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[1993] HCA 40
High Court of Australia
1993-07-01
McHugh JJ
Original judgment source is linked above.
High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1993] HCA 40
ORDER Matter No. M27 of 1992 Application for a writ of prohibition and a writ of certiorari dismissed. Matter No. M43 of 1992 Order nisi for a writ of mandamus and a writ of certiorari discharged.
1993, Aug. 11 Mason C.J., Brennan, Dawson, Toohey, Gaudron and McHugh JJ.
These two matters arise out of separate proceedings in the Australian Industrial Relations Commission ("the Commission") with respect to the wages and conditions of employees in the picture theatre industry. The matters were heard successively in this Court and can conveniently be dealt with in the one judgment.
The Hoyts Corporation Pty. Ltd. ("Hoyts"), Delarene Pty. Ltd. ("Delarene") and Rampton Pty. Ltd. ("Rampton") are companies in the Hoyts group of companies and are together referred to as "the Hoyts Companies". They operate picture theatres in various places and in different States.
Until recently, persons employed in Hoyts' theatres were governed by an award of the Australian Conciliation and Arbitration Commission, known as the Theatrical Employees (Cinema and Drive-in Industry) Award 1983 ("the Theatrical Employees Award"). Since May 1992, they have been governed by an award of the Commission made pursuant to the Industrial Relations Act 1988 Cth ("the Act") and known as The Hoyts Corporation Pty. Ltd., Delarene Pty. Ltd. and Rampton Pty. Ltd. Interim Award 1992 ("the Interim Award").
The Interim Award was made in part settlement of a dispute arising out of a log of claims served by the Australian Theatrical and Amusement Employees Association ("the A.T.A.E.A.") on employers in the picture theatre industry generally, and a counter log served by the Hoyts Companies on the A.T.A.E.A. The A.T.A.E.A. has since merged with other organizations to become the Media, Entertainment and Arts Alliance ("the Media Alliance"), an organization of employees registered under the Act. The Media Alliance is a respondent to each of the matters before the Court.
There were several matters involving the A.T.A.E.A. and the Hoyts Companies in the Commission ("the Hoyts matters") and it appears that, in 1989, they were consolidated and referred to a Full Bench. One of the matters concerned the transfer of employees from Hoyts to Delarene and Rampton at a stage when Hoyts, but neither Delarene nor Rampton, was bound by the Theatrical Employees Award.
The A.T.A.E.A. complained to the Commission that Hoyts' actions in transferring employees to Delarene and Rampton amounted to an attempt to pre-empt the Commission's decision on some of the issues in dispute. That complaint was made on subsequent occasions and, in May 1991, the Full Bench directed that Hoyts should not, without the leave of the Commission, vary the wages or conditions of persons involved in the proceedings and employed by it as at 9 April 1991 when the dispute first came on for hearing. It further directed that neither Hoyts nor any of the other Hoyts Companies should take any action to transfer employees from Hoyts to those other companies without leave.
In May 1992, the Full Bench was in a position to make an award with respect to some of the matters involved in the dispute with the Hoyts Companies. The Media Alliance, which came into existence upon the merger of the A.T.A.E.A. and other unions on 18 May 1992, sought the inclusion of a term directed to maintaining the status quo pending the making of a final award. The Hoyts Companies offered an undertaking to maintain existing conditions and, subject to their right to dismiss employees for cause, to maintain existing employment relationships. However, it was argued on their behalf that no term of that kind should be included in the award. The Full Bench held otherwise. When the Interim Award was handed down, it contained a clause, cl. 31, to much the same effect as the directions given in May 1991, save that the clause is concerned only with conditions.
Clause 31 of the Interim Award, the terms of which will be set out later, is the subject of the first matter before the Court. In that matter, Hoyts has applied for a writ of prohibition directed to the members of the Full Bench and to the Media Alliance prohibiting them from acting upon cl. 31 and for a writ of certiorari removing the Interim Award into this Court so that cl. 31 may be quashed.
While the Hoyts matters were proceeding before the Full Bench, other matters involving other employers in the industry were proceeding before a single member of the Commission, Commissioner Fogarty. The Hoyts Companies were not parties to those proceedings. Nor were they parties to the dispute with which those proceedings were concerned. As a result of those proceedings, Commissioner Fogarty made a consent award, known as the Theatrical Employees (The Greater Union Organisation and Village Roadshow) Award 1991 ("the Greater Union and Village Roadshow Award"), regulating the wages and conditions of persons employed in the picture theatres of Hoyts' major competitors.
Following the making of the Greater Union and Village Roadshow Award, the Hoyts Companies applied to the Commission under s. 113 of the Act to have that Award set aside. That application was referred to another Full Bench and was dismissed on the ground that the Hoyts Companies lacked standing to make it. In this second matter, the Hoyts Companies seek to have made absolute an order nisi for certiorari to quash that decision and for mandamus directed to the members of that Full Bench requiring them to hear and determine their application in accordance with law.
It is convenient to consider the nature of the Interim Award before going to the terms of cl. 31. The Interim Award is no more than a step along the way to a final award dealing generally with wages and conditions for employees of the Hoyts Companies. It is expressed to operate from the beginning of the first pay period to commence on or after 20 May 1992 and to remain in force until 20 August 1992. However, by reason of s. 148 of the Act, it continues in force until a new award is made dealing with the same matters, subject to the power of the Commission to set aside the Award pursuant to s. 113.
