CcCATCHWORDS Practice and Procedure - Federal Court of Australia - Jurisdiction of - Application for interpretation of an award made under the Conciliation and Arbitration Act 1904 - "Matter" arising under federal law - Scope of single controversy - Extent of accrued jurisdiction. Industrial Law (Commonwealth) - Award - Application for interpretation - "Matter" arising under federal law - Scope of single controversy - Extent of accrued jurisdiction. Constitution, sections 76(ii), 77(i) Conciliation and Arbitration Act 1904, section 110 - Seamen's Union of Australia v. Matthews (1957) 96 C.L.R. 529 The Queen v. The Commonwealth Industrial Court; Ex parte T e Australian Coal and Shale Employees' Federation (1960) 103 C.L.R. I7i Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Limited (1981) 148 C.L.R. 457 Fencott v. Muller (1983) 46 A.L.R. 41 Stack v. Coast Securities (No. 9) Pty. Limited (1983) 49 A.L.R. he Queen v. Clarkson; Ex parte The Victorian Employers | ' Federation (1973) 103 C.L.R. 100 ' No. 4 of 1984 \ MEAT AND ALLIED TRADES FEDERATION OF AUSTRALIA v. THE AUS- TRALASIAN MEAT INDUSTRY EMPLOYEES" UNTON & ANOR. Neaves J. 13 June 1984 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTE WALES DISTRICT REGISTRY ) No. 4 of 1984 ) INDUSTRIAT DIVISION ) BETWEEN: MEAT AND ALLIED TRADES FEDERATION OF AUSTRALIA Applicant AND: THE AUSTRALASTAN MEAT TNDUSTRY EMPLOYEES UNION First Respondent THE FEDERATED COLD STORAGE AND MEAT PRESERVING EMPLOYEES' UNION OF AUSTRALIA Second Respondent ORDER JUDGE MAKING ORDER: Neaves J. DATE OF ORDER: 13 June 1984 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The objection to the jurisdiction of the Court. to entertain the application be overruled. to The costs of the hearing on the jurisdictional issue be reserved. 3. The first respondent file and serve amended points of defence within 14 days after the date of this order 7. The first respondent file and serve within 21 days after the date of this order affidavits setting out any evidentiary material on which it wishes to rely in support of the issues raised in the amended points of defence. The applicant file and serve any affidavits in ' reply within 7 days after the date referred to in the last preceding order. I The parties have liberty to apply on 2 days' notice for eny variation of the directions now given or for any further or other directions as they may be advised. The parties be at liberty to approach the Registrar of the Court to fix a date for the further hearing of the application. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY No. 4 of 1984 INDUSTRIAL DIVISION 5 BETWEEN : MEAT AND ALLIED TRADES FEDERATLON OF AUSTRALIA Applicant AND: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYERS UNION First Respondenr THE FEDERATED COLD STORAGE AND MEAT PRESERVING EMPLOYEES ' UNION OF AUSTRALIA Second Respondent Bea CORAM: Neaves J. DATE: 13 June 1984 REASONS FOR JUDGMENT A preliminary question has azxisen whether the .~ Court has jurisdiction to entertain an application brought before ut by the Meat and Allied Trades Federation of Australia ("the applicant''). The application names as respondents The Australasian Meat Industry Emplovees' Union ("the first respondent") and The Facerazad Cold Storage and Meat Preserving Employees' Union of Australia ("the second respondent"). The second respondent has not entered an appearance and has taken no part in the pro- ceedings. The applicant seeks the following declarations (numbered 3 and 4 in the application) - "3. A declaration that upon the true meaning and interpretation of paragraph (ii) of sub- clause (a) of Clause 3, Extent of Award, of the Federal Meat Industry Award, 1981, as varied, the said award is binding on the com-~ pany known on 8th February, 1984, as Amagraze Limited, howsoever thereafter named, being a member of the Meat and Allied Trades Federa- tion of Australia, an organisation of employees registered under the Conciliation and Arbitra- - tion Act 1904, and the Regulations made there- under, being an organisation bound by the said award, in respect of all of the said company's employees in classifications contained in the said award. . 4, A declaration that upon the true meaning and interpretation of subclause (a) of Clause 2, Application, of the F.J. Walker Queensland Meatworks Industrial Agreement-Award 1976 made on 6th September, 1976, and as varied thereafter, the said award as so made and so varied has not been and is not binding on the company known on 8th February, 1984, as Amagraze Limited, howsoever thereafter named, in respect of any of the said company's employees." The application as filed seeks a number of other declara- tions but on the hearing of the application counsel for the applicant did not press for the making of those dec- larations. For the purpose of considering the jurisdictional question the allegations of fact made by the applicant in its application, the affidavits