FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission [2003] FCAFC 196 INDUSTRIAL LAW – application for consent to alterations in union's eligibility rules – consent granted by designated Presidential Member but consent set aside on appeal to Full Bench of Australian Industrial Relations Commission – on application for prerogative relief decision of Full Bench set aside – on return to Full Bench application made by union to call further evidence and to obtain approval of a further modified form of rule – application refused – whether Full Bench misapprehended its powers and jurisdiction Workplace Relations Act 1996 (Cth) ss 45 and 204 Re Australian Workers' Union; ex parte Construction, Forestry Mining and Energy Union [2002] FCAFC 150; (2002) 120 FCR 527 – cited Re Coldham; Ex parte Brideson (1990) 170 CLR 267 – cited Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 - cited Craig v The State of South Australia (1995) 184 CLR 163 - cited Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 - cited CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CONSISTING OF THE HONOURABLE ANTHONY McINTYRE, VICE-PRESIDENT, THE HONOURABLE COLIN POLITES, SENIOR DEPUTY PRESIDENT AND DOMINICA WHELAN, COMMISSIONER & ORS N474 of 2003 WILCOX, MARSHALL and MERKEL JJ 22 AUGUST 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N474 of 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPLICANT AND: FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CONSISTING OF THE HONOURABLE ANTHONY McINTYRE, VICE-PRESIDENT, THE HONOURABLE COLIN POLITES, SENIOR DEPUTY PRESIDENT AND DOMINICA WHELAN, COMMISSIONER FIRST RESPONDENT AUSTRALIAN WORKERS UNION SECOND RESPONDENT SAM WOOD THIRD RESPONDENT AUSTRALIAN MINES AND METALS ASSOCIATION (INC), AUSTRALIAN PETROLEUM PTY LTD, AMPOL REFINERIES (QUEENSLAND) LTD, AMPOL REFINERIES (NSW) PTY LTD, AMPOL LUBRICATING OIL REFINERIES PTY LTD, MOBIL OIL AUSTRALIA LTD, MOBIL REFINING AUSTRALIA PTY LTD, BP AUSTRALIA LTD, BP REFINERY (BULWER ISLAND) LTD, BP REFINERY (KWINANA) PTY LTD, SHELL COMPANY OF AUSTRALIA LTD, SHELL REFINING (AUSTRALIA) PTY LTD, SHELL DEVELOPMENT (AUSTRALIA) PTY LTD, WAG PIPELINE PTY LTD AND BITUPAVE LTD (TRADING AS BORAL ASPHALT) FOURTH TO EIGHTEENTH RESPONDENTS LEMINGTON COAL MINES LTD, KANDOS NO 3 COLLIERY, CORNWALL COAL NO LIABILITY, PEABODY RESOURCES LTD, IVANHOE COAL PTY LTD AND COAL OPERATIONS AUSTRALIA LTD NINETEENTH TO TWENTY-FOURTH RESPONDENTS EMPLOYERS FIRST TWENTY-FIFTH RESPONDENT AUSTRALIAN CHAMBER OF COMMERCE AND INDUSTRY, CHAMBER OF COMMERCE AND INDUSTRY OF WESTERN AUSTRALIA, CHAMBER OF MANUFACTURES OF NEW SOUTH WALES, CONFEDERATION OF ACT INDUSTRY, ENTERTAINMENT INDUSTRY EMPLOYERS ASSOCIATION, THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, QUEENSLAND CHAMBER OF COMMERCE AND INDUSTRY, SOUTH AUSTRALIAN EMPLOYERS' CHAMBER OF COMMERCE AND INDUSTRY, TASMANIAN CHAMBER OF COMMERCE AND INDUSTRY, VICTORIAN EMPLOYERS' CHAMBER OF COMMERCE AND INDUSTRY TWENTY SIXTH TO THIRTY-FIFTH RESPONDENTS JUDGES: WILCOX, MARSHALL and MERKEL JJ DATE OF ORDER: 20 AUGUST 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT the application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N474 of 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPLICANT AND: FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CONSISTING OF THE HONOURABLE ANTHONY McINTYRE, VICE-PRESIDENT, THE HONOURABLE COLIN POLITES, SENIOR DEPUTY PRESIDENT AND DOMINICA WHELAN, COMMISSIONER FIRST RESPONDENT AUSTRALIAN WORKERS UNION SECOND RESPONDENT SAM WOOD THIRD RESPONDENT AUSTRALIAN MINES AND METALS ASSOCIATION (INC), AUSTRALIAN PETROLEUM PTY LTD, AMPOL REFINERIES (QUEENSLAND) LTD, AMPOL REFINERIES (NSW) PTY LTD, AMPOL LUBRICATING OIL REFINERIES PTY LTD, MOBIL OIL AUSTRALIA LTD, MOBIL REFINING AUSTRALIA PTY LTD, BP AUSTRALIA LTD, BP REFINERY (BULWER ISLAND) LTD, BP REFINERY (KWINANA) PTY LTD, SHELL COMPANY OF AUSTRALIA LTD, SHELL REFINING (AUSTRALIA) PTY LTD, SHELL DEVELOPMENT (AUSTRALIA) PTY LTD, WAG PIPELINE PTY LTD AND BITUPAVE LTD (TRADING AS BORAL ASPHALT) FOURTH TO EIGHTEENTH RESPONDENTS LEMINGTON COAL MINES LTD, KANDOS NO 3 COLLIERY, CORNWALL COAL NO LIABILITY, PEABODY RESOURCES LTD, IVANHOE COAL PTY LTD AND COAL OPERATIONS AUSTRALIA LTD NINETEENTH TO TWENTY-FOURTH RESPONDENTS EMPLOYERS FIRST TWENTY-FIFTH RESPONDENT AUSTRALIAN CHAMBER OF COMMERCE AND INDUSTRY, CHAMBER OF COMMERCE AND INDUSTRY OF WESTERN AUSTRALIA, CHAMBER OF MANUFACTURES OF NEW SOUTH WALES, CONFEDERATION OF ACT INDUSTRY, ENTERTAINMENT INDUSTRY EMPLOYERS ASSOCIATION, THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, QUEENSLAND CHAMBER OF COMMERCE AND INDUSTRY, SOUTH AUSTRALIAN EMPLOYERS' CHAMBER OF COMMERCE AND INDUSTRY, TASMANIAN CHAMBER OF COMMERCE AND INDUSTRY, VICTORIAN EMPLOYERS' CHAMBER OF COMMERCE AND INDUSTRY TWENTY SIXTH TO THIRTY-FIFTH RESPONDENTS JUDGES: WILCOX, MARSHALL and MERKEL JJ DATE: 22 AUGUST 2003 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an application for prerogative relief pursuant to s 75(v) of the Constitution. The proceeding was instituted in the High Court of Australia. On 20 March 2003 it was remitted to this Court, by order of Heydon J, pursuant to s 44 of the Judiciary Act 1903 (Cth). 