UNION OF WORKERS AND COMMUNICATIONS ELECTRONIC ELECTRICAL PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA

WILCOX J: 1 I have read in draft form the reasons for judgment of Moore and Goldberg JJ. I agree with those reasons. 2 As is apparent from the grounds quoted by my colleagues in par 12 of their reasons, the only substantive issues raised by the application concern an alleged denial of natural justice by the Commissioner, in refusing to allow the union and the four individuals to intervene in the certification application, and the Full Bench's treatment of that issue. There was discussion before us as to whether a decision by an employer to negotiate an agreement with one or more particular unions, to the exclusion of one or more other unions having members on site, might constitute conduct contravening s 170NB or Pt XA of the Workplace Relations Act 1996. However, this is not an issue raised by the application for prerogative relief. That being so, and as the issue is one of general importance potentially affecting other parties, it is preferable not to address it in this case. 3 As the account of Moore and Goldberg JJ demonstrates, Commissioner Holmes invited counsel for the Association and the four individuals to put to him everything that she wished as to why certification should be denied in the absence of an amendment adding the applicant organisation as a party to the agreement. As the account further shows, counsel took full advantage of that opportunity. 4 The Commissioner might have taken the two-stage course of allowing the application to intervene on behalf of the individuals and then ruling against the submission that certification should be refused. He chose to follow a different procedure, hearing argument on the merit of certification in the context of the application for leave to intervene. Provided that, in doing so, the Commissioner gave counsel a full opportunity to put the merits argument, as he did, it matters not, in natural justice terms, that he chose to combine the two stages. 5 I agree with Moore and Goldberg JJ that s 43(2)(b) of the Act precluded the Commissioner from acceding to the application for intervention made on behalf of Professional Officers' Association (Victoria). 6 I also agree that the application for orders nisi should be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

BETWEEN: PROFESSIONAL OFFICERS' ASSOCIATION (VICTORIA), N SORRAGHAN, C KREPERLKA, M KLEINIG & A MACGREGOR

AND: THE HONOURABLE JUSTICE GEOFFREY MICHAEL GIUDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT COLIN GEORGE POLITES, COMMISSIONER LEONARD NORTON HINGLEY AND COMMISSIONER JOHN GRAHAM HOLMES, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, AUTOMOTIVE FOOD ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION, NATIONAL UNION OF WORKERS AND COMMUNICATIONS ELECTRONIC ELECTRICAL PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA

Introduction 7 This is an application by the Professional Officers' Association (Victoria) ("the Association") and four individuals for writs of prohibition, mandamus and certiorari against members of the Australian Industrial Relations Commission ("the Commission"). The application was filed in the High Court on 28 September 2000 but was remitted to this Court on 15 December 2000 by Hayne J. The respondent members of the Commission are a Commissioner who refused an application by the Association and the individuals to intervene in proceedings in the Commission and three members who constituted a Full Bench which dismissed an appeal against that refusal. The only respondent who appeared in the proceedings in this Court in opposition of the application for prerogative relief was CSL Limited ("CSL").

History of matter in outline 8 The proceedings in the Commission concerned the certification of an industrial agreement between CSL and four organisations of employees, namely the Community and Public Sector Union ("CPSU"), the Automotive, Food, Engineering, Printing and Kindred Industries Union, the National Union of Workers and the Communications, Electronic, Electrical, Plumbing and Allied Workers Union of Australia. The industrial agreement was entitled "the CSL Enterprise Agreement 1999" ("the 1999 Agreement") and it superseded an earlier industrial agreement made in 1997 ("the 1997 Agreement") to which the CPSU was one of the parties. The 1997 Agreement had a nominal expiry date of 30 June 1999 but continued to have effect by operation of s 170LX of the Workplace Relations Act 1996 (Cth) ("the Act"). 9 The Association was not a party to the 1999 Agreement. The Association was, however, a party to the 1997 Agreement by operation of s 253ZS of the Act. That section provides that a newly registered organisation which has withdrawn from an amalgamation (by the mechanism created by Div 7A of the Act) is deemed to be bound by any certified agreement which had bound the amalgamated organisation. The Association had withdrawn from an amalgamation with CPSU and had become registered as an organisation on 1 June 1999. It was then that the Association became a party to the 1997 Agreement by operation of s 253ZS. 10 The application for certification of the 1999 Agreement by the Commission was lodged by CSL on 7 October 1999. The application was listed before Commissioner Holmes ("the Commissioner") on 27 October 1999, when the Association and several individuals (then unidentified) sought leave to intervene in the proceedings. What occurred on that day will be discussed in more detail shortly. On 21 January 2000 the Commissioner published a decision effectively dismissing the application by the Association and the application by the individuals to intervene in the proceedings (being the proceedings arising from the application for certification of the 1999 Agreement). On 28 January 2000 the Commissioner certified the 1999 Agreement. 11 On 11 February 2000 the Association and the individuals filed a notice of appeal against the decision to refuse to grant intervention and the decision to certify the 1999 Agreement. The appeal was heard on 19 April 2000. On 5 June 2000 the Full Bench refused the Association leave to appeal. However, the Full Bench granted the individuals leave to appeal but dismissed the appeal. It is against this background that the present proceedings have been instituted.

Grounds in application 12 The grounds on which the application for prerogative relief is based in these proceedings are as follows: 1. The denial of the [Association's and the individuals'] application for intervention constituted a denial of natural justice because they each had a relevant interest in respect of the certification of the [1999] Agreement. 2. The [Commissioner's and Full Bench's] decision to deny the [Association and individuals] leave to intervene was without jurisdiction or constituted a failure to exercise jurisdiction because they misapprehended and/or misdirected themselves as to the nature of their jurisdiction and functions under section 170LU (2A), (3) and (4) of the [Act]. 3. The certification of the [1999] Agreement was without jurisdiction or constituted a failure to exercise jurisdiction because the [Association and individuals] were wrongly, in denial of natural justice, refused leave to intervene in the application. 4. The certification of the [1999] Agreement was without jurisdiction or constituted a failure to exercise jurisdiction because its making was based on a failure to exercise and/or an erroneous exercise by the [Commissioner and Full Bench] of the jurisdiction and functions under section 170LU (2A), (3) and (4) of the Act. Ground 4 was not pressed at the hearing. Thus the case of the Association and the individuals in these proceedings focused on the refusal to allow intervention which was said to constitute a denial of procedural fairness and was also said to have been based on an erroneous understanding of the Commission of its functions when considering whether to certify an agreement.

