Construction, Forestry, Mining & Energy Union, in the matter of an application for Writs of Certiorari, Prohibition & Mandamus [2002] FCAFC 70 Construction, Forestry, Mining & Energy Union, in the matter of an application for Writs of Certiorari, Prohibition & Mandamus [2002] FCA 301 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining & Energy Union, in the matter of an application for Writs of Certiorari, Prohibition & Mandamus [2002] FCA 301 INDUSTRIAL LAW – constitutional writs – application to Australian Industrial Relations Commission under s 170MW of Workplace Relations Act 1996 (Cth) for termination of bargaining period – application heard by Commissioner – respondent applied to Commission to reopen hearing – application refused – whether Commission erred INDUSTRIAL LAW – meaning of "kind of employees" as used in s 170MW(7) of Workplace Relations Act 1996 (Cth) WORDS AND PHRASES – "kind of employees" Workplace Relations Act 1996 (Cth) ss 98A, 110, 111(1)(g), 170LG, 170MI, 170MU, 170MV, 170MW, 170MX Federal Court Rules O 51A r 5 Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399 cited Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 cited Re Media, Entertainment and Arts Alliance & Anor; Ex parte Arnel & Ors (1993-4) 179 CLR 84 cited Buck v Bavone (1976) 135 CLR 110 cited Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited Community and Public Sector Union v Australian Prudential Regulation Authority (Print S7131) cited Re Australian Prudential Regulatory Authority (Print SO966) referred to Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1665 cited Professional Officers' Association Victoria in the matter of an application for Writs of Prohibition, Mandamus and Certiorari (No. 2) [2001] FCA 562 applied Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 cited R v Marks; Ex Parte Australian Building Construction Employees and Builders' Labourers Federation (1981) 147 CLR 471 cited Re Minister for Immigration & Multicultural Affairs; Re Miah (2001) 75 ALJR 889 cited Aronson "The Resurgence of Jurisdictional Facts" (2001) 12 Public Law Review 17 CONSTRUCTION, FORESTRY MINING AND ENERGY UNION, IN THE MATTER OF AN APPLICATION FOR WRITS OF CERTIORARI, PROHIBITION AND MANDAMUS V646 of 2001 LEE, MADGWICK & GYLES JJ 20 MARCH 2002 PERTH (HEARD IN MELBOURNE) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 646 of 2001 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA IN THE MATTER OF An Application for Writs of Certiorari, Prohibition and Mandamus against: THE HONOURABLE SENIOR DEPUTY PRESIDENT POLITES, THE HONOURABLE SENIOR DEPUTY PRESIDENT KAUFMAN AND COMMISSIONER BACON, members of the Australian Industrial Relations Commission FIRST RESPONDENTS AND COMMISSIONER LEWIN, a member of the Australian Industrial Relations Commission SECOND RESPONDENT YALLOURN ENERGY PTY LTD (ACN 065 325 224) THIRD RESPONDENT EX PARTE: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION PROSECUTOR/APPLICANT JUDGES: LEE, MADGWICK & GYLES JJ DATE OF ORDER: 20 MARCH 2002 WHERE MADE: PERTH (HEARD IN MELBOURNE) THE COURT ORDERS THAT: 1. The application for orders nisi be dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 646 of 2001 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA IN THE MATTER OF An Application for Writs of Certiorari, Prohibition and Mandamus against: THE HONOURABLE SENIOR DEPUTY PRESIDENT POLITES, THE HONOURABLE SENIOR DEPUTY PRESIDENT KAUFMAN AND COMMISSIONER BACON, members of the Australian Industrial Relations Commission FIRST RESPONDENTS AND COMMISSIONER LEWIN, a member of the Australian Industrial Relations Commission SECOND RESPONDENT YALLOURN ENERGY PTY LTD (ACN 065 325 224) THIRD RESPONDENT EX PARTE: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION PROSECUTOR/APPLICANT JUDGES: LEE, MADGWICK & GYLES JJ DATE: 20 MARCH 2002 PLACE: PERTH (HEARD IN MELBOURNE) REASONS FOR JUDGMENT LEE AND MADGWICK JJ An employer seeks to have bargaining periods terminated 1 Prior to 24 July 2000 the applicant ("the Union") and other federally registered unions had initiated bargaining periods (as recognised by s 170MI ff of the Workplace Relations Act 1996 (Cth) ("the Act")) with the third respondent ("the company") concerning the terms and conditions of workers in the company's electricity supply and associated coal‑mining operations in Victoria. The company had also initiated bargaining periods with various unions, including the applicant. 2 On 24 July 2000, the company applied to the Australian Industrial Relations Commission ("the Commission") pursuant to s 170MW(7) of the Act, to terminate the bargaining periods on the basis that there was no reasonable prospect of the negotiating parties reaching agreement; c.f. s 170MW(7) (set out at [15] below). 3 The application was heard by the second respondent, a member of the Commission, over seven hearing days between 25 July and 8 September 2000, after which the Commissioner reserved his decision. The Union seeks to have an allegedly dramatic development investigated by the Commission 4 On 23 October 2000, the Union apparently received some information which it regarded as relevant to the proceedings and on 24 October the Union's solicitors, by letter to Commissioner Lewin, asked that the matter be listed urgently so that they could make an urgent application of an unspecified nature. The company's solicitors by letter observed that there was no application on foot. 5 On 25 October, the Commissioner indicated that delivery of his decision might be "imminent" but, before considering the listing of any application, he would need to know its nature. On the same day the union's solicitors explained that the Union's initial application was that the Commission "not deliver its decision this week while we consider our new instructions". It was indicated that the Union "may wish" to apply to reopen its case and that an indication would be given by 5pm on 27 October as to whether the solicitors had instructions to make the reopening application. The company's solicitors, by letter, opposed a deferment of the Commissioner's handing down his decision. Later that day, the Commissioner indicated that, "in the absence of any explanation" of what the Union's solicitors had called a "new and on the face of it dramatic aspect of the matter", he intended to proceed with the production and publication of his decision. 6 On 26 October, the Union's solicitors wrote to the Commissioner as follows: "My clients, the CFMEU and the ASU [Australian Municipal Administrative and Clerical Services Union], now hereby make the following applications: (1) An application to re-open their case in the proceedings; (2) An application under s111(1)(g)(iv) and 111(1)(g)(v)(A) that the Commission refrain from further hearing or from determining the proceeding other than the question of the Commission's jurisdiction; and (3) An application that the Commission not deliver its decision on the merits until the hearing and determination of my clients' application to re-open and applications under s.111. We have begun preparing the evidence to be put before the Commission in support of these applications. We need a proper opportunity to complete that preparation in order that our clients' position can be put before the Commission in full. We indicate however that our clients are in possession of new evidence, including documentary evidence emanating from Yallourn Energy. On the basis of that evidence it is our clients' contention that the Commission has been misled by Yallourn Energy in the proceeding and that Yallourn Energy has been motivated in its 170MW(7) Application by an ulterior motive not at any stage disclosed to the Commission. Our clients intend to bring evidence before the Commission which demonstrates that Yallourn Energy's real motive in seeking by its application to remove our clients' capacity to collectively bargain is to effectuate a major restructure of its mining operations, including the forced redundancy of hundreds of Yallourn Energy employees. In those circumstances any suspension or termination of bargaining periods would substantially prejudice and disadvantage our clients and their members in a way which the evidence currently before the Commission would not permit the Commission to evaluate and take into account. I ask that the Commission list my clients' applications for mention at the earliest convenient opportunity. The new evidence and our applications go only to the merits of the 170MW(7) application, and do not affect the determination of the jurisdictional points which the Commission has reserved." 7 Section 111(1)(g) of the Act, so far as is relevant, provides: "(1) Subject to this Act, the Commission may, in relation to an industrial dispute: … (g) 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: … (iv) that a party to the industrial dispute is engaging in conduct that, in the Commission's opinion, is hindering the settlement of the industrial dispute or another industrial dispute; or (v) that a party to the industrial dispute: (A) has breached an award or order of the Commission or a certified agreement;" 8 At 12.46pm on the same day the Commissioner responded: "I have your letter by facsimile of noon today. In order to list the matter for the purpose of considering the re-opening of the proceedings, I would need you to file some evidentiary material in support of the assertion you make in paragraph 4 of your letter. Please advise me today of what evidence you are able to produce which might satisfy me that there is a prima facie conclusion available to the effect that the events you claim are developing are capable of proof." 