Issue Estoppel
48 Counsel for the appellant submitted that it was contrary to principle to hold that this decision of the AIRC could give rise to an issue estoppel in a proceeding in this Court, as a true issue estoppel can only arise from a judicial determination. The function of the AIRC was arbitral, not judicial, and could not be judicial because of the provisions of Ch III of the Constitution.
49 Counsel for the respondent submitted that a judicial determination for this purpose did not have to be a decision made in the exercise of the judicial power of the Commonwealth in the constitutional sense. It is sufficient if the decision is made by a body which is bound to act judicially, such as are often called judicial or quasi-judicial tribunals, and the AIRC is such a body when exercising the jurisdiction which was exercised in this case. The findings by the AIRC on an issue that is essential to an order under s 170CH of the Act could create an issue estoppel in this proceeding. This submission was supported by counsel for the Attorney-General of the Commonwealth.
50 The starting point for the argument is the well-known statement by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531:
'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion …'
51 The primary judge considered that the question of principle was settled in favour of the respondent by the passage from the decision of Gibbs J (with whom in this regard Menzies and Stephen JJ agreed) in The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 as follows:
'The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative …. The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc …' (citations omitted)
52 The following passage appears at 402-403 of the judgment of Barwick CJ (with whom, in this respect, McTiernan and Menzies JJ agreed):
'In my opinion, therefore, it is abundantly clear that a Board appointed pursuant to s 9 of the Ordinance was not limited to dealing with waste lands which had been dealt with or fell to be considered under s 8. Power was given to the Board to decide ownership in the case of all disputes on that question. "All" in this context means "any" dispute where a Papuan was a claimant. The significant point of s 9 is that the power is to appoint a Board which is to decide. The obligation to act judicially comes from the power to decide the rights of individuals. The Board was, in my opinion, quite clearly a tribunal which, having power to decide such rights, was a body to which the prerogative writs would have gone. It was bound to observe the rules of natural justice, even though it might act according to equity and good conscience and not be bound by rules of legal procedure. Though freed of technical rules the Board was bound by legal principles in the decision of such a question as the ownership of land. It was not given power to award land to a person who in its opinion did not own it. Its task, if it was to decide ownership, was to ascertain the existing facts and apply the existing law to those facts in order to decide who did own the land. That, to my mind, is clearly work of a judicial nature and a decision as to the ownership must of necessity, subject to appeal, be final as between the parties before the Court or who, being duly notified, could have been before it. I am unable to perceive what relevance questions of judicial power in the constitutional sense have in this connexion. What is central to the Board's power is the power to decide. It may well be that in a system where a separation of powers existed that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connexion to consider such a question or decided cases which deal with it. In my opinion, the purpose of appointing a Board under s 9 was clearly to resolve a dispute and lay to rest the question of ownership of land to which a Papuan laid claim. It is to be observed that the consequence of the Board's decision was an entry on a register with the intention of giving absolute finality to the matter. See Land Ordinance s 6. In my opinion, the decision of the Board was binding on the parties to it, their privies and upon those notified of the hearing with opportunity to make their claims, and to that extent upon the Land Titles Commission in considering a claim to the same land by one of those parties or a privy of one of those parties or by a person have [sic] had the opportunity of claiming or of being heard.'
53 Section 9 of the Land Ordinance of 1911 (Papua) provided:
'It shall be lawful for the Lieutenant-Governor by Proclamation in the Gazette to appoint a Board or Boards to decide all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land in which a Papuan native is claimant. The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure.
An appeal shall lie from the Board to the Central Court. The practices regulating such appeals shall be as laid down in regulations to be made by the Chief Judicial Officer and published in the Gazette.'
54 The primary judge regarded the decision in Green v Hampshire County Council [1979] ICR 861 as consistent with Daera Guba and as an example closely in point. The relevant facts of that case were stated as follows (at 863):
'On February 7, 1972, the plaintiffs were dismissed for alleged misconduct relating to their place of residence and failure to comply with specific instructions. On March 25, 1972, the appeals committee of the defendants dismissed appeals by the plaintiffs against the decision to dismiss them. The plaintiffs then complained to the industrial tribunal against their dismissals. The complaints were dismissed on June 26, 1972. The plaintiffs then appealed to the National Industrial Relations Court. Those appeals were dismissed without hearing argument on October 16, 1972, on the basis of an existing decision of the Court of Appeal. In consequence of a subsequent decision of the Court of Appeal, the National Industrial Relations Court heard the matter afresh on January 25, 1973, and ordered that the plaintiffs' complaints be re-heard by a freshly constituted tribunal. In May 1973, the re-hearing took place. On May 31, 1973, the tribunal, in a full written judgment, dismissed the complaints. The plaintiffs then attempted to appeal to the National Industrial Relations Court against that decision. Their appeals, however, were out of time, and leave to appeal out of time was refused by the court.