filed in support and the points of claim filed on its behalf may be accepted. To say that, however, 1s not to make any finding in relation to those allegations and what follows is intended only to summarise the allegations made so far as it is necessary to do so in order to deal with the jurisdictional question. The applicant is an organization of employers registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"). Amagraze Limited is a company incorporated in Queensland which since October 1960 has been a member of the applicant. That company has at all material times owned or leased land and has owned buildings, plant and equipment at Biloela in the State of Queensland. Since October 1960, -except during periods of closure, the company has operated on that land a business known as the Biloela abattoir. The abattoir closed during 1982 but has recently begun operating again. F.J. Walker Limited is a company incorporated in New South Wales. At all times from about 14 November _ 1972 to about September 1983 that company carried on the business of operating abattoirs at Stuart (Townsville) and Maryborough in the State of Queensland, certain abattoirs in the State of New South Wales, other meat processing establishments in the State of New South Wales, meat whole- o saling and retailing operations in the State of New South Wales and Queensland and activities in or in connection with the foregoing. In or about the month of January 1973 F.J. Walker Limited and certain directors thereof became the registered holders of all the issued share capital in Amagraze Limited. Recently F.J. Walker Limited has divested itself of the beneficial ownership of the issued share capi- tal in Amagraze Limited. On 6 September 1976 the Conciliation and Arbitra- tion Commission, by consent, made an award under the Act known as the F.J. Walker Queensland Meatworks Industrial _ Agreement-Award, 1976 ("the 1976 award"). Clause 2 of: that award is headed "Application". Sub-clauses (a) and (by of that clause, which have not been varied since the award was made, provide = "(a) This agreement-award is binding on The Austral- asian Meat Industry Employees Union, its officers and its members and on F.J. Walker Ltd in respect of all their employees in the classifications contained herein, whether members of the said Union or not, employed at the following works in Queensland: - F.J. Walker Led - Swift Meat Division - Stuart (Townsville) - Maryborough Amagraze Limited - Biloela " " - Hamilton (Brisbane) Cairns Meat Export Co. Pty Ltd. - Cairns " t W 1r tr i (b) This agreement-award shall apply in relation to any employment to which it is applicable to the ex- clusion of the provisions of the Federal Meat Industry Interim Award, 1965, as varied, the Meat Processing Interim Award, 1972, as varied, or any award varying or replacing either of the said awards or any other award," On 29 September 1981 the Conciliation and Arbi- tration Commission, by consent, made an award under the Act known as the Federal Meat Industry Award ("the 1981 award"). Clause 2 of that award, headed "Previous Awards Superseded", provides - "This award supersedes, in respect of those employers who at the date of making this award or at any time subsequent to that date are or become members of the Meat and Allied Trades Federation of Australia and those employers whose names appear inthe schedule to this award, The Federal Meat Industry Interim Award 1965, and all variations to that award, but no right, obligation or liability accrued or incurred under the said award, or var1ration thereto shall be affected by such supersession." Clause 3, headed "Extent of Award", provides, so far as - material for present purposes - ""(a) This award shall be binding on: (1) The Australasian Meat Industry Employees Uniom, its branches and its members; and (ii) The Meat and Allied Trades Federation of Australia and its members in respect of all their employees in classifications contained herein whether members of the union or not; and tt The award is to apply in the State of Queensland (clause 4). The matter in dispute between the applicant and the respondents is whether Amagraze Limited and the employees of that company who are employed at the Biloela abattoir and who fall within the relevant classifications are subject to the obilgations and entitied to tae benefits contained in the 1976 award or those contained in the 1981 award. That this is the ambit of the matter in dispute is made plain by the terms of the points of defence filed on behalf of the first respondent and the elaboration of that document during the course of argument. The applicant contends that the 1976 award, on its true construction, relevantly applies only to employees (if any) of F.J. Walker Limited employed at the Biloela abatto1r and not employees of Amagraze Limited employed at those premises. It further contends that if the 1976 award, on its proper construction, did