R v Gough; Ex parte Key Meats Pty Ltd

The proceedings which have given rise to the present application began as a result of a letter dated 3 June 1981 to the Deputy Registrar of the Commission from Mr. McPike, the Assistant Secretary of the union. The letter read as follows:

The above Union desires to notify you of a dispute between the Union and Key Meats Pty. Ltd. of Ararat Abattoirs, Ararat.

This dispute arose over the company standing down employees on 14-4-81 and 24-4-81 without payment, which we claim is contrary to the Award provisions.

The parties are respondent to "The Federal Meat Industry Interim Award 1965 as varied".

As this matter cannot be resolved between the parties, the Union is seeking the assistance of your office to determine this problem.

The facts that gave rise to this letter appear to have been that on two days in April 1981 there were no animals, or insufficient animals, to be slaughtered at the abattoir and consequently no useful work to be done by the employees, who were accordingly notified on the evening before each of the days in question that they would be stood down for the following day. The employees did not attend for work on the two days and were not paid in respect of those days. The question whether they were entitled to be paid depends on the true effect of the following words in cl. 6 of Pt I of the award:

This shall not affect the right of an employer to deduct payment for any day on which an employee cannot be usefully employed, because of any strike other than in the meat industry, or through any breakdown of machinery or any stoppage of work in the meat industry by any cause for which the employer cannot reasonably be held responsible, or for any day or part of a day on which an employee cannot be usefully employed because of any strike in the meat industry. However it is unnecessary for this Court on the present application to consider whether in the circumstances there was a "stoppage of work in the meat industry by any cause for which the employer cannot reasonably be held responsible", within the meaning of cl. 6.

The matter came before the Commissioner on 15 June. The union was represented by Mr. McPike. Mr. R. Jones appeared on behalf of the Meat and Allied Trades Federation of Australia and the prosecutor. He immediately objected to the jurisdiction of the Commissioner to deal with the matter. In the course of argument Mr. McPike submitted that the employees were entitled under the terms of the award to receive payment for the two days in question. When the Commissioner questioned Mr. Jones as to one aspect of the facts, and Mr. Jones replied that he did not know, the Commissioner said:

Yes, but I would ask you to speak to your member and bring the award to his notice because that could avoid whatever action might be necessary by way of an application to vary the whole award. Because if that is not clear to your member there must be some lack of clarity in the structure of the award which the commission should do something about, and if it is necessary to define a fresh concept of standing down then, of course, the commission ought to do that if your member is truly in doubt about the situation. Mr. Jones replied that he did not believe that there was any doubt in the prosecutor's mind. Later Mr. McPike said that he also did not really think that there was any doubt about the construction of the award. Nevertheless it does appear that the prosecutor and the union put different interpretations upon the relevant words of the award; that suggests that they were ambiguous or uncertain. At no stage during the proceedings did either of the parties make application for a variation of the award. Towards the conclusion of the proceedings the Commissioner said that he had to find out whether there was a doubt as to the effect of the award and that he was prepared to summon a compulsory conference to determine that question. He indicated that he would summon the Federation and the prosecutor. The following exchange then occurred: Mr. Jones: I make the point again, sir, it is not causing any difficulty as far as we are concerned.

The Commissioner: Well, it is causing a lot of difficulty where the union is concerned.

Mr. Jones: That is their problem, sir, if they want a change they make an application to change it, sir.

The Commissioner: No they do not. They bring it before me and say there is an apparent ambiguity or uncertainty in the award, then I have to consider whether it is desirable to remove that uncertainty or ambiguity if I regard the ambiguity or uncertainty as existing and that is what I shall do if necessary and if I consider it desirable.

He then adjourned the further hearing of the matter until 19 June and summoned the Meat and Allied Trades Federation in the person of Mr. Jones and the proprietor of the prosecutor to attend a conference on that date. On 18 June 1981 the prosecutor obtained the order nisi, which included an order for a stay of proceedings. On the return of the order before this Court only the prosecutor was represented. The Commissioner has very properly indicated that he will abide by any order of the Court and the union has not appeared. The matter has accordingly proceeded before us ex parte.