Save that in 1974 the plaintiffs seem to have informed the defendants of their intention to issue an originating summons in the Chancery Division raising various matters relating to the employment which in fact never seems to have been done, the defendants heard on [sic] more until the present action was commenced in November 1977.
The amended statement of claim asks for (1) declarations that the plaintiffs' dismissals were illegal, ultra vires and void; (2) declarations that the procedure adopted by the defendants was contrary to the rules of natural justice; (3) orders for restitution of the plaintiffs' employment; and (4) inquiry as to damages and payment of damages.'
55 Fox J said (at 864):
'It is clear that a statutory tribunal such as the industrial tribunal is a judicial tribunal for the purposes of the doctrine [ie res judicata]: see Spencer Bower and Turner: Res Judicata 2nd ed. (1969), para. 24 and the cases there cited, and I see no reason to doubt that it was a judicial decision. The tribunal gave a full reasoned judgment. It contained an investigation of the facts, an analysis of the facts, findings of fact, and, lastly, the application of the law to those findings.
For the operation of the doctrine there must, however, be an identity of subject matter between the proceedings. That identity may arise from a cause of action estoppel or from issue estoppel. The present case is admittedly not of the first kind, but it is in my view issue estoppel.
…
It is clear that in the very full judgment of the tribunal two things were decided. First, that the plaintiffs were dismissed by the defendants: see paragraph 36 of the decision; secondly, that the dismissals were not unfair: see paragraph 40. The burden of paragraph 5, 6, 7 and 9 of the statement of claim is (a) that there was no dismissal of the plaintiffs at all; what was done was quite unlawful (b) that what was done was in breach of contract; and (c) that the purported dismissals were in breach of the rules of natural justice and of equity. These conditions seem to me to be quite inconsistent with the findings of the tribunal. The tribunal found that the plaintiffs were dismissed and that such dismissals were not unfair. Those findings are inconsistent with the contention that the plaintiffs were never lawfully dismissed at all, that the defendants were in breach of contract, and acted illegally and contrary to natural justice. If the dismissals, as the tribunal found, were not unfair, it is difficult to see how they or the proceedings by which they were arrived at could have been contrary to natural justice.'
56 It is reasonably well established that (leaving aside constitutional considerations in relation to federal legislation) the principles of res judicata, whether cause of action estoppel or issue estoppel, can apply to decisions of bodies which are not called courts and which are not courts in the ordinary use of that term. In addition to the authorities already referred to, see Ex parte Amalgamated Engineering Union (Australian Section); re Jackson (1937) SR (NSW) 13; Somodaj v Australian Iron & Steel Ltd [1960] 61 SR (NSW) 305, Cachia v Isaacs (1985) 3 NSWLR 366 and Lambidis v Commissioner of Police (1995) 37 NSWLR 320 and the discussion in GS Bower, AK Turner and KR Handley, The Doctrine of Res Judicata, 3rd ed (1996) at pars [23], [352] and [353]. On the other hand, there is a considerable body of authority in the federal jurisdiction which casts doubt upon the application of this principle to Commonwealth tribunals, much of which is discussed in Hall, 'Res Judicata and the Administrative Appeals Tribunal' (1994-1995) 2 AJAL 22.
57 The primary judgment refers to the decision of von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 1) ( 1990) 26 FCR 561. That proceeding involved similar issues to those in the present case. The applicant sought remedies upon the ground that her employment with the respondent had been terminated in circumstances rendering that termination harsh, unjust or unreasonable, and so in contravention of the relevant federal award. The relief sought included a penalty pursuant to s 178(1) of the relevant Act, a declaration that the provisions of the relevant award were incorporated as terms of her contract of employment, reinstatement allowing her to work according to the terms of the contract of employment, and damages for breach of contract. Earlier, a Commissioner of the AIRC had decided that the respondent's action in terminating the services of the applicant was not unfair within the meaning of the relevant clause of the award. The claim for relief in each case was based upon the same facts leading to what was said to be a contravention of the same clause of the same award. von Doussa J held that the AIRC lacked jurisdiction to ascertain and declare the existing rights of the applicant and, in particular, to declare whether the termination of her employment had occurred in circumstances which contravened the award. In his Honour's opinion, the relief sought on behalf of the applicant in the AIRC related wholly to the ascertainment, declaration and enforcement of the applicant's existing legal rights which required a judicial determination, being an exercise of judicial power which the AIRC lacked (see at 567). von Doussa J had pointed out that, at that time, the jurisdiction of the AIRC depended upon the constitutional underpinning of the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, and that it was well established that the AIRC's power and function in relation to such an industrial dispute was arbitral not judicial.
