Industrial Law (Cth) - Australian Industrial Relations Commission - Decision to make award -Application by non-party to intervene before award made - Obligation to hear and determine application Procedural fairness - Industrial Relations Act 1988 (Cth), s. 111(1)(g)(iii).

Order that a writ of prohibition issue to the first respondents directing them not to act on their decision of 19 May 1993 to the extent that that decision affected the entitlement of the applicants to put a case for leave to intervene with respect to differential rates for junior employees.

Order that a writ of certiorari issue to the first respondents quashing the decision of 19 May 1993 to the extent that that decision affected the entitlement of the applicants to put a case for leave to intervene with respect to differential rates for junior employees.

Order that a writ of mandamus issue to the first respondents directing them to hear and determine, before making the award announced in the decision of 1 April 1993, the requests of the applicants so far as they involve an application for leave to intervene to put argument with respect to differential rates of pay for junior employees with 12 months service.

Application for writs of prohibition, certiorari and mandamus otherwise dismissed.

MASON CJ, BRENNAN, DAWSON AND GAUDRON JJ This is an application

on notice of motion to the Full Court for writs of prohibition,

mandamus and certiorari with respect to a decision of the Australian

Industrial Relations Commission ("the Commission") to make an award

governing the wages and conditions of persons employed by The Hoyts

Corporation Pty. Limited, Delarene Pty. Ltd. and Rampton Pty. Ltd.

("the Hoyts companies"). The decision was given by a Full Bench

of the Commission, the first respondents, on 1 April 1993 in

proceedings between the Hoyts companies, on the one hand, and on the

other, the Media, Entertainment and Arts Alliance and the Theatre

Managers' Association ("the Unions"). The decision was to make an

award with effect from 1 May 1993, containing rates and conditions

then announced. The award was to be made when its terms were settled.

In fact, it has not yet been made ((1) It appears most terms were

settled on 28 April 1993 with only one aspect outstanding to be settled

on Monday, 3 May. A stay was granted by Toohey J on 30 April.).

2. The applicants are young employees of one or another of the Hoyts companies but are not members of either Union. They are the

representatives of approximately 420 employees, about one half of

the workforce of the Hoyts companies. They and those they represent

complain that the award which the Commission proposes to make will

operate to their disadvantage or, more accurately, the disadvantage of

certain young employees. The applicants claim that, in the events

that transpired, they were entitled to put a case, after the decision

was handed down, that the award should not come into force. The

Commission did not allow them to pursue that course and they now seek

3. It is necessary to say something of the nature and history of the various proceedings before the Commission. They began with the

notification of a dispute in 1988. Other notifications followed and,

at some stage, The Hoyts Corporation Pty. Limited ("Hoyts") applied to

the Commission with a view to obtaining a new award for its employees

in place of the award which applied generally in the cinema and

drive-in industry. Some time later, it transferred some of its

employees to Delarene Pty. Ltd. ("Delarene") and Rampton Pty. Ltd.

("Rampton"). Those companies were not bound by any award and this led

to other notifications and applications which, in due course, were

joined with the earlier matters. Eventually, all these matters were

referred to a Full Bench of the Commission and became known as "the

arbitral matters". It is convenient to continue with that

4. Between March and July 1992, Delarene and Rampton entered into individual employment agreements with their employees, including

the applicants. The employees then applied to the Commission for

certification of their agreements under s.115 of the [Industrial

](/cgi-bin/viewdoc/au/legis/cth/num_act/ira1988242/)Relations Act 1988 (Cth) ("the Act"). These applications were also

referred to the Full Bench and a ruling was made that they should

await the outcome of the arbitral matters. The proceedings with

respect to these applications have become known as "the s.115

proceedings". Again, it is convenient to continue with that

5. In late 1992, the Hoyts companies applied under s.101 of the Act for variation of the dispute findings involved in the arbitral