The power of a Commissioner to direct parties to attend at a conference is given by s. 27 (1) of the Act which is in the following terms:

(1) For the purposes of the performance of his functions in respect of an industrial dispute, a member of the Commission may, of his own motion or upon application made by a party to the industrial dispute, direct a person to attend, at a time and place specified in the direction, at a conference presided over by himself or another member of the Commission or by such other person as the member of the Commission determines.

The power of the Commission to set aside or vary awards is set out in s. 59 of the Act. Sub-sections (2) and (3) of s. 59 provide as follows:

(2) The Commission may, if for any reason it considers it desirable to do so, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary any of the terms of an award.

(3) The provisions of this Act, so far as they are capable of application, apply in relation to applications for the variation or setting aside of awards and proceedings in respect of such applications in like manner as they apply in relation to industrial disputes and proceedings in respect of such disputes, and for that purpose such an application shall be treated as if it were the notification of an industrial dispute.

The provisions of s. 27 (1) enable a Commissioner, for the purposes of the performance of his functions in respect of an industrial dispute, to direct a person to attend at a conference. The expression "industrial dispute" is defined in s. 4 (1) of the Act; it must of course be a dispute which extends beyond the limits of any one State except in certain cases, not here material, of disputes concerning employees of the Commonwealth. No conference in the present case could have been called by the Commissioner for the purposes of the performance of his functions in respect of the "dispute" referred to in the letter of 3 June. That was of course purely an intrastate dispute. It was a dispute between the union and one employer in Victoria, and related to the standing down of particular persons employed in Victoria. It was in truth a dispute as to the respective rights of the employer and the employees under the existing award, and it appears that the union brought the matter before the Commission in an attempt to secure payment by the prosecutor to the employees who had been stood down. However, the Commission had no jurisdiction to determine the legal rights of the employees who had been stood down or to enforce the rights given by the award: Reg. v. Gallagher; Ex parte Aberdare Collieries Pty. Ltd. [1] ; Reg. v. Austin; Ex parte Farmers and Graziers Co-Operative Co. Ltd. [2] . It would not have been legitimate to call a compulsory conference in an attempt to persuade the prosecutor to make the payment sought by the union.

1. (1963) 37 A.L.J.R. 40, at pp. 43, 46. 2. (1964) 112 C.L.R. 619, at pp. 627, 629.

The Commissioner nevertheless had power to vary the award, and to do so on his own motion: see ss. 21 and 59 (2) of the Act. His power extended to making a variation which applied only to parties within one State, provided that the variation was within the limits of the original interstate dispute: see, e.g., Reg. v. Kelly; Ex parte Australian Railways Union [3] ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [4] ;Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [5] . It may be assumed that the variation of the award by the Commissioner would be something done in the "performance of his functions in respect of an industrial dispute" - the original dispute which gave rise to the award - within s. 27 (1). It does not follow that s. 27 (1) gives the Commissioner power to direct a person to attend a conference for the purpose of enabling the Commissioner to consider whether a variation should be made to an award. The question whether other provisions of the Act apply in relation to variations is dealt with specifically by s. 59 (3), and the general provisions of s. 27 (1) must give way to the specific provisions of s. 59 (3) in their application to the particular subject matter dealt with by the latter sub-section. The other provisions of the Act are applied by s. 59 (3) only (1) "so far as they are capable of application", and (2) "in relation to applications for the variation or setting aside of awards and proceedings in respect of such applications". A conference of the kind envisaged in the present case hardly seems appropriate for the purpose of varying an award to which the prosecutor was only one of many respondents, but I need not decide whether the provisions of s. 27 (1) would have been "capable of application" if there had been an application for the variation of an award, for there was no such application. The Commissioner was proceeding of his own motion, and s. 59 (3) does not render the other provisions of the Act applicable in such a case. There may well be sound reasons of policy to deny to a Commissioner who proceeds of his own motion to vary an award such powers as those conferred by s. 27 (1), but in any case that is in my opinion the effect of s. 59 (3).

1. (1953) 89 C.L.R. 461, at pp. 473-474. 2. (1962) 108 C.L.R. 166, at p. 169. 3. (1978) 140 C.L.R. 615, at pp. 619-620.

It would be inappropriate to engage in an elaborate discussion of these questions in a case that was argued ex parte. It is enough to say that for the reasons mentioned the order nisi should be made absolute.

