s.99 notification of industrial dispute

Australian Municipal, Administrative, Clerical and Services Union

Jurisdiction; whether power to arbitrate in relation to claim for compulsory trial of job- sharing arrangement; terms and conditions for job-sharing; finding of jurisdiction under section 170LW by Commissioner; whether matter for arbitration is a dispute over the application of the agreement; whether job-sharing is a type of employment for purposes of section 89A; jurisdiction to make determination may not be resolved until merits of making a determination and the better definition of remedy be resolved; whether error in decision by the Commissioner to refuse application under section 105; leave to appeal granted; appeals dismissed.

[1] In this matter Qantas Airways Limited, (Qantas), gave notice of appeal on 29 December 1999 against decisions of Whelan C on 8 and 24 December 1999. Both decisions were in matter C No. 35984 of 1999, a notification of dispute under section 99 of the Workplace Relations Act 1996 (the Act) lodged by the Australian Municipal, Administrative, Clerical and Services Union, (the ASU) on 21 July 1999. That notification concerned a refusal by Qantas to conduct a job-share trial in its retail sector. But the notification invoked also an earlier finding of dispute in matter C No. 31097 of 1991. At a later stage of proceedings, the ASU proposed that the dispute be resolved by Whelan C making an order or determination. The terms of the draft order proposed were that a trial of job-share in Qantas retail be undertaken for a six month period and should encompass at least four people, two full-time positions, in retail in Victoria.

[2] In the first decision (8 December 1999)[1], Whelan C held that she had "the capacity" under section 170LW of the Act and clause 5 of the Australian Services Union (Qantas Airways Limited) Enterprise Agreement IV[2] (the Agreement or EBA IV in Whelan C's decision), to arbitrate in relation to a dispute between Qantas and the ASU as to the introduction of a job-sharing trial in the retail sector of the Qantas operation.

[3] In the second decision, a decision in transcript on 24 December 1999, Whelan C declined an application that she cease dealing with the matter under section 105 of the Act.

[4] The grounds of appeal against the first decision allege error in that the Commissioner:

• ruled, inconsistently with sections 89, 89A and 111AA of the Act and the Commission's Statement of Principles, and in the absence of agreement, that the Commission should exercise arbitration powers in this matter;

• decided that the Commission has power to hear and determine a matter about which, under the relevant certified agreement, it is required that the parties "reach agreement";

• declined to rule that the respondent union's application is in substance an application for variation of a certified agreement and therefore relevantly beyond the power of the Commission;

• declined to dismiss or refrain from further hearing or determining the matter on the ground stated in paragraph 111(1)(g)(iii);

• found that the parties had reached agreement on the arrangements to govern job-sharing.

[5] On the hearing of the appeal, Mr N. Green with Mr B. Mueller both of Counsel appeared for Qantas. Ms M. Young of Counsel appeared with Ms H. Svendsen for ASU. Leave to appear was granted without objection by either party.

[6] In her decision of 8 December 1999, Whelan C held that the issue of job sharing was an allowable matter within the meaning of section 89A of the Act and that the Commission may have power to arbitrate also by virtue of the provisions of subsection 89A(7). However, the Commissioner did not decide to exercise jurisdiction under either of those heads of power. Rather, as noted above, she decided to exercise jurisdiction on the basis of section 170LW of the Act. Whelan C's reasoning and principal conclusions appear from the following extracts:

"[20] Section 89A(2)(r) gives the Commission power to arbitrate with respect to 'type of employment'. Types of employment are clearly not limited to those referred to in the sub-section. Applying the ordinary meaning of type of employment, having regard to industrial relations usage, I am satisfied that job-sharing is a type of employment, in the same way that regular part-time employment, temporary employment or casual employment is a type of employment and is, therefore, an allowable matter within section 89A(2)(r).

[21] The making of an exceptional matter order concerning job sharing may also be within the jurisdiction of the Commission. In relation to the elements required to be established to make such an order I am satisfied that 89A(7)(a) and 89A(7)(b) have been met. In relation to 89A(7)(c), (d) and (e) it would not be appropriate to reach a view without hearing the merits of the union's claim. I accept, however, that it is arguable that an order under section 120A may be an appropriate way of resolving this dispute.

[22] If I am to understand Mr Roger's submissions correctly, Qantas contends that the Commission cannot arbitrate a claim for the introduction of job sharing in the retail sector because of the existence of Appendix 1, clause 3(f) of EBA III. This relies on two contentions:

(a) The issue is covered by the agreement which also provides that the ASU and the company are to 'reach agreement' on the terms associated with job sharing. Agreement cannot be arbitrated and, therefore, it is not appropriate for the Commission to proceed to arbitrate.

(b) The claim for the introduction of job sharing in the Retail Sector is an extra claim and, therefore, excluded by the 'no extra claims' provisions of EBA IV.

[23] I am satisfied that the provisions of clause 3(f) of Appendix I of EBA III require the parties to reach agreement on 'terms associated with job sharing'. The clause does not require the parties to reach agreement on 'introduction of job sharing' in any particular part of the business.

[29] I am not satisfied that a claim for the introduction of job sharing in the retail sector is an 'extra claim' given the terms of clause 3(f), Appendix 1. It may, however be, for the purposes of these proceedings a claim for conditions which are in excess of the safety net and, therefore, subject to principle 10 of the Safety Net Review wages, April 1999 [Print R 1999]. If this matter was to proceed as a matter requiring consideration of section 89A)(7) then it would also be subject to that principle and require an application pursuant to section 107 of the Workplace Relations act 1996.

The disputes settlement procedures of the Agreement

[30] Clause 5 of the Australian Services Union (Qantas Airways Limited) Enterprise Agreement IV [Print Q9845] outlines the procedure for settlement of disputes between the parties. The procedure applies to 'any matter(s) contained in this Agreement'. It further refers to the dispute settlement procedures of the relevant award. In this case, the relevant award, the Airline Officers (Qantas Airways Limited) Award 1992 [Print L3319] provides in clause 34 that: … [not extracted].

[31] The provisions of that procedure are in my view limited to the powers of the Commission exercisable under the Workplace Relations Act 1996. Irrespective of the decision in Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission (1999) FCA 25 March 1999, the resolution of any dispute would need to comply with the provisions of section 89A.

[32] The clause 5, however, goes on to say that:

'To the extent that it is necessary to do so, the parties are therefore committed to the AIRC performing a private arbitration function, if necessary on matters contained in this Agreement.'

That part of the clause appears to give the commission the scope to arbitrate outside of the powers otherwise conferred by the Workplace Relations Act 1996.

[33] The question of whether the provisions of section 170LW allows parties to confer on the Commission powers beyond those otherwise exercisable under the general dispute settlement powers of the Workplace Relations Act 1996 remains, unsettled. There is much to commend the view expressed by Ms Svendson that the decision in Gordonstone only deals with dispute settlement procedures contained in agreements certified under the provisions of what is now Division 3 of Part VIB of the Act and may not, therefore, apply to settlements of disputes over application of an agreement certified under Division 2 of Part VIB of the Act. The issue does not arise in this case however, as I am satisfied that the subject matter of the dispute is one which falls within the powers of the Commission to arbitrate under section 89A.

[34] The wording of clause 5 refers to 'any matter(s) contained in this agreement in dispute'. Even if the operation of section 170LW requires this to be read as 'disputes over the application of this agreement', I am satisfied that a dispute over the trialing of job sharing is a dispute over the application of the agreement being the application of clause 3(f) of Appendix 1 to the retail sector. …

[35] On the first day of the hearing in this matter Ms Stitt produced a document headed 'Qantas Job share Arrangements'. She described that document in transcript (at page 2) as:

'… the heads of agreement that was agreed upon between the ASU and Qantas shortly after enterprise bargaining agreement Number 3 coming into operation and really just outlines the principles that will govern job sharing arrangements around the airline'.

