of 1992 the Victorian government decided that the Public Transport

Corporation ("the PTC") should significantly reduce the number of

its employees. The PTC sought expressions of interest in voluntary

departure packages ("VDPs") from eligible employees. Under a VDP

certain payments are made to employees who resign their employment.

Apprentices employed by the PTC are not eligible to receive VDPs.

2. On 1 February 1989, a number of persons had entered into Indentures of Apprenticeship with the State Transport Authority, the

predecessor of the PTC. Each of them later signed a document headed

"Employment conditions for training as an apprentice, State Transport

Authority". That document contained the following two paragraphs:

(d) I am not eligible to enter the Superannuation Scheme

and that I am not guaranteed employment on completion

(e) However, on completion of my apprenticeship, should a

vacancy exist in my trade, I will be eligible to apply

Apprenticeship on 1 February 1989 were sent a letter dated 21 October

1992 which implied that they might not be offered employment with the

PTC at the completion of their apprenticeships. They were told by the

PTC in early December 1992 that they would not be offered employment

and this was confirmed by a letter dated 8 December 1992.

3. The PTC notified the Australian Industrial Relations Commission ("the Commission") in December 1992 pursuant to s.99 of the [Industrial

](/cgi-bin/viewdoc/au/legis/cth/num_act/ira1988242/)Relations Act 1988 (Cth) ("the Act") of a dispute concerning bans

imposed in protest at the PTC's decision not to offer the apprentices

continuing employment. The Australian Railways Union ("the ARU"), the

Australian Services Union ("the ASU") and the Metals and Engineering

Workers' Unions ("the MEWU") notified the Commission in January 1993

pursuant to s.99 of the Act of disputes concerning the decision to

reduce the number of PTC employees. The notifications given by the

unions referred generally to the proposed reduction of employees

by the PTC and only the notification given by the PTC referred

specifically to the decision not to employ the 70-odd apprentices when

4. The notification given by the ARU was listed before Commissioner O'Shea on 26 January 1993 together with a dispute (C No.21624 of 1991)

which had been found to exist on 26 September 1991 following the

failure of a number of employers, some of them interstate, to accede

to a log of claims served upon them by the ARU. The PTC was one of

those employers. That log of claims contained demands relating to

commencement, termination and reinstatement of employment and

redundancy and retrenchment. The ARU relied upon it to characterize

the particular dispute over the reduction in PTC employees as part

of a wider interstate dispute. On 26 January 1993 appearances were

announced before Commissioner O'Shea for the ARU, the ASU, the MEWU

and the PTC. The ARU proposed that, pending a final award dealing

with the redundancy of PTC employees, the Commission make an interim

award preserving the status quo. It also applied pursuant to s.107

of the Act to have the matter dealt with by a Full Bench of the

Commission. The ARU drew attention to the particular problem of the

apprentices whose apprenticeships were to terminate on 29 January

1993, that being the effective end of their four year term.

5. The ASU announced that it also sought an interim award in almost identical terms to that proposed by the ARU and sought to have the

matter heard before a Full Bench. For the same reason that the ARU

relied upon a finding of an earlier dispute, the ASU relied upon a

dispute (C No.37719 of 1989) which had been found to exist on

21 January 1990 following the failure of a number of employers,

including the PTC, to accede to a log of claims served upon them by

the ASU or its predecessor. The MEWU also announced that it would be

seeking an interim award in the same terms as that sought by the ARU.

The Commissioner announced that he would refer the applications for a

hearing before a Full Bench to the President of the Commission and

6. On 27 January 1993 the Vice-President determined that the applications by the ARU in Matter C No.21624 of 1991 and by the ASU

in Matter C No.37719 of 1989 should be heard by a Full Bench. On

29 January 1993, the dispute notified by the MEWU was referred by the

President, as part of Matter C No.30096 of 1993, to the Full Bench.

Although that matter bore the year 1993 it was in fact a continuation

of a dispute found to exist on 27 May 1986 following the service of a

log of claims and was presumably relied upon by the MEWU for the same

reason that the other unions relied upon earlier paper disputes.