Legislative framework 13 It is convenient to set out at this point some of the relevant statutory provisions. Part VIB of the Act creates a scheme for the making and certification of industrial agreements. Several distinct types of industrial agreements can be certified. Two of the types are agreements with organisations and agreements with employees. The making of both these types of agreements are dealt with by Div 2 of Pt VIB. In the present matter the 1999 Agreement was between an employer (CSL) and a number of organisations. The making of such an agreement is dealt with by s 170LJ which provides: "170LJ (1) The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation: (a) has at least one member employed in the single business or part whose employment will be subject to the agreement; and (b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement. (2) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement. …" It can be seen that an agreement made under this provision is between an employer and "one or more organisations of employees". This is to be contrasted with an agreement between an employer and its employees which is dealt with by s 170LK which provides: "170LK (1) The employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement. … (4) The notice must also state that if: (a) any person whose employment will be subject to the agreement is a member of an organisation of employees; and (b) the organisation is entitled to represent the person's industrial interests in relation to work that will be subject to the agreement; the person may request the organisation to represent the person in meeting and conferring with the employer about the agreement. …" Once an industrial agreement has been made, an application can be made for its certification by the Commission. Section 170LM provides for such an application as it concerns industrial agreements made under Div 2: "170LM (1) The application for the Commission to certify the agreement must state that it is made under this Division. (2) The application must be made no later than 21 days after: (a) if it is made in accordance with section 170LJ - the day on which it is approved as mentioned in subsection 170LJ(2); or (b) if it is made in accordance with section 170LK or 170LL - the day on which it is made." It can be seen that the section uses the passive voice. As a result the section (and the Act more generally) does not identify who may apply for the certification of an agreement nor does the section (and the Act more generally) say who the parties are to any proceeding arising from such an application. However if a person does apply for the certification of an agreement (made under either Div 2 or Div 3), the Commission is obliged to deal with the application in the manner prescribed by Div 4 of Pt VIB. The first section in that part is s 170LT which provides: "170LT (1) If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met. (2) The agreement must pass the no-disadvantage test (see Part VIE). …" The remainder of this section identifies the manner in which the Commission deals with an agreement which does not pass the no‑disadvantage test and other matters that must be considered. Division 4 contains other provisions specifying matters that must be considered before an agreement is certified and which direct the Commission not to certify an agreement in certain circumstances. One such provision is s 170LU which contains several elements. The relevant parts of that section are: "170LU (1) Despite section 170LT, if the application for certification states that it is made under Division 3, the Commission must refuse to certify the agreement unless it is satisfied that the agreement will: (a) settle or further settle all or any of the matters that are the subject of the industrial dispute; or (b) maintain a settlement of all or any of the matters that were the subject of the industrial dispute, whether the settlement was made by an award, a certified agreement or otherwise; or (c) prevent further industrial disputes between the persons concerned; or (d) prevent the industrial situation from giving rise to an industrial dispute involving the persons concerned; or (e) assist in doing any of the things mentioned in paragraphs (a) to (d). (2) ... (2A) Despite section 170LT, the Commission must refuse to certify an agreement if the Commission is satisfied that it contains provisions that: (a) require or permit, or purport to require or permit; or (b) have the effect, or purport to have the effect, of requiring or permitting; any conduct that: (c) would contravene Part XA (whether or not the provisions would in any case be void because of section 298Y); or (d) would, but for section 298C, contravene Part XA. (3) Despite section 170LT, the Commission must refuse to certify an agreement if it is satisfied that: (a) the employer has, in connection with negotiating the agreement, contravened section 170NB or Part XA (which deals with freedom of association); or (b) the employer has caused a person or body to engage, in connection with negotiations for an agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of section 170NB or Part XA; or (c) a person or body has, on behalf of the employer: (i) so engaged in such conduct; or (ii) caused another person or body so to engage in such conduct. (4) Subsection (3) does not apply if the Commission is satisfied that the contravention or conduct, and its effects, have been fully remedied. …" It can be seen from subs (2A) that the Commission cannot certify an agreement if its terms would bring about (in the specified way) conduct contravening Pt XA. That Part contains a number of provisions intended to ensure that, relevantly, employees are able to join a union of their choice and are not discriminated against or victimised because they are, or are not, members of a union. The Part proscribes conduct which would deny employees these choices. Sections 298K and 298L form part of Pt XA and proscribe a range of conduct. They relevantly provide: "298K (1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person. … 298L (1) Conduct referred to in subsection 298K(1) or (2) is for a prohibitedreason if it is carried out because the employee, independent contractor or other person concerned: (a) is, has been, proposed to become or has at any time proposed to become an officer, delegate or member of an industrial association; or (b) is not, or does not propose to become, a member of an industrial association; or ..." Returning to s 170LU, it can be seen that subs (3) also requires the Commission to refuse to certify an agreement if it is satisfied that, in connection with negotiating the agreement, the employer (or another person connected with the employer) has engaged in conduct contravening Pt XA or s 170NB. That latter section also deals with discrimination and provides: "170NB (1) An employer must not, in negotiating an agreement under Division 2 or 3, discriminate between employees of the employer: (a) because some of those employees are members of an organisation of employees while others are not members of such an organisation; or (b) because some of those employees are members of a particular organisation of employees, while others are not members of that organisation or are members of a different organisation of employees. …" 14 The power of the Commission to grant a person leave to intervene in proceedings is found in s 43 which provides: "(1) Where the Commission is of the opinion that an organisation, a person (including the Minister) or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter. (2) If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission: (a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement, provided the request was not withdrawn; and (b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement." It can be seen that subs (1) confers a broad discretion on the Commission to grant intervention, but that in the circumstances dealt with by subs (2) the Commission must grant or refuse to grant leave to intervene. What is meant by "proposed to be bound by the agreement" in par (b) was raised in these proceedings. It is convenient to refer to s 170M which deals with who is bound by a certified agreement and provides: "170M (1) If the application for certification states that the application is made under Division 2, the certified agreement binds: (a) the employer; and (b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement. (2) If, in accordance with section 170LJ or 170LL, one or more organisations of employees made the agreement with the employer, the agreement also binds the one or more organisations. (3) If: (a) the application for certification states that the application is made under Division 2; and (b) in accordance with section 170LK, a valid majority of persons made the agreement with the employer; and (c) before the agreement is certified, an organisation of employees notifies the Commission and the employer in writing that it wants to be bound by the agreement; and (d) the organisation satisfies the Commission that it has at least one member: (i) whose employment will be subject to the agreement; and (ii) whose industrial interests the organisation is entitled to represent in relation to work that will be subject to the agreement; and (iii) who requested the organisation to give the notification; the Commission must, by order, determine that the agreement binds the organisation. It is necessary now to consider in detail what occurred at the hearing on the 27 October 1999 before the Commissioner.