The Interim Award replaces the Theatrical Employees Award in its application to the Hoyts Companies [1] . It makes specific provision with respect to a considerable number of conditions, some of which are, generally speaking, standard throughout the awards of the Commission [2] and others of which may have been fashioned to the requirements of the picture theatre industry [3] . Wages and other conditions are dealt with, to some extent, by cl. 6, cl. 31 and cl. 32; to the extent that they are not dealt with by those clauses, they are left at large.
Clause 32 of the Interim Award applies the wage rates and certain conditions [4] in the Theatrical Employees Award to Hoyts' employees, but not to the employees of Delarene and Rampton. Clause 6 is directed to the maintenance of actual rates and cl. 31 is concerned with preserving existing conditions and employment relationships for Hoyts' employees.
Actual rates of pay and conditions applying to individual employees as at 7 May 1992, shall not be reduced as a consequence of the coming into operation of this Award. Clause 31 provides in sub-cll. (1) and (2) as follows: 31.1 That as from 20 May 1992 no employee of [Hoyts] will have his or her employment conditions changed without the leave of the Full Bench of the Industrial Relations Commission assigned to matter C No. 32728 of 1988 and others.
31.2 That as from 20 May 1992 no employee of [Hoyts] will have his or her employment transferred to any other employer in the Hoyts Group without the leave of the aforesaid Full Bench.
The operation of cl. 31.1 and cl. 31.2 is qualified by cl. 31.3 and cl. 31.4, which, respectively, preserve an employee's right to terminate his or her employment and Hoyts' right to terminate for cause.
The rates and conditions set by the Interim Award, whether directly or indirectly by cl. 32, are minimum rates and conditions. Clause 29 provides:
This award specifies minimum wages and minimum employment conditions, but does not limit the right of the employer to provide, at its discretion, but subject to the then current wage principles of [the Commission], wages and conditions which are more beneficial to employees.
The effect of the Interim Award is quite different depending on whether a person is employed by Hoyts or by the other Hoyts Companies, Delarene and Rampton. The general effect for employees of Delarene and Rampton is that, although they have the benefit of the conditions specifically dealt with by the Interim Award, they are award free with respect to other matters, including wage rates, hours of work, overtime, penalty rates, casual rates and junior rates. On the other hand, Hoyts' employees have the benefit of award protection with respect to wages and a considerable number of conditions as a result of the specific provisions of the Interim Award and the application, by cl. 32, of particular provisions of the Theatrical Employees Award. As with the employees of Delarene and Rampton, some matters, including penalty rates, casual rates and junior rates, are left at large, but Hoyts' employees gain some measure of protection with respect to those matters from cl. 31 which, if valid, preserves employment with Hoyts and their existing conditions.
It is not disputed that cl. 31.2 of the Interim Award operates according to its terms and, thus, prevents the transfer of employees from Hoyts to either of the other Hoyts Companies without the leave of the Commission. However, the meaning of cl. 31.1 is not so clear.
The language of cl. 31.1 indicates that it is directed to preventing change of any kind, not merely change which has the effect of reducing conditions. If cl. 31.1 is read strictly according to its terms, there is an apparent conflict between it and cl. 29 which, as already noted, specifies that the Interim Award sets minimum rates and conditions and that, subject to current wage fixing principles, the employer may "provide wages and conditions which are more beneficial to employees". A conflict of that kind, involving apparently inconsistent provisions in the one instrument, is to be resolved, if at all possible, on the basis that one provision qualifies the other and, hence, that both have meaning and effect [5] . That rule is an aspect of the general rule that an instrument must be read as a whole [6] .
On the approach that cl. 29 and cl. 31.1 should both have meaning and effect, the apparent conflict between them can be resolved by reading cl. 31.1 down so that it is concerned only with conditions not regulated by the Interim Award, whether directly or indirectly as a result of cl. 32. In our view, that approach must be adopted in this case. Otherwise, if cl. 31.1 is read strictly according to its terms, it not only displaces cl. 29 but it destroys the very basis on which the Interim Award was made, namely, that its provisions as to wages and conditions are minimum provisions only. Further, that approach accords with the operation of the Interim Award on Hoyts' employees for whom there is definite provision with respect to a large number of matters, but for whom some matters are left at large, including penalty rates, casual rates and junior rates - matters which would seem to have particular relevance in the picture theatre industry. Given the nature of these matters, cl. 31.1, even when read as subject to or qualified by cl. 29, has significant operation.
There is one other matter to be observed with respect to cl. 31.1. There is nothing in its language or its context to confine its operation to conditions ordinarily dealt with by award or to conditions affecting all or, even, a significant number of Hoyts' employees. Thus, as was put on behalf of Hoyts, it operates not only with respect to those matters still to be arbitrated, but it may also operate to preserve and maintain the particular conditions of individual employees and their individual work arrangements. And certainly cl. 31.2 operates to preserve the employment relationships existing between Hoyts and its individual employees.
It is not entirely clear, but it may be, as was asserted on behalf of Hoyts, that cl. 31.1 operates with respect to conditions which are not dealt with in either the A.T.A.E.A. log of claims or the counter log of the Hoyts Companies. That, however, is entirely irrelevant. As already indicated, the activities of the Hoyts Companies extend interstate. A claim on them by a federally registered union with respect to the conditions applicable to their employees is necessarily a claim that has an interstate character. In this case, a claim was made in the course of the proceedings in the Commission by the Media Alliance for the maintenance of existing employment conditions and the preservation of existing employment relationships. In that context, the only question that arises is whether that claim and cl. 31, which was founded upon it, are concerned with matters of an industrial nature, in the sense that they are matters capable of being the subject of an industrial dispute.