2 We heard the application last Wednesday, 20 August 2003. At the conclusion of argument, we ordered that the application be dismissed and indicated we would publish our reasons today. These are our reasons. Background 3 The applicant for prerogative relief is the Construction, Forestry, Mining and Energy Union ('CFMEU'). The first respondents are three members of the Australian Industrial Relations Commission ('the Commission') who constituted a Full Bench for the purposes of hearing an appeal against a decision of Senior Deputy President Williams consenting to changes to CFMEU's eligibility rules. The other respondents to the present application comprise the Australian Workers Union ('AWU'), the Assistant National Secretary of AWU and various employer organisations and individual employers. 4 On 25 July 1997, CFMEU lodged in the Commission an application under s 204 of the Workplace Relations Act 1996 (Cth) ('the Act') for the consent of a designated Presidential Member to alterations of its eligibility rules. The proposed alterations were designed to expand the categories of persons who would be eligible to join the organisation. Notice of the application was gazetted. Numerous objections were received, both from other unions and various employers and employer organisations. 5 The application came before Senior Deputy President Williams. He took extensive evidence. During the course of the hearing by the Senior Deputy President, CFMEU reached agreements with all the union objectors except AWU. The agreements envisaged modifications of the terms of the proposed altered eligibility rule so as to avoid or diminish competition for members with those unions. The modifications were to take the form of further provisos to the proposed rule. 6 On 28 January 2000, Senior Deputy Williams published a decision consenting to the proposed alterations, the alteration being in a form that included the further provisos. 7 AWU and the employer objectors sought leave to appeal to the Full Bench of the Commission against the decision of Senior Deputy President Williams. The application for leave was made under s 45 of the Act. Section 45(2) provides that a Full Bench of the Commission shall grant leave to appeal under subs (1) 'if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted'. 8 Subsection (6) of s 45 provides that, for the purpose of an appeal under s 45, 'a Full Bench … may admit further evidence'. Subsection (7) empowers the Full Bench, on the hearing of the appeal, inter alia to: '(a) confirm, quash or vary the decision or act concerned; (b) make an award, order or decision dealing with the subject-matter of the decision or act concerned' 9 The Full Bench conducted a hearing in May and August 2000. It was not asked at that time to admit further evidence and did not do so. On 28 February 2001, the Full Bench published a decision in which it held that Senior Deputy President Williams erred in certain respects and leave to appeal ought to be given. However, the Full Bench did not immediately make orders disposing of the appeal. The Full Bench deferred that task pending further submissions by the parties. 10 On 13 June 2001, after a further hearing, the Full Bench made an order quashing the decision of Senior Deputy President Williams. Pursuant to s 45(7)(b) of the Act, the Full Bench ordered the dismissal of CFMEU's application. 11 CFMEU instituted a proceeding in the High Court (S170 of 2001) seeking prerogative relief in relation to this order. The proceeding was remitted to this Court and came before a Full Court comprising Gray, Moore and Merkel JJ. 12 The Full Court delivered judgment on 27 May 2002: see Re Australian Workers' Union; Ex parte Construction, Forestry Mining and Energy Union [2002] FCAFC 150; (2002) 120 FCR 527. By majority (Gray and Moore JJ, Merkel J dissenting), the Full Court held that the Full Bench of the Commission had fallen into jurisdictional error in two respects: in overlooking the settlements that had been reached between CFMEU and the objector unions other than AWU; and in treating the failure of Senior Deputy President Williams to give adequate reasons as a sufficient basis for dismissing CFMEU's application for consent to the eligibility rule alterations. The Full Court ordered the issue of the constitutional writs of certiorari and mandamus. 