matters. They claimed that certain other employers in the industry

and employees of the Hoyts companies or, at the very least, those who

had entered into employment agreements, had become parties to the

dispute ((2) The Hoyts companies no longer claim that the dispute

extends to other employers in the industry.). This application was

also referred to the Full Bench and proceedings with respect to that

application became known as "the s.101 proceedings". Again, it is

convenient to use that expression to identify those proceedings. They

were also to be dealt with after the arbitral matters, it being held

that they did not challenge the basis upon which the Commission was

proceeding in the arbitral matters. The ruling to that effect was the

subject of an unsuccessful application to the Court for prerogative

relief ((3) Dawson J refused an application for orders nisi for

writs of prohibition and mandamus: Re Hoyts Corporation Pty. Ltd.,

unreported, 23 December 1992. The application was renewed and

again refused by Toohey J on 30 April 1993. The Full Court

dismissed an application for leave to appeal from the decision

6. Against the background of the individual employment agreements and the s.115 proceedings, the issues in the arbitral proceedings

resolved themselves into two broad questions, namely, whether an award

should be made and, if so, what its terms should be. In this regard,

the Hoyts companies argued, contrary to the original application by

Hoyts, that there should be no award and that they should be free to

contract individually with their employees. Alternatively, they

argued for terms and conditions as contained in the agreements the

subject of the s.115 proceedings. The Unions proposed different

terms and conditions, including with respect to junior, overtime and

penalty rates. In particular, they proposed that, subject to special

provision for trainees in their first year of employment, all

employees should receive full adult pay. The Hoyts companies argued

that there should be a sliding scale commencing at 50 per cent of the

7. Although the applicants were aware of the s.101 and s.115 proceedings, they took no steps to present argument on the question

whether they should be heard before or after the arbitral matters.

This notwithstanding, they complain that they should have been allowed

to put a case, after the decision was given in the arbitral matters,

that an award could not or should not be made until the s.101

proceedings were finalized. They were also aware of the issues in the

arbitral matters and of the proceedings with respect to them but took

no steps to involve themselves, whether as interveners or otherwise.

They complain, however, that in one important respect, namely,

differential wage rates for junior employees with 12 months service

("differential rates"), the decision of the Full Bench deals with a

matter which was not in issue and was not the subject of evidence or

argument. And they claim that they should, on that account, have been

8. The decision as it relates to differential rates was as follows:

"(W)e have decided to provide junior rates for cleaners and

We have also decided to include provision for a junior

employee, who has attained the age of 18 years and who has

worked with Hoyts on a regular basis for a minimum period

of twelve months, to be paid the full adult rate for the

will operate to their disadvantage. Their complaint in this regard

extends to the operation of the provision in combination with other

award provisions, particularly overtime and penalty rates.

9. It is common ground that no application was made for differential rates of the kind decided upon by the Full Bench and that no evidence

was led and no argument directed to the specific provision in

question. And it seems that the provision is not one that is commonly

found in industrial awards. The award making power of the Commission

is not restricted by the relief claimed or the demands made by the

parties ((4) s.120 of the Act.). It is, however, confined by the

rules of procedural fairness ((5) See, for example, Re Australian

Railways Union; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 67

ALJR 904, at pp.908-909; [1993] HCA 28; 117 ALR 17, at pp.23-24; Re Media,

Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd.

[1993] HCA 18; (1993) 67 ALJR 389, at p.390; [1993] HCA 18; 112 ALR 193, at p.194.). And

prima facie at least, the decision of the Full Bench with respect to

differential rates was reached in circumstances in which the parties

were denied an opportunity to be heard on that aspect of the various

10. It is to be remembered that the decision of the Full Bench was to make an award, but that no award was actually made. That being so,

the Full Bench was obliged in the period before the award was made

and quite independently of s.111(1)(g)(iii) of the Act, to hear

submissions from the Hoyts companies or the Unions, if they wished

to put any, that there had been a breach of the requirements of

procedural fairness on the question of differential rates. And

assuming that the argument was made good, it was also obliged to hear

them on the question whether that or some other provision should be

inserted in the award. However, neither the Hoyts companies nor the

Unions complain or have complained of the decision of the Full Bench

concerning differential rates or of the manner in which it was made.

It is in this context that the question arises whether, in the

circumstances, the Full Bench was obliged to hear the applicants in

relation to that or any other aspect of the decision of 1 April 1993.