Section 4(1) of the Act defines an "industrial dispute" in terms of an interstate dispute "about matters pertaining to the relationship between employers and employees". It was argued on behalf of Hoyts that cl. 31 is not concerned with matters of that kind, but with the powers and functions of the Commission. In that context, it was said that cl. 31 creates machinery for the ad hoc resolution of disputes between Hoyts and its individual employees, and that it purports to regulate individual employment contracts and to confer arbitrary and supervisory powers on the Commission authorizing its interference in the management and control of the Hoyts Companies.
A dispute concerned only with the powers and functions of the Commission is not an industrial dispute, not being a dispute as to a matter pertaining to the relationship between employers and employees. That was held by this Court in Reg. v Portus; Ex parte City of Perth [7] . But it does not follow, from that or any other case, that a dispute about a matter that does pertain to that relationship ceases to be an industrial dispute because, or to the extent that, it involves a subsidiary claim as to the powers that may or should be exercised in relation to that matter. To take an example in another field, a claim with respect to safety, involving a claim that a safety committee should have power to require others to do or refrain from doing certain things, is a claim with respect to safety notwithstanding that it also involves a claim with respect to the powers and functions of the safety committee.
The position of the Commission is not completely analogous with that of a safety committee. In the situation hypothesized, the safety committee obtains its powers from the parties to the dispute, whether directly by concession or indirectly as the result of arbitration. But the Commission does not obtain its powers in that way. It receives its powers from the Act and has only those powers that the Act confers. Moreover, those powers are confined by the requirement that they be exercised in the course of, or for the purposes of, conciliation and arbitration.
Because the Commission is a statutory body possessed only of the powers that the Act confers, a claim that it exercise powers that it does not have or that it exercise its powers other than by way of, or for the purposes of, conciliation or arbitration, even when appended to a claim with respect to an industrial matter, is, to that extent, a claim with respect to the powers and functions of the Commission and, thus, to that same extent, not a claim with respect to an industrial matter. But that is not what is involved in this case.
So far as is presently relevant, the Commission has power to make provisional and interim awards and orders [8] , power to vary its awards and orders (s. 111(1)(f)) and a general power to "give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of [an] industrial dispute" (s. 111(1)(t)). The claim of the Media Alliance for the preservation of existing conditions pending the making of a final award, even if it involved some reference to the powers to be exercised by the Commission, did not claim, and cl. 31.1 does not assert, any power that the Commission does not have by virtue of the Act. Rather, cl. 31.1 is merely concerned to ensure that existing conditions of employment are maintained unless and until the Commission, in the exercise of the powers which the Act confers, decides otherwise.
Clause 31.1 is, of course, found in an interim award made in the course of arbitrating the various matters in dispute, some of the matters being the subject of definite award provision and others having been left at large pending the Commission's hearing and determination of them. Quite different considerations would arise if the Commission purported to make a final award having the same effect as cl. 31.1. Prima facie at least, and leaving aside a demand by employers for the reduction of wages or conditions which might involve different considerations, a final award which purported to preserve the status quo generally and, otherwise, left matters to be determined ad hoc would not be an exercise of arbitral power. And, of course, if a final award provision purported to authorize the Commission to determine disputes between an employer and its individual employees, it might well involve the assertion of jurisdiction with respect to disputes that are neither interstate nor industrial in character [9] . But, again, that is not the case here.
The steps that may be taken and the orders that may be made in the course of arbitration are not necessarily coextensive with what may be done by way of a final award. So much is expressly recognized by s. 111(1)(t) of the Act which, as has already been noted, confers a general power to "give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of [an] industrial dispute". Although there might be questions as to the validity of a final award having effect of the kind that cl. 31.1 has in relation to matters not dealt with in the Interim Award, an interim provision of that kind may well be necessary or expedient for the speedy and just hearing and determination of a dispute, particularly if, as was suggested in this case, there is a possibility that conditions will be altered so as to render the Commission's decision irrelevant or so as to defeat its jurisdiction. And that is so even if the provision operates in a wider area than that to be regulated by the final award, for it may be necessary or desirable to consider all aspects of existing employment practices and arrangements before determining the provision that should be made with respect to the matters in dispute.
It is entirely reasonable to contemplate that, if interim provision is to be made preserving existing conditions generally, problems may arise or circumstances may develop requiring departure from its general operation. In that context, the express reservation of power to deal with individual matters, if the need should arise, is no more than an acknowledgment of the preparedness of the Commission to engage in the further exercise of its power under s. 111(1)(t) of the Act should it be necessary or expedient to do so, or alternatively, of its preparedness to exercise the power conferred by s. 111(1)(f) to vary its orders and awards. That is all that is involved in the reservation of leave to the Commission in cl. 31.1 of the Interim Award.
So far as cl. 31.1 is concerned, the claim made by the Media Alliance was a claim with respect to the employment conditions of Hoyts' employees and, hence, as to matters involving the relationship between employers and employees. The subsidiary acknowledgment in the claim, if acknowledgment there was, that the Full Bench might exercise the powers conferred by the Act to relax or suspend the operation of any provision made in that regard does not alter the industrial character of that claim. For the same reasons and whether or not there was any acknowledgment of that kind in the claim, the reservation of leave to the Commission in cl. 31.1 does not alter the industrial character of that sub-clause. And, because it is found in an interim award which leaves a number of matters to be determined, cl. 31.1 is not open to attack on grounds that might be available in the case of a final provision having the same effect [10] .