13 On 20 June 2002, the matter was again listed before the Full Bench of the Commission. Prior to that hearing, the parties had prepared outlines of submissions. CFMEU's outline was in these terms: '1. The writs were issued by the Full Federal Court as a result of the decision of the Full Bench on 13 June, 2001 and the associated orders, being tainted by jurisdictional error. The effect of those writs is that the re-determination of the application by the Full Bench must be conducted again. 2. In relation to that re-determination the CFMEU makes application to call further evidence. There are cogent reasons for doing so. The last evidence was taken in these proceedings in March 1999. In other words the evidence is over three years old. It needs updating. 3. It is untenable to decide this case again without updating that evidence. 4. The calling of evidence to allow the Commission to know the current position is especially apposite in a case such as this – see Re Coldham ex parte Brideson (No.2) (1990) 170 CLR 267. 5. In any event, the CFMEU has further substantial submissions to put in relation to the re-determination of the application by the Full Bench.' 14 The Full Bench invited Mr S Crawshaw SC, counsel for CFMEU to commence. In the course of his oral submissions, Mr Crawshaw stated: 'we want to update Mr Bodkin's evidence as to the overall performance and effectiveness of the CFMEU in the – I'm reluctant to use the word, construction industry – I'll say the area of construction. His evidence in relation to demarcation disputes or lack thereof any harmful demarcation disputes and the continuing non-applicability of the demarcation agreements that were the subject of evidence and decision in the decision of Senior Deputy President Williams.' 15 Mr Crawshaw referred to the decision of the High Court in Re Coldham; Ex parte Brideson (1990) 170 CLR 267 ("Brideson"). In that case the Court considered the effect of s 88F of the Conciliation and Arbitration Act 1904 (Cth) under which the Commission was empowered to grant leave to appeal against a decision of the Registrar concerning registration of an organisation. At 274, the Court (Deane, Gaudron and McHugh JJ) said that, upon the correct construction of s 88F, 'the Commission was bound to make its own decision on the evidence before it, including evidence of events which had occurred since the Registrar's decision'. Mr Crawshaw contended the same situation applies to appeals under s 45 of the Act. 16 After some discussion, and submissions by Mr R Kenzie QC, counsel for AWU, the presiding member of the Full Bench, Vice-President McIntyre, said this: 'On the basis of what has been put this morning, we first note that as we read the decision of the Federal Court, two errors were identified. The first was that we erred in not paying regard to the settlements and the modifications they made to the alteration and the second was that we erred in the view that the failure of Senior Deputy President Williams to give reasons was independent basis for refusing consent. Accepting, as of course we do, that the failure to give reasons was not an independent basis for refusing consent, it is our view that therefore the issue before us is, what result we should have come to had we paid regard to the settlements and the modifications they made to the alteration. This morning Mr Crawshaw foreshadowed that his submissions would include an alteration to the proposed rule. It is our view on what has so far been put that this goes beyond the scope of the issues raised by the Full Court decision and order. At this late stage in the present proceedings, we do not think it is appropriate to embark on a hearing of the type foreshadowed by the CFMEU this morning. We, of course, note that it is open to the CFMEU to lodge a fresh application under section 204 if it so wishes. We therefore invite submissions now on the basis of what I have just said.' 17 There was then further oral argument, by counsel for all parties. In the course of his submissions, Mr Crawshaw affirmed that CFMEU's position was that 'as a result of the Full Federal Court decision we are back to the position … subsequent to the first Full Bench decision, and we are in the situation where all parties, including ourselves, are entitled to make submissions in relation to the redetermination of this application by the Full Bench, and that's any aspect of that re-determination …' A little later, Mr Crawshaw said: 'The primary submission of the CFMEU is it should be granted a rule change in the form granted by Senior Deputy President Williams. Alternatively we submit that a rule change in the form of annexure A should be approved and you can see from annexure A what the principal differences between what was originally approved by Senior Deputy President Williams and what the alternative is.' 18 Mr Crawshaw went on, both in oral submissions and in further written submissions supplied after the hearing, to deal with the merits of both the