9 Later that day, the Union's solicitors advised the Commissioner: "I refer to your facsimile received at 12:46pm today. In the time available and given your request for a response today I have not had a full opportunity to put my clients' position. However, I enclose the following documents which my clients assert to be documents of Yallourn Energy: (a) Alternative Mine Plan Presentation to Auspower Board, 30 August 2000 (b) Alternative Mine Development Plan (c) Untitled document My clients seek to be heard in relation to the documents enclosed and in relation to other evidence, including other documentary evidence, they wish to call in support of their applications. I reiterate that my clients seek an urgent directions hearing in order that the filing of further evidence and other issues related to the hearing and determination of my clients' applications can be addressed. I look forward to your response." 10 The attached documents, though not short, included what were apparently: · a planning document apparently prepared by the company's executives that dealt with the contingencies of the litigation in the Commission. Among other things it was proposed that, if the bargaining period were terminated, the company should "not negotiate during the [Commission-assisted] conciliation process. Use the [company's application before the Commission] as a driver towards arbitration"; and · an "Alternative Mine Plan" that had been prepared for presentation to the company's board on 30 August 2000. This proposed, among other things, the "[f]orced redundancy of all [the company's] mine personnel" and the contracting out of the entire mining operation. 11 The company's solicitors wrote to the Union's solicitors (with a copy to the Commissioner) stating: "We are instructed that none of these documents express the position of Yallourn Energy. In particular the documents relating to the mine plan refer to a proposal which has been rejected by the Auspower Board. Our client is concerned that these documents have been obtained unlawfully and are accordingly inadmissible. In any event, they are clearly irrelevant to the application to terminate the bargaining period under consideration by the Commission. It is our submission that the provision of these irrelevant documents to Commissioner Lewin at this stage of the case is an attempt to delay and prejudice the fair determination of our client's section 170MW(7) application. Yallourn Energy strongly opposes the re-opening of this case in any form." 12 On 27 October, the Union's solicitors wrote to the Commissioner: "I write to reiterate that if the Commissioner comes to the view that the material provided is not sufficient to warrant the listing of my clients' applications prior to a decision being handed down in the proceeding, my clients have other documents and seek an opportunity to make submissions. If the Commissioner should come to the decision that my clients should not be further heard on their applications or on the issue of the listing of those applications prior to the Commissioner delivering a decision in the proceeding, we respectfully ask that I be so notified and my clients given due opportunity to consider their position and seek any remedies which may be available in relation to such a decision." and: "We received last night a letter from Minter Ellison in relation to the matters raised in our recent correspondence with you. In our view it is clearly inappropriate and inadequate for these issues to be dealt with in correspondence as has been occurring. With respect, we submit that Minter Ellison's response makes it absolutely clear that this matter needs to be listed in order that all arguments can be fully ventilated." 13 On 30 October, the Commissioner advised: "I refer to recent correspondence by facsimile concerning your application to re-open this matter. In the circumstances, after considering your application I have decided against doing so. I intend to issue my decision in the matter at noon on Thursday 2 November 2000." 14 On 2 November, the Commissioner announced his reserved decision. Relevant legislation 15 The statutory provision most relevant to the Commissioner's task was s 170MW of the Act which provides: "(1) Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed. (2) A circumstance for the purposes of subsection (1) is that a negotiating party that, before or during the bargaining period, has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed agreement: (a) did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or (b) is not genuinely trying to reach an agreement with the other negotiating parties; or (c) has failed to comply with any directions by the Commission that relate to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement; or (d) has failed to comply with a recommendation of the Commission under section 111AA that relates to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement. (3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening: (a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (b) to cause significant damage to the Australian economy or an important part of it. (4) A circumstance for the purposes of subsection (1) is that industrial action is being organised or taken by: (a) an organisation that is a negotiating party; or (b) a member of such an organisation who is employed by the employer; or (c) an officer or employee of such an organisation acting in that capacity; against an employer to support or advance claims in respect of employees: (d) whose employment will be subject to the agreement; and (e) who are neither members, nor eligible to become members, of the organisation. (5) A circumstance for the purposes of subsection (1) is that industrial action that is being organised or taken by an organisation that is a negotiating party: (a) relates, to a significant extent, to a demarcation dispute; or (b) contravenes an order of the Commission that relates, to a significant extent, to a demarcation dispute. (6) If the bargaining period relates to employees employed in a part of a single business, a circumstance for the purposes of subsection (1) is that the initiating party is not complying with an award or order, a direction of the Commission, or a certified agreement, in relation to another part of the single business. (7) A circumstance for the purposes of subsection (1) is that: (a) immediately before the commencement of this section, the wages and conditions of the kind of employees whose employment will be subject to the agreement were determined by a paid rates award, or would have been so determined if a certified agreement, an enterprise flexibility agreement (within the meaning of this Act as then in force) or a State employment agreement had not prevailed over the award; and (b) so far as the wages and conditions of the kind of employees whose employment will be subject to the agreement were, before the commencement of this section, customarily determined by an award or a State award, they were determined by a paid rates award; and (c) there is no reasonable prospect of the negotiating parties reaching an agreement under Division 2 or 3 during the bargaining period. (8) The Commission: (a) may not make an order under subsection (1), in a circumstance set out in subsection (2), (4), (5), (6) or (7), except on application by a negotiating party; but (b) may make an order under subsection (1), in a circumstance set out in subsection (3): (i) on its own initiative; or (ii) on application by a negotiating party or the Minister. (9) Anything done by a negotiating party or any other person in respect of the proposed agreement is not protected action if it is done at a time when the bargaining period is suspended. (10) An order under subsection (1) terminating the bargaining period may, if the Commission considers it to be in the public interest, contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer: (a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed agreement; or (b) may initiate such a bargaining period only on conditions specified in the declaration." 16 Section 170LG of the Act provides: "A paid rates award is an award or a State award that: (a) includes a statement to the effect that it is a paid rates award; or (b) has been regarded by the Commission, or a State industrial authority, as the case may be, as a paid rates award when applying principles for the purposes of determining wages and conditions of employment." 17 Under an earlier statutory regime, paid statutory rates awards were the subject of particular requirements as to the Commissioner's handling of them and "paid rates award" was defined in s 4 of the Industrial Relations Act 1988 (Cth) to mean "an award specifying actual entitlements, rather than minimum entitlements, in respect of wages and conditions of employment". That definition appears to accord with the continuing meaning of the term in industrial relations parlance. 