One other matter should be noted with respect to cl. 31.1. It is now established that a matter may pertain to the relationship between employers and employees notwithstanding that it involves some curtailment of what is known by the somewhat dated expression as "managerial prerogative" [11] . The claim upon which cl. 31.1 was founded was a claim pertaining to that relationship and it does not matter that the effect of the sub-clause is to place limits on the way that Hoyts might otherwise manage its affairs or conduct its business activities.
The reservation of leave to the Commission in cl. 31.2 gives rise to slightly different considerations. As has already been seen, Hoyts' employees have the benefit of award protection to a substantially greater degree than do employees of Delarene and Rampton. The latter, not being entitled to the provisions of the Theatrical Employees Award which are applied to Hoyts' employees by cl. 32 of the Interim Award, are award free so far as wages and other quite fundamental matters, including hours of work and overtime, are concerned. To the extent that the dispute is concerned with the wages and conditions of Hoyts' employees, a provision preventing transfer of their employment to Delarene and Rampton is, in the circumstances, one that is "relevant" or "reasonably incidental" or "appropriate" [12] to the resolution of that issue. And, in the context of an interim award of the kind with which this case is concerned, the reservation of leave to the Commission to relax or suspend the prohibition on transfer of employment is, again, no more than the recognition of its powers under s. 111(1)(f) and (t) of the Act, and the expression of its preparedness to use them in appropriate circumstances.
The claim for prerogative relief in relation to cl. 31 of the Interim Award must fail.
By s. 113(1) of the Act, the Commission has power to "set aside an award or any of the terms of an award". The primary argument for the Hoyts Companies was that their application under that section is not simply an application to set aside the Greater Union and Village Roadshow Award, but is, in effect, a notification of an industrial dispute to which they, the Hoyts Companies, are parties and on the subject of which they are entitled to be heard by the Commission. Alternatively, it was argued that they have standing to bring the application, notwithstanding that they are neither parties to the Award in question nor parties to the dispute upon which it was based.
Mandamus and the need to make a clear request for the exercise of jurisdiction
The primary argument for the Hoyts Companies in relation to s. 113 of the Act was advanced for the first time in this Court. That argument was based on s. 113(4) which provides:
This Act applies in relation to applications, and proceedings in relation to applications, for the setting aside or variation of awards in the same manner, as far as possible, as it applies in relation to industrial disputes and proceedings in relation to industrial disputes, and for that purpose such an application shall be treated as if it were the notification of an industrial dispute.
It was argued that s. 113(4) obliges the Commission to treat the application of the Hoyts Companies as the notification of a dispute and to determine whether there is, in fact, an industrial dispute and, if so, to ascertain the parties to that dispute and its subject matter. That follows, it was said, from s. 101(1) of the Act which provides, subject to sub-s. (2) which is of no present relevance, that:
where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute:
(a) determine the parties to the industrial dispute and the matters in dispute; and
but the Commission may vary or revoke any of the findings.
The argument for the Hoyts Companies did not identify the elements of the dispute which they claim exists with any great precision. Much of the argument was directed to the proposition that there was a separate and new dispute between the Hoyts Companies, on the one hand, and, on the other, the employers bound by the Greater Union and Village Roadshow Award and, perhaps, the Media Alliance. That dispute, according to the argument, came about either as the result of the making of the Greater Union and Village Roadshow Award or as a result of the general circumstances surrounding that Award. However, it was also suggested that, by reason of circumstances generally, the dispute upon which the Greater Union and Village Roadshow Award was based had coalesced with the dispute upon which the Interim Award was made so that there came about a single dispute between the Media Alliance, on the one hand, and, the Hoyts Companies and the employers respondent to the Greater Union and Village Roadshow Award, on the other.
There are conceptual difficulties in the notion that there may be an industrial dispute between employers, particularly if the statutory definition or the constitutional conception of "industrial dispute" is concerned with matters directly affecting or involving the relationship between employers and employees, and not those which affect that relationship only remotely or indirectly. And, of course, it was held in Reg. v Portus; Ex parte Australian Air Pilots' Association [13] , in relation to the Conciliation and Arbitration Act 1904 Cth, that there could not be an industrial dispute between employers. The same conceptual difficulties do not arise in relation to the notion that two disputes, although originally quite separate, have coalesced [14] into a single dispute in which the disputants are a federally registered union, on the one hand, and, on the other, employers whose employees are or are eligible to be members of that union. It is, thus, convenient to approach the primary argument in this matter on the basis that the Hoyts Companies claim there is a dispute of the latter kind which, if it exists, is clearly an industrial dispute as defined by the Act. On that basis, it can be taken that mandamus is not futile [15] , as might be the case if the claim were simply a claim with respect to a dispute between employers.
As already indicated, the case based on s. 113(4) of the Act was made for the first time in this Court. Quite apart from discretionary considerations relevant to the question whether mandamus should issue in a particular case [16] , there is a general rule that mandamus will not be granted unless there is a "clear demand for the exercise of jurisdiction based on proper materials" [17] . That is not a rule of law, but a convenient method of testing whether there has been a refusal, actual or constructive, to exercise jurisdiction. Thus, mandamus has issued where, although there was no demand, there was no doubt as to what was required as, for example, where there was a failure to do some act within the time fixed by statute [18] .