Hearing before the Commissioner and his decision on intervention 15 At the commencement of the hearing on the morning of 27 October 1999, the Commissioner took the appearances. Representatives of CSL and the five organisations which were parties to the 1999 Agreement announced their appearances. Each representative appears to have assumed that the body they represented could appear as of right and without leave. No leave was sought. However counsel appearing for the Association and unidentified individuals ("the Association's counsel") said: "MS J. BORNSTEIN: I seek leave to appear on behalf of the Professional Officers Association. At the outset could I indicate that there is an error in the notification to the parties. The POAV is not referred to. APESMA is referred to. The POAV is a separate organisation." The CSL representative indicated it opposed the Association being heard and the representative of the CPSU sought clarification of what the Association's counsel was seeking. The Act requires that a legally qualified person obtain leave to appear (s 42(3)). The Association's counsel clarified that leave was being sought to appear and also to intervene. She explained why her clients should be given leave to be represented by counsel: "MS BORNSTEIN: It was application for leave to appear. It follows from that that I would then make application for intervention and it may truncate the submissions of the other parties if I were to indicate my reasons for this application. THE COMMISSIONER: Certainly. MS BORNSTEIN: The application - this issue raises matters of substance contemplated under section 42 of the Act relating to representation before the Commission. It involves a construction of the Workplace Relations Act both generally in terms of its objects and specifically in terms of the powers of the Commission. It involves the construction of the proposed agreement and the interaction between the proposed agreement and an agreement that was certified in 1977 which as a consequence of this amalgamation and the establishment of the POAV is binding upon - as a consequence which that agreement, the POAV is a party to that agreement. The matters of substance also include factors which the Commission must take into account in exercising its power to refuse to certify or to certify an agreement and furthermore it takes into account in the circumstances of this particular case the rights of the POAV as an organisation registered under the Act. In my submission these matters of substance create special circumstances which require legal representation and as such the application for leave to appear should be granted." 16 After hearing these submissions and ascertaining that no party objected to counsel appearing, the Commissioner gave the Association's counsel leave to appear. Counsel then commenced to make the application for leave to intervene by first identifying who her clients were: "MS BORNSTEIN: Thank you, sir. Would it be appropriate at this stage if I made application to intervene. THE COMMISSIONER: Certainly. MS BORNSTEIN: Application is made to intervene in these proceedings in two ways. Firstly, on behalf of the organisation and secondly, on behalf of persons contemplated in section 43(1) of the Act. I turn first to the submission that the organisation as an organisation should be granted leave. The critical section is section 43(2)(b) and there is … THE COMMISSIONER: Sorry, do I take it your appearance is on behalf of both the POAV and also certain individuals? MS BORNSTEIN: That is my application. I seek to intervene on behalf of both." 17 The Association's counsel then dealt with the position of the Association and indicated that it proposed to be bound by the 1999 Agreement and accordingly fell within the class of organisation that could intervene having regard to the terms of s 43(2)(b). In the course of indicating this the Association's counsel referred to the immediate history of industrial regulation and noted that the Association had, after withdrawing from the amalgamation, become bound by the 1997 Agreement. Reference was made by the Association's counsel to clause 14 of the 1997 Agreement which reflected an undertaking by the parties to renegotiate the agreement before it expired. The Commissioner then asked: "THE COMMISSIONER: Is the purpose of the intervention to seek to have the POAV a party bound to the 1999 agreement? 18 The Association's counsel responded by saying that the purpose of the application was to object to the certification of the 1999 Agreement on the grounds that it offended the Act. She referred to a decision of a Full Bench of the Commission (Transport Workers' Union of Australia v DHL International (Australia) Pty Ltd (1997) 73 IR 356) concerning the scope of s 43(2)(b). Counsel then repeated why intervention was sought by the Association: "MS BORNSTEIN: Now, the primary reason for our application for intervention is to argue that the agreement should not be certified because it is offensive to the Act, but nonetheless under section 170LV the Commission may do certain things other than refuse to certify the Act and in those circumstances - that is other options open to the Commission instead of refusing to certify an agreement and there are a range of options that are open to the Commission, that it would be open to the Commission to certify the agreement subject to changes in the documentation and on that basis the POAV would be a party proposing to be bound." The Commissioner raised with the Association's counsel whether there would have to be another ballot (presumably this was a reference to a ballot approving the agreement). Counsel indicated that would not be necessary and the Commissioner responded by saying he did not follow what was being put. Counsel responded: "MS BORNSTEIN: There are difficulties that the POAV has with certain of the processes leading to this agreement and the contents of parts of that agreement insofar as it has the potential to prejudice its membership, its members, in the absence of the POAV as a party. I return to the proposition that the primary reason for this application is to submit that the agreement should not be certified, but it could be certified if the deficiencies in terms of rights of members were to be remedied and under those circumstances if the agreement were not certified we would submit that the problems could be remedied by making the POAV a party." 19 The Association's counsel then indicated that the Association was not suggesting that the views of employees of CSL had to be recanvassed. She then turned to the intervention of the individuals: "MS BORNSTEIN: … If I may now go to the application to intervene on behalf of persons and that is covered by section 43(1), where the Commission is of the opinion that a person should be heard in a matter before the Commission the Commission may grant leave to that person to intervene. In my submission the Commission should exercise its discretion to grant leave in respect of persons for several reasons. The first is, as I have referred earlier, to our submission that the agreement is offensive under the Act and therefore must not be certified and that the persons I would seek to intervene on behalf of, it is proposed, they are proposed to be covered by that agreement and secondly, there are elements within the agreement itself in the current circumstances which have the capacity to prejudice the rights of those named persons in the absence of any amendments or undertakings given by the Commonwealth Serum Laboratories in terms of that agreement." 