7. All three matters, C No.21624 of 1991, C No.37719 of 1989 and C No.30096 of 1993, came on for hearing before a Full Bench presided

over by Munro J on 29 January 1993. Counsel for the ARU, the ASU and

the MEWU applied for an interim award pursuant to s.111(1)(b) of the

Act. Section 111(1)(b) specifically empowers the Commission to make

an interim award in relation to an industrial dispute. Counsel said

that an interim award was needed to preserve the status quo whilst an

appropriate final award was developed. The problem of the apprentices

was raised as a matter of specific concern. Counsel for the unions

sought to have the apprentices brought within the scope of an interim

award which was sought as a matter of considerable urgency given the

imminent termination of their apprenticeships. Although the four year

terms of the apprenticeships did not expire until 31 January 1993,

29 January was a Friday and it was common ground that they effectively

8. The Commission then proceeded to hear evidence from a number of witnesses directed towards establishing that the apprentices had a

justifiable expectation that they would be employed by the PTC as

tradesmen at the conclusion of their apprenticeship. When that

evidence was completed, counsel for the PTC announced that the case to

be put on behalf of the PTC would take the best part of two days. He

indicated that the PTC contested the Commission's jurisdiction under

the Act to make an award with respect to the apprentices, who, he

submitted, were not employees of the PTC. In this context, he also

pointed out that their engagement as apprentices ended on that day.

Eventually, after some discussion of the difficulty arising from this

circumstance, counsel for the PTC gave an undertaking in the following

"we would be prepared to accept that these people, the 70

odd people concerned, would be as from the end of today on

leave without pay for whatever period is necessary with

respect to this proceeding being conducted in a full and

proper manner.

And that during that period the people concerned would be

regarded by us as being in the position that they are in

right at this moment, whatever that position might be. That

is, at 20 minutes to three on Friday, 29 January. So

that we freeze the situation at that point and during the

intervening period regard the 70, the group of 70 as

effectively being on leave without pay. Now, that of course

would be without prejudice to the arguments that we would

wish to put, but it would place everybody concerned

including the commission, in a position where we do not have

to struggle today to deal with these significant matters in

a way that ultimately may be quite unsatisfactory."

9. The ARU log of claims which was the subject of Matter C No.21624 of 1991 and the MEWU log of claims which was the subject of Matter

C No.30096 of 1993 had been served as a result of decisions of the

Commission in 1984 which had established standards applicable to

termination, change and redundancy ("TCR") ((1) Amalgamated Metals

Foundry and Shipwrights' Union v. Broken Hill Pty. Co. Ltd., Whyalla

(Termination, Change and Redundancy Case) (1984) 294 CAR 175; (1984)

295 CAR 673.). Awards were made in settlement of the disputes

created by those logs of claims and those awards contained TCR

provisions. The PTC contended that both the earlier decisions of the

Commission in the TCR test cases and the TCR provisions of the awards

specifically excluded apprentices as a matter of policy. For that

reason, the PTC submitted, unless the Commission were to treat these

cases as test cases, the Commission ought not to deal with the

redundancy of apprentices when it came to make a final award. It

followed, the PTC submitted, that they should not be the subject of any interim award.

10. In the light of the undertaking given by the PTC, it was decided that the hearing of the matters before the Commission would be

adjourned until 3 and 4 February 1993. The PTC announced that upon

those days it would provide a document dealing with the issues of

consultation, notice and dates which it thought would "go a long way

to overcoming the need for a final award". It said that also on those

two days it would "concentrate (its) attention on the apprenticeship

issue so that ... that matter can be dealt with as a discrete matter

11. When the hearing resumed on 3 February 1993, the PTC placed material before the Commission relating to consultation upon the

general restructuring of the PTC. The PTC then turned to the

"what we will put to the commission will relate to ... both

the legal standing of apprentices and the commission's lack

of power to be able to make an award provision relevant to

them whether it be of an interim or final nature and

additionally we will put matters of merit to the commission

to the effect that there is no substantial reason as to why

the commission should in any way interfere with the normal

process of the coming to an end of the 70 odd contracts of

indenture and these people not being involved in employment

in the future with the PTC."