immediately prior to the coming into effect of the 1981 award bind Amagraze Limited in relation to its employees at the : Biloela abattoir, that award has ceased to have any opera— tive effect in relation to those employees because its provisions have been superseded by those of the 1981 award, that award binding Amagraze Limited in relation to all its employees in the relevant classifications including all such employees at the Biloela abattoir and this not- withstanding clause 2(b) of the 1976 award. The first respondent contends that up to 1982 when the Biloela abattoir ceased operations the persons who were employed at the Biloela abattoir and fell within the classifications contained in the 1976 award were employees of F.J. Walker Limited and not of Amagraze Limited or, alternatively, were employees of both companies with the consequence in either case that they were entitled to the benesizs of the 1976 award. aAmagraze Limited as the present employer of those employees continues, so the first respondent contends, to be bound by that award in relation to those employees by virtue of the operation of section 61(d) of the Act which provides that an award determining an industrial dispute is binding on, in the case of employers, any successor to, or any assignee or transmittee of, the business of a party to the dispute or of a party bound ody the award, including any corporation which has acquired or taken over the business of such a party. The first respondent further contends that the employees of Amagraze Limited employed at the Biloela abattoir are not subject to the provisions of the 1981 award. Although the first of the declarations sought by the applicant speaks of the 1981 award binding Amagraze Limited "in respect of all of the said company's employees in classifications contained in the said award", the nature of the dispute between the parties is such that the question arises only in relation to those employees of Amagraze . Limited who are within the relevant classifications and are performing work at the Biloela abattoir. Similarly, the second declaration sought, that in relation to the 1976 award, although referring to that award as not binding Amagraze Limited "in respect of any of the said company's > = ~ = v employees", may, for present purposes, be taken as referring only to those employees in the relevant classi- fications performing work at the Biloela abattoir. The applicant's argument in support of the Court's jurisdiction to entertain the application has its foundation in section 110 of the Act. That section provides - "(1) The Court is empowered, subject to this section, to give an interpretation of an award. (2) An application for the interpretation of an award may be made by the Minister or an organization or person bound by the award. (3) The decision of the Court upon the appli- cation is final and conclusive and is binding on all organizations and persons bound by the award which or who have been given an oppor- tunity of being heard by the Court." - The Court referred to in that section is the Federal Court of Australia (see section 118A of the Act). As the 1981 award is an award made under the Act and the applicant is an organization bound by that award (see section 61 of the Act), section 110, in terms, entitles the applicant to seek from the Court an inter- pretation of it. The jurisdiction which is conferred upon the Court by section 110 to interpret awards judicially . is jurisdiction forming part of the judicial power of the Commonwealth: Seamen's Union of Australia v. Matthews (1957) 96 C.L.R. 529 at p. 534; The Queen v. The Commonwealth Industrial Court, Ex parte The Australian Coal and Shale Employees' Federation (1960) 103 C.L.R. 171 at p. 173. Section 110 is a law made by the Parliament in the axercise of the power conferred upon it by section 77(i) of the Constitution to define the jurisdiction of any federal court other than the High Court with respect to any of the matters mentioned in sections 75 and 76 of the Constitution. It is unnecessary for present purposes to look beyond section 76(ii) which mentions any matter arising under any laws made by the Parliament. Section 110 (read with section 118A) is, therefore, a law which defines the jurisdiction of this Court with respect to a "matter'' mentioned in section 76(ii) of the Constitution. It is not suggested by the first respondent that section 110 of the Act is other than a valid exercise of the power conferred upon the Parliament by the provisions of the Constitution to which reference has been made. The applicant submits that, the Court's juris- diction having been attracted by the application under section 110 of the Act for an interpretation of the 1981 award and the issue so raised béing an integral part of a single matter or controversy between the parties, the ambit of the jurisdiction conferred by section 110, read~ in the light of the relevant