18 The phrase "kind of employees" in s 170MW(7)(a) and (b) has, for reasons that will be explained, been rightly treated by the Commission as more opaque than it might, at first sight, appear to be. Proceedings before the Commissioner 19 The company's original argument, put in a written submission, had been that the "kind of employees" concerned was employees of the company performing coal mining, power generation, and maintenance work. There was some evidence that the terms and conditions of employees of those individual classes had, prior to the privatisation of the State Electricity Commission of Victoria ("SECV"), been regulated by paid rates awards (or other industrial instruments, by a statutory extension of that phrase which it is not necessary to set out). The Union's argument was that one needed to look at "a class of employees in a particular industry", considered on an Australia-wide basis. It had not been shown to the Commission that the wages and conditions of employees in the power generation and related coal-mining industries, looked at as an Australian whole, had been "determined by a paid rates award". 20 In a written submission in reply, dated 7 September 2000, the company reformulated its submission as to the "kind of employees" concerned: "The CFMEU and ASU submit that the phrase 'kind of employees' is intended to refer to a class of employees in a particular industry, not simply the employees of the particular employer. In support of this submissions [sic] the unions make reference to the decision of a Full Bench in AWU v Caltex Refineries (Print S7892) where the Full Bench observed that the expression "kind of employees" extends beyond the particular employees to whom the bargaining notice relates. … In the present case these particular employees are employees of Yallourn Energy Pty Ltd. The Applicant puts its case in a manner which is entirely consistent with the reasoning of the Full Bench; i.e. that the kind of employees who are the subject of inquiry for the purposes of s.170MW(7)(b) extends beyond the particular employees who are the subject of the bargaining notices and embraces the class of employees who were employed by the SECV prior to 31 December 1996, and who were performing work of a kind currently regulated by EB3. … The unions submit that the phrase 'kind of employees' is intended to refer to a class of employees in a particular industry. Assuming for present purposes that this submission is correct, an examination of the awards relied upon by the Applicant discloses that the SECV and the unions bound by these awards regarded the SECV as 'the power industry' in Victoria. Each of the four awards: the Quad-E Award…; the EDF Award 1989…; the MIE Award…; and MS Award…contain provisions relating to 'the power industry': see cl. 8 and 9 of the first three awards referred to and cl. 8 of the MS Award. An examination of these award provisions discloses that for the purposes of the awards 'the power industry' was the SECV." 21 Dealing with this written reply in oral submissions, Mr Bromberg of counsel who appeared for the Union said: "Now, can I say the reason that we focus upon that phrase, electrical power industry, is because that is the way the [applicant] put their case … If you look at Yallourn Energy's submission at paragraph 3.3, they have there identified what they mean by kind of employee. They say: At the relevant date the awards covered the same kind of employees whose employment had been subject to EB4, namely, employees not on executive contracts working in the electrical power industry in mine operations, mine maintenance, power station operations, power station maintenance or administration. Now, that is the basis upon which this case proceeded. And that is the basis upon which in our outline we said there is no evidence that would allow the Commission to be satisfied of the case on the basis that the applicant proffers, that is, on the basis of the description of kind of employee that the applicant put. And there is no denying that. My learned friend doesn't seek to deny that, he doesn't seek to suggest to you that there is evidence before you in relation to the paid rates or other nature of awards in the electrical power industry as identified in 3.3. It is not qualified by a reference to Victoria, or there is no other qualification. It was described as the electrical power industry. And that is the basis upon which this case went forward and my learned friend fails. We have no case to answer. We have no case to answer on the basis of the way that this case has been run. And we, as we say, as we said before, are obliged only to answer the case that is put up. Now, the applicant's characterisation there, or its more recent characterisation in its reply is a matter for evidence." 22 After some other discussion, the Commissioner said: "I think the question is that there is material here and there are submissions in support of it to the effect that the kind of employees, an employee employed by the SECV in Victoria. I have to reach a conclusion as to whether or not that submission should be upheld or not. And in doing so I will have to consider the breadth of what the statutory expression is." 23 Mr Bromberg further elaborated his complaint: "What [sic] does, Commissioner, if I might answer that, is an opportunity to know what case is put against you, and an opportunity to respond to that case by way of evidence. Now, in terms of an opportunity to know what case was put against us, in relation to this point the opportunity was first raised yesterday at 3.30. In relation to the opportunity of putting evidence in response to that, we have had none. This morning I am shown one bit of evidence that we would like to get in; an award, the Australian Services Union Mission Energy Interim Award 1994, an award with the SECV as a respondent, well, with Mission Energy as a respondent, which was half owned by the State of Victoria at the time. It is a minimum rates award. Why isn't that in the power industry? Mission Energy is a power station. Now, for my learned friend to recreate his case on a different basis and give us half a day to answer it after all the evidence is closed, in our respectful submission is a manifest denial of natural justice if the Commission should permit it." 24 After further extended discussions between the Commissioner and counsel, the following exchange occurred: "THE COMMISSIONER: … in your view, can it be said that employees employed by the SECV were employed on paid rates awards. MR BROMBERG: Well, you are unable to make that finding because, number 1, you had four awards put before you which has the SECV as a respondent. Whether there are 40 awards with the SECV as a respondent, or five or eight, we don't know. So the first point is, you don't know what awards covered the SECV in 1996, and you can't, on the evidence before you, come to a conclusion as to whether or not the kind of employee that was employed by the SECV as an employee in the power industry, in the way that my friend puts it, was or not covered by a paid rates award. That is the first point. The second point is, that in relation to the four awards that are put before you, we say in some fairly detailed submission that you can't be satisfied in relation to any of those either. But we are not prepared to rest our case on that in circumstances where my learned friend wants to change his entire case on the day before we put final submissions. We have copies of the Mission Energy Interim Award 1994, if it is convenient. THE COMMISSIONER: We are formally closed at this stage. I think you would need to - - - MR BROMBERG: I am sorry? THE COMMISSIONER: Aren't you formally closed? MR BROMBERG: Well, we probably are. THE COMMISSIONER: Well, the only reason I raise it is there may or may not be objection to it being entered, that is all. If there is no objection I would receive it, but if there is an objection then, you know, I would have to deal with it and make a ruling, that is all. MR BROMBERG: Do you object? MR McDONALD: Well, the evidence is closed. We are in final submissions. MR BROMBERG: My friend objects. And I note my friend's objection. And my friend objects to us being able to respond to a matter first raised by his submissions yesterday. And I ask the Commission to note that, and we say to the Commission that a greater denial of natural justice could not be evidenced than what we see here in these circumstances. And I don't say that lightly. This is a classic attempt to deny us natural justice. And the Commission should simply deal with this recharacterisation by disallowing any reliance upon it, because the case has just not been run on that basis, and my learned friend can't change his case on the day before submissions close, and then object to further material being allowed." Other submissions by counsel, involving further discussion with the Commissioner, ensued. The Commissioner upholds the employer's view of the "kind of employees" concerned 25 In his decision, the Commissioner took the view (for reasons we refer to later – see [50] ff) that: "The issue has, in effect, been left wide open to the Commission [by Parliament]. The profound lack of definitive description of 'the kind of employees' within the statute creates such a broad field of possibilities that, in practical terms, it is a matter for the Commission to rule on the breadth of the category case by case. … I have indeed come to the view that employees in the power industry in Victoria are a 'kind of employees' to whom the subsection applies." 