[36] That description of the document was not challenged by Mr Bund. The document refers to the terms and conditions to apply to job share arrangements. It would, therefore, appear that the parties have reached agreement on the arrangements to govern job sharing.

[37] In any event I am satisfied that this is not a dispute about the 'terms associated with job sharing'. This is a dispute about whether job sharing is a suitable type of employment for the retail side of the business. As such it concerns the issue of whether the terms of the Qantas Job Share Arrangements which have been applied to other parts of the business (as Mr Rogers pointed out) should be applied to the retail part of the business. The issue is whether it would be unfair not to allow employees in the retail sector the capacity to access a condition of employment, provided for by the Agreement and made available to employees in other parts of the business.

[38] I am satisfied that the Commission has the capacity to arbitrate such a dispute and that it falls within the powers of the Commission conferred by section 170LW and clause 5 of the Australian Services Union (Qantas Airways Limited) Enterprise Agreement IV [Print Q9845]." [3]

Submissions and Contentions of the Appellant:

[7] The appellant contended that Whelan C characterised the matter for arbitration in paragraph 37 of her decision whether job-sharing is a suitable type of employment for the retail side of the business. The finding that the Commission had power to arbitrate that matter under the dispute settlement procedure and section 170LW of the Act was in error. On a proper construction, subclause 3(f) of Appendix of EBA III precludes arbitration about the matter of the introduction of job-sharing in Qantas retail.

[8] For the Commission to arbitrate the matter in dispute or make an order in the terms sought one of two findings would need to have been made. It would be necessary to find that the Commission could arbitrate on "any matter contained in (the Agreement) in dispute". Alternatively, it would be necessary to find that the matter raised was within the description of a dispute over the application of the agreement[4], and that arbitration of it would be consistent with the terms of the Agreement. Subclause 3(f) of Appendix 1 EBA III provided that job-sharing shall only be introduced where it has been discussed and agreed. Arbitration to require introduction without agreement would not be consistent with that term of the Agreement. It would involve in effect a power to vary the terms of the Agreement on a basis other than prescribed in sections 170MD and 170MDA. Any order or determination would collide with subsection 170LY(1). The matter proposed to be arbitrated is not a dispute over the application of the Agreement. Rather it is a dispute about whether job-sharing is suitable and should be introduced by making it accessible as a condition of employment. Mr Green further contended that it was not open to Whelan C to conclude, as she did in paragraph 25 of her decision, that the in-principle agreement reflected in subclause 3(f) meant that across the enterprise operation of job-sharing was accomplished, subject only to agreement about terms associated with job-sharing. An agreement of that nature and extent should not have been construed from subclause 3(f).

[9] Qantas contended that there was a secondary error in Whelan C's acceptance of jurisdiction under Section 170LW and the Agreement. On that contention, the matter identified by Whelan C is not an allowable award matter within Section 89A. Job-sharing is not a "type of employment", nor is it incidental to a type of employment. Mr Green submitted that even if job-sharing is a type of employment, the determination sought by the ASU is about the creation of a duty on Qantas to make job-sharing available. That is not within type of employment as an allowable award matter.

[10] For similar reasons, Qantas denied that it would be within jurisdiction to apply to the matter in dispute the general power to arbitrate under either section 89, or under subsection 89A(7) in relation to an exceptional matter. The matter on which arbitration would take place is already prescribed in the Agreement. Any order or award that might be made in an arbitration under the general power would therefore be a nullity, or at least would not operate, because of the operation of subsection 170LY(1). Nor could the matter be dealt with as an exceptional matter under subsection 89A(7). Paragraphs 89A(7)(c), (d), and (e) could not be satisfied. Any such claim would involve a breach of the no extra claims clause in the Agreement.

[11] Qantas also challenged generally Whelan C's decision in transcript of 24 December 1999 in which she had refused an application under section 105 of the Act by Qantas. In Mr Green's submission, no arbitral proceeding had commenced before Whelan C when objection was made against her exercising arbitral powers. The powers that had been exercised to give directions and rule upon the questions dealt with in the first decision did not involve the exercise of arbitral power. What had occurred in the hearing and determination associated with the first decision was anterior to the exercise of arbitration powers.

[12] In response, Ms Young submitted that Whelan C had relied upon both section 170LW and section 89 as sources of power to arbitrate. Job-sharing is manifestly a form of part-time employment. It is therefore within the scope of "type of employment" as an allowable award matter.

[13] Moreover clause 5 of the Agreement contained broad language intended and sufficient to enliven the jurisdiction available under section 170LW. The correct question to be asked is: "Was the dispute before the Commission a dispute over the application of the Agreement?". Subclause 3(f) of EBA III provided a general commitment and agreement to job-sharing. Qantas has obligations under that subclause. Because Qantas will not discuss and attempt to reach agreement about job-sharing arrangements in relation to its retail operations in breach of its obligation to do so, there is a dispute about the application of the Agreement.

[14] Whelan C had clearly commenced upon the arbitration of the matter before her. She had ruled upon the question of jurisdiction and had dismissed an application under paragraph 111(1)(g). Moreover directions had been issued and statements of evidence lodged. It was not competent for Qantas in the circumstances to mount an objection under section 105.

The Basis of any Jurisdiction under Section 170LW and the Status of the Qantas Job Share Arrangements:

"170LW Procedures for preventing and settling disputes

Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

(a) to settle disputes over the application of the agreement;

(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes."

[16] The dispute settlement procedure in clause 34 of the Airline Officers (Qantas Airways Limited) Award 1992, (the Qantas Award) provides:

Subject to the Australian Industrial relations Act 1988 as amended from time to time, any dispute or claim shall be dealt with in the undermentioned manner.

(a) The matter shall first be discussed by the aggrieved officer with his or her supervisor.

(b) If not settled, the matter shall be discussed between the accredited union representative and the personnel officer or other appropriate officer of the company.

(c) If not settled, the matter shall be further discussed between the Branch Secretary or other appropriate official of the union and the appropriate representative of the Company.

(d) If agreement has not been reached, the matter shall then be discussed between a representative of the Company and the federal body of the union.

(e) If the matter is still not settled, it shall be submitted to a member of the Australian Industrial relations Commission, whose decision shall, subject to any appeal in accordance with the Act, be final and shall be accepted by the parties.

(f) Until the matter is determined, work shall continue as normal, as instructed by the Company. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.

(g) Where a bona fide safety issue is involved, the Company and the appropriate safety authority must be notified concurrently or at least a bona fide attempt made to so notify that authority" (my emphasis)."

[17] However, that provision is to be read in conjunction with and subject to clause 5 of the Agreement which provides:

The parties agree that any matter(s) contained in this Agreement in dispute shall be processed in accordance with the procedure contained within the Disputes Settlement clause of the relevant award. Provided that the disputes Settlement Procedure is being followed, the parties are committed to the Australian Industrial Relations Commission (AIRC) ultimately having the capacity to determine any matter(s) in dispute (ie. matters that have been traditionally regarded as arbitral matters or as traditionally coming within the AIRC's jurisdiction). Consequently, neither party shall pursue a jurisdictional objection that would have the effect of preventing this process occurring. To the extent that it is necessary to do so, the parties are therefore committed to the AIRC performing a private arbitration function, if necessary, on matters contained in this Agreement."

[18] Clause 3(b) of the Agreement provided for it to be read in conjunction with earlier agreements including the Qantas Airways Limited Enterprise Agreement III (1996-1998), (EBA III), which was certified on 16 December 1996.