58 In the course of his judgment, von Doussa J referred to some earlier authorities as follows (at 567-568):
'The distinction between a power of arbitral decision, and a power of judicial determination, makes it readily understandable that in Australian Transport Officers Federation v State Public Services Federation (1981) 50 FLR 438 a Full Court of the Federal Court said (at 445):
"We have considerable doubt whether the principles of estoppel in pais either res judicata, estoppel by cause or issue estoppel apply to proceedings in the Conciliation and Arbitration Commission. Some consideration was given to the question in Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia (1925) 36 CLR 442. In that case a distinction was made between the effect of unreversed decisions of a court exercising judicial power and the then Commonwealth Court of Conciliation and Arbitration exercising powers then regarded and treated as non-judicial."'
59 The primary judge distinguished that decision as the jurisdiction exercised in the present case by the AIRC was not a jurisdiction with respect to industrial disputes extending beyond the limits of any one State, but, rather, a jurisdiction based upon s 51(xx) of the Constitution, and that s 170CG(3) requires the AIRC to do precisely that which von Doussa J considered to be beyond the AIRC's power under the earlier statutory regime, namely, to determine the matters touching on the applicant's existing legal rights. If correct, that finding would provoke consideration of Ch III of the Constitution. It is not readily apparent why the different constitutional head of power underpinning the legislation relevantly affects the function being performed so as to distinguish a case like the present from that considered by von Doussa J. We examine the effect of s 170CG(3) later. In our opinion, there is nothing in Miller v Australian Industrial Relations Commission (2001) 108 FCR 192 to the contrary of our conclusion as to that question.
60 In WJ & F Barnes Pty Ltd v Federal Commissioner of Taxation (1957) 96 CLR 294, Kitto J, in relation to a decision of a Taxation Board of Review, said (at 314-5):
'We know that the board of review, when considering the company's assessment to ordinary income tax, considered that the payments were not allowable deductions on any ground. The board's decision was not, of course, an adjudication; it was administrative in character, and could not create an issue-estoppel.'
61 The application of issue estoppel to decisions of the Commonwealth Administrative Appeals Tribunal was expressly left open by the Full Court in Commonwealth v Sciacca (1988) 17 FCR 476 at 480. Reference was made in that case to the earlier decision of the Full Court in Minister for Immigration & Ethnic Affairs v Daniele (1981) 61 FLR 354, in which it might be thought that a passage from the reasons of Fisher and Lockhart JJ (at 359) indicated that issue estoppel had no place in the proceedings of the Administrative Appeals Tribunal. See the analysis by Pincus J in Bogaards v McMahon (1988) 80 ALR 342 (at 349-352), where his Honour concluded that, based upon Daera Guba, cause of action estoppel may apply to the decisions of the Administrative Appeals Tribunal, but left open the question of issue estoppel. See also the following: the discussion by Gummow J in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 522-526; Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Ryan J at 201-202 and Gummow J at 219; Hill J in Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 at 96-99; National Union of Workers v Pacific Dunlop Tyres Pty Ltd (1992) 37 FCR 419 at 428; Comcare v Grimes (1994) 50 FCR 60 at 64, 67; Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637, Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374 at 387G-388C, and Lilienthal v Migration Agents Registration Authority (2001) 65 ALD 437. Most recently, the Full Court in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd (2003) FCAFC 18 said:
'12. Mansfield J held that the effect of that finding by the Full Commission was that the appellant was estopped from challenging its finding in these proceedings. We are not prepared to do so. It is clear that a party will be estopped from arguing that which has already been decided against him or her, even by a different court. This can also extend to decisions by a tribunal where such a tribunal has the capacity to make final and binding decisions: see Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353. The issue raised in this case is whether there can be any issue estoppel in respect of the determinations of a Commonwealth administrative body. Such bodies cannot exercise the judicial power of the Commonwealth. Can they nevertheless make a determination that is sufficiently "final" and "determinative" to give rise to an issue estoppel? There are two chains of authority. The first denies that they can. The relevant cases are discussed by Weinberg J in Bramwell v Repatriation Commission (1998) 158 ALR 623 at 635-637. The second says that they can, particularly where the power being exercised is very similar to judicial power: see Branson J in Miller v University of New South Wales [2002] FCA 882 at [68]-[77].