20 By this point, the Association's counsel had effectively concluded the submissions in support of the intervention of the Association and the individuals (who had not been identified though the Association's counsel had offered to provide their names in confidence to the Commission). She said: "MS BORNSTEIN: In my submission in summary, Commissioner, the principles for the grant of leave in respect of both the organisation and the named persons are satisfied." The Commissioner then invited submissions from the representatives of who might be assumed, for present purposes, were the parties appearing in the proceedings. The first to respond was the representative of CSL who commenced by indicating he relied on s 42(2)(b). He then indicated that the employer could choose who to negotiate with and referred to a decision of Commissioner Laing (CSR Limited Officers' Association and CSR Ltd - CSR Humes Welshpool Agreement 1998 (29 May 1998, Print Q1122)) in support of that proposition. He concluded by saying: "MR MILROY: … We have not discriminated against them and I would be prepared to argue that further if we move down that track. THE COMMISSIONER: Well, it depends upon whether intervention is granted." 21 This exchange reveals (and probably would have been taken by those involved in the proceedings as indicating) that the Commissioner was contemplating a further and fuller argument on the question of discrimination if intervention was granted to the Association and/or the individuals. The representative of the CPSU then spoke. He initially spoke of the intervention by the Association as an organisation and also as a representative or agent of certain employees. The Commissioner thought it was necessary to clarify the role of the Association and said: "THE COMMISSIONER: Perhaps I better clarify the situation. As I understand it Ms Bornstein seeks to intervene for the POAV. She also seeks to intervene for individuals, but I do not understand that she seeks to intervene for the POAV on behalf of individuals. Is that understanding correct, Ms Bornstein? MS BORNSTEIN: Yes, that is correct." 22 The representative of the CPSU then put a submission in opposition to the intervention. He first referred to s 43 and, in effect, submitted that the section precluded the intervention of the Association. In the course of the submission, the CPSU representative expressed doubt about whether the 1999 Agreement could be altered to add the Association as a party without remaking the agreement and canvassing again the views of the employees by a further ballot. The Commissioner responded by saying: "THE COMMISSIONER: Well, we do not know what the amendments [to the 1999 Agreement] are that are proposed [by the Association], or at least I do not. MS BORNSTEIN: Sir, perhaps I have misled you and I would hasten to correct that if I may without doing any violence to my friend's submissions. THE COMMISSIONER: Yes, well, it may assist Mr Stapleton in his submissions. Yes. MS BORNSTEIN: Our primary reason for this application for intervention is that the agreement as it stands is offensive. The offence can be cured by the POAV becoming a party to that agreement and to that extent it requires amendment. Therefore if … THE COMMISSIONER: Is that all that is sought? MS BORNSTEIN: I am sorry? THE COMMISSIONER: Is that all that is sought? MS BORNSTEIN: The first thing is that the agreement should not be certified for a whole range of reasons which I will put to you if intervention is granted and secondly, that the defects as a result of which we would say the Commission must not certify the agreement, can be cured by the POAV becoming a member. To that extent the documents being amended and the question of process can be dealt with, we would say, under the Commission's powers under section 170LV in terms of undertakings or whatever else that may be thought to be appropriate." (Emphasis added) 23 It is of some importance that at this stage the Association's counsel was indicating that if intervention was granted a range of reasons or grounds would be advanced why the 1999 Agreement should not be certified, though it appears (but it is not entirely clear) she was also indicating in this passage that whatever grounds would be advanced for not certifying the 1999 Agreement, they would be answered by adding the Association as a party to that agreement. The Commissioner sought to clarify this latter matter and asked whether "all would be well?" if the Association was added to the list of unions (found in attachment 1 of the 1999 Agreement). The Association's counsel responded: "MS BORNSTEIN: That would have the effect of curing a range of defects that would otherwise arise which must lead the Commission to the conclusion that the agreement cannot be certified and … THE COMMISSIONER: But I mean is that all the change that the POAV would be seeking that would be made to the agreement pursuant to section 170LV? MS BORNSTEIN: Yes. But that is not the sole purpose. THE COMMISSIONER: Sorry? MS BORNSTEIN: That is not the sole purpose. The purpose is to oppose the certification of the agreement and then if the decision finds in favour we would make submissions as to what - if the Commission finds prima facie that it should not certify the agreement because it is offensive under the Act then we would make submissions that the offence is capable of remedy and that is within the power of the Commission to do so under the Act. THE COMMISSIONER: So do I take it that what would follow from that if I found, were I to grant intervention, myself to be in agreement with the conclusions that you had put, or the criticisms that you would make of the agreement, that the agreement would have to be varied, other clauses of the agreement would have to be varied in addition to attachment 1? MS BORNSTEIN No. THE COMMISSIONER: Thank you. Mr Stapleton." It is not clear, in the above passage, why a distinction was being drawn between the remedy (of adding the Association to the list of unions in attachment 1) and the purpose for which intervention was being sought, namely to demonstrate that the Commission should find, prima facie, that the agreement should not be certified because it was "offensive under the Act". However it is nonetheless clear that whatever were the grounds to be raised against certification, they would be met or satisfied by the addition of the Association to the list. 24 After this exchange, the representative of the CPSU continued his submissions. In the course of doing so, he referred to a decision of Deputy President Duncan in Re Telstra Retail Shops Agreement 1998 (9 September 1998, Print Q6111) which supported the proposition that an employer did not discriminate, for the purposes of s 170NB(1), by negotiating with one but not another organisation. He also referred to two other decisions of the Commission. The first was a decision of a Full Bench (9 September 1998, Print Q5931) which refused leave to appeal against the decision of Commissioner Laing referred to earlier (par 20 above). The Full Bench indicated that the decision of the Commissioner to allow the intervention of individual employees (in proceedings relating to the certification of an industrial agreement) involved the exercise of a discretion and it had been open to the Commissioner to exercise the discretion in the way he did. Nonetheless the Full Bench made observations, referred to and relied upon by the representative of the CPSU, why intervention might not be granted in such a situation. 25 The second decision referred to by the CPSU representative was of Senior Deputy President Williams in Re Quality Bakers Australia Ltd (Victorian Division) Enterprise Agreement 1999 (12 October 1999, Print S0018) in which the Senior Deputy President refused individual employees leave to intervene to oppose the certification of an agreement. He did so because the sole purpose of the intervention was to have the union favoured by the employees (the Transport Workers Union) made a party to the agreement. No other changes to the agreement (other than to achieve that objective) were sought. 