The terms of s. 99(1) and (2) of the Act [19] present some difficulties for the argument that an application under s. 113 is, in effect, the notification of a dispute. But even if it is and even allowing for the direction in s. 113(4) of the Act requiring the Commission to treat an application to set aside or vary an award under that section "as if it were the notification of an industrial dispute", the mere bringing of an application does not carry with it some suggestion that there is a new dispute which is separate or different from the dispute upon which the award was based. Much less does it carry a suggestion that the Commission should proceed to investigate, on its own initiative, whether there is in fact a new or different dispute and, if satisfied there is, proceed to ascertain its parties and its subject matter. That being so and there having been no request for the Commission to undertake an inquiry as to a new or different dispute, there is no basis on which it can be said that, in failing to engage in that exercise, the Commission refused to exercise jurisdiction. There is, thus, no basis for the grant of mandamus on the grounds advanced by reference to s. 113(4) of the Act.
Standing to bring an application under s. 113 of the Act
The Commission's decision that the Hoyts Companies lacked standing to bring an application to set aside the Greater Union and Village Roadshow Award was based on s. 33 of the Act which provides:
Subject to this Act, the Commission may perform a function or exercise a power:
It was held that the Hoyts Companies did not have standing because they did not come within either limb of s. 33(b), being neither parties to the Greater Union and Village Roadshow Award nor parties to the dispute on which that award was based.
It was argued on behalf of the Hoyts Companies that s. 33(b) gives standing to persons who are parties to any award or any industrial dispute, and not merely to persons who are parties to the award or dispute in relation to which the Commission's powers or functions are invoked. And, it was said, the Hoyts Companies satisfied both limbs of s. 33(b), being parties to the Interim Award and to the dispute upon which the Interim Award was based.
The construction of s. 33(b) advanced on behalf of the Hoyts Companies has the curious consequence that a party to an award or to a dispute in one industry can move the Commission to exercise its powers or functions in relation to an award or dispute in an entirely different industry, notwithstanding that it is not in the least affected by it. And there is no obvious reason why a person answering that description should be in any better position than a person who has never been involved in a dispute to which the Act applies. Yet that is also the consequence of the construction advanced on behalf of the Hoyts Companies.
Section 33(b) must be construed in its context and in the light of the Act as a whole. In particular, it must be construed having regard to the constitutional purpose of the Commission, namely, the conciliation and arbitration of industrial disputes. It is well settled that the powers of conciliation and arbitration with which the Act is concerned are powers to be exercised only between the parties to a dispute. Moreover, so far as arbitration is concerned, the powers of the Commission are to be exercised in accordance with procedures which are consistent with its obligation to act judicially [20] . In that context, s. 33(b) is, in our view, to be read as concerned only with those persons who are parties to the award or the dispute in relation to which the Commission's powers or functions are invoked.
It was also argued on behalf of the Hoyts Companies that, even if they did not fall within s. 33(b) of the Act, they had standing to bring their application under s. 113 on the basis that s. 33 operates "[s]ubject to [the] Act". It was said that the Act discloses an intention that persons whose industrial interests are sufficiently affected may invoke the Commission's powers under s. 113, notwithstanding that their rights and interests are not directly affected. In this respect, reference was made to s. 94 of the Act which, subject to s. [21] , requires the Commission, if it is possible and if the Commission considers it proper, to provide "for uniformity throughout an industry carried on by employers in relation to hours of work, holidays and general conditions in the industry". It was said, by reference to s. 94, that the provisions of the Greater Union and Village Roadshow Award as to those matters would almost certainly flow into the Interim Award or any final award made in its place.
There is no doubt that, in various places, the Act acknowledges that the Commission's determinations may have an impact extending beyond the parties whose rights and interests are directly and immediately affected [22] . The Act caters for that possibility by providing, in s. 43, that the Commission may grant leave to intervene to organizations, persons or bodies who, in the opinion of the Commission, should be heard in a matter before it, and by conferring rights on the Minister responsible for the administration of the Act to intervene in the public interest in matters which are before a Full Bench [23] or in matters involving public sector employment (s. 44(2)). Additionally, the Minister is given the right, by s. 109 of the Act, to apply for review by a Full Bench of awards and orders which appear to be contrary to the public interest. In the light of these provisions, there is, in our view, no room for an implication from the Act to the effect that persons whose industrial interests are sufficiently affected have standing to apply under s. 113 of the Act to set aside or vary awards to which they are not parties.
Neither the Act generally nor s. 33(b) entitles a person who is not a party to an award to apply under s. 113 to have it set aside. There was thus no refusal, actual or constructive, to exercise jurisdiction by reason of the Commission's ruling that the Hoyts Companies lacked standing to bring their application to set aside the Greater Union and Village Roadshow Award.
Conclusion with respect to the order nisi in relation to s. 113 of the Act
The Hoyts Companies have failed to make good the grounds on which they claimed the Commission refused to exercise its jurisdiction with respect to their application to set aside the Greater Union and Village Roadshow Award. The order nisi for mandamus and certiorari should be discharged.