26 The Commissioner went on to conclude that there was no reasonable prospect of the parties reaching agreement, unaided by third party involvement, and that it was appropriate to terminate the bargaining periods. Among other things, the Commissioner said: "Industrial action was taken in January and into February 2000 and is currently being taken. The industrial action both in early 2000 and currently has imposed and is imposing economic duress on both the company and the members of the three unions. In my judgement, the coercive effect of the industrial action in early 2000 and the current industrial action is significant both in absolute economic terms and relatively, having regard to the respective resources and bargaining power of the parties. The issue therefore becomes, on the evidence which is available, is agreement likely to by [sic] caused by the industrial action? I am left somewhat to my own devices in reaching a considered judgement of this possibility. There is only limited evidence before me of the resilience or durability of the parties, psychologically and materially and the flexibility of each side's negotiating position in the face of the industrial action. The current industrial action has been underway since 2 August. On the evidence before me the cost of the industrial action to the company is approximately $2.8 million of revenue per week. The evidence of its effects on the members of the union is scant but there is a logical inference available that pay will be lost by some members of the organisations. There is some evidence that the industrial action in February caused a variation in the negotiating position of the company. The cost to the company of that industrial action appears to have been in the realm of $40 or $50 million. However, the variations in the company's negotiating position emanating from that industrial action and the dispute settlement processes which followed have been insufficient to establish substantive or procedural agreement between Yallourn Energy and the three unions." An earlier foray in the Federal Court 27 On 1 November 2000, the Union commenced proceedings in this Court alleging, among other things, breaches of the Act and conspiracy by the company, and seeking an injunction to restrain Commissioner Lewin from delivering his decision. Marshall J dealt with the interlocutory aspects of those proceedings on 3 and 6 November 2000; on 3 November his Honour issued an interim injunction but discharged it on 6 November. Appeal to the Full Bench concerning reopening 28 By Notice of Appeal dated 3 November 2000, the Union appealed to a Full Bench of the Commission against Commissioner Lewin's refusal to permit the reopening of its case and the hearing of the s 111(1)(g) applications. The Notice of Appeal referred to an alleged denial of natural justice by denial of a right to be heard, to an alleged failure to act judicially by failing to provide reasons for decision and to the Commissioner's alleged refusal or failure to exercise jurisdiction by dismissing the reopening application, and by refusing or failing to hear and determine the s 111(1)(g) applications. 29 The appeal required the leave of the Full Bench. The first respondents constituted the Full Bench and, on 26 February 2001, granted leave but dismissed the appeal. The Full Bench took the view that: "… the Commissioner was, in our view, justified in declining to list the application for re-opening. He had given the appellants ample opportunity to demonstrate that there were substantive grounds for their applications, but they had not availed themselves of those opportunities. It needs to be remembered that the Commissioner was dealing with a hard-fought application under s.170MW(7) in a matter that had had serious effects on the continuity of electricity supply in Victoria. The delivery of his decision was a matter of some urgency. We note that on 1 November the appellants made an application to the Federal Court to restrain the Commissioner from delivering his decision or making orders. That application was supported by an affidavit of Adam Bandt where in paragraphs 19 to 23 he indicated what was the significance of the new material. Such an indication was singularly lacking in the many exchanges with the Commissioner. Information of that nature might have enabled the Commissioner to come to the prima facie conclusion that he adverted to in his letter of 26 October. At the least it could have given him a proper basis upon which to re-list the matter. The unions had another opportunity to inform the Commission of the significance of the evidence when they addressed the form of order in their facsimile of 6 November. Again, rather than outline what it all meant in a similar manner to that of Mr Bandt's affidavit in the Federal Court they merely repeated their earlier assertions. It follows that we reject the appellant's submissions that they were denied natural justice or not afforded procedural fairness by the Commissioner." 30 As to the question of failure to give reasons, the Full Bench said: "There is some debate about the extent to which it is necessary to give reasons for a discretionary interlocutory decision. See the paper delivered by Kirby, P as he then was, writing extra-judicially [[1994] Australian Bar Review 121 at 126]. We do not need to consider the nature and extent of the duty, if any, to provide reasons. It is especially undesirable to do so in circumstances where there was not a full debate before us. In any event, we are of the view that the Commissioner gave sufficient reasons for his decision to not re-open the matter. Contextually, his decision is to be found in his two letters of 25 October, his letter of 26 October as well as his letter of 30 October. In that series of letters, and having regard to the letters from Slater and Gordon, it is clear that the Commissioner had decided that he would not re-list or, it follows, re-open the matter unless and until he was furnished with a sufficient explanation, supported by at least some evidence, so that he could ascertain that the appellants had a prima facie case. There can be no doubt that he conveyed his views to the appellants' solicitors. This is not a case of a failure to give reasons and, accordingly, it is not necessary to decide whether the Commissioner was under an obligation to furnish reasons." 31 Meanwhile, on 8 November 2000 Commissioner Lewin issued formal orders giving effect to the decision he had announced on 2 November. Leave to appeal the substantive issues refused for delay 32 Eleven weeks later, on 25 January 2001, the Union applied to the Commission for an extension of time to institute an appeal against Commissioner Lewin's decision and orders. Twenty-one days is the usual time limit for such appeals. The delay was sought to be explained on the following basis: during that 21 day period, there were negotiations between the parties aided by conciliation, and an agreement in principle was reached; it was thought by the Union's negotiators that to appeal would be "counter-productive" in the negotiations; however, the relevant union members rejected the agreement proposed by their negotiators, whereupon the company withdrew all offers. 33 The application was dealt with by the first respondents, constituting a Full Bench of the Commission, on 19 March 2001. The Full Bench had the advantage of extensive written submissions and the Union was represented by senior counsel who argued the "kind of employees" point in detail. 34 The Full Bench shortly refused leave on the basis that there had been no satisfactory explanation for the delay in lodging the appeal. The Full Bench pointed out that the Union had already lodged its appeal against the refusal to permit reopening and the s 111(1)(g) decision of Commissioner Lewin, so that it was difficult to see why a further appeal would have prejudiced conciliation. Further, the decision to put any proposed agreement to the Union's membership had not been taken until after the expiry of the 21-day period. Arbitration by the Commission of the industrial questions 35 The Full Bench then moved to exercise the arbitration powers the Commission had acquired, pursuant to ss 170MX and 170MY of the Act, consequent upon the termination of the bargaining periods and the failure thereafter of conciliation. Eventually, on 3 September 2001, the Full Bench gave its arbitral decision. In substance, the Commission gave effect to the agreement in principle which had been previously reached between the company and the Union's negotiators. Application to the High Court and remitter to this Court 36 Meanwhile, on 26 April 2001, the Union filed a Notice of Motion in the High Court for orders nisi seeking: certiorari to quash Commissioner Lewin's decision of 2 November 2000 and his consequent orders of 8 November 2000; prohibition against the members of the Full Bench proceeding further with the ss 170MU and 170MX dispute before it; and mandamus directing the members of the Full Bench to hear and determine the ss 170MU and 170MX matters according to law. The High Court ordered that the application be remitted to this Court for hearing. Pursuant to ss 412 and 415 of the Act the application is heard in this Court by a Full Court. 