11. After the decision was announced, some 420 individual employees, including the applicants, wrote to the presiding member of the Full

Bench indicating dissatisfaction with the proposed award. Their

letters contained the following request, or one to the same effect:

"I ask the Commission not to make the award and would like

to have a case presented on my behalf in support of this

application. I understand that this can be done under

s.111(1)(g)(iii) of the Industrial Relations Act ((6) Section

111(1)(g)(iii) permits the Commission to "dismiss a matter or part

matter, or refrain from further hearing or from determining (an)

industrial dispute or part of (an) industrial dispute, if it

... that further proceedings are not necessary or desirable in

public interest".).

I request a hearing so this can take place before

1 May 1993.

Please urgently advise me of the hearing date."

Some employees complained specifically of the decision as it related

to differential rates, claiming that it was discriminatory and, if

implemented, would reduce their employment prospects.

12. On 6 May, the s.101 and s.115 proceedings were listed before the Full Bench for programming. Mr Murdoch, of counsel, sought leave to

appear for 442 individual employees, being, in the main, the employees

who had written the letters referred to. He asked several times to

say something in relation to the arbitral matters, but, on each

occasion, the presiding member indicated that they were not listed.

It later emerged that the solicitor for the Hoyts companies had

written to the Commission requesting it, pursuant to s.111(1)(g)(iii)

of the Act, to refrain from "further hearing or determining (the

disputes involved in the arbitral proceedings), including making an

award" and that the Full Bench proposed to give directions in relation

to that request and the requests of the individual employees. The

request from the solicitor proceeded by reference to the proposition

that the s.115 proceedings should be determined before an award was

made, a proposition that seems to have been abandoned later.

13. Some time later on 6 May, the Full Bench issued a direction which, so far as concerns the individual employees represented by

"In order to consider the purported applications pursuant

to s.111(1)(g)(iii) of the Act, the Commission makes the

following directions ...

(1) The individual employees who signed letters ... shall

be treated as applicants.

(2) The applicants shall by the close of business on

Wednesday 12 May, 1993 file with the Industrial

Registrar an outline of their submission(s) in support

of:

(a) the Commission entertaining such an application

following the issue of a final decision in the

arbitral matters on 1 April, 1993; and

(b) the Commission exercising its discretion under

s.111(1)(g)(iii), if any, in these circumstances."

A similar direction was given to the Hoyts companies.

14. An outline of submissions was filed on behalf of 445 individual employees in accordance with the direction of the Full Bench. The

outline contained statements directed to the proposition that the

Commission should finalize the s.101 proceedings before making an

"The first occasion on which (the 445 employees) became

aware of the penal rates which would operate against 18 year

olds (especially those who have been employed by Hoyts for

12 months) and the requirement to pay double time on Sundays

and public holidays which would make it uneconomic to employ

people 18 years old and over, especially on Sundays and

public holidays, was when the decision to make the award was

made."

"Employees submit that they ought to be heard in relation

to the matters raised, by way of outline, in this document.

Employees ask that they be heard prior to the implementation

of the award. At such a hearing employees would present a

case to substantiate the matters raised in the outline."

Attached to the outline were a petition and an outline of the case

which the employees wished to put in the event that the Full Bench

acceded to their application to be heard. It was said in that second

"Those 18 years of age and over are angry that the new award

will price them out of the casual work market at Hoyts.

Those not yet 18 years of age are arguing that their 18th

birthday will make them unemployable."

Clearly, the outline attempted to raise the issues that concerned the

employees as well as the specific matters required by the direction of

15. An outline of submissions was also filed on behalf of the Hoyts companies. It was directed to the proposition that the s.101

proceedings should be determined before the making of an award. In

that context it was put that "it (was) appropriate to defer the making

of the award until (a) dispute finding and the submissions on the

merits of the proposed Award by and on behalf of the employees, have

been considered". However, and as earlier indicated, no complaint

was made with respect to differential rates or the circumstances

surrounding that aspect of the Full Bench decision.

16. On 19 May, the Full Bench decided, without any further hearing, that "(i)n all the circumstances ... it (was) not appropriate ... to

refrain ... from making an award or to hear any further argument on

the matters raised in the letters from Hoyts' solicitor". So far as

the requests of the employees were concerned, it was noted that:

"(a)t no stage during the proceedings and before the

Commission's decision was made have individual employees

sought to be represented separately and apart from the

unions."