In each of these matters, The Hoyts Corporation Pty. Ltd. ("Hoyts") seeks relief by way of prerogative writ under s. 75 of the Constitution directed to the Media, Entertainment and Arts Alliance ("M.E.A.A.") and members of the Australian Industrial Relations Commission ("the Commission"). In the first of them ("the first matter"), the application is for a writ of prohibition and is brought by Hoyts alone. Its focus is cl. 31 of The Hoyts Corporation Pty. Ltd., Delarene Pty. Ltd. and Rampton Pty. Ltd. Interim Award 1992 ("the Hoyts Award") which Hoyts alleges is invalid. In the other ("the second matter"), Hoyts and two associated companies, Delarene Pty. Ltd. and Rampton Pty. Ltd. ("the three Hoyts Companies") seek to have made absolute an order nisi for certiorari to quash a decision of the Full Bench of the Commission dismissing an application by them for a variation of the Theatrical Employees (The Greater Union Organisation and Village Roadshow) Award 1991 and for mandamus directed to that Full Bench requiring them to hear and determine the application in accordance with law. The Commission dismissed that application on the ground that the three Hoyts Companies, who were not parties to that award, lacked standing to make the application. The background facts in relation to both matters, including the general nature and contents of the two awards, are set out sufficiently in the judgment of the other members of the Court. I turn at once to a consideration of the substance of the first matter, namely, the validity of cl. 31 of the Hoyts Award.
I. First Matter: Validity of cl. 31 of the Hoyts Award
Clause 31 of the Hoyts Award consists of four numbered paragraphs. For present purposes, the critical provisions are contained in pars 1 and 2 which read:
31.1 That as from 20 May 1992 no employee of [Hoyts] will have his or her employment conditions changed without the leave of the Full Bench of the Industrial Relations Commission assigned to matter C No. 32728 of 1988 and others.
31.2 That as from 20 May 1992 no employee of [Hoyts] will have his or her employment transferred to any other employer in the Hoyts Group without the leave of the aforesaid Full Bench.
The reference in cl. 31.1 to "matter C No. 32728 of 1988 and others" is to the matters in which the Hoyts Award was purportedly made by a Full Bench of the Commission. The other two paragraphs of cl. 31 (cl. 31.3 and cl. 31.4) qualify the first two. They respectively preserve the right of an employee of Hoyts to terminate for cause his or her employment and the right of Hoyts to terminate for cause the employment of an employee. It is unnecessary to make further reference to them. Clearly, if cl. 31.1 and cl. 31.2 are invalid, the whole of cl. 31 will fall.
The first thing to note about cl. 31.1 is the width of its prima facie scope. As a matter of language, the words "no employee will have his or her employment conditions changed" preclude both change to the particular employment conditions of individual employees and change to employment conditions applying to Hoyts' employees generally. Prima facie, those words extend to any such change regardless of whether the relevant "employment condition" is or is not made the subject of regulation by an existing award, or whether the change is, from the point of view of the employee, for the better or for the worse. Perhaps more important, they extend to any such change regardless of whether it be at the request, or with the consent, of the affected employee.
Putting considerations of context to one side for the moment, the only internal cause of real difficulty in the construction of cl. 31.1 is the uncertainty of both the connotation and the denotation of the phrase "employment conditions" which is left undefined. There are, of course, some subjects, such as rates of remuneration and entitlement to leave, which clearly, as a matter of ordinary language, are "employment conditions". There are, however, other less basic matters which fall within a grey area where characterization as an "employment condition" will depend upon the precise meaning to be given to the phrase and the particular circumstances of the individual case. Thus, it was suggested in argument that a transfer of a projectionist from one cinema to another and a requirement that a ticket seller perform some other function during lax periods would each involve a change in the "employment conditions" of the employee concerned. One can envisage circumstances where that would be so even if "employment conditions" is given a narrow and somewhat legalistic meaning. On the other hand, one can also envisage circumstances in which the conditions of employment of a particular employee involved constant variation in the location or content of work with the result that it was at least arguable that such a transfer or change would not involve any change of "employment conditions" even if that phrase is broadly interpreted. Be that as it may, cl. 31.1 precludes, as a matter of language, any change at all to the "employment conditions" of any employee of Hoyts without the leave of the designated Full Bench of the Commission.
Clause 31.1 must, however, be read in the context of the Hoyts Award as a whole. In particular, it must be read with cl. 29 which expressly provides that the Hoyts Award is concerned with minimum wages and minimum employment conditions and "does not limit the right of the employer to provide, at its discretion, but subject to the then current wage principles of [the Commission], wages and conditions which are more beneficial to employees". When cl. 31.1 is construed in the context of cl. 29, it must, in my view, be confined so as not to extend to changes in employment conditions "which are more beneficial to employees". So to read the clause compounds the latent uncertainty of the words "[change of] employment conditions" by subjecting them to a qualification which requires the application of the vague test of "more beneficial to employees". While such a test is an objective one, its application will inevitably, in some circumstances, involve a large element of subjective judgment. Further, it is clear that cl. 31.1 was not intended to authorize the Commission to grant "leave" to Hoyts to make a change of "employment conditions" which would involve a breach of the minimum terms and conditions of employment prescribed by some other provision of the Hoyts Award. Before such a change could be lawfully effected, an appropriate variation or qualification of that other provision would be necessary. In what follows, it will be convenient to use the phrase "relevant change of employment conditions" to refer to any change of employment conditions which is not positively "more beneficial to employees" and which would not involve a breach of another provision of the Hoyts Award.