37 Subsequently, the orders nisi soughtwereamended. In their final form the draft orders read: "1. Upon the grounds set out in this Order the Respondents SHOW CAUSE WHY A WRIT OF CERTIORARI should not be issued out of this Court directed to the Second Respondent quashing his decision of 2 November 2000 and Order of 8 November 2000 and WHY A WRIT OF MANDAMUS should not be issued out of this Court directed to the Second Respondent directing him to consider and determine according to law the applications under Sections 111(1)(g) and 170MW of the Workplace Relations Act ("the WRA") in matter C No 34695 of 2000 in the Australian Industrial Relations Commission and WHY WRITS OF MANDAMUS should not be issued out of this Court directed to the First Respondent directing each of them to consider and determine according to law matter C No 34695 of 2000 in the Australian Industrial Relations Commission ("the Commission") and WHY WRITS OF CERTIORARI should not be issued out of this Court directed to each of the First Respondents quashing their decision of 26th February 2001 and their decision of 3 September 2001 and their award of 12 October 2001 in matter C No 34695 of 2000 in the Commission. The Grounds upon which this order is sought are as follows: 2. Commissioner Lewin failed to consider and determine according to law matter C No 34695 of 2000 in that the Prosecutor/Applicant was denied natural justice on 8 September 2000 when Commissioner Lewin permitted Yallourn Energy to alter its characterisation of the kind of employees for the purposes of s170MW(7)(a) and (b) of the WRA without the Prosecutor/Applicant and the other parties having the opportunity to respond properly, and did not permit the Prosecutor/Applicant to put further evidence in relation to this. 3. Commissioner Lewin failed to consider and determine according to matter C No 34695 of 2000 in that the Prosecutor/Applicant was denied natural justice on 30 October 2000 when Commissioner Lewin refused an application by it to re-open its case to present new evidence, and refused its application to be heard on applications under s111(1)(g)(iv) and (v)(A) of the WRA. 4. Commissioner Lewin on 30 October 2000 failed or refused to exercise jurisdiction to consider and determine according to law the applications under Sections 111(1)(g). 5. On 26 February 2001 a Full Bench of the Commission constituted by the First Respondents failed to consider and determine according to law an appeal by the Prosecutor/Applicant against the actions of Commissioner Lewin referred to in paragraphs 3 and 4. 6. Commissioner Lewin failed to act judicially by failing to give reasons for his decision of 30 October 2000. 7. Commissioner Lewin did not have jurisdiction to make his decision of 2 November 2000 and Order of 8 November 2000. Particulars (a) The "kind of employees" for the purposes of s170MW(7)(a) and (b) were not employees "in the power industry in Victoria". (b) The wages and conditions of the kind of employees for the purposes of s170MW(7) were not determined by a paid rates award at the relevant time. (c) The relevant awards were not paid rates award. (d) Commissioner Lewin regarded the bargaining period initiated by Yallourn Energy as a number of separate bargaining periods, each being between Yallourn Energy and each respective union. Section 170MW(1) empowers the Commission to terminate the bargaining period. There was only one bargaining period initiated by Yallourn Energy. 8. Commissioner Lewin failed to consider and determine according to law the question of whether there was no reasonable prospect of the negotiating parties reaching agreement in that he failed to take into account relevant considerations and/or took into account irrelevant considerations, and came to conclusions which were not reasonably open to him on the evidence. 9. Commissioner Lewin failed to consider and determine according to law the question of whether as a matter of discretion he should terminate bargaining periods in that he failed to take into account relevant considerations and/or took into account irrelevant considerations. 10. The First Respondents on 3 September 2001 made a decision in matter C no 34695 of 2000. 11. The First Respondents on 12 October 2001 made an award dealing with matters at issue in C no 34695 of 2000. 12. The First Respondents failed or refused to determine matter C no 34695 of 2000 in accordance with law. The proceedings before the Full Bench constituted by the First Respondents was a consequence of the decision of Commissioner Lewin which was tainted for the reasons previously advanced. The Prosecutor/Applicant repeats and relies on paragraphs 1, 2, 3, 4, 6, 7, 8 and 9. 13. The First Respondents did not have jurisdiction to determine matter C no 34695 of 2000. The proceedings before the Full Bench constituted by the First Respondents was a consequence of the decision of Commissioner Lewin which was tainted [for] the reasons previously advanced. The Full Bench relied on the jurisdictional findings of Commissioner Lewin. The Prosecutor/Applicant repeats and relies on paragraphs 1, 2, 3, 4, 6, 7, 8 and 9." The case for constitutorial writs 38 Pursuant to O 51A r 5(1)(a) of the Federal Court Rules the hearing of the application also involved consideration of whether the orders nisi, if made, should be made absolute. 39 At the hearing, counsel for the Union, Messrs Shaw QC and Langmead, in substance condensed the Union's criticisms of the decisions of the Commission (as variously constituted) to the following: · Commissioner Lewin had failed to accord procedural fairness to the Union in his decision at first instance, in particular by refusing to hear the Union on its reopening application and its application under s 111(1)(g); · The Commissioner had failed to give reasons for his decision not to re-list the applications, contrary to a duty to do so; · The Commissioner had failed to accord procedural fairness to the Union by permitting the company to alter its characterisation of the "kind of employees" but denying the Union the ability to tender further evidence on that issue; · A related matter was the Commissioner's erroneous construction of the phrase "kind of employees", a decision on a jurisdictional question which, unless correctly answered in the employee's favour, meant that the arbitration by the Commission that followed the Commissioner's decision to terminate the relevant bargaining periods was unauthorised; and · The Full Bench had jurisdictionally erred by not correcting these fundamental errors respectively on appeal as to the reopening matter and when leave to appeal was sought as to the termination of the bargaining periods. 40 Thus, there were four substantial matters raised: (a) procedural fairness and the reopening/s 111(1)(g) application; (b) failure to give reasons and procedural fairness; (c) the Union's right to be heard in response to a changed submission; and (d) the construction of "kind of employees". The employer's answer 41 The company's response by its counsel, Messrs Buchanan QC and McDonald, was that: · there was no denial of procedural fairness and there was no duty to give reasons; · the construction of the statutory phrase "kind of employees" was unexceptionable or was, at worst, an error within jurisdiction; · in any case, the substance of all matters as to which the Union was allegedly denied a hearing before Commissioner Lewin had been well-ventilated on appeal and/or in the s 170MX arbitration hearing and decision, which actually gave effect to that which the Union's agents, as distinct from its members, had thought industrially appropriate; · hence, a powerful case existed for the Court to decline, in its discretion, to intervene. Consideration (i) Some of the applicant's complaints effectively resolved by the march of events 42 We think that the company's discretion argument is, in part, compelling. 43 Before Marshall J, the company proved to his Honour's satisfaction that the documents referred to by the Union's solicitors in their efforts to have the matter re-listed "did not represent the current official position" of the company. Further, the company gave an unconditional undertaking that, among other things, "whilst the [existing] certified agreement was in force there would be no compulsory redundancies and no contracting out of the mining operations without the agreement of the CFMEU …". 