Twice in April 1981 Key Meats Pty. Ltd. stood down for a day without pay members of the Australasian Meat Industry Employees' Union employed by it at its abattoirs at Ararat, Victoria. These employees were employed by Key Meats under the terms of the Federal Meat Industry Interim Award 1965.

Clause 6 of the Award provides for employment by the week terminable on a week's notice but without prejudice to an employer's right to:

deduct payment for any day on which an employee cannot be usefully employed, because of any strike other than in the meat industry, or through any breakdown of machinery or any stoppage of work in the meat industry by any cause for which the employer cannot reasonably be held responsible, or for any day or part of a day on which an employee cannot be usefully employed because of any strike in the meat industry. Key Meats had on each occasion of standing down told its employees the night before that no work would be available for them the next day because there would be no useful work to be done at the abattoirs. This was because of a shortage of livestock for slaughtering on those two days; Key Meats' abattoirs are conducted as a "service meatworks", slaughtering stock supplied by others and returning to them the carcasses of the beasts it slaughters. These shortages were, apparently, local affairs affecting these abattoirs and were not due to any strike or breakdown of machinery.

The union subsequently notified the Conciliation and Arbitration Commission of what it described as a dispute between it and Key Meats arising out of these two instances of standing down without pay, which it claimed to be contrary to the Award.

When the matter came on for hearing before Mr. Commissioner Gough the employers' representative objected to the Commission's jurisdiction, saying that there was no interstate dispute nor any dispute about an industrial matter and that what was required was an interpretation of the award, which was not a matter for the Commission. This the union's representative contested. The Commissioner, without ruling on the question of jurisdiction, observed that the award might be ambiguous and that it might be appropriate for him to vary the award. He wished first to inform himself as to whether there really was "some uncertainty or ambiguity in the award". However, the employers' representative, having taken his objection to jurisdiction, declined to discuss the particular circumstances at the abattoirs, whereupon the Commissioner foreshadowed the calling of a compulsory conference to which Key Meats would be summoned so that he might obtain information directly from that employer.

In subsequent discussion with the union's representative the Commissioner observed that Key Meats might genuinely believe that it had been entitled to stand down its employees without pay. The union representative replied that the award was unambiguous and entitled the employees to their pay, while the employers' representative also claimed the award to be unambiguous, asserting that it had precisely the opposite meaning and that Key Meats had no doubt but that it was entitled to act as it had.

The Commissioner then stated that he would convene a compulsory conference since "If there is a doubt I have to find out what that doubt is". The employers' representative said that cl. 6 of the award was causing his client no difficulty of interpretation and that if it was causing difficulty to the union it was open to it to apply for a variation, "if they want a change they make an application to change it". The Commissioner replied:

No they do not. They bring it before me and say there is an apparent ambiguity or uncertainty in the award, then I have to consider whether it is desirable to remove that uncertainty or ambiguity if I regard the ambiguity or uncertainty as existing and that is what I shall do if necessary and if I consider it desirable. So I shall adjourn the further hearing of C No. 999 of 1981 until 12 noon on Friday 19 June on these premises and I hereby summon the Meat and Allied Trades Federation in your person, Mr. Jones, to that conference and I shall summon (the employer) likewise.

It is in these circumstances that Key Meats has sought and obtained the present order nisi for prohibition, directed to prohibiting the Commissioner from proceeding with the proposed compulsory conference. The union has chosen not to appear on the return of the order nisi; the Commissioner, having informed the Court that he will abide by any order of the Court, has also not been represented. The matter has therefore proceeded ex parte, without the benefit of argument in opposition to the contentions of the prosecutor, Key Meats.

It is clear that the standing down by Key Meats of its employees without pay, whether or not in breach of the award, gave rise to no industrial dispute within the meaning of the Conciliation and Arbitration Act 1904 Cth: not only was there lacking any interstate element; there was, properly speaking, no dispute but, rather, an alleged breach of award. For this there certainly are remedies, but not ones to be found by recourse to the Commission. Likewise, if it was interpretation of the award that was called for, that too was no matter for the Commission. The objection taken to jurisdiction accordingly had substance; any finding of the existence of a dispute by the Commissioner pursuant to s. 24 of the Act would have been erroneous. However the Commissioner made no such finding; being confronted with what might prove to be ambiguity in an award, he sought to turn to use the opportunity presented by the union's notification of dispute and by the presence of the parties before him.