Notwithstanding those confinements of its prima facie scope, cl. 31.1 represents a far-reaching intrusion by the Commission into the day-to-day management of the affairs of Hoyts. Subject to the right of Hoyts to provide conditions which are positively "more beneficial to employees", its effect is to require Hoyts, under the penal sanctions applicable to the breach of an award, to obtain the leave of the Full Bench of the Commission before giving any otherwise lawful instruction to an employee or doing any otherwise lawful act which would involve even a neutral (in the sense of neither beneficial nor detrimental) change in the "employment conditions" of any relevant "employee" [24] . That intrusion by the Commission into the internal management of Hoyts is compounded by the unqualified requirement in cl. 31.2 that Hoyts must obtain the leave of the Commission before transferring the employment of any of its "employees" [25] to another company in the Hoyts Group. There is nothing in the context of the other provisions of the Hoyts Award or in the other circumstances of the case which requires that the words of cl. 31.1 or cl. 31.2 be read down so as to exclude a case where the change of "employment conditions" or the transfer of employment is with the consent, or even at the request, of the particular employee. To the contrary, it would seem that at least part of the purpose of cl. 31.2 was to prevent Hoyts from prevailing upon some employees to agree to arrangements allegedly made to avoid award coverage. Be that as it may, to confine cl. 31.2 to cases of transfer without the consent of the affected employee would be to deprive it of effective content since, in the ordinary course of events, such a transfer could not be effected without the employee's consent. Nor is there anything which has the effect of confining the plain words of cl. 31.2 so as to exclude an intra-Group transfer of employment which is positively beneficial to the affected employee [26] .
(b) Would cl. 31 be within power if contained in a final award?
The question whether a final award in the terms of cl. 31.1 and cl. 31.2 would be within the powers of the Commission in the circumstances of this case provides a convenient starting point for a consideration of the validity of the two paragraphs. In my view, the answer to the question is clear. Such a final award would be beyond power. For one thing, such a final award would not be within the ambit of any industrial dispute before, let alone any dispute finding by, the Commission [27] . In that regard, the Court's attention has not been drawn to anything at all in any relevant log of claims or dispute finding which could even arguably be suggested to encompass a claim or award to the effect that Hoyts be forbidden to make, even at the request of the affected employee, any relevant change of employment conditions, however non-detrimental, or any intra-Group transfer of employment, however beneficial, without the prior leave of a Full Bench of the Commission. Indeed, as I followed the argument, it has not been suggested that cl. 31.1 and cl. 31.2 can be construed as confined to changes of employment conditions or transfers of employment which fall within the ambit of any log of claims or dispute finding. More important, there are more fundamental reasons than mere considerations of ambit which compel the conclusion that a final award in terms of cl. 31.1 and cl. 31.2 would be beyond the competence of the Commission. I turn to identify them.
For present purposes, and putting to one side any particular powers of the Commission in relation to an "interim award", the relevant function and powers of the Commission are those which the Industrial Relations Act 1988 Cth ("the Act") entrusts to it, pursuant to s. 51(xxxv) of the Constitution, for the prevention and settlement, by conciliation and arbitration, of industrial disputes extending beyond the limits of any one State. If cl. 31.1 and cl. 31.2 were contained in a final award, they would be predicated upon an assumption that the Commission already possessed, or that the Hoyts Award itself conferred, jurisdiction to determine whether or not Hoyts should be permitted to make each relevant change of employment conditions or intra-Group transfer of employment which Hoyts might desire to make in the future. If, in fact, the Commission did not already possess such a general jurisdiction and lacked the authority to confer it upon itself, the two clauses would be invalidated by mistake of law: what was intended by the Commission to be a conditional prohibition of any such change or transfer would, by reason of the mistake of law about the Commission's jurisdiction or authority, be converted into an absolute prohibition.
Clearly enough, there is no provision of the Act which directly confers upon the Commission a general jurisdiction to determine whether an employer such as Hoyts should or should not be permitted to make a relevant change of employment conditions or an intra-Group transfer of employment. It could well be, for example, that no dispute at all, let alone an interstate industrial dispute, existed or was threatened, at the relevant time, about a particular proposed change or transfer. Nor could an award made in the settlement of some previous interstate dispute confer jurisdiction upon the Commission to grant or withhold leave to Hoyts to make a relevant change of employment conditions or intra-Group transfer of employment regardless of whether any dispute then existed in relation to the desired change or transfer. It is simply not open to the Commission to confer upon itself a jurisdiction to deal in the future with a matter about which there may be no dispute at all. The reason why that is so may be expressed in terms of the oft-repeated assertion to the effect that a stream cannot rise higher than its source. However dubious that assertion may be as a generalization about natural phenomena, it is well established as a proposition of law applicable to a donee of statutory powers [28] . In the present context, it means that the Commission cannot, in the exercise of its statutory functions and powers in relation to the prevention and settlement of interstate industrial disputes, confer upon itself the power to make awards or orders in respect of matters which are not the subject of any such dispute [29] .
It follows from the foregoing that a final award in terms of cl. 31.1 and cl. 31.2 would be invalid for the reason that it is essentially predicated upon the existence in the Commission of a jurisdiction which the Commission neither possesses nor is competent to confer upon itself. And that would be so even if the dispute in settlement of which such a final award was purportedly made involved a dispute about whether the Commission should possess such jurisdiction. In that event, the purported award would suffer from a further cause of invalidity, namely, that, to the extent that the dispute was about the jurisdiction of the Commission, it would not have been an "industrial dispute" [30] for the purposes of the Act in that it would not relevantly have been about a matter pertaining to the relationship between employers and employees [31] .
(c) Is cl. 31 within power as part of an "Interim Award"?