"3(b) This Agreement shall be read in conjunction with the Awards and Agreements listed below. Where there is any inconsistency between this Agreement and the Awards and Agreements listed below, this Agreement shall prevail, unless expressly stated in a clause to the contrary:

(i) Airline Officers (Qantas Airways Limited) Award 1992;

(ii) Airways Limited Enterprise Agreement I (1992-1994);

(iii) Qantas Airways Limited Enterprise Agreement II (1994 - 1996); and

(iv) Qantas Airways Limited Enterprise Agreement III (1996 - 1998)."

[19] Appendix 1 of EBA III lists Qantas' response to ASU claims. It is common ground that the Appendix operates to create a binding obligation on Qantas within the terms stated. Item 3(f) reads:

"Job-Sharing: introduction of job-sharing agreed in principle: ASU and the Company to discuss and reach agreement on terms associated with job-sharing. The ASU notes that the Company has tabled a proposal for discussion."[5]

[20] In relation to that provision Whelan C noted and found as follows:

"[35] On the first day of the hearing in this matter Ms Stitt produced a document headed 'Qantas Job Share Arrangements'. She described that document in transcript (at page 2) as:

'... the heads of agreement that was agreed upon between the ASU and Qantas shortly after enterprise bargaining agreement Number 3 coming into operation and really just outlines the principles that will govern job sharing arrangements around the airline.'

[36] That description of the document was not challenged by Mr Bund. The document refers to the terms and conditions to apply to job share arrangements. It would, therefore, appear that the parties have reached agreement on the arrangements to govern job sharing."[6]

[21] The document referred to in those passages is dated 19 August 1996. It is headed "Qantas Job Share Arrangements". Those "Arrangements" are introduced by a preamble which states:

It has been agreed that on an as needs basis, positions are available to be shared under this job share agreements.

It is recognised that in some instances current serving staff will, due to changed circumstances, find their full time hours impossible to meet. In those circumstances the staff member may elect to share a full time job with another job sharer. This job share arrangement will be facilitated by Qantas in instances where efficiency/cost is not compromised.

It should be noted that job share is not a substitute for part time employment but has been created to provide more flexible employment arrangements where an existing staff member's circumstances have changed.

Each job sharer will be on an individual contract sharing a fulltime position. Should the job sharer's partner leave or permanently change their hours the Company will assist the job sharer to find a new partner.

If the vacant job share position cannot be filled, then the position will revert back to a full time position and the job share person will be required to work full time hours."

[22] The remainder of the document sets out under the heading "Terms and Conditions" particular provisions covering the conditions of employment as varied for job-share position including hours of duty, overtime, salary, leave, changing from full-time to job-share and concludes:

In any matter not covered, the Airline Officers (Qantas Airways Ltd) Award 1992 and Company Policy shall apply."

[23] It appears from exhibits presented to Whelan C that Qantas had conducted a trial of job-share arrangements in its Telephone Sales Section in Melbourne, concluding in 1999[7]. We have had regard to that evidence, to the way in which the evidential material was presented to Whelan C, and to her findings. We are not satisfied that there is any error apparent in Whelan C's conclusion that the parties had reached agreement on the arrangements to govern job-sharing, including the terms and conditions to apply to particular instances. To that finding we add and emphasise one point. The arrangements so agreed were unequivocally conditioned upon implementation by Qantas in "instances where efficiency/cost is not compromised". In other words, it was a condition of access to job-sharing that efficiency/cost not be compromised by the operation of the arrangement in application to the work position affected. This condition is a consideration relevant to the merits of the dispute referred to Whelan C and we discuss it further at paragraph 61 below.

Jurisdictional Issues and the Characterisation of the Matter in Dispute:

[24] The jurisdictional issues presented for determination by Qantas on the appeal depend to a substantial extent on how two distinct facets of the proceeding instituted by the ASU are characterised. The characterisation of the dispute generated or claim made by the ASU is a necessary step in establishing whether and to what effect the dispute settlement procedure under clause 5 of the Agreement, read with clause 34 of the Qantas Award and section 170LW of the Act, may operate. Characterisation of that facet of the proceeding may also need to be undertaken should it have become necessary to identify the subject of an industrial dispute within the meaning of section 99 of the Act read in the expanded sense provided for in section 493 of the Act. We note that possibility but do not consider it further. The possible existence of a notifiable intra-State industrial dispute in Victoria appears to be immaterial to the jurisdictional questions posed in this matter.

[25] The characterisation of the subject matter of any determination, order or award that might be made in settlement of the claim or subject matter in dispute is conceptually distinct from the characterisation of the dispute or claim itself. Generally the subject matter of the determination must pertain to or be within the ambit of the claim or dispute. However, characterisation of the claim or dispute does not of itself resolve issues about the characterisation of the subject matter of a determination. Sections 89 and 89A of the Act turn upon a distinction between the subject matters of an industrial dispute and the allowable award matters that may validly be included within an award made in settlement of an industrial dispute.

[26] A similar distinction is manifest also from long established authority in the High Court. For purposes of ascertaining jurisdiction, it will often be appropriate to abide the actual determination of the subject matter of an award or variation of an award on the merits. Occasions arise, where it is possible that an award can be made within jurisdiction, although the jurisdiction may demand a correct approach to the viable subject matter of industrial dispute, or the formulation of an outcome that steers clear of intruding upon judicial function. In such cases, the High Court has on occasion refused prohibition of the jurisdiction being exercised. Re: Ex parte Horwood Bagshaw is an instance where the Court refused prerogative relief because it found that the application for relief was premature, the Commission not having determined what, if any form of relief it might award, or formulated the order it proposed to make_[8]_.

[27] We deal first with the characterisation of the "dispute" notified to Whelan C. That step is necessary for the purposes of establishing whether the subject matter of the dispute is validly able to be a dispute over the application of the agreement within the meaning of section 170LW, read in conjunction with clause 5 of the Agreement. We elaborate upon that formulation of the reason for characterising the dispute in paragraphs 33 to 38 below.

[28] The section 99 notification lodged by the ASU on 19 July 1999 alleged a dispute under section 99 of the Act: "concerning the refusal by Qantas to conduct job share trial in the retail section". That statement of the alleged dispute was refined in the course of the proceeding before Whelan C, and particularly in the submissions about jurisdictional issues put to Whelan C on 6 December 1999. Whelan C's decision of 8 December 1999 was founded upon those submissions. The submissions included a proposition by the ASU to the effect that the alleged dispute could be arbitrated under the dispute resolution procedure in the Qantas Award and the Agreement in conjunction with section 170LW.

[29] Whelan C's formulation of the dispute was variously expressed. She identified it as a dispute over the trialing of job-sharing, and as a dispute about whether job-sharing is a suitable type of employment for the retail side of the business. She developed that definition of the matter in dispute by stating:

"[37] … As such it concerns the issue of whether the terms of the Qantas Job Share Arrangements which have been applied to other parts of the business (as Mr Rogers pointed out) should be applied to the retail part of the business. The issue is whether it would be unfair not to allow employees in the retail sector the capacity to access a condition of employment, provided for by the Agreement and made available to employees in other parts of the business."[9]

[30] On 15 December 1999, in anticipation of the dispute being arbitrated, the ASU lodged with Whelan C a notice of dispute under a dispute settling procedure in an agreement. That notice was in the form required by Rule 66. A draft order setting out the determination sought was attached to the notice. That notice states: "The matters in dispute relates to the refusal by Qantas to conduct job share trial in retail section". The notice described, as a first step in the dispute settling procedure: "discussions in or about February 1999 with ASU members in regard to the appropriate work arrangements on their respective return from maternity leave. These discussions involved job share. The members were told that job share was not available".