The course which the Commissioner proposed to take appears to have been as follows: to convene a compulsory conference under s. 27 of the Act; to enquire at that conference about the state of mind of Key Meats concerning the meaning of cl. 6; and, if he should conclude both that Key Meats had a genuine belief concerning its entitlement to stand down without pay its employees and that the clause was ambiguous, then to initiate of his own motion proceedings to vary the award pursuant to s. 59 (2) so as to remove that ambiguity. At that stage the Commissioner would no doubt have involved all parties to the award in those variation proceedings.

The Commissioner had power of his own motion to vary the existing award in appropriate circumstances: s. 59 (2) empowers the Commission (and hence a Commissioner - s. 22 (1)) to vary any of the terms of an award if for any reason it considers it desirable to do so; it requires it to do so if it considers it desirable for the purpose of removing ambiguity or uncertainty. This it may do despite the absence of any application by a party to the award: s. 21 (1) empowers the Commission to exercise any of its powers or functions of its own motion and this provision seems clearly enough to be applicable to s. 59 (2). The fact that s. 59 (3), in expressly making applicable the other provisions of the Act to variation proceedings, speaks in terms of applications for variation of awards does not, I think, mean that in the absence of an application the Commission has no power to vary of its own motion. Section 21 (1) is general in its terms and nothing in the Act makes it inapplicable to s. 59 (2). The predecessor to s. 59 (1) and (2), s. 49 of the Act as it stood in 1952, was held, in conjunction with the then s. 34 of the Act, to confer power upon a conciliation Commissioner to "vary an award on his own motion" - per Dixon C.J. speaking for the Court in Reg. v. Galvin; Ex parte Australian Textile Workers' Union [6] . Section 34 was the predecessor of the present s. 21 (1). The subsequent introduction in 1972 of sub-s. (3) into s. 59 is not to be regarded as by implication restricting the power which had until that time been conferred by sub-s. (2) of that section.

If, then, the Commissioner might of his own motion initiate proceedings for variation of the award, could he use the compulsory conference procedure as a preliminary to doing so? If the Commissioner sought by this procedure to learn of Key Meats' state of mind he was enquiring after an irrelevancy: the existence of an ambiguity or uncertainty in an award is not to be found in a particular party's belief as to what it means but rather from the terms of the award and the factual situations to which it is to be applied. However let it be assumed for present purposes that the Commissioner intended to use the compulsory conference so that he might learn more of the factual situation at the abattoirs. The Commissioner's power to convene such a compulsory conference will depend upon the effect of s. 27 (1) of the Act; the terms of s. 30 (4) will also be of relevance.

Section 27 (1) empowers a member of the Commission of his own motion to direct a person to attend a conference. That power is qualified by the opening words of that sub-section: "For the purposes of the performance of his functions in respect of an industrial dispute". In the present case the standing down of employees gave rise to no industrial dispute but, if compulsory conferences may be used at all for fact-finding preliminary to the variation of awards, the original industrial dispute which was settled by the making of the 1965 Award will satisfy these opening words of s. 27 (1). In Reg. v. Kelly; Ex parte Australian Railways Union [7] , Dixon C.J. described the work of the predecessor of s. 59 as being to enable awards in settlement of industrial disputes to be maintained in an expedient and satisfactory form adjusted to changed conditions. In contemplating a possible variation of the award, and for that purpose having recourse to a preliminary conference, Commissioner Gough was acting in the performance of his functions in respect of the original industrial dispute.