"If there were submissions which such employees wished to

make in opposition to the making of an award in a particular

form, apart from the evidence given and the submissions by

Hoyts and other parties or interveners, then the employees

should have sought leave to appear or intervene in the

proceedings at an earlier stage and before a final decision

was made."

17. The first claim which the applicants make in support of their application for prerogative relief is that they will be directly

affected by any award made and, thus, their right to be heard was the

same as for the Hoyts companies and the Unions. As already indicated,

the companies and the Unions were entitled, in the circumstances, to

put an argument to the Full Bench that there had been a breach of

the requirements of procedural fairness and, if that was accepted, to

put argument with respect to the differential rates announced in the

18. The argument that the applicants had the same right to be heard as the Hoyts companies and the Unions is based on the statement in

Reg. v. Ludeke; Ex parte Customs Officers' Association of Australia

that "a person whose rights will be directly affected by an order made

by the Commission must be given a full and fair opportunity to be

heard before the order is made" ((7) [1985] HCA 31; (1985) 155 CLR 513, per

Gibbs CJ at p.520.). However, a reading of the entire passage in

which that statement appears makes it clear that it is concerned only

with persons whose legal rights and obligations are directly and

immediately affected, not a person "who is not a party to a dispute,

but who may nevertheless be affected, indirectly and consequentially"

((8) ibid.; see also per Brennan J at p.529; per Deane J at p.530.

See also Reg. v. Moore; Ex parte Victoria [1977] HCA 58; (1977) 140 CLR 92; Reg. v.

Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR

19. The award which the Full Bench decided to make was an award in settlement of disputes between the Hoyts companies and the Unions.

As such, it could not impose obligations on employees who, like the

applicants, were members of neither Union ((9) Reg. v. Graziers'

Association of N.S.W.; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96

CLR 317; Re Finance Sector Union of Australia; Ex parte Financial

Clinic (Vic.) Pty. Ltd. [1994] ATOSGD SGD94_6; (1993) 67 ALJR 687, at pp.690-691; 114

ALR 321, at pp.326-327.). The rights they will acquire, if the

award is made, namely, the right to bring enforcement proceedings

((10) See s.178, particularly sub-s.(5)(ca).) and to recover moneys

payable ((11) See s.179.), will not derive from the award ((12)

Blackley v. Devondale Cream (Vic.) Pty. Ltd. (1968) 117 CLR 253, at

p.257.), but from the Act. They are not award rights, but statutory

rights conferred in consequence of the making of an award which applies

to the terms and conditions of persons who are not members of the union

bound by it ((13) ibid., per Taylor J, at p.269. See also Mallinson

v. Scottish Australian Investment Co. Ltd. [1920] HCA 51; (1920) 28 CLR 66. See

also s.178(5)(ca) of the Act, inserted by the [Industrial Relations

](/cgi-bin/viewdoc/au/legis/cth/num_act/irlaa21990461/)Legislation Amendment Act (No. 2) 1990 (Cth).). Thus, the applicants

are not "directly affected", in the sense discussed in Ludeke, and

their right, if any, to put a case to the Full Bench depends on other

20. It is to be noted that the employees did not, by their letters, seek to make a case of the kind usually involved in applications under

s.111(1)(g) of the Act, namely, that the Commission should refrain

altogether from exercising its jurisdiction ((14) See, with respect to

applications under s.41(1)(d) of the Conciliation and Arbitration Act

1904 (Cth) which was to the same effect, Re Queensland Electricity

Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61

ALJR 393, per Deane J at pp.399-400; 72 ALR 1, at pp.12-13.

See also Re Australian Bank Employees Union; Ex parte Citicorp

Australia Ltd. [1989] HCA 41; (1989) 167 CLR 513.). Rather, they asked

the Commission not to make the award announced, indicating their

understanding that that could be done under s.111(1)(g)(iii) of

the Act. And the outline of submissions, so far as it concerns

differential rates, was directed to their being "heard prior to the

implementation of the award". In a context where the employees were

not parties to the disputes involved in the arbitral matters, it must

have been apparent to the Full Bench that their requests necessarily

involved an application for leave to intervene which, under s.43 of

the Act, the Commission has power to grant if it "is of the opinion

that an organization, a person (including the Minister) or a body

should be heard in a matter". And as no award had been made and the

arbitral matters were, thus, still on foot, it was, technically, not

too late for them to make an application of that kind.