13. It is unnecessary for us to resolve these differences. What is absolutely clear is that the decision of an administrative tribunal in respect of a "jurisdictional fact" is neither conclusive, nor binding: see Craig v South Australia (1995) 184 CLR 163 at 179. The decision in this instance was given in relation to what was clearly a "jurisdictional fact" i.e. the question whether the termination of employment was on or before or was after 30 March, 1994. The decision of the AIRC on that matter could not be conclusive. Consequently the decision of the AIRC of 1 March, 2002 that the contract of employment was terminated on 16 March, 1994 does not have the effect that the appellant can not argue to the contrary in this Court. There is no issue estoppel.'
The primary judge in that case had decided consistently with the primary decision here, having referred to that decision.
62 Reference should also be made to the decision of the Full Court in Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123, where Davies J said at 127 (in a passage agreed in by Spender J):
'On 9 March 1995, prior to the hearing before the Tribunal, Fryberg J. of the Supreme Court of Queensland had refused an application brought by Mr Sande and the Australian Institute of Conveyancers Inc which sought a declaration, inter alia, that on the true construction of the MR Act the occupation of "conveyancer" existed in the State of Queensland and was an occupation within the definition of "occupation" in s.4(1) of the MR Act. No evidence was put before his Honour, however, to indicate whether, as a question of fact, there was in Queensland an occupation, trade, profession or calling of "conveyancer". His Honour considered that he could not infer the existence of the occupation as a matter of present fact from the references or assumptions in statutes dating from 1867 onwards. His Honour declined to make the declaration sought.
The respondents in this appeal relied upon his Honour's judgment as an issue estoppel against Mr Sande. I do not so regard it. The decision-making powers were conferred by the MR Act upon the registration authorities and the Tribunal, not the courts. The Supreme Court may well have had a review function in relation to decisions of its Registrar. But, even so, it was concerned only with decision-making at the first level. The function of the Tribunal was to form its own view and to come to the "correct or preferable" decision: Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589. The Tribunal was therefore bound to arrive at its own finding of fact.'
63 It is clear enough that it is difficult, if not impossible, to reconcile all that has been said in this array of authority.
64 Cases which concern a tribunal which is truly administrative in the sense that it stands in the shoes of the original administrative decision-maker, and has power to substitute its own decision for the original decision, may be left to one side for present purposes, as this is not such a case. The bald statement by Kitto J in Barnes v Federal Commissioner of Taxation and the finding by Davies and Spender JJ in Sande may be decisive of such a case, at least at the level of this Court, although it will be necessary to consider the implications of the decision of the House of Lords in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 in an appropriate case (cf R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] 4 All ER 58, [2003] 1 WLR 348). Decisions of the AIRC in the exercise of what might be called its ordinary jurisdiction of settling multi-party industrial disputes may also be left to one side for present purposes.
65 Whilst estoppels may arise from decisions of bodies other than superior courts of record, and the language of res judicata, including cause of action estoppel and issue estoppel, is used in this connection, the starting point is to decide precisely what jurisdiction the body is exercising, as lucidly explained by Jordan CJ in Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson at 19-20 as follows (omitting citation of authority):
'But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that "nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specially appears to be so". But difficulties do occur in the case of subordinate tribunals. Where these have been invested with a general, though limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal. Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide some one particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. In a particular case it may appear from the Statute conferring the jurisdiction that it is intended that the tribunal shall have jurisdiction to determine the collateral matter only provisionally and subject to control by means of the prerogative writs. Or it may appear to be intended that the tribunal is to determine the collateral matters conclusively so far as any control by superior Courts is concerned. But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes, a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction.'