However the prosecutor makes a more fundamental attack upon the Commissioner's purported use of s. 27 (1); it is said that the compulsory conference procedure is not available as a means of fact-finding preliminary to proceedings for variation of an award. That there are practical difficulties in any use of it for that purpose is undeniable and these suggest that it is, at the least, an inexpedient course. These difficulties arise from s. 30 (4) of the Act and their nature is immediately apparent from the terms of that sub-section:

In arbitration proceedings under this Act, unless the parties otherwise agree, evidence shall not be given, or statements made, concerning anything relating to the matters remaining in dispute that was said or done in proceedings before a member of the Commission, or at a conference (whether compulsory or not) arranged by a member of the Commission. A Commissioner who uses a compulsory conference as an aid preliminary to award variation will be likely later to encounter these difficulties unless the parties "otherwise agree". Sub-section (4) only applies to "arbitration proceedings under this Act" but this will include proceedings for the variation of an award pursuant to s. 59. That section owes its constitutional validity to its character as incidential to the arbitration power - Reg. v. Kelly, and proceedings under it are "arbitration proceedings under the Act" for the purposes of s. 30.

That s. 30 is so drafted as to give rise to these difficulties is no doubt because the legislation does not contemplate the use of compulsory conferences as an aid in the arbitration of disputes, as distinct from their conciliation. And since variation of an existing award, as was here proposed, forms part of the process of arbitration, the legislation proves to be intractable when the compulsory conference procedure is then sought to be employed in that process. The Act draws a clear distinction between the two processes, conciliation and arbitration; this appears most clearly from s. 25 (4) and (5) and the terms of s. 22 (2) and of s. 30 (4) also emphasize it. The procedure for settlement by conciliation is governed by s. 26 and ss. 28 and 29 are also exclusively concerned with the process of conciliation; only when s. 30 is reached does the Act turn its attention to arbitration. Section 27, providing for compulsory conferences, thus finds itself in that portion of the Act exclusively concerned with conciliation and its terms and general subject-matter are directed to conciliation not arbitration. The concept of having the parties to a dispute meet together in conference is of the essence of conciliation and s. 27 (2), by its reference to the presence at compulsory conferences of those "having the highest degree of authority on behalf of the parties to the industrial dispute to negotiate for the prevention or settlement of the dispute", reveals that it is the process of conciliation that is in progress when compulsory conferences take place; sub-ss. (4) (b) and (6) also suggest the same conclusion.

The use to which the Commissioner has here sought to put the compulsory conference procedure is, in contrast, quite foreign to conciliation. There exists no industrial dispute capable of conciliation; the only relevant dispute was that which was settled by the 1965 award and it passed beyond the reach of conciliation when that award was made. The union's notification which led the parties to come before the Commissioner is itself testimony to this: it correctly described the matter at issue as concerning the standing down of employees which it claimed to be "contrary to the Award provisions". The union was, in reality, complaining of what it regarded as a breach of a term of the award and was seeking enforcement of that term. It chose an inappropriate forum and initiated proceedings by reference to a dispute which did not in fact exist.

When the matter thus came to the notice of the Commissioner he might have turned this false start to some use by initiating, of his own motion, proceedings to vary the award had he discerned possible ambiguity or uncertainty in its terms. All parties to the award would then have been entitled to appear and argue the question of variation. What the Commissioner could not do was to employ, as a preliminary to such proceedings, powers conferred for use only in the process of conciliation, a process the time for which, in relation to the only relevant dispute, the dispute settled by the 1965 award, had long since passed.

I would make absolute the order nisi for prohibition.

The Commission was notified of an industrial dispute between the Union and Key Meats Pty. Ltd. "over the company standing down employees on two days" which the Union claimed was contrary to "The Federal Meat Industry Interim Award". Clause 6 of the Award provides:

This shall not affect the right of an employer to deduct payment for any day on which an employee cannot be usefully employed, because of any strike other than in the meat industry, or through any breakdown of machinery or any stoppage of work in the meat industry by any cause for which the employer cannot reasonably be held responsible, or for any day or part of a day on which an employee cannot be usefully employed because of any strike in the meat industry. Mr. Commissioner Gough had made the Interim Award. When this matter of the dispute came before him, the Australasian Meat Industry Employees Union ("the union") appeared. Mr. Jones appeared for both Key Meats Pty. Ltd. and the Meat and Allied Trades Federation of Australia ("the Federation") (the employer organisation to which it belonged) and objected that the Commission had no jurisdiction. In exploring the differences between the union and the other parties, the Commissioner considered that there was no dispute about the facts, only about the operation of cl. 6. The employees had been stood down on days when there was no work for them because the employer had failed to arrange enough animals for slaughter; there was no stoppage of work in the meat industry generally. The union contended that the employer was not, and Mr. Jones that it was, entitled in these circumstances to a deduction payment under cl. 6. The Commissioner could not grasp the basis of the employer's contention that cl. 6 was applicable. The Commissioner was given no co-operation when he pressed Mr. Jones to elucidate his client's view of the clause's operation. The Commissioner tentatively took the view that unless the employer was simply refusing to obey the award, there was a strong possibility that his apparent disobedience was due to ambiguity or uncertainty in cl. 6. The Commissioner's view was that even if this were a stoppage of work, the entitlement of the employer to deduct payment under cl. 6 arises only in the event of a stoppage of work in the industry, that is generally, not a mere stoppage in the employer's workplace. The Commissioner then indicated that he had to consider whether it was desirable to vary the award and whether, if he was of the opinion that there was ambiguity or uncertainty, he was obliged to vary it. This was a reference to the Conciliation and Arbitration Act 1904 Cth, as amended, s. 59 (2) which states: The Commission may, if for any reason it considerd it desirable to do so, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary any of the terms of an award.

He adjourned the further hearing, summoned the Federation, the union, the proprietor of Key Meats, and a representative of the meat company Tancreds, to attend a conference. The employer obtained an order nisi for prohibition, and now seeks to have it made absolute. In this Court the prosecutor referred to clauses in other awards similar to cl. 6 which had been applied in favour of the employer's viewpoint, but these used the expression "stoppage of work", not "stoppage of work in the industry".

The Commissioner was entitled of his own motion (see s. 21), as well as on application of any party or parties, to vary cl. 6 (under s. 59 (2)). If for any reason he considered it desirable to do so, he was also entitled of his own motion as well as on the application of any party or parties to set aside an award or any term of an award (s. 59 (1)). The Commissioner's jurisdiction to vary or set aside did not depend upon a fresh industrial dispute extending beyond the limits of one State; the original dispute on which he had made the Interim Award was sufficient.

The power to direct persons to attend a "compulsory conference" is in s. 27 (1) of the Act. "For the purposes of the performance of his functions in respect of an industrial dispute, a member of the Commission may, of his own motion or upon application made by a party to the industrial dispute, direct a person to attend, at a time and place specified in the direction, at a conference presided over by himself or another member of the Commission ". One of the functions of a member of the Commission in respect of an industrial dispute is to vary an award of his own motion under s. 59. Therefore the power in s. 27 (1) is available. However the prosecutor claimed that s. 27 (1) should be read down because of s. 59 (3); this applies the provisions of the Act to applications to set aside or vary, and provides that such applications are to be treated as if they were notifications of an industrial dispute, but does not in terms extend to proceedings by the Commission of its own motion under s. 59. However s. 27 (1) by its generality applies of its own force to the performance of the Commissioner's functions under s. 59. It would be a serious and unjustifiable reading down of s. 27 (1) to subject its wide scope to an exception "but not for the purposes of a setting aside or variation of an award by the Commission of its own motion".

The prosecutor also contended that the power in s. 27 (1) to direct a conference is restricted to purposes of conciliation, and is unavailable once arbitration has been commenced, so that it is not available at all in any s. 59 proceedings whether on application or on the Commission's own motion. The Commission's free use of its conference power under s. 27 (1) for conciliation or arbitration especially for varying or setting aside awards is of the utmost importance. The Act should not in the absence of compelling language be read so as to restrict this power. The submission was based on the proximity of s. 27 to s. 26 which deals with the action to be taken where a dispute is referred for conciliation. This novel submission was not supported by reference to any precedent or practice of the Commission nor by any compelling language; on the contrary it resembles an exercise in pedantry. Industrial disputes are often settled part by part; and because of the power to set aside or vary, all settlements are in a sense provisional. To interpret s. 27 (1) so that once arbitration has commenced the power to direct into conference is lost, is so lacking in any justification in the language of the Act, that it must appear cavalier to those engaged in the difficult task of preventing and settling disputes.