[31] The draft order lodged on 15 December 1999 sought provisions to the effect that:

• a trial of job-share in Qantas Retail will be undertaken applying the terms of the August 1996 Qantas Job Share Arrangements;

• the trial will cover a six month period for two full-time positions in Victoria;

• a joint monitoring committee will evaluate the trial on the 5th month by reference to a list of criteria, and will deal on the first instance with any disputes regarding the trial.

[32] Against that background, we are satisfied that Whelan C accurately described and identified the matter in dispute in the passages we have quoted at paragraph 29 above. However, in our view, the refusal by Qantas to conduct a job-share trial encompassed particular issues that had earlier been put in dispute about at least one employee's access to a job-share arrangement in the Qantas retail operation in Victoria. The evidence before Whelan C included details of an unsuccessful claim made by the ASU on behalf of Ms Lily De Vries for such access.

The Scope of the Jurisdiction Enabled by Section 170LW:

[33] The Commission's jurisdiction to deal with any dispute under a dispute settling procedure in an agreement may be taken for present purposes to be a creature of section 170LW[10].

[34] We shall not set out here the relatively long but not untroubled evolution of dispute settlement procedures in awards and agreements. The associated development of de iure Commission jurisdiction to make a determination intended to settle a class of such disputes has evolved along related but not completely parallel lines. The accepted scope of the Board of Reference power provided for in the prevailing version of the statute, eventually it would seem, has guided that development. The obstacles that existed to a constitutionally valid inclusion of dispute settlement procedures in awards or agreements, and others that prevented the empowerment of the Commission to exercise any function that was not expressly within its statutory charter, appear to us to be still relevant to an understanding of the role and scope of the dispute settlement arrangements now provided for in the Act.

[35] A relatively detailed canvass of some of the major cases within the High Court and the Commission or its predecessor was given, much of it only by footnote references, in the Full Bench decision Re Co-Operative Bulk Handling Limited[11]. That analysis made reference to the promotion and use of dispute settlement procedures, to the legislative precursors of section 91, subsection 170LT(8) and section 170LW, to the apparent limitations on the scope of exercising conciliation power by determining a "local dispute", or on exercising a power to determine a matter reserved in the relevant award. It also adverted to the constitutional rationales for both establishing such limits, and for allowing, by law or by statute, awards to include, and the Commission to exercise functions ancillary to, such provisions.

[36] That analysis noted that the dispute settlement procedure under consideration in the particular case had adopted two criteria for identifying disputes within the scope of the duty to apply the procedure. The dispute had to be within a class of disputes as to:

[37] Each criterion had a well established foundation in industrial usage. Together, the criteria seemed designed to confine the class of dispute falling within the procedure to matters within the compass of the industrial dispute giving rise to the relevant award, and within the general scope of a power to vary that award[12]. The Full Bench noted that the requirement that the matter arises out of, or with respect to the Award had a substantial but less august foundation in industrial usage and arbitral practice[13]. In relation to the use of that criterion, a point emphasised in the concluding analysis was the necessity for a concrete linkage between the subject matter of any decision making power exercised by the Commission under a dispute settling procedure, the subject matters dealt with in the award, and the subject matter of the dispute to which the award related[14].

[38] Since 1993, legislative changes have given priority to the achievement of enterprise agreements. Dispute settlement procedures about matters arising under the agreement are mandatory if any such agreement is to be certified under the Act[15]. Section 170LW of the Act re-enacts a provision introduced in 1993 allowing the parties to an enterprise agreement to include in the agreement a procedure empowering the Commission to settle disputes over the application of the agreement. In a number of matters determining Board of Reference provisions or the operation of dispute settlement provisions, the Commission has drawn upon the wording of the statutory provisions and the antecedent analysis of the foundations for such process in constitutional principle and industrial usage.

[39] Thus, the 1998 decision of a Full Bench making the Higher Education Contract Employment Award[16], (the HECE Award Case) sets out what we consider to have been a general understanding of the interaction of those and other provisions as they pertained to an exercise of the power to make an award for a dispute settling procedure, or a Board of Reference under paragraph 89A(2)(p) and section 131 of the Act. The Full Bench commented upon the use of section 170LW but distinguished the more restricted scope that existed for the operation of a dispute settlement procedure determined by award.

[40] That contrast may be, or may become, significant to the issues to be determined in this matter. We therefore set out the Full Bench's reasoning on the point in the HECE Award Case:

"The current provisions of the Act relating to consent award or certified agreement dispute settlement procedures are built upon an understanding of constitutional jurisdictional limits derived from Hegarty's Case [R v Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617 at 629]. Thus, section 170LW allows the party to an agreement, if the Commission approves, to empower the Commission to settle disputes over the application of the agreement_, or to appoint a Board of Reference for settling such disputes. Presumably that section was intended to remove any doubt that would otherwise have existed about whether the parties to an agreement could themselves effectively allocate an arbitral or conciliation function to the Commission. Before_ Hegarty_, several decisions had indicated that an award or agreement could not validly confer a function that was not also within a power conferred on the Commission by the statute itself. The focus of section 170LW is on disputes_ over the application of the agreement_. That limitation is crucial to the valid allocation of a 'local' dispute settling function to the Commission by an agreement pursuant to section 170LW._

It is within the purview of the principle set out in Hegarty's Case for the Commission to do through a dispute settlement procedure those things which the Commission might do, or might have done directly by arbitration of the subject matters in the originating industrial dispute. Section 131 of the Act, the Board of Reference power, gives statutory expression to, and allows alternate machinery for the exercise of, that power to deal with an industrial dispute: by 'allowing, approving, fixing, determining or dealing with a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed, determined or dealt with'. The limitation in section 170LW to disputes over the application of the agreement appears to be designed to restrict in much the same way the scope of the dispute settling function able to be conferred on the Commission by an agreement. Although the words are sufficiently general to perhaps allow wider operation if a particular agreement is worded to apply to disputes of the particular character.

There is a related requirement in section 91 for the Commission to encourage parties to agree on procedures for preventing and settling disputes, and to include them in an award. Subsection 170LT(8) requires all certified agreements to include 'procedures for preventing and settling disputes between the employers and employees covered by the agreement about matters arising under the agreement_'. It may therefore be grouped with sections 91 and 170LW as derivatives from that aspect of the constitutional head of power associated with the prevention of industrial disputes and conciliation. The recourse to that head of power, or to the corporations power has a principal effect in the case of some certified agreements. It gives the parties scope to agree about matters that may reach beyond what would otherwise have been the range of an arbitrated award in settlement of an industrial dispute. A dispute settlement procedure, established by a consent award or an agreement, may purport to confer on the Commission the task of settling by arbitration or determination, a dispute about matters arising under the agreement, or about the application of the agreement. However, in our view, for that task to be validly conferred, or undertaken, it must be in relation to a matter or thing which the relevant award or agreement may validly require to be dealt with. Thus, in the case of section 170LW, the requirement about the jurisdictional limit of a conferred dispute settlement power is crucial: it must be a dispute 'over the application of the agreement'. As we have already noted, the ambit of disputes potentially within the compass of that expression is dependent upon the content and wording of the agreement. The scope for valid operation may be subject to conjecture. Under the Act, the Commission now has jurisdiction over local disputes in the State of Victoria. It has long had jurisdiction over such disputes in the Australian Capital Territory and the Northern Territory. That jurisdictional coverage of some local 'industrial disputes' may have a bearing on the range of matters or things that could be within the scope of an agreed dispute settlement procedure effectively conferring on the Commission under section 170LW a function to settle referred disputes._

However, in the circumstances with which we are concerned in this instance, any power to make the provision sought by the NTEU is confined to the compass of whatever power we may have to arbitrate an award provision to that effect. We were not invited to take into account the potential expansion of powers over local disputes in Victoria and the Territories. We deal with the question of jurisdiction by reference to the interstate industrial disputes relied upon by the applicant unions. In that perspective, an arbitrated award dispute settlement provision binding on the AHEIA and its members can do no more than reserve to the Commission a function co-extensive with a function that might be able to be performed by a Board of Reference. The Commission would thereby effectively be the Board of Reference. Such an award provision cannot confer on the Commission a determinative function of any kind that would exceed the functions that might be validly required of a Board of Reference. That limitation also provides guidance about the character of the disputes that may be referred to the Commission for settlement.