formulation approved by Senior Deputy President Williams and the further modified form embodied in annexure A. 19 On 31 July 2002, the Full Bench published a further decision; this being the decision that is challenged in the present proceeding. After sketching the background, the Full Bench quoted the statement of Vice-President McIntyre that we have set out above. The Full Bench then noted the course of argument and said, at [9]: 'Having considered the submissions, we confirm our view that the issue before us is what result we would have come to had we paid regard to the settlements and the modification they made to the alteration. That result was, as noted earlier, to quash the decision of Williams SDP and to dismiss the CFMEU's application for consent. The result to which we would have come, had we paid regard to the settlements and the modification, is the same.' 20 The Full Bench explained that, to come to that conclusion, it was necessary for it to consider only the position of AWU, with whom there was no settlement. After dealing with that matter, the Full Bench concluded: '[22] We have given above reasons for our view that, if we had paid regard to the settlements and the modification they made, we would have come to the same result as we came to in our second decision; that is, to quash the decision of Williams SDP and to dismiss the CFMEU's application for consent. [23] It is inherent in the approach we have taken in this decision that we do not consider it appropriate, in these proceedings, to consider the CFMEU's alternative submission that we should now consider a rule alteration in terms different from those consented to by Williams SDP. As we said on 20 June 2002 … it is open to the CFMEU, if it so wishes, to lodge a fresh application under s204. Such an application would, of course, be determined in the light of evidence as to the contemporary position. [24] It is, accordingly, our decision, pursuant to s.45(7)(a), to quash Williams SDP's decision of 28 January 2000 and, pursuant to s.45(7)(b), to make a decision dismissing the CFMEU's application.' The applicant's argument 21 In their outline of submissions in this Court, counsel for CFMEU, Mr Crawshaw and Mr M Gibian said: 'Writs of certiorari and mandamus should issue in relation the decision of the Full Bench because (i) The Full Bench misconceived its powers and jurisdiction by confining its consideration to the errors raised by the Full Federal Court decisions; (ii) The Full Bench denied the CFMEU procedural fairness by refusing to entertain arguments put by the CFMEU.' 22 However, in the course of oral submissions, Mr Crawshaw conceded that the Full Bench had not declined to hear him in respect of any aspect of the matter. His complaint was that, because it misconceived its powers and jurisdiction, the Full Bench failed to consider: (i) whether this was a proper case for it to admit further evidence pursuant to s 45(6) of the Act, despite Mr Crawshaw's announced desire to obtain further evidence from Mr Bodkin; and (ii) the acceptability of the alternative altered eligibility rule set out in annexure A. 23 Mr Crawshaw indicated that the further evidence CFMEU wished to adduce concerned its case in relation to the alternative rule and not its primary case in relation to the rule change granted by Senior Deputy President Williams. 24 Mr Crawshaw also conceded that, if the Full Bench had not misunderstood its powers and jurisdiction, but had refused on discretionary grounds to consider CFMEU's case in respect of the alternative eligibility rule there would be no basis for prerogative relief; there would be no jurisdictional error. 25 In their written submissions, counsel for CFMEU submitted that once the Full Bench concluded that Senior Deputy President Williams had erred, its proper course was to quash his decision and either to remit the application to him for further determination or make its own determination. If it chose the latter course, they argued, the Full Bench was bound to make its decision 'in light of the circumstances which existed at the time of the later decision'. They referred to Brideson, noting that the continuing authority of that decision was indicated by the High Court in footnote reference (27) in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180. Counsel said the Full Bench 'was required to re-exercise the discretion under section 204 of the Act as to whether to consent to the alteration. It was not restricted to considering only matters identified by the Full Federal Court as constituting jurisdictional error'. 