26 After referring to these two decisions, the CPSU representative said: "MR STAPLETON: … despite assertions from [the Association's counsel] that the agreement is offensive to employees and that the terms of the agreement prejudice the right of persons she seeks to intervene on behalf of, there is [sic] no detailed submissions in relation to those matters. Nothing that would indicate there is anything contrary to the requirements of section 170LT or LU, which of course the Commission must be satisfied about before certifying the agreement. Based on those authorities I have taken you to and what we believe to be a lack of substance in the submissions, other than making it perfectly clear to the Commission that the only change sought is to add the POAV as an organisation to the parties bound clause, we believe that the second application for intervention should also be rejected." (Emphasis added) 27 It is significant that, at this point in the hearing, the CPSU representative was contending that the submissions made by the Association's counsel, on behalf of the individuals seeking intervention, were not detailed. It is clear that what was then said by the Association's counsel was in direct response to this contention. She said: "MS BORNSTEIN: Commissioner, if we are required at this stage to enable you to make a decision as to whether or not to grant intervention to make submissions about the details of our submission that the agreement should not be certified then we will do so but I would require a ruling on that. My friend has suggested that our case, if you like, is based on assertion. Because this is at this stage we are applying for leave to intervene I have quite deliberately not canvassed the specific objections other than to say that they are based on offence to the Act and not offence to employees, as my friend would have you believe. May I ask at this stage whether you would uphold my friend's submission that we are relying on assertions and if it is therefore necessary for me at this stage in support of our claim for intervention to make detailed submissions as to why this agreement should not be certified? THE COMMISSIONER: Well, what I would say is that given what has fallen from the Full Bench in CSR Humes Welshpool Agreement about the ruling of Commissioner Laing and the more recent decision of his Honour Senior Deputy President Williams where he comes to some conclusions about what he understood the position of the individual employees to be, it seems that in order for me to properly consider the application for intervention I need to provide you with an opportunity to ensure a procedural fairness and that I am aware of what those concerns are. So yes, if you would address me. MS BORNSTEIN: Commissioner, in addressing you on the substantive issues I deal with the points raised by Mr Stapleton and the cases that were referred to both by he and the representative from CSL. Pardon me one moment. Commissioner, what I propose to take you to are a number of points which relate to, in this particular case, the scope of the employer's discretion and therefore the capacity of the employer to limit the parties to the agreement. I also intend to take you to the obligations of the Commission in certifying an agreement under section 170LU which contemplates issues relating to the objects of the Act which contemplates matters relating to section 170NB which also contemplates matters under part XA, specifically in this case to 98K and M. Under section 170LJ there is a discretion, we would concede, vested in an employer…". (Emphasis added) What occurred in the above exchange is of considerable importance. Faced with a submission that the putative interveners (at least the individuals) had not provided detailed submissions as to why the 1999 Agreement was "offensive", the Association's counsel invited the Commissioner to indicate whether, in support of the application to intervene, it was necessary to make detailed submissions as to why the agreement should not be certified. The Commissioner responded by indicating that in order to enable him to consider the application to intervene, it would be necessary for the Association's counsel to address him further. It is clear that it was an invitation to put, in full and in detail, the submissions why the 1999 Agreement should not be certified. There can be little doubt that this is what the Association's counsel understood when she spoke of "addressing you on the substantive issues". That this was her understanding is also reflected in the submissions she then made. 28 The first submission was that whatever discretion an employer had by virtue of s 170LJ to choose who it wished to negotiate with, CSL's discretion had been constrained by clause 14 of the 1997 Agreement. After completing this submission the Association's counsel said: "MS BORNSTEIN: Having said that I would now wish to take the Commission to the matters that the Commission is obliged to consider in determining whether or not an agreement should be certified or not certified. This matter falls for consideration under section 170LU and in my submission the matters that we will now put to you compel this Commission to grant intervention because in the absence of that intervention these matters cannot be considered by the Commission and the Commission as a consequence risks being encouraged to fall into error." 29 She then made a submission that the terms of the 1999 agreement potentially prejudiced members of the Association. She referred to clause 15 which dealt with the implementation of the agreement and referred generally to attachments to the 1999 Agreement. She made specific reference to attachment 7 which was entitled "CSL HEALTH AND SAFETY AGREEMENT (Australia) 1999" which made provision for its amendment at any time. The Association's counsel spoke of the agreement as being a framework which was dynamic and which "over time had the capacity to, in a material way, affect terms and conditions of employment of employees including members of the [Association]". This, she pointed out, had the capacity to lead to industrial disputation and, more importantly, was in contravention of the freedom of association. She then said: "MS BORNSTEIN: The absence of the POAV as a party to this agreement, notwithstanding the specific and special circumstances if you like attached to its role under clause 14 of the 1997 agreement, offends part XA of the Act and also the provisions concerning freedom of association and the prohibition against discrimination on the grounds of membership. THE COMMISSIONER: Do I take it you are going to develop those? MS BORNSTEIN: Yes, I am, if I may." 30 The Association's counsel then made submissions about the operation of s 170LU(3), when read with s 170NB(1), having regard to the circumstances of the particular case. She then turned to the provisions of Pt XA and developed a submission that the exclusion of the Association had the capacity to injure any employee for two reasons. Reference was first made to s 298K(1)(b) and then (c). In this context, the Association's counsel made reference to a term of the 1999 Agreement concerning relocation of employees. She also referred to discrimination on the grounds of political opinion (seemingly arising from, or based on, the hard fought contest about the Association's withdrawal from the amalgamation). Her reliance on this latter matter resulted in a series of questions from the Commissioner which led to an intimation that the submission concerning political opinion was a subsidiary one. The Association's counsel said: "MS BORNSTEIN: [whether there is a difference between organisational politics and political opinion] is a question of interpretation. Having said that I reiterate that this submission is not a primary submission but simply