The decision of the High Court in R v Hegarty constitutes a relatively comprehensive guide to the character and limits of the powers of a Board of Reference assigned such functions. It is convenient for our purpose to adopt and paraphrase the statements made in that, or related cases, about those limits. They are no less applicable to any dispute settlement function that might be conferred by award on the Commission in this matter.

In discharging its function to determine and deal with a grievance, the Board acts in the capacity of an arbitrator. It would be able in the final resort to determine those matters or things that the Commission itself could determine to impose as a duty on the employer or employees in the settlement of the dispute giving rise to the award. In arriving at a decision about a particular grievance, it is open to a Board to form and express a view about the meaning of criteria or conditions set down in the award. The Board may not consider it necessary to do so. It is not a Board's function to interpret or enforce a provision of the award. Even where a Board does express such a view in arriving at a decision, only the decision is binding on the parties. The Board' 'interpretation' of the award is not. …

It is common for award Board of Reference provisions to allow for a review of a Board determination by a member of the Commission. … In effect, the Commission's function on an application for review puts it in the position of a Board of Reference. The Commission's power, more so than in case of the Board of Reference, is derived from the award. That power depends perhaps ultimately on the reservation by the arbitrator at the time of making the award of a portion of the arbitral power to a member of the Commission through the award. A failure of a party bound by a determination of the Commission, or by a Board of Reference to comply with a determination, is at the highest actionable only as a breach of the award. It is not actionable as a breach of the determination as such [See cases and sources gathered in Re Co-Operative Bulk Handling ibid at pp. 28-33].

When we apply the general principles we have outlined to the provisions claimed by the NTEU in this matter, one obstacle to making an award provision in the terms sought is immediately apparent. A dispute between the parties as to the proper implementation of the award is too general and non specific a subject matter to be capable of giving rise to 'a determination on which the provisions of the award then operate [Hegarty ibid at p. 629]'.

However, the chief work of the dispute settlement procedure proposed by the NTEU appears to be in the second step, and with a narrower field of disputes. Disputes about the classification of the type of employment of an employee are within the compass of matters directly in issue in, or at least are incidental to, the industrial disputes in settlement of which the award made will be directed. …

It follows in our view that it would be within jurisdiction to include in the award a dispute settlement procedure confined to disputes about the classification of the type of employment of an employee covered by the award, about whether a severance benefit, or a benefit covered by the general right to allowable award benefits provided for in the relevant award, should be paid to a fixed-term employee."[17]

[41] That conception of the rationale and operation of dispute settling procedures was later applied by extension to the power under section 170LW in several Commission decisions[18]. Perhaps the most recent discussion of the scope of the power was in CPSU v Telstra[19], but it is not necessary to canvass that decision here. The decision of a Full Court of the Federal Court in Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission[20] effectively required an alteration of some but not all of the principles reflected in that analysis. In that matter, a Commission Full Bench in 1997 had decided that section 170MH, the predecessor of section 170LW, enabled jurisdiction to be exercised, provisionally, over several local industrial issues referred to the Commission under a dispute procedure[21]. It held that such matters in dispute, as were disputes over application of the relevant agreement, could validly be referred to the Commission for resolution under the dispute settlement procedure. It held also that any associated power in the Commission to determine a matter in dispute was not confined to a determination about a subject that was within the list of allowable award matters prescribed in section 89A.

[42] The Full Bench's reasons for the first of those findings included reference to the authorities, principles and rationale to which we have referred. In particular, reliance was placed on R v Bain; Ex parte Cadbury Schweppes[22]. The principles of that case were applied to justify a ruling that the exact content of the matters that were formally the subject matter of the originating interstate industrial dispute or industrial situation was not materially relevant to confine the subject matters that could be part of a certified agreement, provided the provisions of the agreement pertained to matters that are capable of being an industrial dispute[23].

[43] Associated with the ruling about the relevant agreement, the Full Bench held that the power in subsection 170MH(a) of the Industrial Relations Act 1988, (the former Act), if enlivened by an appropriate agreement, enables only the settlement of disputes that are disputes "over the application of the agreement". Because, in the circumstances of the case, there was a question about whether the industrial issues presented as disputes in the particular case came within the scope of that expression, the Full Bench dealt with that concern, but did so provisionally:

"… the expression 'disputes over the application of the agreement' includes disputes about matters arising under the Agreement, and perhaps is not merely co-extensive with that formulation. The formulation in clause 21(a): 'industrial issues arising' is wider. Such issues are not necessarily disputes over the application of the Agreement, nor are they necessarily disputes about matters arising under the Agreement. We doubt whether they could be held to be so merely because the PRP [the Problem Resolution Procedure] applies to them, although that point may need to be considered after further argument is put on it."[24]

[44] In the same context, the Full Bench suggested that although the reasoning in the Co-Operative Bulk Handling Case dealt with an earlier version of dispute settling powers and procedures, it may be applicable to determining whether a dispute may be held to be over the application of an agreement. It then concluded:

" On the assumption that the approach based on those cases should be applied, a dispute about a matter that may properly be the subject of a Board of Reference provision in an award would appear to be the kind of dispute that most readily and unambiguously fits within the description: a dispute over the application of an agreement. That linkage is reinforced by the identification of such disputes in section 170MH with disputes that may be subject to a Board of Reference appointed by the Commission. Section 131 nominates the matters that may come within the function of a Board of Reference as those of:

'... allowing, approving, fixing, determining or dealing with, in the manner and subject to the conditions specified in the award or order, a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed, determined or dealt with.'

… In relation to industrial issues generally, there is not in our tentative view a sufficient linkage of the terms of the Agreement with any specific class of issue or with any requirement of the Agreement to issues of the kind, for a similar comprehensive inclusion of all industrial issues as disputes over the application of the Agreement to be plausibly advanced. To return to Dr Jessup's analogy from the lore of the Irish Jurist, it would seem that an agreement should contain some general duty applicable to the cow before an issue about calves or farm produce could be said to be a dispute over the application of the Agreement.

It follows that in this instance, for there to be power in the Commission under clause 22(b) to settle a dispute by a determination, the dispute must be a dispute over the application of the Agreement. As a matter of impression, the PRP disputed issues itemised in the two notifications of dispute include some items that in our view may properly be considered to give rise to a dispute over the application of the Agreement. Thus issues about the PRP, over the operation of the behaviour code, about attendance by employee representatives at the AIRC would appear to have a fairly close association with clauses of the Agreement that are arguably applicable."[25]

[45] In relation to the effect of section 89A on the power exercised under section 170MH, the Full Bench distinguished making a decision pursuant to provisions of an agreement, and to a power expressly enabled by section 170LW, or by section 170MH of the former Act, from action fulfilling the three criteria set out in paragraph 89A(1)(a), (b), or (c). The reasons given for that conclusion included reference to the principles and rationale which we have already outlined, and a contention that such a distinction is consistent with the scheme of the Act.