The PTC submitted the apprentices were not employees. As a

consequence, it said, the unions lacked capacity to make applications

on their behalf, and the Commission lacked constitutional and

statutory jurisdiction. In the alternative, the PTC argued that

the apprentices were on fixed-term contracts, and it was under no

obligation to make any special arrangements for their termination and

12. The unions then submitted that the apprentices were in fact employees of the PTC with the result that the Commission could make an

interim award continuing the employment relationship beyond the term

of their contracts. A witness was called to give evidence that work

was available with the PTC for former apprentices. Counsel for the

PTC was not in a position to cross-examine the witness and was

given leave to cross-examine at a later time if necessary; Munro J

observed that "you need to bear in mind that the commission has got

before it an application to deal with the subject matter of the

interim award, and we propose to deal with that in the time that is

13. Munro J then raised the question whether the Commission should not make a final award dealing with the apprentices. Counsel for the

unions opposed making a final award because it would probably not deal

with the situation in a meaningful way. He observed that, because the

PTC did not regard the apprentices as employees, they were deprived of

a range of benefits offered to other employees. Munro J then asked:

"Assume it were within power to redress that aspect, the

deprival of the range of benefits that were being offered,

why is not that the appropriate course rather than, say,

having an award that says, whatever happened on 29 January

has not happened. Somehow people will be retained in

employment doing work that the employer does not want. And

let us have some time while we consult further to try and

work out what it is we are going to do. Why is it not

better to address the matter of the benefits that you say

should have been accessible to the employees?"

Counsel for the unions reiterated his opposition to the course

suggested by Munro J on the ground that the apprentices should be

dealt with alongside the PTC's other employees, and until then the

status quo should be preserved by an interim award.

14. The same suggestion was put to counsel for the PTC in the course of his reply upon the apprenticeship issue. He rejected the

"Because my learned friend has not asked for any more

than an award that would prevent the PTC from terminating

the employment of people. We have not answered a case

because no case has yet been made out as to what form of

final award is appropriate. My learned friend - the only

document we have is the proposal that the PTC not terminate

anybody's employment and before the commission were minded

or could, in my respectful submission, make a final award,

it would have to have evidence and hear submissions going to

that question."

"the commission is not, of course, confined to the relief

that is sought, and that is clear. But nevertheless, the

case has been run on the basis of an application for an

interim award, or whatever you call it, an injunction,

preventing the termination of any employment of people. If

the case is to be run on what form of TCR provision ought

to be provided for employees of the PTC, it takes on a

different complexion, and different evidentiary material

would have been put forward, and different submissions would

have been made."

15. The proceedings before the Commission concluded with an observation by Munro J as follows:

"The commission will take into account those

considerations that it seems most relevant and itemise

them and if you have failed to address to us today the

considerations that (you) consider relevant as part of your

case, then you need to understand you have missed your

opportunity up to this stage of the hearing. Of course,

it is probable that the hearing will continue in relation

to other matters but we have before us now completed

submissions from all parties, as we understand them, as to

whether or not we should make an interim award in relation

to apprentices and that was what the hearing today and

yesterday was allocated to do."

16. On the following day, 5 February 1993, the Commission announced its decision in the following terms:

"We have reached a unanimous conclusion in relation to

that part of the matter before us in these proceedings,

which pertains to an application for an interim award to

operate in respect of some 70 final year apprentices, the

term of whose indenture expired on 31 January 1993. We

refuse the application for an interim award in the terms

proposed in application to those employees. We are

satisfied however that in the circumstances and on the

merits of the case as put to us, it is expedient for the

purpose of settling part of the relevant disputes, and for

preventing the exacerbation of them, and that it is within

jurisdiction, to award an alternative form of relief.

We make an award in terms which are published and which

will be available to the parties immediately upon the rising

of the Commission. The award made is not expressed to be an

interim award, because we do not consider that the form of

relief granted is of an interim character. We will publish

our reasons for decision as soon as practicable."

17. The award referred to was entitled the "Victorian Public Transport (Post-Indenture Retrenchment) Award, 1993". It was expressed to apply to the apprentices in question who were defined to be the employees covered by the award. They were entitled to make application to the PTC for a VDP by 10 February 1993. A duty was imposed upon the PTC to consider each application upon the basis that the employee was deemed to be an employee whose terms of engagement stipulated that the

employee was to be employed on an open-ended continuing basis. An

employee covered by the award who did not make application for a VDP

or who did not receive or accept an offer for a VDP was entitled to

be paid a retrenchment severance benefit as if the employee had been

retrenched from employment, being deemed to be employment upon an

18. On 16 February 1993, the Commission gave reasons for its decision. It said that it rejected the application for an interim award because such an award would impose a duty on the PTC to retain the apprentices as employees. It continued:

"we are not satisfied that there is an arguable case for

the Commission to favourably contemplate relief in the form

of an award duty to extend the 70 apprentices' employment.