an additional point in supplement of our primary submissions concerning freedom of association more generally. In my submission the matters that I have outlined to the Commission are of substance and support not only a decision not to certify disagreement [sic] but support the proposition that intervention should be granted. The submissions - I withdraw that. The decision of … THE COMMISSIONER: What, that intervention should be granted? MS BORNSTEIN: The application, I'm sorry, for intervention. Our application for intervention should be granted. THE COMMISSIONER: Yes. MS BORNSTEIN: It is on this basis, amongst others, that we would distinguish the decision of the Senior Deputy President in Quality Bakers. In my submission in that decision - each matter must be considered on its own facts. In my submission it is not clear and it is not open to the Commission to conclude that on the basis of our submissions that the sole purpose in seeking leave to intervene is to achieve the object of having the POA made party to the agreement. It is our primary submission that the agreement should not be certified. As I submitted earlier, that can be cured but it may not be. THE COMMISSIONER: What does that mean, I'm sorry?" (Emphasis added) 31 The Association's counsel then referred to doubt the Commission may have about its capacity to amend the 1999 Agreement. She moved on to distinguish the decision of Senior Deputy President Williams (referred to above in par 25) and said: "MS BORNSTEIN: … We have no knowledge [of the submissions made to Senior Deputy President Williams] and there is certainly no reference to it in this brief decision [of the Senior Deputy President] that the Commission considered the matters that we have made submissions on in terms of the obligation of the Commission to refuse to certify an agreement under section 170LU." (Emphasis added) 32 The Association's counsel then indicated that concluded the submissions put in support of the application by the individuals. She then dealt with the question of what "proposed to be bound" meant and referred again to the decision of the Full Bench in Transport Workers' Union of Australia v DHL International (Australia) Pty Ltd (at 360) and said: "MS BORNSTEIN: … [the decision of the Full Bench] supports our proposition that we propose to be bound in accordance with the contemplation of the 1997 agreement and if the Commission determines that the agreement is offensive under the Act we would also propose to be bound to cure that offence. THE COMMISSIONER: What if the Commission came to the view that the agreement was not offensive? MS BORNSTEIN: If that were the case you would obviously reject our submission that the agreement should not be certified." (Emphasis added) 33 This exchange led to the question of whether the Association might become a party to the 1999 Agreement: "MS BORNSTEIN: Because if you find, as we submit you should, that the agreement must not be certified, then the inclusion of the POA as a party would cure the objections that we have made. THE COMMISSIONER: But if leave were not granted for you to intervene, that is the POAV, then presumably - well, its position is that it cannot agree to be a party bound to the agreement as the text of that agreement now is. MS BORNSTEIN: If you were to refuse leave to intervene the submissions I have made, as I would understand it, it would be open to you to have no consideration for the submissions that I have made." (Emphasis added) 34 What this last remark appears to be directed to is the proposition that the submissions that had, to that point, been put in opposition to the certification of the 1999 Agreement, either would or could not be taken into account if leave to intervene was not granted. The Association's counsel then referred briefly to the history of the matter and a recommendation that another member of the Commission had made that the Association be involved in the negotiations. She then referred to the decision of the Full Bench in the appeal from the decision of Commissioner Laing (referred to in par 24 above) and said: "MS BORNSTEIN: … In the CSR Limited matter, the decision of 9 September 1998, the decision does stand for the clear proposition that the grant of leave under section 43(1) is discretionary and that given the Commissioner had exercised discretion in the favour of granting of leave that that decision would not be overturned. Your exercise of discretion should favour, in my submission, the grant of leave because of, amongst other things, the substance and force of our submissions that in all the circumstances the certification of the agreement would be offensive and that although in this case the Commission observes that the scheme of the Act gives primacy to the making of agreements. There [are] also other objects of the Act which have a similar primacy and that the Commission is bound in my submission to consider the matters we have raised quite properly under section 170LU. If the Commission does not exercise its discretion to grant leave there will be no submissions made, or should I qualify that by saying I would be surprised if there were any submissions made by the parties to the agreement that the agreement should not be certified. These matters having been raised, in my submission it follows that you must grant intervention to allow their consideration. To do otherwise, as parties may suggest, they may encourage you to fall into error." 35 The above passage involves a repetition of the theme that in order for the submissions made in opposition to the certification of the 1999 Agreement to be considered, leave to intervene should be granted. The Association's counsel then dealt briefly with what the Full Bench had said in the appeal from Commissioner Laing and also dealt briefly with the decision of the Commission in Re Telstra Retail Shops Agreement 1998. She then concluded her submissions by saying: "MS BORNSTEIN: … As the Commissioner will appreciate the effect of the procedure in this matter has to been to some extent blur the boundaries between the application to intervene and the substantive issues arising from the grant of our application, in summary, the application in my submission for leave to intervene in this matter is made out both in respect of an application to intervene on behalf of the organisation and its members and both in terms of the construction of section 43 and the discretions that the Commission has to grant intervention under section 43(1) to persons, that submission is supported by the material to some extent that I have put in respect to reasons as to why the agreement should not be certified which remains the primary and not the sole purpose for our application for intervention and that on the basis of the submissions made about the agreement as it stands the Commission must not certify it, or in the alternative and subject to any ruling that you might make on this point, the Commission may exercise alternative options to refusing to certify it. But unless you want me to particularly address you on that at this stage I would reserve my right if I may. THE COMMISSIONER: So you will … MS BORNSTEIN: Unless the Commission particularly wants me to address you on the options open to the Commission other than refusing to certify, given that this is a combined substantive submission as well as application for intervention I just wish to reserve my right on that until after the other parties have completed their submissions. THE COMMISSIONER: And I have ruled on whether I will grant intervention. MS BORNSTEIN: Indeed if you contemplate doing that at the threshold as it were. THE COMMISSIONER: Certainly that is the course I am minded to follow. MS BORNSTEIN: Sir, if it is the course you are minded to follow we would of course request written reasons should you decline