44 In the arbitration proceedings, the Full Bench dealt with and ruled upon the very questions to which the documents went. In its decision, the Full Bench said: "We have formed the view that the hearing disclosed that there were in reality probably only two matters about which the parties would not have been able to reach agreement. These are the "consult and agree" provisions in EB3 [the then current enterprise agreement] and its lack of compulsory redundancy provisions. The unions wished to retain the status quo whereas the employer wishes to eliminate the 'agree' part of the 'consult and agree' provisions and to obtain a right to compulsorily retrench employees if their positions have been made redundant. We deal with each of these matters. "Consult and agree" The unions' proposed award in several respects inhibits the company's ability to introduce change unless it is with the agreement of the unions. … The current enterprise agreement (EB3) also restricts the company's ability to make many changes to the way in which it operates its power station and mine without the agreement of the unions. For example, clause 7 precludes the use of contractors without agreement of the affected workgroup; Schedule A is a contract labour agreement applying to contracts that have the capability to displace work currently done by Yallourn employees; allocation of work to contract is to be the subject of consultation and agreement. The unions contend that the consult and agree provisions have not been used in such a way as to unduly impede the company from introducing new methods of operation. Yallourn contends that it should have the right to manage its business without the necessity of obtaining agreement from the unions before it may implement change. We do not consider that it is appropriate that consult and agree provisions should form part of an arbitrated award unless it is required for the purposes enunciated in the XPT Case. We do not believe that on the material before us such a clause is, or clauses are, warranted. In any event, if the unions have indeed not restricted the ability of the company to introduce change after consultation as provided for in EB3 [the then current enterprise agreement], the lack of a requirement that there be agreement should not occasion concern. Clause 18 of EB2000 [the agreement in principle between the company and the Union's negotiators] will require that there be adequate consultation regarding the implementation of change as well as requiring that change be implemented in a manner that minimises the adverse consequences on employees as a result thereof. Compulsory retrenchment Clause 6.1 of EB3 provides that there are to be no forced redundancies for the life of the agreement. Clause 5 of the unions' proposed [s 170] MX award is to similar effect. Clause 21.5 of EB2000 [the agreement reached between the union negotiators and the company] deals with redundancy. A tiered process is prescribed whereby forced redundancies will be a matter of last resort. Our award will enable Yallourn to compulsorily retrench employees conformably with clause 21 of EB2000. Although the clause will be rewritten to make it suitable as part of an award rather than an agreement we note that the current Voluntary Separation Package will continue until 31 August 2002. Further, and importantly, under EB2000 no compulsory retrenchments can take place prior to 31 March 2002. We intend that under the award Yallourn will not be able to implement any compulsory redundancies prior to 31 March 2002. We consider this to be desirable in order that people may have sufficient time to come to grips with their changed circumstances. Given the history of this matter as well as the likely time frame for any changes, we do not consider such a restriction to be unreasonable. However, should there be an agreement between the parties about the contracting out of the mining (or any other part of the) operations before 31 March 2002 we do not wish to prevent compulsory retrenchments occurring. The clause should make such provision." 45 Thus, whether there was in fact any failure by Commissioner Lewin to give reasons for his decision not to re-list the matter and whether, in the circumstances, he had a duty to give reasons, are questions that are now, in substance and except as a technical attack on the Commission's jurisdiction, fairly characterised as moot. When the result of a successful jurisdictional attack would be to allow the allegedly shut-out matters to be heard afresh, although they have already been heard at length, it is not an exercise of the Court's powers that appears warranted to investigate to finality the supposed lack of jurisdiction. 46 In so determining, we are not to be taken as trivialising the Union's original complaint, particularly in relation to the s 111(1)(g) application it had wanted to make. Perforce, applications must sometimes be made quickly and less formally than is ordinarily desirable. Understandably, having regard to the Commission's functions, its rules (the "Australian Industrial Relations Commission Rules 1998") made under s 48 of the Act emphasise flexibility of procedures: r 5 requires forms to be substantially complied with if they are applicable (none was in relation to the Union's concerns); r 6 allows the Commission to forgive any non-compliance with the rules; and r 7 provides for the Commission to give directions as to procedural matters on application to it. 47 The power conferred by s 111(1)(g) (like that conferred by its predecessor, s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth)) is a "power to refuse to exercise … [the] jurisdiction" vested in the Commission and, if exercised, "would defeat a prima facie right to have [that] jurisdiction … exercised": Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399; Re The Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513. Such an application may be made at any time before the Commission's final disposition of a matter: Re Media, Entertainment and Arts Alliance & Anor; Ex parte Arnel & Ors (1993-4) 179 CLR 84 at 93-4. An application that, in effect, the Commission should refuse to exercise its jurisdiction, unless merely colourable, is not one that the Commission may simply, at its option, decline to hear. 48 The materials as to the apparent plans of some officers of the company (and perhaps of the company itself) that the Union had obtained and which were provided to Commissioner Lewin might, in the absence of the later developments before Marshall J, well have merited consideration, after the hearing of submissions, by the Commissioner. There is no reason that was made apparent to us to assume that the Union or its solicitors were intending to act other than properly towards the Commission. It seems clear that the situation was, as far as the solicitors were concerned, somewhat confusing and fluid and, with respect, it is not self-evident that, by the solicitors' efforts to put material favouring reopening before the Commissioner, they were, "in effect, dribbl[ing] material" to the Commissioner. 49 Had the matters complained of not been overtaken by events, so as to make the exercise of the Court's discretion to intervene inappropriate, there may well have been a case for prerogative relief, on the basis of either a denial of the Union's right to be heard or a refusal by the Commission to exercise its jurisdiction. We need not, indeed should not, however, pursue those matters. 50 Likewise it is unnecessary to deal with the ground of failure to give reasons. "kind of employees" 51 The discretionary factors cannot be said, however, to apply to the question of whether the Commission erred in relation to the "kind of employees". While there are plainly discretionary factors that might tell against intervention, they are of lesser force and would not dissuade us from intervening, if we were otherwise persuaded that we should do so. 52 We are however not so persuaded. 53 It is true that the question presents as one of whether the Commission may have erred as to a "jurisdictional fact", that is, the existence or non-existence of a state of affairs which was a statutory pre-condition to the Commission acting to terminate the bargaining periods. That state of affairs is the Commission's satisfaction that "the wages and conditions of the kind of employees whose employment will be subject to the agreement [sought to be reached by the negotiating parties] were determined by a paid rates award…". However, the presentation masks the reality that, in practice, there will often be a normative question necessarily bound up in the judgment of whether the employees are of such a kind. The present case is an example: the existing employees might be said to be of any or all of the following kinds (and perhaps other kinds): · employees of the company; · former employees of the SECV; · employees in the Victorian power generation and allied industries; · employees in the Australian power generation and allied industries. Different results will flow depending on which category of employees is regarded as "the kind". No ordinary process of fact-finding will resolve that question. A value judgment is required. 54 Section 170MW as a whole indicates that the suspension or termination of bargaining periods, quite apart from the question of employees subject to paid rates awards, was seen by Parliament as more the exception than the rule. Only major infractions of the public interest, generally considered, were thought sufficient to enable such suspension or termination: subs (3) and subs (8). Apart from those circumstances, matters of behaviour evidently regarded as improper (subs (2), subs (4), subs (6), or utterly unproductive (subs (5)) were made conditions of the Commission's intervention. 55 A "paid rates award" is one that specifies an employee's actual as distinct from minimum entitlements: as a practical matter employees regulated by such an award generally do not, for various reasons, have the capacity to negotiate over-award remuneration. The evident policy of s 170MW(7), seen in its context, is that it is fair and appropriate that such employees and/or their employers ought not be left locked forever in fruitless negotiations. That is not a view dispelled by reference to the circumstances attending the inception of the provision (see [56] ff below). In some cases, of which this appears to be one, the ascription of a "kind" to the employees in question will reasonably be answered by reference to considerations of the fairness and appropriateness of the practical consequences of the choice. 