As has been seen, the Hoyts Award describes itself as an "Interim Award". That description is accurate to the extent that the Hoyts Award was apparently seen as no more than a step along the way towards a final settlement of the industrial disputes before the Commission. In some respects, however, it is liable to be misleading. For one thing, the Hoyts Award contains a large number of definitive provisions prescribing minimum terms and conditions of employment of the employees of Hoyts and its two associated companies. In so far as Hoyts itself is concerned, those provisions are supplemented by cl. 32 which incorporates in the Hoyts Award a large number of the clauses of another award [32] , " as varied from time to time ", which it purports to make automatically applicable to the employment of Hoyts' employees. More important, the Hoyts Award is of indefinite duration. It is true that cl. 4, under the heading " Operation and Duration ", provides:
This Award shall come into operation from the beginning of the first pay period to commence on or after 20 May 1992 and shall remain in force until 20 August 1992. However, it is common ground that, in the context of s. 148(1) of the Act and in the absence of some specific order of the Commission for its expiry, the Hoyts Award did not cease to operate after 20 August 1992. To the contrary, in the words of s. 148(1), it "continues in force until a new award is made dealing with the same matters" [33] . 1. The Theatrical Employees (Cinema and Drive-in Industry) Award 1983. 2. The effect of s. 148(1) in that regard is confirmed by s. 148(3) which expressly refers to the situation "[w]here, under subsection (1), an award has continued in force after the end of the period specified in the award as the period for which the award is to continue in force".
The Commission is not a court of law possessed of inherent jurisdiction. It is a statutory tribunal whose functions and powers - which, from the viewpoint of the citizen, may be compulsory, coercive and restrictive of liberty of action - are confined to those which the Parliament has seen fit to confer upon it. It is unnecessary, for present purposes, to consider whether it would lie within the legislative competence of the Parliament to confer upon the Commission authority to maintain the status quo by making interlocutory or interim awards or orders in relation to matters regardless of whether they are the subject of an industrial dispute before it. The plain fact is that the Parliament has not, either by direct grant or by delegation of legislative authority, purported to confer upon the Commission any such untrammelled authority to make interlocutory awards or orders. The Commission's only relevant power to make an interim award or order is that conferred by s. 111(1)(b) of the Act which provides:
Subject to this Act, the Commission may, in relation to an industrial dispute:
(b) make an award or order, including one by consent of the parties, in relation to all or any of the matters in dispute, including:
It is far from clear to me that, in the light of the definitive detail of its many provisions and the indefiniteness of its duration, the Hoyts Award is, at least in its application to Hoyts and "all" its employees, an "interim award" for the purposes of s. 111(1)(b)(ii). However, even on the assumption that it is, the Act does no more than include an interim award among the classes of award or order which the Commission may, "in relation to an industrial dispute", make "in relation to all or any of the matters in dispute". There is nothing in s. 111 or any other provision of the Act which suggests that the powers of the Commission in relation to an interim award are not confined, as a matter of legislative intent if not constitutional necessity, by the restraints which confine the general award-making power of which the power to make an interim award is but a part. In particular, there is nothing in s. 111 or any other provision of the Act which suggests that the power to make an interim award extends beyond "the ambit" of the relevant industrial dispute or disputes. Nor is there anything to suggest a legislative intent to purport to confer directly or indirectly upon the Commission jurisdiction to deal, on an interim basis, with particular matters, such as a specific proposed change of employment conditions or intra-Group transfer, regardless of whether they are or are not the subject of an "industrial dispute" before the Commission. In that regard, the auxiliary or incidental powers conferred by s. 111(1)(t) can be called upon to support s. 111(1)(b)(ii)'s grant of jurisdiction to make an interim award. They cannot, however, override the specific limitations upon the grant itself which are contained in the words which are emphasized in the above quotation of the words of s. 111(1)(b)(ii).
It follows that, even on the assumption that the Hoyts Award is an "interim award" for the purposes of s. 111(1)(b) of the Act, its validity falls to be determined by reference to the same considerations that govern the validity of any other award purportedly made by the Commission. That being so, the reasoning which led me to conclude that cl. 31.1 and cl. 31.2 would each be invalid if the Hoyts Award had been a final award leads also to the conclusion that each is invalid as part of an "interim award". As has been seen, that reasoning involves two distinct but related grounds of invalidity. The first ground is that an award or order to the effect that Hoyts is forbidden to make, even at the request of the affected employee, any relevant change of employment conditions, however non-detrimental, or any intra-Group transfer of employment, however beneficial, without the prior leave of a Full Bench of the Commission was not within the ambit of any industrial dispute before the Commission. The second ground is that an award or order to that effect is predicated upon the mistaken assumption that the Commission possesses, or has authority to confer upon itself, jurisdiction to determine whether Hoyts should or should not be permitted to make any relevant change of employment conditions or intra-Group transfer of employment which it might desire to make in the future regardless of whether the particular change or transfer is the subject of any interstate industrial dispute.
There is one further matter which should be mentioned. It is that the second of the two abovementioned grounds of invalidity could arguably be avoided by the substitution of an unqualified prohibition of any relevant change of employment conditions or intra-Group transfer on the basis that subsequent modification to meet the contingencies of a particular case could be effected by a variation of the award on the application of Hoyts. However, such a device would, if adopted, give rise to a further question which it is unnecessary to pursue for the purposes of this case. That question is whether an award containing such a blanket prohibition would be invalid on the ground that there was an absence of any reasonable proportionality between it and the issues involved in the industrial dispute in relation to which the award was purportedly made.
I would order the issue of a writ of prohibition directed to the respondents and prohibiting them from acting upon, or giving effect to, cl. 31 of the Hoyts Award.
II. Second Matter: Standing of the Three Hoyts Companies
I am in general agreement with the reasons for judgment of the other members of the Court. It follows that I consider that the order nisi for mandamus and certiorari should be discharged.