66 The actual decision in that case is also instructive. By s 68 of the then Commonwealth Conciliation & Arbitration Act, fines, fees, levies or dues payable by a member to a registered organisation could be recovered from such member in any court of competent jurisdiction. A proceeding for recovery was brought in a New South Wales Court of Petty Sessions constituted by a magistrate. By reason of a particular provision, such a magistrate had no jurisdiction to proceed if, in order to determine the question of liability in a particular case, it was necessary to decide any matter the decision of which may bind rights in the future. That made it necessary for the New South Wales Supreme Court to consider the extent to which a decision of a Court of Petty Sessions in a proceeding under s 68 was capable of giving rise to res judicata. Jordan CJ (in a judgment agreed in by Halse Rogers and Maxwell JJ) held (at 21):
'No jurisdiction is expressed to be conferred upon a Court of Petty Sessions to determine whether the claimant organisation has been duly registered or proclaimed, or whether the defendant is a member thereof, or whether its rules are valid. No doubt, it may in a particular case be necessary for a magistrate to form an opinion upon some or all of these matters for the purpose of deciding the matter which he is invested with jurisdiction to decide; but any opinion which he may so form does not constitute a judicial decision inter partes, and does not bind the parties in any future proceedings whether before the same magistrate or in any other Court of Petty Sessions. It follows that no determination as to whether the defendant was or is a member of the union which the magistrate may arrive at for the purpose of deciding whether the particular amount claimed is due and owing can have the effect of res judicata for any other purpose; and cannot therefore bind future rights; …'
67 That decision, and the like decision in Attorney-General for Trinidad & Tobago v Eriche [1893] AC 518, were referred to by McHugh JA (as he then was) in Cachia v Isaacs at 387. The division of opinion in that case indicates the subtlety of the point.
68 In Weist v DPP, Gummow J, at 525, referred to the judgment of Jordan CJ in Ex parte Amalgamated Engineering Union and said:
'Whatever view is taken of the general applicability of the principles of issue estoppel in administrative law, there will always be the threshold question as to the width and effect of the decision-making power entrusted by the legislature to the body in question.'
His Honour had earlier said (at 522):
'Legislation may validly commit to a decision-maker exercising administrative powers the authority to decide disputed issues of fact, and to do so finally in the sense that the decision is not subject to collateral attack. Such decision-making authority is not exclusively judicial in character.'
69 A clear understanding of the jurisdiction which was exercised by the AIRC in the present case is needed. It was to determine by arbitration whether the termination of the employment of the appellant by the respondent was "harsh, unjust or unreasonable" (s 170CG). If that determination had been made, then the remedies provided for by s 170CH might have been afforded. It is that determination and those remedies, if granted, which are final and binding between the parties pursuant to s 170CI. The statutory criterion, particularly read in the light of the object of the Division set out in s 170CA(2), is very broad. It is quite separate from any question of lawfulness. The matters to which the AIRC must have regard by reason of s 170CG(3) do not change the nature of the value judgment to be made, and, as is shown by s 170CG(3)(e), are not limiting factors. The reference to "valid reason" in s 170CG(3)(a) does not refer to a lawful reason as such, but relates validity to the topics itemised in that subsection.
70 The issue which traditionally arises in the kind of jurisdiction which is exercised by the AIRC has been described as:
'… not indeed a question as to their [the employee's and employer's] respective legal rights, but a question whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right.'
and as:
'… what the employer ought to do or ought to have done rather than what he has or had the "right" to do.'
(per Walsh J in North West County Council v Dunn (1971) 126 CLR 247 at 263; to the same effect see also per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in Victoria v Commonwealth (1995) 187 CLR 416 at 517).
71 By contrast, if the dismissal is unlawful as in breach of contract, statute, award or certified agreement, then proceedings can be brought in the Courts to vindicate the right.
72 The analysis by the High Court of a previous form of the legislation in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 is instructive. We refer particularly to this passage from the joint judgment of the whole Court at 665-667:
'Ordinarily, in industrial tribunals empowered to order reinstatement, the criterion for the making of an order for reinstatement is that the dismissal was harsh, unjust or unreasonable, although more recently the tendency has been to express the test in terms of unfairness: See In re Loty and Holloway and Australian Workers' Union. In the present case the Union and the Society each claimed that the dismissals which gave rise to their claim were harsh, unjust and unreasonable. Accordingly it was said that the resolution of the dispute necessarily involved the determination of whether the dismissals were harsh, unjust or unreasonable - a determination which, it was argued, required the Commission, in the context of the award, to determine whether the employer was in breach of the obligation contained in cl.7(d)(vi). This, it was contended, necessarily involved an assumption of the judicial power of the Commonwealth, for it involved the Commission in precisely the same task as would be undertaken by a Court in the event that proceedings were taken pursuant to s 119 of the Act alleging breach of cl.7(d)(vi) of the Award.