21. Ordinarily, an application for leave to intervene to argue some matter on which a decision has already been given will enjoy scant

prospect of success. However, in the circumstances involved in this

case, where the employees concerned were not members of either Union

and were fearful that the proposed award would operate to their

disadvantage and where, apparently, neither the Hoyts companies nor

the Unions were interested to put an argument with respect to

differential rates and, prima facie, the decision on that question had

been reached in breach of the requirements of procedural fairness, it

might be thought that an application to intervene to put an argument

that there had, in fact, been a breach of those requirements and that

differential rates should be reconsidered would be one that would

merit serious consideration. The position may not be as clear cut,

but if the rules of procedural fairness were satisfied with respect to

the Hoyts companies and the Unions, the fact that the employees had

not appreciated that the Full Bench might make an award containing

differential rates might also be a matter justifying serious

consideration of their application. But whatever the merits, their

application to intervene in proceedings which were still on foot (and

that application was necessarily involved in their letters requesting

a hearing) was one that the Commission was bound to hear and

22. As earlier indicated, the Full Bench decided on 19 May, without hearing further argument, that it would not refrain from making an

award, whether generally or in the terms earlier announced. That was

a different question from the one with which its earlier direction had

been concerned. And, of course, it was not the question addressed in

the outlines of argument. The decision was, thus, reached in breach

of the requirements of procedural fairness, which requirements are an

essential feature of arbitral power ((15) Re Australian Railways

Union; Ex parte Public Transport Corporation (1993) 67 ALJR, at

pp.908-909; 117 ALR, at pp.23-24.). Accordingly, prohibition

should issue to the members of the Full Bench directing them not to

act on that decision so far as it affects the entitlement, if any, of

the applicants to put a case for leave to intervene and, if granted,

to put an argument with respect to differential rates for junior

employees with 12 months service. To the same extent, certiorari

23. It is clear that the Full Bench decision on 19 May 1993 was based on the view that the employees were attempting to bring about a

situation in which they could put fresh argument with respect to

matters that had already been argued. However, there was no specific

consideration of whether that was the case. By assuming that that was

so and by addressing itself to the question whether it would refrain

from making an award, rather than the question whether it would allow

the employees to put a case, it failed to hear and determine their

requests which, as already indicated, necessarily involved an

application for leave to intervene. If that application was dismissed

by the decision of 19 May 1993 (and that is not entirely clear) there

was a constructive failure to exercise jurisdiction ((16) See with

respect to constructive failure to exercise jurisdiction, Re Coldham;

Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338, at pp.349-350. See also Reg.

v. Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, at

pp.267-269; Ex parte Hebburn Ltd. (1947) 47 SR (NSW) 416, per

there was an actual failure to exercise jurisdiction. In either

24. However, the employees clearly had ample opportunity to argue that the s.101 proceedings should be finalized before an award was

made. That being so, mandamus, which is a discretionary remedy, ought

not be granted to oblige the Full Bench to entertain that aspect of

their requests. That does not apply to that part of their requests

concerned with differential rates, on which issue, the applicants

claim, there has never been an opportunity to put argument. On

that issue, there is another discretionary matter which warrants

consideration, namely, that mandamus may result in other employees

being shut out from award benefits to which they would otherwise be

entitled. In our view, that does not justify the refusal of mandamus

for it is a matter that can be taken into account by the Full Bench

in deciding whether to grant leave. And should leave be granted, it

is within the power of the Full Bench to decide that the award or

particular provisions of it should be brought into force as an interim

measure ((17) See, with respect to interim awards, Re Media,

Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd.

(Hoyts, Delarene and Rampton Award) [1993] HCA 40; (1993) 67 ALJR 723; 115 ALR

25. Prohibition should issue to the members of the Full Bench directing them not to act on their decision of 19 May 1993 to the

extent that it affects the entitlement of the applicants to put a case

for leave to intervene with respect to differential rates for junior

employees and, if leave is granted, to put an argument with respect

to that aspect of the decision of 1 April 1993. To the same extent,

certiorari should issue to quash the decision of 19 May 1993.