our application." (Emphasis added) 36 Several things emerge from these concluding remarks of the Association's counsel and the observations of the Commissioner. The first is that the Association's counsel recognised that the submissions that she had been called upon to make (and that she had made) were submissions both in support of the applications to intervene and also against the certification of the 1999 Agreement. As to that latter matter, one qualification was made. If the Commissioner concluded that the 1999 Agreement should not be certified, then further submissions could be made about what the Commission might do short of refusing to certify it. That is, the Association's counsel was reserving the right to make further submissions on what the Commission might do if it concluded the 1999 Agreement should not be certified. However apart from this qualification, nothing was said by the Association's counsel that would suggest that she had not put all that either the Association or the individuals she represented wished to put in opposition to the certification of the 1999 Agreement. Putting it another way, the Association's counsel did not indicate to the Commissioner that further submissions might be put in opposition to certification, or that her clients wished to call evidence on the issue of whether the 1999 Agreement should be certified. 37 Submissions were then made by the representatives of CSL and the CPSU responding to what had been put by the Association's counsel. In the course of the submission by the CPSU representative the following was said: "MR STAPLETON: … There had been cases of course where some specific term of an agreement has been considered by the Commission in the course of certification and has found that there is an infringement of part XA and a remedy has been introduced addressing the term, that particular term. Indeed the CSR case contains such an example of that where Commissioner Laing, apart from making some very clear statements about the effect of 170LJ and generally the relationship between LJ and part XA, did consider the dispute settling provision of that agreement to be contrary to part XA because it assigned an exclusive role to one particular organisation, the registered organisation party to that agreement and a remedy was undertaken in relation to that. Now [the Association's counsel] has not indicated any specific provisions of that nature.." 38 In responding to the submissions made by the representatives of CSL and CPSU, the Association's counsel said: "MS BORNSTEIN: Sir, the submission of by the representative of CSL appeared to go more to seeking to refute the substantive arguments that I put regarding the proposition that the agreement should not be certified rather than as to the matter of our application, the application to intervene on behalf of both the organisation and its members. However--- THE COMMISSIONER: Well, as I understand it and also individuals. MS BORNSTEIN: Yes. Sorry, yes, any individual persons. Yes, I apologise. However, to the extent that a response may be necessary, at this stage I would simply say, it goes to the support of the application for leave to intervene, that in our submission in the particular circumstances the company is not unfettered under section 170LJ, that because of the very nature of the agreement being, if you like, dynamic, capable of variation and amendment, that gives rise to possible prejudice and injury,…" (Emphasis added) The Association's counsel developed briefly this submission and made some further brief submissions repeating the submissions earlier made. This included the observation that: "MS BORNSTEIN: … In terms of the possible conduct of another ballot, in my submission that is for another day and depends on whether the Commission favours our submission that the agreement should not be certified." (Emphasis added) The Commissioner concluded the hearing by indicating that he reserved his decision in relation to both applications to intervene. 39 The Commissioner gave his decision on 21 January 2000. He noted, towards the beginning of his reasons, that the Applicant's counsel had sought leave to intervene on behalf of the Association and individual employees. The Commissioner set out some of the background and noted that the Association had contended it was an organisation that "proposed to be bound" by the 1999 Agreement. The Commissioner also noted the grounds (or contentions) on which the individuals had sought to intervene. He then said: "(Whilst the parties principal to these proceedings made submissions in response to these contentions, the Commission later in the proceedings provided an opportunity for the POAV to set out in more details the grounds upon which objections to the certification of the Agreement were based. For the sake of continuity and brevity I will now set out those amplificatory contentions.)" 40 The Commissioner then set out the various submissions that had been made by the Association's counsel concerning why the 1999 Agreement should not be certified. The Commissioner also set out the submissions in response by the representatives of CSL and the CPSU. He concluded his summary of the submissions by setting out the submissions in reply of the Association. 41 The Commissioner then dealt with the various submissions. He first explained why he had concluded that the Association should not be allowed leave to intervene. His reason was simply that s 43(2)(b) explicitly precluded the grant of leave. The Commissioner did, however, go on to say that he understood the primary objective of the Association was to be made a party to the 1999 Agreement and expressed the view that if this was in breach of a term of the 1997 Agreement, that was a matter to be determined elsewhere. 42 Next the Commissioner considered the question of the individual employees. He did speak in terms of whether he should exercise his discretion to "grant the application for intervention by [the Association] in representing individual employees". This does misstate the position in the sense that the Association's counsel appeared for the employees themselves. However he had earlier correctly identified that it was the employees who were seeking to intervene and nothing turns on this misdescription. 43 The Commissioner noted that the intervention application concerning the individuals had the same objective as the application of the Association, namely to bring about a situation where the Association was a party to the 1999 Agreement. He dealt, in a fairly summary way, with what he understood to have been the submissions that CSL had acted in breach of s 170NB, s 170LU (1) and Pt XA and indicated that he had concluded it had not. This appears to have been directed to the process of negotiating the 1999 Agreement particularly given his reliance on the decision of Deputy President Duncan in Re Telstra Retail Shops Agreement 1998 which concerned the negotiation process. The Commissioner also indicated he did not accept that CSL had breached s 170LU(5) and explained his reasons (focusing on the question of whether there had been discrimination on the grounds of political opinion). He noted, in the context of considering this question of political opinion, that it had been submitted that not only the conduct of CSL but also the terms of the 1999 Agreement "were contrary to the Act". However this latter question (the alleged effect of the terms of the 1999 Agreement) was not really addressed by the Commissioner. The Commissioner's ultimate conclusion was that he was not prepared to exercise his discretion and "grant the second application for the intervention on behalf of some of its members". The use of the word "its" perpetuated the error that the second application to intervene was by the Association on behalf of individual employees.