[46] On a judicial review of that decision, a Full Court of the Federal Court, (Black CJ, Heerey and Goldberg JJ), found that although a primary challenge to the decision failed, the Commission Full Bench was in error when it determined that any action taken by the Commission under the dispute settling procedure "could not be seen as action which fell within s 89A(1) of the Act[26].

[47] The Full Court's judgment also disposed of an attack by Gordonstone Coal Management Pty Ltd on the validity of the relevant dispute settlement procedure. It did so by reading the procedure as effectively confined to disputes over the application of the agreement.

[48] The relevant passages of the judgement on those two points read as follows:

"32. In our view Gordonstone's attack on cls 21 and 22 must fail for the reason that, properly construed, cls 21 and 22, to the extent that they provide for disputes to be referred to the Commission for determination, are limited to disputes about the application of the agreement and are not impermissibly wide in their scope.

34. When the agreement is considered as one which the parties intended should be certified by the Commission under Div 2 of Part VIB of the Act, it is not difficult to conclude that their intention was to reflect s 170MH and to empower the Commission to settle disputes over the application of the agreement. The language of the clauses points to this conclusion. Clauses 21 and 22 should be seen as providing for a staged process of problem resolution and, so viewed, it can be seen that the differences that were intended to be dealt with by the procedure are those that can, if necessary, move through the whole of the process to be resolved ultimately by "a decision determined by the AIRC" under cl 22(b). Disputes of this nature are "disputes over the application of the agreement" which, by reason of s 170MH, the parties can empower the Commission to settle.

35 The impugned clauses thus operate to enliven the Commission's power under

s 170MH(2) only to the extent of enabling the settlement by decision of disputes that are "disputes over the application of the agreement". In this regard we consider the observations of Mason J in The Queen v Hegarty; Ex parte The Corporation of the City of Salisbury [1981] HCA 51; (1981) 147 CLR 617 at 629-630 to be apposite and particularly the observations at 629 that:

'Where there is an interstate industrial dispute as to the means by which differences as to the classification of employees are to be determined, that dispute may be validly settled by an award which provides that all future such differences shall be resolved by a Board of Reference, so as to bind the parties to the dispute. Such an award is a settlement of the original dispute. The settlement is the more effective and enduring because it provides procedures and continuing machinery for the resolution of classification issues, the mode of resolution being germane to the original interstate dispute. These procedures and that machinery apply to the parties bound by the award wherever they may be, including an employer and an employee in a single State, in the same way that other provisions of the award apply to an employer and an employee in a single State. The application of the procedures results in a determination that an employee is within a particular classification, a factum on which the provisions of the award then operate.

It is not to the point that the difference between the prosecutor and Tyler is not in itself an interstate dispute or that the Award is so expressed that a Board of Reference is authorized to deal with that difference. What is the point is that the provisions constitute the settlement of an interstate industrial dispute and that the procedures and machinery prescribed for the resolution of a person's classification are designed to ensure that the settlement of that dispute is effective and enduring.'

39. The Union submitted that s 89A did not apply to the certified agreement because it was not a certified agreement for the purposes of s 4(1) of the Workplace Relations Act; …

40. The Union submitted in the alternative that the determination of issues arising under cls 21 and 22 of the agreement in the exercise of power derived from s 170MH of the Act, was not subject to s89A (1) because what was involved was in truth the exercise of conciliation powers and these were outside the scope of s 89A. The Union also submitted that s 170MH contained, in any event, a comprehensive and independent source of power to determine disputes and that it was not intended that s 89A should apply to s 170MH or its counterpart in the Workplace Relations Act, s 170LW.

41. We reject the submission that the agreement is not a certified agreement for the purposes of the Workplace Relations Act. Although the provisions of sch 8 may not be applicable to the certified agreement because they only apply to agreements made after the commencement of sch 8 (see item 23 in sch 8), s 89A is contained in sch 5 and is not so limited and is generally applicable in respect of all certified agreements whenever made.

42. We also reject the Union's submission that the determination by the Commission of a dispute arising under the certified agreement and referred to it pursuant to cls 21 and 22 is outside the operation of s 89A(1)(a). It is true that s 170MH of the Act was a broad grant of power to the Commission to enable it to settle disputes over the application of certified agreements and it is also true that such a grant included powers of both conciliation and arbitration. Nevertheless, we see no sufficient indication of any intention to deny s 89A its full effect when the Commission is exercising arbitral powers, albeit arbitral powers committed to it by virtue of the grant of power in s 170MH.

43. The fact that the parties have agreed, by a certified agreement and through the enabling provisions of s 170MH of the Act, to give the Commission powers to settle disputes does not deny those powers their arbitral character when what is involved is a binding decision in settlement of a dispute, not consensual in its nature, but made in the exercise of an independent judgment after the consideration of the differences between the parties.

44. We are therefore of the opinion that the Full Bench of the Commission was in error when it determined that any action taken by the Commission under cl 22 could not be seen as action which fell within s 89A(1) of the Workplace Relations Act."[27]

[49] It appears to follow that any exercise of a determinative power in the nature of arbitration derived from section 170LW to settle disputes over the application of an agreement is subject to section 89A. It may therefore be applied only to make a determination that is about an allowable award matter.

[50] Special leave to appeal against the Full Court's decision has been granted. With respect, the Full Court's decision does not appear to have been founded upon reasons that fully addressed the statutory and constitutional rationale for the construction of section 170LW in juxtaposition with section 189A that was found to be in error. Moreover, the Full Court's judgment, in paragraph 41, includes the statement that section 89A is generally applicable in respect of all certified agreements. That observation may have been intended to be confined to the operation of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) in contrast with Schedule 8 of that Act. On either reading, the observation appears, with respect, to be misconceived. Schedule 5 of the WROLA Act is entitled "Awards". It amended the former Act through a series of amendments specific to the exercise of award making powers and awards; in the definition section of the Act; in Part VI; and, in section 178. The only new references to certified agreements in the provisions of Part VI appear to have been inserted in sections 135 and 143 by the amendments made under Schedule 8 of the WROLA Act. That Schedule was entitled "Certified Agreements" and dealt with that subject by ubiquitous amendments but particularly by the insertion of a new Part VIB which, of course, contains section 170LW[28].

[51] On the other hand, the Full Court's observation may have been intended to pertain to section 89A specifically, or to Division VI generally. If the former, the structure, form and content of section 89A tell against the point, because each appears to be specific to the making of awards. Moreover, the view expressed sits awkwardly with the apparent intent of section 170NA and to a lesser extent section 170MY in Part VI. It also would need to be reconciled with the apparent scope of matters that may be included within certified agreements. In the circumstances, it would seem appropriate to treat that observation as intended to operate only in the context of the issue before the Court. That issue was about the effect of the Act on an agreement made prior to the commencement of the Act, or, at most, only about the operation of section 89A on section 170LW.

[52] The ASU in its submissions referred to reservations expressed in at least two Commission decisions about whether the judgment in Gordonstone should be distinguished in application to the operation of agreements certified under Division 2 of Part VIB[29]. The reasoning in those decisions is founded upon the effect of the difference between the two heads of constitutional power relied upon for the Division 2 and Division 3 legislative provisions respectively. The source of power for Division 2 agreements, the corporations power, is not subject to the same limitations as the prevention and settlement of industrial disputes power. In particular, the requirement for an interstate industrial dispute, and the related constraint on the ambit within which a settlement may be determined, do not constrain the exercise of functions derived through the power to legislate with respect to corporations. Apart from whatever impact the different sources of legislative power may have on the construction of the Act, it is conceivable that the different constitutional basis for the legislative power may justify a Division 2 agreement being validly framed with a more expansive scope than a Division 3 agreement. The subject matter of the latter kind of agreement, it would seem, may need to be limited to the originating dispute. However, for reasons that did not appear to require consideration by the Full Court in Gordonstone, we doubt that such limitation would prevent such an agreement from being framed to cover most if not all subjects able to be dealt with by an agreement under Division 2. The legislative power to provide for the prevention or settlement of disputes by conciliation may be as fertile for the purpose of justifying the terms agreed as the corporations power.