The prosecutor also submitted that by interpreting the Interim Award the Commissioner exceeded his jurisdiction and invaded the province of the judicial power as decided in Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [8] . That case did not decide that administrators and non-judicial tribunals must not interpret and apply laws and legal instruments. They do so every day, as an essential part of their duty. In Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [9] this Court (Dixon C.J., McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ.) decisively rejected such an approach. They said "In the settlement of any industrial dispute views and opinions may be formed on the meaning of documents and on matters which are not necessarily foreign to judicial power. Were it true that Mr. Lydon took into consideration or acted upon some construction of the order of 14 December 1954 in arriving at his conclusion it would not amount to an exercise of judicial power or an attempt to usurp judicial power." [10] .

1. (1956) 94 C.L.R. 254. 2. (1960) 103 C.L.R. 15. 3. (1960) 103 C.L.R., at p. 22.

In the present case the union's claim was for an award for payment of moneys in the circumstances which had occurred. This came within the scope of the original dispute, which made prospective claims which antedated the stand-downs. The Commissioner is entitled to decide, for his own purposes, what the legal effect of cl. 6 is, in order to decide whether to vary or set it aside, in accordance with the Act. He cannot of course declare conclusively (in the sense that a court would) what the rights of the parties are under cl. 6 or any variation of the award provisions. The jurisdiction of the Commissioner to entertain the claim depends on the existence of the original industrial dispute "not on the arguments used to support the claim, or the source from which the claim grew, or upon the reasoning by which he reached or justified his conclusion". (Lydon's Case [11] ). As that case shows, the fact that the claim relates to past work does not put it outside the jurisdiction of the Commission and place it within the judicial sphere. If cl. 6, properly construed, authorized the deductions, the Commission is entitled to vary the clause, or set it aside, retrospectively so as to make the employees entitled to wages during the stand-down. The Commission is entitled to vary and set aside award provisions in accordance with the Act so as to maintain the efficacy of the settlement. It may do so even if its new provision operates locally, temporarily, prospectively or retrospectively, provided the provision would have been within the scope or ambit of the original dispute. For very good reasons awards or variations are rarely retrospective, but there is no doubt of the jurisdiction to make them retrospective to the date of the dispute.

This Court in the past has discouraged the Commission from appearing, and the Attorney-General and bodies such as the Australian Council of Trade Unions from intervening, on proceedings such as these. Neither the Federation nor the union has appeared to assist the Court with argument. It is very unsatisfactory that the Court should have to decide the interpretation and application of important procedural powers of the Commission after hearing the prosecutor only. The reason for discouraging the Commission's predecessor, the Court of Conciliation and Arbitration, was no doubt the partly judicial character of the Court of Conciliation and Arbitration. Such discouragement of judicial bodies has not always been unqualified. In R. v. Kent Justices; Ex parte Commissioner of Metropolitan Police [12] an English Divisional Court (Hewart C.J., Humphreys and Singleton JJ.) considered that justices should be represented, or argument presented to sustain their decision, where otherwise an appeal against their decision would be pursued without any participation by the respondent. In the United States of America on review of an order of an administrative commission agency or officer the commission or other body should appear to defend if there would be no other party to ensure the proper adversarial clash requisite to a case or controversy: McCord v. Benefits Review Board, U.S. Department of Labor [13] .

1. [1936] 1 K.B. 547. 2. (1975) 514 F. 2d 198, at p. 200.

In Reg. v. Australian Broadcasting Tribunal; Ex parte Hardiman [14] where the application by the prosecutor for an order against the Tribunal was opposed by a number of respondents this Court said: "The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal". In my opinion, this Court should have had the assistance of the Commissioner or the Attorney-General on the question of powers and procedures of the Commission. I appreciate that the failure to seek to provide such assistance has been in deference to this Court's past wishes. For my part, I would welcome such assistance at least in a case concerning the Commission's powers and procedures where otherwise only one side would be heard.

The Commission was authorized to summon before it the Federation and the employer, in relation to proceedings in which the Commissioner would determine of his own motion whether he should, or whether he was obliged, to vary the terms of the award in accordance with s. 59 of the Act. I am not satisfied that the Commission has in any way exceeded its authority.

I have had the advantage of reading the reasons prepared by Stephen J. I agree with those reasons, and would therefore make absolute the order nisi for prohibition.

I have had the advantage of reading the reasons of my brother Stephen with which I agree. I would make absolute the order nisi for prohibition.