Hearing before the Full Bench and decision 44 The appeal (perhaps more aptly described as an application for leave to appeal) was heard on 19 April 2000. Given that CSL did not submit that the hearing of the appeal had cured any denial of procedural fairness before the Commissioner (see R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471) it is unnecessary to dwell on what occurred during the hearing of the appeal. However, it should be noted that during the course of the hearing a submission was made on behalf of the Association and the individuals that they had intended to call evidence in the proceedings before the Commissioner had they been allowed to intervene. It was acknowledged that the Commissioner was not told of this intention. The other matter that should be noted is that in the appeal the leading counsel, then appearing for the Association and the individuals, made more detailed references to the 1999 Agreement in support of a submission that, in operation, it would discriminate against members of the Association. As noted earlier, the Full Bench refused the Association leave to appeal but granted the individuals leave to appeal and dismissed the appeal.

Consideration of the issues 45 A number of issues were canvassed during the hearing in this Court of the application for prerogative relief. They included whether individuals directly affected by a certified agreement (in the sense that it regulated the terms and conditions of their employment) had a right to be heard on its certification (see: Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84), and should be granted leave to intervene notwithstanding that the power to grant intervention conferred by s 43(1) is expressed to be a discretionary one (see: R v Ludeke; Ex parte Customs Officers' Association of Australia (1985) 155 CLR 513). They also included the proper construction of s 43(2)(b), the scope of both s 170NB and ss 298K and 298L, as they might apply to negotiations for an industrial agreement which is sought to be certified, and also as they might apply to the implementation or operation of such an agreement once certified. However, in our opinion, it is unnecessary to address these questions if both the Association and the individuals were not denied procedural fairness, because they were given the opportunity to make the submissions they wished to make in opposing the certification of the 1999 Agreement. If they had been denied procedural fairness then it may have been appropriate to consider at least some of the matters just mentioned to determine whether the denial of procedural fairness was founded on legal error (though a demonstrated denial of procedural fairness may have been sufficient to justify the grant of the relief sought by the Association and individuals). 46 It is to be recalled that the reason why both the Association and the individuals sought leave to intervene in the proceedings before the Commissioner was to advance submissions why the 1999 Agreement should not be certified and if the Commissioner was persuaded that it should not be certified, to advance submissions about what should be done in light of that conclusion. It is clear from the earlier analysis of the transcript of the hearing before the Commissioner on 27 October 1999, that a point was reached during the hearing when the Commissioner effectively invited the Association's counsel to put not only submissions in support of the two applications to intervene, but also the submissions both putative intervenors wished to put in opposition to the certification of the 1999 Agreement. It is also clear that the Association's counsel took up the invitation and made submissions in opposition to certification. It is true that there were matters on which submissions were not made, but they concerned what would flow from any conclusion the Commissioner might reach that the 1999 Agreement should not be certified for the reasons that had been advanced. The procedure adopted by the Commissioner allowed the Association and the individuals to make as comprehensive a submission as they wished on why the 1999 Agreement should not be certified. 47 The applicable legal principle was discussed by Gaudron J in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305: "As was pointed out by Deane J. in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the Tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'." (See also McCarthy v Law Society of NSW (1997) 43 NSWLR 42 at 62.) 48 Even if the Association or the individuals (or both) should have been granted leave to intervene by the Commissioner, having regard to the submissions they indicated at an early stage of the hearing they proposed to make (and the interest they may have had in the certification of the 1999 Agreement), the Commissioner's failure ultimately to grant leave was, at most, a failure in form only. Any grant of leave to intervene would have been to give the Association and/or the individuals an opportunity to make submissions. However in the circumstances of this matter that opportunity was actually given and taken up. Whether the Association's counsel could have put anything more in opposition to the certification of the 1999 Agreement (which we doubt), and whether relevant evidence might have been called to establish a factual foundation for any submission that the 1999 Agreement should not be certified (which we are inclined to doubt) does not matter. The opportunity to do both was given and it cannot, in our opinion, be said that either the Association or the individuals were denied procedural fairness by the Commissioner. 49 As to the intervention by the Association, the Commission was correct in concluding that the Association was not an organisation "proposed to be bound" by the 1999 Agreement and, accordingly, was not able to intervene having regard to the terms of s 43(2)(b). While the provisions are not entirely clear, the better view is that s 170LM enables an application to be made by a party to an industrial agreement made under Div 2 of Pt VIB. If the application is by an employer, other parties to the industrial agreement, including organisations, may intervene in the proceedings. The expression "one that is proposed to be bound by the agreement" is a reference to an organisation proposed in the application for certification. Thus, one looks to the terms of the application to determine who is proposed to be bound by the agreement. If the application does not propose that an organisation be bound by the agreement, then such organisation is not entitled to be granted leave to intervene in the matter of the application for certification of the agreement. Accordingly any erroneous view the Commissioner may have formed about either, or both, s 170NB and ss 298K and 298L in considering the intervention of the Association was irrelevant. The Commission had no power to allow the Association to intervene. 50 As to the intervention of the individuals, it involved the exercise of the discretionary power conferred by s 43(1). It would have been necessary for the Commissioner to exercise the discretionary power to allow intervention if to refuse intervention would have resulted in a denial of procedural fairness: R v Ludeke; Ex parte Customs Officers' Association. Whether, in this case, the individuals were entitled to be heard is a matter we need not decide. That is because, as just discussed, the individuals were given the opportunity to make the submissions they wanted to make as to why the 1999 Agreement should not be certified. Even if the ultimate decision to refuse leave to intervene (embodied in the decision of 21 January 2000) was based on an erroneous view about the proper construction of either s 170NB and/or ss 298K and 298L, it was not a jurisdictional error of the type that would attract prerogative relief: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 174 ALR 585 at 594‑595. That being so, it is unnecessary to embark upon a consideration of the scope and operation of s 170NB and ss 298K and 298L in circumstances where the prosecutor has said both to the Full Bench and this Court that the facts necessary to demonstrate contravention in this matter have not been established by the calling of witnesses. 51 The application for orders nisi should be dismissed. I certify that the preceding forty-five (45) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore & Goldberg.

Associate: Dated: 28 March 2001 Counsel for the Applicant: H Borenstein & J Bornstein