56 Thus, the initial jurisdictional condition may, at least in some cases, be better viewed as whether the Commission has undertaken a reasonable, evaluative process to ascribe a "kind" or class to the employees, for the purposes of s 170MW(7), rather than whether it has correctly found a fact: c.f. Buck v Bavone (1975-76) 135 CLR 110 at 118-9 per Gibbs J (referred to with approval by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 653-4) and see generally Gummow J's observations in Eshetu at 654-7. This view accords with the practice of the Commission and its interpretation of s 170MW(7): see, for example, Community and Public Sector Union & Anor v Australian Prudential Regulation Authority (Print S7131) a decision of a Full Bench given on 21 June 2000. 57 Essentially, such an evaluation is what the Commissioner seems to have done here. He said, of the question: "The issue has, in effect, been left wide open to the Commission. The profound lack of definitive description of "the kind of employees" within the statute creates such a broad field of possibilities that, in practical terms, it is a matter for the Commission to rule on the breadth of the category case by case. … I have indeed come to the view that employees in the power industry in Victoria are a "kind of employees" to whom the subsection applies. My reasons for this conclusion are that; first, there is a certain flexibility inherent in the process of categorisation envisaged by the legislation. In this respect I refer to the extract from the appeal decision in Re Australian Prudential Regulatory Authority [Print S0966]. … it is a notorious fact that, historically, until the recent establishment of a national electricity grid and the privatisation of generation and distribution assets in some states the generation and distribution of electrical power was an industry carried on by state governments. In other words the various state public authorities were industries which stood on their own two feet, with some main line interconnection. Certainly, in my view, this is true of the industrial relations conception of the industry. Although not precisely on point, as an example, the decision of the High Court in The Queen v Isaac; Ex Parte State Electricity Commission of Victoria (1978) 140 CLR at 615 provides a view of the industrial relations segregation of the political and economic history of the electric power generation and distribution industry in Australia." (emphasis added) 58 The reference to Re Australian Prudential Regulatory Authority (Print S0966) ("APRA") should be explained. In that case, it was said that the expression "kind of employees" extends beyond the particular employees to whom the bargaining notice relates. The genesis of that view was the following passage from a speech of Senator Murray on 18 November 1996 when, on behalf of the Government and the Australian Democrats party he successfully moved amendments to a Bill to amend the Act, including an amendment providing for the adoption of what, after renumbering, became s 170MW(7) of the Act. Senator Murray said: "The additional ground for arbitration is found in 170MW(6A). These provisions establish three conditions for access to the paid rates arbitration. Paragraph (a) established the category of employees generally covered by the provision as the kind of employees who, prior to the commencement of the section, were the kind of employees whose wages and conditions would be covered by a paid rates award, or would have been if an employment agreement had not prevailed over the award. The term 'kind of employees' is particularly significant. This refers to the general category of employees rather than to the specific employees themselves. For example, government employees are in all states but Victoria, covered by paid rates awards. And, up until the abolition of their paid rates award in 1992, Victorian workers were also governed by paid rates awards. So clearly, government employees generally, including Victorian workers currently award free, are the 'kind of employees' covered by paid rates awards. Similarly, future statutory authorities or Government departments set up within the Government sector would also fall within the category of the 'kind of employees' covered by paid rates awards. Similarly, future statutory authorities or Government departments set up within the Government sector would also fall within the category of the 'kind of employees' covered by paid rates awards. Paragraph (b) adds the further requirement that where that kind of employees were customarily covered by a state or Federal award, they were determined by paid rates award. Again, this clearly picks up the situation of Victorian workers as they were covered by a paid rates award when they had award coverage. But, it would not pick up the situation where the former paid rates award was converted to a minimum rates award as has happened for example, in the building industry." (emphasis added) Hence our earlier reference to s 170MW(7) being somewhat more opaque than first impressions might indicate. However, nothing in Senator Murray's speech nor in APRA indicates that, in a particular case, the relevant "general category of employees" to be regarded as the applicable "kind of employees" could not be co-extensive with the particular employees affected by the bargaining period. The central idea was that the employees should be regarded as falling within their appropriate general category. That notion only has meaning if the entire industrial relations context is considered. Often, as we have indicated, some normative judgment will play a part in the evolution. 59 However the jurisdictional condition is characterised, the Union has not shown that it was not fulfilled in this case. If the matter should, contrary to our own approach to this case, be viewed as one of considering the correctness of a conventional, jurisdictional fact, the views of the Commission as an expert and specialised body are entitled to considerable weight and respect and we are not satisfied that the Commission erred. 60 Thus, regardless of matters touching the Court's discretion, no error attracting the relief sought has been shown in relation to this issue. Procedural fairness and the employer's reformulated submissions 61 The related question of whether there was any denial of procedural fairness in relation to the company's reformulation of its submission on the "kind of employees" issue may be dealt with shortly. 62 A reading of the transcript of the interchanges between Commissioner Lewin and counsel for the Union may, if it were necessary to decide the matter, bear the impression of a misunderstanding by the Commissioner as to whether counsel was really pressing the point of the tender of allegedly rejected material. However, the matter may be dealt with on the basis that counsel's apparent understanding, namely that his tender was being rejected, was correct. If that were so, it may also be assumed, without deciding, that the circumstances were such that the evidence should have been received. 63 There are nevertheless two bases for rejecting the Union's attack. The first is that it is not every mistaken rejection of tendered evidence that amounts to a denial of procedural fairness. Even in a tribunal bound by the rules of evidence, which, of course, the Commission is not (c.f. s 110(2)(b)), ruling on questions of evidence is an activity squarely within the tribunal's jurisdiction and an erroneous ruling that shuts out even important evidence does not necessarily constitute denial of the right to be heard: it may be a mere error in the course of hearing a party and an error within jurisdiction, that may not attract prerogative (or, in the High Court, constitutional) relief. Here, in our opinion, the Commissioner's reluctance to admit the tendered material did not amount to more than attempting to adhere to what he thought was an orderly process of hearing the case. The Union may have chosen to run its case in response to the employer's original formulation in a certain way, but that did not mean that it was denied a reasonable opportunity to put all relevant evidence before the Commission. The material sought to be tendered was relevant to and may have supported the Union's position before, as well as after, the employer's refinement of its submissions by way of reply to a powerful submission by the Union. The Union chose to put in evidence only some material demonstrating that there were, apparently, (a) an award (whether or not a "paid rates" award is not clear) in Victoria for maintenance employees in some power stations and (b) some non-paid rates awards in NSW power stations. At that point, there is no logical reason, and there was not shown to be any practical reason, why the Union could not tender as many Victorian paid rates awards as it wished. As the Commissioner pointed out in argument, the Commission was not in the position of a Court of strict pleading. Section 98A obliges the Commission to perform its functions in a way that "avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceeding under this Act" (emphasis added). Sections 110(2)-(4), dealing with procedural matters to do with hearings such as that in which Commissioner Lewin was engaged, stress that substantive fairness is the important matter and that the Commission is, in large measure, itself the arbiter of that. Any error did not, it appears to us, amount to a denial of procedural fairness such as to call in question the Commissioner's jurisdiction to proceed. 