The scale of the reduction to the PTC workforce is a

consideration which outweighs any considerations favouring

any unnecessary extension of the period of employment of the

70 employees, or any relative upgrading of their priority

for retention in employment relative to other established

employees."

19. The Commission conceded that the TCR test cases in 1984 might be seen as a barrier to granting final relief in the form of an award

for severance benefits to apprentices. It acknowledged that the

decision in these cases and subsequent awards excluded apprentices and

employees engaged for a specific period of time. It recognized that

an important reason for exclusion was that otherwise employers might

be discouraged from engaging and training apprentices, something which

could be regarded as an important social responsibility. However,

having regard to the history of the apprentices in the PTC, the

"In the circumstances we consider it is open to treat the

employees as no longer being in substance apprentices in the

sense used in the TCR Case. We consider them to have been

equivalent to unattached employees, whose entitlement by

custom and practice to progress to and beyond that stage was

arrested."

20. It is clear that the relief granted by the Commission in the form of the Victorian Public Transport (Post-Indenture Retrenchment) Award was not the relief sought by any of the parties to the application which was before it. The unions sought an interim award to preserve the status quo generally. The PTC opposed the application. The relief granted was a final award extending only to the apprentices. Of course, in making an order or award the Commission was not confined

to relief claimed by the parties. Section 120 of the Act provides:

"In making an award or order, the Commission is not

restricted to the specific relief claimed by the parties to

the industrial dispute concerned, or to the demands made by

the parties in the course of the industrial dispute, but may

include in the award or order anything which the Commission

considers necessary or expedient for the purpose of

preventing or settling the industrial dispute or preventing

further industrial disputes." ((2) See also Reg. v. Galvin; Ex

parte Amalgamated Engineering Union, Australian Section [1952] HCA 29; (1952) 86

CLR 34, at p.40; Reg. v. Holmes; Ex parte Victorian Employers'

Federation [1980] HCA 37; (1980) 145 CLR 68, at p.76; Re Federated Storemen and

Packers Union of Australia; Ex parte Wooldumpers (Vic.) Ltd.

[1989] HCA 10; (1989) 166 CLR 311, at pp.317-318.)

21. But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to

observe the rules of procedural fairness in exercising its arbitral

function. In Re Australian Bank Employees Union; Ex parte Citicorp

Australia Ltd. ((3) [1989] HCA 41; (1989) 167 CLR 513, at p.519.) this Court

pointed out that it was well settled that the Conciliation and

Arbitration Commission was bound to act judicially and that the

Commission, as its successor, is bound to do likewise. The Court went

on to point out that one aspect of the duty to act judicially is the

duty to hear a party and to allow him or her a reasonable opportunity

to present his or her case and, coupled with that duty, is the duty to

consider the case put. And in Re Media, Entertainment and Arts

Alliance; Ex parte Hoyts Corporation Pty. Ltd. ((4) [1993] HCA 18; (1993) 67

ALJR 389, at p.390; [1993] HCA 18; 112 ALR 193, at p.194.) the Court said that

the Commission has a duty in considering an application to afford a

party a reasonable opportunity to allow his or her case to be put.

22. Of course, what is reasonable will depend upon the circumstances of the case. In this instance, the parties were given an adequate