Mandamus should also issue to the members of the Full Bench directing

them to hear and determine, before making the award announced in the

decision of 1 April 1993, the requests of the applicants so far as

they involve an application for leave to intervene to put argument

with respect to differential rates of pay for junior employees with

12 months service. Otherwise the application for prerogative relief

DEANE J The background facts to this application for prerogative

relief are set out in the judgment of the other members of the Court.

Except to the extent necessary for the purposes of supplementation or

discussion, I shall refrain from repeating them. The remaining issue

in the application is whether the Australian Industrial Relations

Commission ("the Commission") failed in a duty to accord procedural

fairness which it owed to the applicants who are non-unionist

employees of one or other of the Hoyts Group of Companies. In my

view, it did not. Since that view is a dissenting one and the case

turns very much on its own particular facts, I shall confine myself to

2. The applicants were not parties to, and did not seek to intervene or make submissions in, the arbitral proceedings in the Commission

leading up to the Full Bench's decision of 1 April 1993 to make an

award binding the Hoyts Companies and the two Unions who were parties

to the proceedings. Nor were the applicants parties to any of the

industrial disputes giving rise to those proceedings. It is common

ground that, while they will be indirectly affected by its provisions,

the applicants will not be bound by the Award when it is finally made.

Clearly, the Full Bench was under no requirement of procedural

fairness to give the applicants advance notice of its decision to make

the Award containing the clause setting differential rates to which

the applicants object. If the Full Bench had immediately made the

Award, it would not even be properly arguable that it was invalid

because of a denial of procedural fairness to the applicants ((18) See

Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation

Pty. Ltd. [1993] HCA 40; (1993) 67 ALJR 723, at pp.731-732; [1993] HCA 40; 115 ALR 321, at

3. The Full Bench's decision to make the Award was reached over the strong and persistent opposition of the Hoyts Companies which were

parties to the dispute and the proceedings. It was only after that

decision had been published that the applicants, and more than four

hundred other non-unionist employees of those companies, wrote letters

to the presiding member of the Full Bench asking that the Award not be

made. Apparently, all but six of the letters were in "standard form".

Those "standard form" letters did not specifically refer to the

differential rates clause. They stated that the writer did "not want

the award ... to apply to me because I am satisfied with my current

pay and terms and conditions of employment" and asked the Commission

"not to make the award". They indicated reliance upon

s.111(1)(g)(iii) of the Industrial Relations Act 1988 (Cth). Some of

the other six letters expressly objected to the differential rates

clause on the ground that, if it were implemented, it would reduce the

employment prospects of young employees. It will be convenient to

refer to the applicants and their colleagues who wrote letters as "the

relevant employees". In none of the letters was there any suggestion

that the Full Bench had somehow denied procedural fairness to the

relevant employees. Nor was there any suggestion that the Full Bench

4. It has often been pointed out that the precise content of the requirements of procedural fairness which must be observed by a

particular administrative decision-maker vary according to the

circumstances of the particular case ((19) See, e.g., Russell v. Duke

of Norfolk (1949) 1 ALL ER 109, at p.118; Heatley v. Tasmanian Racing

and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp.513-514; Reg. v.

Ludeke; Ex parte Customs Officers' Association of Australia [1985] HCA 31; (1985) 155

CLR 513, at p.530; Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, at pp.584,

633; Re Australian Railways Union; Ex parte Public Transport

Corporation [1993] HCA 28; (1993) 67 ALJR 904, at p.909; [1993] HCA 28; 117 ALR 17, at p.24.).

Where a non-party to judicial or administrative proceedings seeks to

reverse a final decision which is issued after a lengthy hearing and

which is directly binding on the parties but not on the non-party, a

determination of the content of the non-party's entitlement to

procedural fairness will necessarily involve consideration of the

legitimate claims of a party to the contested hearing who is interested

in sustaining the decision and in avoiding further delay in its

implementation. This is particularly so in a case such as the present

where the non-party wishes to reverse a decision which was the result

of lengthy proceedings and which was intended to become operative in a

matter of days and to remain operative for only a limited period (i.e.