[53] The Agreement in this case is a Division 2 agreement, whereas the relevant agreement in Gordonstone was made under the counterpart of Division 3. The ASU submitted that difference may be a basis for distinguishing the decision of the Court in Gordonstone, the ground being that it is confined to a reading of section 170LW as it applies to an agreement dependent upon an originating industrial dispute. Be that as it may, we are obliged to approach our task as a matter of statutory construction. In that task, the application of section 170LW to a Division 3 agreement has been settled by the decision in Gordonstone, subject to any further ruling by the High Court. However, leaving aside the question of whether subsection 89A(2) confined the Commission power enabled by section 170LW and a certified agreement, we see no reason why section 170LW should be given a different reading by reference to the classification of the certified agreement by which it has been enlivened. Only if section 170LW is to be read down for purposes of constitutional validity, would the notion of a dual construction seem viable. In our view, section 170LW is plainly intended to apply to all certified agreements without distinction. It is placed in Division 4 of Part VIB of the Act. The expression "settle disputes over the application of the agreement" is to be given the same and a consistent reading regardless of whether the relevant agreement is made in accordance with Division 2 or Division 3. If a Division 2 agreement is differentiated in scope from a Division 3 agreement, it does not follow that the difference has any effect on the nature of the power under section 170LW. The only effect would appear to be that a Division 2 agreement may enable a broader range of disputes to be susceptible to the exercise of the powers enlivened by section 170LW. Also, subject to the outcome of the appeal from the Full Court decision in Gordonstone, the application of section 170LW to a Division 2 agreement would seem not to be constrained by section 89A.

[54] Whatever reservations may exist, we consider we are obliged to follow and apply the judgment in Gordonstone. We consider that we should construe section 170LW by first giving the words used in it their ordinary meaning. On that assumption, as a matter of statutory construction, we see no basis upon which we should distinguish the Full Court's view about the operation of section 89A on the exercise of what the Court held to be arbitration powers under section 170MH of the former Act. Consequently, although it may have no bearing on the outcome of this case, we consider we are obliged to apply that limitation on the exercise of powers pursuant to section 170LW. For the reasons given in the preceding paragraphs, we are also obliged to apply the Full Court's view about the meaning of the expression "disputes over the application of the agreement".

Job-Sharing or Trial of Job-Sharing and Types of Employment:

[55] Whelan C's conclusions about relevant principles were to substantially similar effect. No error of substance is manifest in that aspect of her reasoning. In her application of those principles, Whelan C ruled that job-sharing is a type of employment in the same way that regular part-time employment is a type of employment and an allowable award matter under paragraph 89A(2)(r). Nothing put on the appeal has sufficient substance to persuade us that conclusion was made in error.

[56] As the Full Bench observed in the HECE Award Case, "a 'type' or 'category' of employment may be conceived to be an elliptical expression covering a type of contract of employment[30]". The industrial connotations of types of employment were explained in several passages which are relevantly applicable to the issue raised by this appeal:

"It is clear also that included within the allowable award matters is the stipulation in awards of "type of employment", or, more commonly, "categories of employment". The latter expression has a well established use in relation to Commonwealth industrial legislation. It describes different classes of employment arranged in categories based upon the incidents or the terms and conditions of the employment. We read the reference to type of employment as meaning much the same thing. In section 89A(2)(r), the Act envisages award provision for different types of employment based in particular upon the term of employment and the hours worked:

However the identification of "a particular type of employment" can in practice be more of an exercise of a judgment formed around inferences and assessment of relative conditions than an outcome derived by the application of definitional precision.

… Any category or type of employment acquires meaning from the rights duties and privileges incidental to inclusion in the category. Thus, continuing employment, or "tenure" as a distinguishable form of it, is constituted by an assemblage of rights and privileges. Some of them may be common to other categories of employment. Essentially the Commission and the parties in a case of this nature must address the differential rights in each of the categories. Viewed in that perspective, the claim for tenure ratios to be observed has an obverse aspect. It is much the same as a demand that those otherwise non-continuing employees who are excluded from the benefits of tenured continuing employment, should have access to some or all of the benefits of it. …"[31]

[57] We consider that job-sharing is a type or category of employment. The terms incidental to the differentiation of job-sharing as a type of employment are within the scope of the allowable matter provided for in paragraph 89A(2)(r). Mr Green sought to escape that consequence by depicting the order sought by the ASU as a duty on Qantas to make job-sharing available through an obligatory trial. We accept that there may be some force in that submission. A duty on an employer to use a type of employment is distinguishable from a duty to apply particular conditions to the type of employment adopted.

[58] However, we doubt that such a distinction is of sufficient magnitude to move the first mentioned duty beyond the scope of a jurisdiction to make an award provision about types of employment. As the extract from the HECE Award Case suggests, entitlements to have access to the conditions of employment associated with a particular type of employment may be couched, or if need be recast, into terms that permit movement from one category to another, subject to conditions. A duty to conduct a trial of job-sharing could conceivably be re-formulated into an entitlement for ascertainable employees, including perhaps Ms De Vries, to have access to job-sharing arrangements. We see no reason why the determination of such an entitlement should not be held to be within the scope of the award making power under paragraph 89A(2)(r). Perhaps paragraph 89A(2)(p) may also be relevant in circumstances where a jurisdiction enabled by section 170LW is in law constrained by section 89A.

[59] It follows that we do not consider that Whelan C was in error in concluding that section 89A did not operate to preclude her from embarking upon an arbitral proceeding for the purpose of determining the dispute submitted to her. Should the proceeding result in a determination, any such determination on existing authority will need to be compliant with section 89A. However, for the reasons we have given, that is not an adequate basis to accept that Whelan C lacks jurisdiction to undertake the hearing and make a determination of a kind that is within the jurisdiction available to her. Accordingly, we do not consider that Qantas has established that Whelan C was in error in that aspect of her decision.

The Dispute about Job-sharing and the Application of the Agreement:

[60] We have already set out above item 3(f) of Appendix 1 of EBA III. A literal construction of that provision in our view requires Qantas and the unions to reach agreement on terms associated with job-sharing but the principle of job sharing is agreed. Whelan C concluded as a matter of fact that, subsequent to the negotiation of EBA III, the parties did reach agreement on the terms and conditions to apply to job-sharing arrangements[32]. That conclusion was amply justified by the material before Whelan C. Indeed, Mr Green quite properly conceded as much during the hearing of the appeal. In those circumstances, we think that an issue of the applicability of job-sharing to the retail business of Qantas' operation must be clearly said to arise in connection with the application of the Agreement. The Agreement, through its incorporation by reference of EBA III, provides for job-sharing. Although the terms of provision for job-sharing were initially inchoate, they were subsequently rendered operative. It follows that we are not satisfied that there is any relevant error of substance in relation to Whelan C's decision of 8 December 1999.

[61] We do not wish to be taken as endorsing Whelan C's observations at paragraph 37 of her decision in relation to any question of unfairness to employees in the retail sector. That issue appears to us to be one that, if it is to be considered at all, must only be considered in conjunction with the merits of the matter. The question of whether, under the Qantas Job Share Arrangements, efficiency/cost in the retail business is compromised by implementation of a job-share position would appear to be the primary consideration to be addressed in determining the merits.