26 Counsel said: 'In its decision of 31 July 2003, it is clear that the Full Bench limited its consideration to the effect of the settlements between the CFMEU and certain objector organisations of employees. … In considering itself bound to take into account only the effect of the settlements and refusing to consider the submissions advanced by the CFMEU, particularly the proposed alternative rule change, the Full Bench fundamentally misunderstood its jurisdiction and the nature of its powers upon the matter returning for redetermination. The decision as to whether to grant consent and on what terms had to be made again.' Consideration 27 We accept CFMEU's submission that the effect of the previous Full Court's order was to require the Full Bench to reconsider what was the proper order for it to make, by way of disposal of the appeal from the decision of Senior Deputy President Williams. The Full Bench was put back into the position in which it stood between 28 February 2001 and 13 June 2001. By virtue of s 45(6) of the Act, it was open to the Full Bench to accede to CFMEU's application that it hear further evidence. It was also open to the Full Bench to consider a further modification of the eligibility rule. Section 204(2) of the Act permitted a designated Presidential Member (and therefore the Full Bench exercising the powers of the designated Presidential Member) to 'consent to a change or alteration [of the eligibility rules] in whole or in part'. If the Full Bench had acted upon the basis that it did not have power or jurisdiction to do either of these things, it would have fallen into jurisdictional error: see Craig v The State of South Australia (1995) 184 CLR 163 at 177-178, Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 552 [107]-[108]. 28 However, we do not think the Full Bench acted on the basis that it lacked power or jurisdiction to receive new evidence or to consider further modification of the eligibility rule. 29 The statement made by Vice-President McIntyre, on behalf of the Full Bench ([16] above), included the observation that what Mr Crawshaw had submitted went 'beyond the scope of the issues raised by the Full Court decision and order'. The statement was true. However, if nothing more had been said, it might have amounted to an indication that the Full Bench was minded to reject Mr Crawshaw's submission only because of that fact. In fact more was said. The Vice-President added: 'At this late stage in the present proceedings, we do not think it is appropriate to embark on a hearing of the type foreshadowed by the CFMEU this morning. We, of course, note that it is open to the CFMEU to lodge a fresh application under section 204 if it so wishes. We therefore invite submissions now on the basis of what I have just said.' 30 The reference to what is 'appropriate', 'at this late stage of the proceeding', suggests the Full Bench had in mind discretionary considerations. 31 We place a similar construction upon the Full Bench's written reasons of 31 July 2002. In para 9, the Full Bench indicated that, if it had not fallen into the first error identified by the Full Court, it would nonetheless have decided to quash the decision of Senior Deputy President Williams. After explaining why that was so, the Full Bench repeated the point in para 22. Importantly, in para 23, it went on to deal with the appropriateness, in the particular proceeding, of considering CFMEU's alternative submission and to observe (correctly) that it was open to CFMEU to lodge a fresh application under s 204. This paragraph is couched in terms of the exercise of discretion. If the Full Bench had thought it had no power to accede to CFMEU's wishes, it surely would have said so; rather than speaking of what was 'appropriate' and pointing out the available alternative course. 32 As Mr Crawshaw acknowledged in discussion with us, in the end the case turns on the proper construction of the Full Bench's reasons for decision of 31 July 2002. On our reading of those reasons, the Full Bench did not exhibit any error in its understanding of the extent of its jurisdiction or powers. 33 It was for the above reasons that we decided to dismiss the application for prerogative relief. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice the Court. Associate: Dated: 22 August 2003 Counsel for the Applicant: Mr S Crawshaw SC with Mr M Gibian Solicitor for the Applicant: Construction, Forestry, Mining and Energy Union For the First Respondent: No appearance Counsel for the Second and Third Respondents: Mr R Kenzie QC with Mr A Hatcher Solicitor for the Second and Third Respondents: McClellands Solicitors Counsel for the Fourth to Twenty-Fourth Respondents: Mr H Dixon SC with Mr N Beaumont Solicitor for the Fourth to Twenty-Fourth Respondents: Blake Dawson Waldron Counsel for the Twenty-Fifth Respondent: Mr J Gallagher SC with Mr R Warren Solicitor for the Twenty-Fifth Respondent: Employers First Counsel for the Twenty-Sixth to Thirty-Fifth Respondents: No appearance Date of Hearing: 20 August 2003 Date of Order: 20 August 2003 Date of Reasons: 22 August 2003