twelve months). In such circumstances, the determination of the

precise content of the requirements of procedural fairness necessarily

involves a value judgment of what constitutes an appropriate

opportunity of being heard in the context of all the surrounding

circumstances, including the legitimate claims of the parties to the

5. Section 111(1)(g)(iii) empowers the Commission "to dismiss a matter or part of a matter, or refrain from further hearing or from

determining the industrial dispute or part of the industrial dispute,

if it appears ... that further proceedings are not necessary or

desirable in the public interest". In the present case, the Full

Bench effectively decided, in its decision of 1 April 1993, that it

was necessary or desirable in the public interest that it make an

award containing the clause setting differential rates. It was only

after that decision had been made and published that the presiding

member received the letters from non-parties asking that the proposed

Award be not made. The Full Bench responded to those letters by

directing that the relevant employees be treated as applicants in an

application under s.111(1)(g)(iii) and that they file with the

Industrial Registrar an outline of their submissions in support of

(a) the Commission entertaining such an application after "the issue

of a final decision" by the Full Bench; and (b) the Commission

exercising its discretion under s.111(1)(g)(iii). For my part, I

doubt whether, at that stage of the proceedings, the Commission was

6. In due course, the Commission received the outline of submissions of the relevant employees. It is not suggested that the Full Bench

failed to consider it. By then, 1 May 1993 had come and gone. At

that stage, the requirements of fairness to the parties to the

proceedings obviously dictated that the Commission decide whether it

would give effect to its decision to make the Award or whether the

making of the Award should be further delayed so that employees of the

parties who were dissatisfied with the Full Bench's decision could

address full submissions on matters which the Full Bench had already

decided. Not surprisingly, the Full Bench concluded that the making

of the Award should not be further delayed for that purpose. In

explaining that conclusion, the Full Bench referred at some length to

the opportunity which the relevant employees had had "over a very

lengthy period" to "have sought leave to appear or intervene in the

proceedings at an earlier stage and before a final decision was made".

"In circumstances where a decision has been made by the

Commission determining issues in dispute between parties and

where the Commission has determined as part of the decision

that the award giving effect to the decision would apply

from 1 May 1993, we have provided an opportunity for the

applicants to present the substance of their case in support

of the s.111(1)(g)(iii) applications. We consider that it

would be unfair and unreasonable to the other parties and

persons concerned and contrary to the public interest for

there to be any further delay in relation to the making of

the award occasioned by the timing of the latest

s.111(1)(g)(iii) applications. Having considered the

applications and the submissions made, we are of the view

that public interest considerations overwhelmingly support

the Commission proceeding to make an award as determined in

the decision of 1 April 1993."

7. The views expressed in the above passage by the members of the Full Bench about the competing claims in justice and reason of those

concerned to uphold and those concerned to reverse its "final

decision" were (at the least) open on the material before them. They

are not, in my view, susceptible of legitimate challenge in

proceedings for prerogative relief in this Court. In the light of

them, and having given due consideration to the submissions made on

behalf of the applicants, the Full Bench decided that there should be

no "further delay" in the making of the Award. That decision was, in

my view, one which it was clearly open to the Full Bench to reach at

that stage. It necessarily involved a denial of the applicants'

request that the Award be not made. In all the circumstances,

including the opportunity to make submissions which had already been

extended to the relevant employees, it involved no denial of

8. There is one further matter which should be mentioned. It is that the material before the Court indicates that no evidence was led

or submission made by the actual parties to the arbitration

proceedings in relation to a differential rates clause. None of those

parties has, however, complained about the differential rates clause

or has asserted that the Commission's decision to make the proposed

Award was invalidated by reason of any denial of procedural fairness.

More importantly, there is no basis upon which the applicants could

rely upon any such failure to accord procedural fairness to persons

other than themselves. As has been mentioned, none of the relevant

employees suggested or complained that there had been any relevant

denial of procedural fairness in his or her original letter to the

presiding member of the Full Bench. The outline of submissions lodged

on behalf of such employees in compliance with the Full Bench's

direction likewise contained no suggestion or complaint of a relevant

denial of procedural fairness. Nor is there any material before the

Court which would found a conclusion that any of the applicants was

misled or disadvantaged by any failure of the parties to the arbitral

proceedings expressly to advert, in their submissions, to a

differential rates clause of the kind decided upon by the Full Bench.

Indeed, there is nothing at all in the material before the Court which

suggests that any of the applicants followed what was submitted by the

parties in the proceedings before the Full Bench or was aware, before

the decision was published on 1 April 1993, whether or not there had

been debate about the inclusion of a differential rates clause.