[62] It follows that we are not satisfied that any relevant error of substance is established in Whelan C's decision of 8 December 1999. Our view in that respect extends to various points taken about Whelan C's construction of the Agreement, and her rejection of a contention that the no extra claims clause was activated by the ASU pursuing the relevant issues.

The Refusal of Qantas' Application under Section 105:

[63] The application made by Qantas under section 105 of the Act was lodged with Whelan C until 20 December 1999. The proceeding before her had by then reached a stage where she had:

• attempted to perform conciliation functions on 16 August 1999;

• acceded to submissions on 11 November 1999 that further conciliation would serve no purpose;

• allowed on 11 November 1999 a proposal by Qantas for threshold jurisdictional questions to be heard and determined in advance of the merits of the dispute, and issued directions covering both lodgment of material about both aspects of the dispute;

• heard on 6 December 1999 and determined on 8 December 1999 the "jurisdictional" issues and published a reasoned decision;

• received on 15 December 1999 the ASU's lodgment of a notice of dispute and draft order as described in paragraphs 30 and 31 above.

"105 Exercise of arbitration powers by member who has exercised conciliation powers

(1) Where a member of the Commission has exercised conciliation powers in relation to an industrial dispute, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the industrial dispute if a party to the arbitration proceeding objects.

(2) The member shall not be taken to have exercised conciliation powers in relation to the industrial dispute merely because:

(a) after having begun to exercise arbitration powers in relation to the industrial dispute, the member exercised conciliation powers;

(b) the member arranged for a conference of the parties or their representatives to be presided over by the member, but the conference did not take place or was not presided over by the member; or

(c) the member arranged for the parties or their representatives to confer among themselves at a conference at which the member was not present.

[65] For the purposes of this decision, we shall assume that section 105 applies to the performance of a function in the nature of arbitration under section 170LW. That assumption is aligned with our acceptance of the judgment of the Full Court in Gordonstone and with its apparent rejection of the notion that the Commission's role under section 170LW is itself a form of conciliation. In making that assumption, we assume also that the proceeding based on section 170LW constituted an industrial dispute for purposes of section 105. We note, however, that the relevant dispute raised by the ASU on 21 July 1999, and the recasting of that notice on 15 December 1999, each appear to relate to an industrial dispute within the extension of section 493 of the Act. We do not consider that the lodgment on 15 December 1999 constituted a fresh proceeding. It was a further step, consequential to the directions issued and the decision of 8 December 1999. We also assume that Whelan C did exercise conciliation powers in relation to that matter before electing on 11 November 1999 to hear and determine the matter.

[66] The Commission's predecessors, on several occasions, held that an application under section 105 has to be made prior to the relevant member exercising or taking part in the exercise of arbitration powers[33]. We consider that the principle stated is consistent with the wording and intention of section 105. The time for making objection under section 105 is when the relevant member exercises or takes part in the exercise of arbitration powers.

[67] In the circumstances of this case we are satisfied that the Qantas' objection was belated. Moreover, we consider that it would be unfair and unreasonable to allow the objection to be made in the circumstances of the proceeding. Whelan C had determined, and published reasons for her determination on a series of points about the operation of the Agreement. Some of the points were in the nature of jurisdictional points. Others went to the construction of the Agreement. The grounds of appeal summarised in paragraph 10 above illustrate the breadth of the case said to have been put to Whelan C. We consider that Whelan C had well and truly exercised arbitration powers before any objection was made to her doing so. No error was manifest in her refusal of the application under section 105.

[68] We are satisfied that the matter of the appeal against the first decision is of such importance that it is in the public interest that leave to appeal be granted. For the reasons we have given, we dismiss that appeal. We are not satisfied that the matter of the second appeal has a similar degree of importance in the public interest. A number of the points advanced on the appeal by Mr Green and Mr Mueller were not raised before Whelan C. However, we will treat the ground relied upon against that decision as embraced within the leave to appeal granted in respect of the first decision. We dismiss the appeal against the second decision for the reasons we have stated.

N. Green with B. Mueller both of Counsel for Qantas Airways Limited.

M. Young of Counsel with H. Svendsen for the Australian Municipal, Administrative, Clerical and Services Union.

Printed by authority of the Commonwealth Government Printer.

Conditions of employment - job-sharing - s170LW Workplace Relations Act 1996 - jurisdiction - appeal - full bench - whether power to arbitrate in relation to claim for compulsory trial of job-sharing arrangement - terms and conditions for job-sharing - finding of jurisdiction under s170LW by Commissioner - whether matter for arbitration is a dispute over the application of the agreement - whether job-sharing is a type of employment for purposes of s89A - jurisdiction to make determination may not be resolved until merits of making a determination and the better definition of remedy be resolved - whether error in decision by the Commissioner to refuse application under s105 - held - consideration of cases concerning construction of s170LW and jurisdiction of Commission - s170LW powers subject to s89A - can therefore only make a s170LW determination about an allowable matter - necessary to characterise dispute to determine if subject matter is validly a dispute over the application of agreement - dispute clearly arises in connection with application of agreement - conclusion that job-sharing is a type of employment and therefore allowable matter not made in error - on s105 application time for making objection when relevant member commences arbitration - application belated - leave to appeal granted - appeals dismissed.

Appeal against decision of Whelan C of 8 December 1999 [Print S1745] and decision in transcript on 24 December 1999

[4] Re British Aerospace Ltd Print Q1214 at paragraph 8 per Munro J.

[7] Appeal Book pages 48 and 49 setting out correspondence of 21 May 1999 and 16 June 1999.

[8] Re AMWU; Ex parte Horwood Bagshaw (1986) 60 ALJR 696 at 697; referring to R v Gough; Ex parte Key Meats Pty Ltd [1982] HCA 12; (1982) 148 CLR 582 at 587, 591-595 in relation to power to vary, and jurisdiction outside the "judicial sphere".

[10] Until the introduction in the 1993 Industrial Relations Act Reform Act 1993 of section 170MH, reproduced unchanged in the current Act as section 170LW, the capacity of the parties to an industrial dispute, and a fortiori of the Commission, to empower the Commission to determine local disputes under a dispute settlement procedure was problematic, and circumscribed by necessities based upon not straying beyond the ambit of the relevant industrial dispute, beyond the function allocated under the award, or beyond the jurisdictional limits peculiar to a variation of the award by which the power to conciliate and perhaps to determine the local dispute was ostensibly conferred. See generally the decision in Re Co-Operative Bulk Handling Print K5576 at pp. 21-33.

[11] (1993 Print K5576 per Munro J and Laing C at pp. 23 to33.

[15] Subsection 170LT(8) reproducing in part paragraph 170MC(1)(c) of the 1993 Act.

[16] Higher Education Contract Employment Case Print Q0702.

[18] Re British Aerospace Australia Ltd Print Q1215 is an example.

[20] [1999] FCA 298, 25 March 1999.

[21] CFMEU v Gordonstone Coal Management Pty Ltd 24 July 1997, Munro J, Polites SDP and Hodder C, Print P3415.

[22] [1984] HCA 9; (1984) 159 CLR 163 at 176.

[26] Ibid [1999] FCA 298 at para. 44.

[27] Ibid [1999] FCA 298.

[28] See generally WROLA Act, Act No. 60 of 1996.

[29] Ansett Australia Union Collective Bargaining Agreement Print R8525 per Ross VP; ALCOA Australia Pinjarra Alumina Refinery Operations Agreement Print R9386 per Laing C.

[32] Ibid Print S1745 at paragraphs 35 and 36.

[33] Re Dry Cleaning Industrial Interim Award Print H8985 per Munro J, Polites DP and Maher C; Re Northern Territory Electricity Commission Award 1980 Print E6682 per McKenzie DP, Marks J and Neyland C.