64 The second basis depends on a number of discretionary factors. The first is that the error was probably immaterial to the result. The Commissioner could have been in no doubt that the Union's principal position was that regard must be had to the power industry considered on a national basis and that there were or had at relevant times been or might well have been, to an appreciable extent, minimum rates awards applying across Australia in that industry. Accordingly, the Union was saying, it could not or should not be said that the kind of employees whose employment would be subject to the agreement sought to be negotiated were subject to a paid rates award. It is very likely that, as a member of a specialist tribunal, the Commissioner would have been aware of those asserted facts, if they were facts. It is not likely that his mind would have been altered by the formal reception of evidence to prove the position. As a matter of law, that might not suffice to deny the applicant constitutional relief: if the result might possibly have been different, that is usually all that an applicant for judicial review need show. However that lack of probability is a discretionary factor for the Court, to consider, and there are others, which we proceed to note. 65 The matter was not pursued by appeal in a timely way. That was a calculated tactical decision. The excuse for delay presented to the Commission by the Union was regarded, in our respectful view quite reasonably, by the Commission as unpersuasive. If we were to intervene, the consequence would be to throw open again an intractable and economically disruptive, as well as privately costly, industrial dispute which has been compulsorily resolved on terms that, in substance, were actually agreed to by the Union (though not a majority of its relevant members) as appropriate. The substance of any grievance that the Union may not have had an adequate opportunity to be heard really vanished when the Union decided, despite that claimed denial, not to complain by way of appeal but to settle the dispute. Its members' dissatisfaction with that settlement can hardly revive a grievance as to a supposed lack of procedural fairness occurring before the decision to settle. Disposition 66 It follows that the application for orders nisi should be refused. Costs 67 The company submits: "As instituted, the proceedings initiated by the Prosecutor/Applicant sought prohibition. Section 347(1) of [the Act] has no application to a proceeding for the issue of prohibition under s.75(v) of the Constitution: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 178 ALR 61 at 72; Re McJannet; Ex parte Australian Workers' Union of Employees Queensland (1997) 189 CLR 654. Although the proceedings are now sought to be confined to orders seeking the enforcement of rights and duties owing their existence to [the Act] (and orders ancillary thereto) the proceedings were instituted without reasonable cause and costs should be awarded. Alternatively, [the company] should have its costs of the proceedings up to the grant of leave to amend the proceedings by discontinuing any application for prohibition." 68 Section 347 provides: "(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. (2) In subsection (1): costs includes all legal and professional costs and disbursements and expenses of witnesses." 69 The bar has been consistently set high as to when proceedings have been instituted without reasonable cause. (See: Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1665.) 70 The Union's case was by no means unarguable and, insofar as the result turns on discretionary factors, the prediction of likely curial reaction is not easy. The proceedings were not instituted without reasonable cause. 71 As to the initial application for prohibition, while a case for prohibition must be taken to have been insupportable, that is not the end of the matter. The remarks of the Full Court in Professional Officers' Association (Victoria) in the matter of an application for Writs of Prohibition, Mandamus and Certiorari (No. 2) [2001] FCA 562 are in point: "Although various forms of prerogative relief were claimed, namely writs of prohibition, mandamus and certiorari, it is not appropriate, for the purposes of s 347 of the Act, to consider the claim for each writ separately. There was one proceeding before the Court and one 'matter' for determination, namely whether the applicants should have been granted leave to intervene in the certification proceeding and whether they were denied natural justice by the refusal of the Commission to grant that leave. The claims for relief upon which each writ was predicated were elements of the one justiciable controversy: Thompson v Hodder (1989) 21 FCR 467 at 471. We are satisfied that the proceeding involved a matter arising under the Act. We are not satisfied that the proceeding was instituted vexatiously or without reasonable cause. In the circumstances, there shall be no order as to the costs of the proceeding." 72 The Full Court is, we think, more safely understood as having made these remarks in the exercise of either a factual judgment or of its discretion to order costs where the necessity for exercise of the discretion had been enlivened. As such, it would be wrong to see the approach in that case as having the binding quality (unless we so disagreed as to reconsider the matter) of a ruling on a point of law. However, it furnishes a persuasive and constructive way of viewing a like problem, and we see no reason not to adopt it. 73 The application for costs will be refused accordingly. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justices Lee and Madgwick. Associate: Dated: 20 March 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 646 of 2001 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA IN THE MATTER OF An Application for Writs of Certiorari, Prohibition and Mandamus against: THE HONOURABLE SENIOR DEPUTY PRESIDENT POLITES, THE HONOURABLE SENIOR DEPUTY PRESIDENT KAUFMAN AND COMMISSIONER BACON, members of the Australian Industrial Relations Commission FIRST RESPONDENTS AND COMMISSIONER LEWIN, a member of the Australian Industrial Relations Commission SECOND RESPONDENT YALLOURN ENERGY PTY LTD (ACN 065 325 224) THIRD RESPONDENT EX PARTE: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION PROSECUTOR/APPLICANT JUDGES: LEE, MADGWICK & GYLES JJ DATE: 20 MARCH 2002 PLACE: PERTH (HEARD IN MELBOURNE) REASONS FOR JUDGMENT GYLES J 74 I have had the advantage of reading the judgment of Lee and Madgwick JJ in draft. I agree that the application for orders nisi ought to be dismissed, and that no order for costs should be made. Although I agree generally with the reasons of their Honours, there are several points which I will note, none of which would lead to any different conclusion. 75 Firstly, s 170MW of the Workplace Relations Act 1996 (Cth) ("the Act") only gives rise to a jurisdictional fact in a special use of that term. The condition precedent to the order is that: "The Commissioner…is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed" (s170MW(1)) (emphasis added) There is no doubt that the Commission was so satisfied. Any challenge would need to establish that there had been a constructive failure to exercise jurisdiction. (See, generally, the recent scholarly article by Aronson, "The Resurgence of Jurisdictional Facts" (2001) 12 Public Law Review 17). The reasons of Lee and Madgwick JJ are inconsistent with any such failure. 76 Secondly, I would prefer to leave open the question as to whether s111(1)(g) of the Act grants a right to a party (or non party) and imposes a corresponding duty upon the Commission rather than granting a power to the Commission. 77 Thirdly, it is established that issue of the writs provided for by s75 of the Constitution is discretionary (Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 ("Aala") per Gleeson CJ at [5], per Gaudron and Gummow JJ at [43] – [62], Kirby J at [145] – [150], Hayne J at [172] and Callinan J at [217]). Where, as here, there is a full internal appeal available, and it is in fact conducted, it would be rare (if ever) that any of the writs would issue for breach of the requirements of procedural fairness or other defects in procedure at the first hearing (Aala per Gummow and Gaudron JJ at [50] citing Mason J in R v Marks; Ex Parte Australian Building Construction Employees and Builders' Labourers Federation (1981) 147 CLR 471 at 484-485; cf Re Minister for Immigration & Multicultural Affairs; Re Miah (2001) 75 ALJR 889, where there was no appeal). I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles Associate: Dated: 20 March 2002 Counsel for the Prosecutor/Applicant: J Shaw QC and D Langmead Solicitor for the Prosecutor/Applicant: Slater & Gordon No appearance for the 1st & 2nd Respondents Counsel for the 3rd Respondent: R Buchanan QC and M McDonald Solicitor for the 3rd Respondent: Minter Ellison Date of Hearing: 14 November 2001 Date of Judgment: 20 March 2002