opportunity to call evidence and put submissions, but that evidence

and those submissions were directed to the issue of whether an interim

award should be made and, if so, whether it should include the

apprentices. The PTC, it is true, submitted that because the

Commission lacked jurisdiction to make a final award extending to

the apprentices and alternatively, that because such an award would

be inconsistent with TCR principles, it ought not to make an interim

award extending to them. But those submissions and the manner

in which they were developed may well have fallen short of the

submissions which the PTC would have wanted to make had it appreciated

that the Commission was contemplating a final award giving severance

benefits to the apprentices. The PTC submitted in this Court that if

it had appreciated that the Commission was contemplating the course

which it ultimately took, then it would have regarded as relevant

evidence material explaining why apprentices and other persons on

fixed term contracts had been excluded from the TCR cases and showing

how circumstances had not changed. It would, it said, have wished to

show that employers would be adversely affected if they were required

to provide TCR benefits to apprentices who were not employed at the

conclusion of their apprenticeships. This, it said, would discourage

employers from shouldering their social responsibility of engaging

apprentices, which was one of the considerations which influenced

their exclusion from the TCR cases. But, having regard to the events

which occurred, the PTC did not have the opportunity of addressing

those matters and was not required to turn its mind to them ((5) cf.

Pantorno v. The Queen [1989] HCA 18; (1989) 166 CLR 466.).

23. True it is that the Commission raised with the parties the question of a final award, but the suggestion was rejected by both the

unions and the PTC, and was apparently abandoned by the Commission.

The Commission left the matter upon the basis that "we have before us

now completed submissions from all parties, as we understand them, as

to whether or not we should make an interim award in relation to

apprentices". In those circumstances it cannot, in our view, be said

that the PTC - or for that matter the other parties - were given a

reasonable opportunity to put whatever case they may have wished to

put in opposition to the course eventually taken by the Commission.

Before making the final award the Commission ought to have alerted the

parties to the possibility that it might do so, in order to afford

them a reasonable opportunity to put whatever case they might have

24. A question arose during argument about the effect of s.150(1) of the Act on an award made in breach of the requirements of procedural

"Subject to this Act, an award (including an award made

on appeal):

(a) is final and conclusive;

(b) shall not be challenged, appealed against,

reviewed, quashed or called in question in any

court; and

(c) is not subject to prohibition, mandamus or

injunction in any court on any account."

25. This Court has considered the effect of a provision such as s.150(1) on a number of occasions ((6) See, for example, R. v.

Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598; Reg. v.

Commonwealth Industrial Court Judges; Ex parte Cocks [1968] HCA 86; (1968) 121 CLR

313; Reg. v. Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153

CLR 415.), most recently in O'Toole v. Charles David Pty. Ltd.

((7) [1991] HCA 14; (1991) 171 CLR 232.). It is well settled that a provision of

that kind cannot validate an award which exceeds constitutional limits ((8) See generally O'Toole v. Charles David Pty. Ltd. [1991] HCA 14; (1991) 171

CLR 232; Reg. v. Coldham; Ex parte Australian Workers' Union (1983)

26. As earlier indicated, arbitral power must be exercised judicially. One aspect of that requirement is that the parties to the dispute or the proceeding in question must be given an opportunity to put their case. That is no mere procedural or statutory requirement. Rather, as Gibbs J pointed out in Reg. v Moore; Ex parte Victoria ((9) [1977] HCA 58; (1977) 140 CLR 92, at p.102. See also Australian Railways Union v Victorian Railways Commissioners [1930] HCA 52; (1930) 44 CLR 319, at pp.384-385.), "it is inherent in the very notion of arbitration that there (should)

be a hearing of the disputants, and a procedure that produce(s) an

award without a proper hearing (is) outside the Constitutional power".

27. Given the nature of the arbitral power, s.150 cannot operate to preclude the PTC from challenging the award in this case upon the

ground that the Commission did not act judicially in failing to afford

it an opportunity to put a case against the making of a final award.

That award cannot, in our view, be regarded as having been validly

28. The PTC also sought to challenge the award made by the Commission upon the basis that it lacked jurisdiction because the dispute concerning the employment of the apprentices fell outside the ambit of the earlier logs of claims upon which the unions relied and was therefore a purely intrastate dispute. This does not appear to have been a submission which the PTC pressed before the Commission and it is neither necessary nor appropriate that this Court should deal with it in granting relief. For the foregoing reasons, the order nisi for prohibition should be made absolute.

29. The PTC also sought a direction that, if the matter was to go back before the Commission, a different Full Bench should be constituted to hear it ((10) cf. Smith v. New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256, at p.269.). But the course which the matter now takes is a matter for the parties and the Commission. No issue of assessment of the credit of witnesses arises and we do not consider it appropriate in proceedings for prerogative relief to give a direction of the kind sought.