constitutional provisions, extends to the hearing and determination of the whole of that matter or controversy. In making this submission the applicant relies particularly on the decisions and reasoning of the High Court in Philip Morris Inc. v. Adam P. Browm Ne} Male Fashions Pty. Limited (1981) 148 C.L.R. 457, Fencott v. Muller (1983) 46 A.L.R. 41 and Stack v. Coast Securities (No. 9) Pry. Limited (1983) 49 A.L.R. 193. The applicant also relies on section 32 of the Federal Court of Australia Act 1976 which is expressed to confer jurisdiction on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. On the assumption (which it will be necessary hereafter to justify) that the jurisdiction expressly conferred upon the Court by section 110 of the Act has been attracted by the application herein, I am of opinion that the Court has jurisdiction to hear and determine the whole of the matter or controversy between the parties namely, whether it is the provisions of the 1976 award or those of the 1981 award that relevantly prescribe the award conditions as between Amagraze Limited and those of its employees within the relevant classifications who perform work at the Biloela abattoir. That conclusion, which is arrived at independently of any operation which section 32 of the Federal Court of Australia Act 1976 . may have, accords, in my opinion, with the decisions of the High Court to which reference has been made. Those decisions establish that "when jurisdiction is conferred on the Federal Court with respect to a matter, the court 10. has jurisdiction to determine all the questions which form part of that matter including questions which in themselves would not be federal in nature, and which accordingly the Federal Court would not have had juris- diction to determine if they had arisen in separate proceedings" (see Stack v. Coast Securities (No. 9) Pty. Limited (supra) per Gibbs C.J. at p. 202. In the present case the additional questions said to form an integral part of the matter in dispute are themselves federal in nature. In reaching the conclusion stated I have rejected the arguments to the contrary advanced on behalf of the first respondent and I should state my reasons for doing so. The first respondent submits that the Court has no jurisdiction in these proceedings to give an interpreta- tion of the 1976 award because of the provisions of sub~ section 110(2) of the Act and the assertion by the applicant as part of its case that neither it nor Amagraze Limited is bound by that award. The first respondent also submits that no question arises as to the interpretation of the 1976 award because it is conceded that there is nothing in the terms of the award which can be construed as making the award binding on Amagraze Limited. The obligation of Amagraze Limited to abide by the terms of that eward in relation to its employees at the Biloela abattoir arises, so the first respondent submits, from the operation of section 61(d) of the Act and not from the terms of the award itself. It may be a sufficient answer to the first of these arguments to say that by reason of the relationship between the two awards it may become necessary in inter- preting the 1981 award to have regard to, and if necessary place an interpretation upon, the 1976 award particularly as to the extent to which that award governs the relations between Amagraze Limited and its employees at the Biloela abattoir and as to the scope and effect of clause 2(b) purporting to give the 1976 award primacy over later awards. The circumstance that a question that may arise in a pro- ceeding properly brought under section 110 of the Act for the interpretation of the 1981 award may be characterised as a question as to the interpretation of the 1976 award (and, as such, outside the jurisdiction of the Court at the suit of this applicant in separate proceedings for that relief) does not mean that the same question cannot be considered as part of the process of interpreting the 1981 award. ~ But, in any event, to accept the argument put by the first respondent would, in my opinion, amount to accept- ing an argument clearly rejected by the High Court in Stack v. Coast Securities (Mo. 9) Pty. Limited (supra). 12. In that case it was argued that, because of the terms in which section 86 of the Trade Practices Act 1974 granted jurzsdiction to this Court, the Court had no jurisdiction to hear and determine other claims forming part of the entire litigious controversy of which the claim under the Trade Practices Act 1974 was an integral part. The reason- ing which led the High Court to reject that argument seems to me to be equally applicable here. It may be conceded that the applicant could not in separate proceedings for an interpretation of the 1976 award rely in point of juris- diction on section 110 of the Act by reason of the circum- Stance that it is not bound by that award. But the fact that the legislature has seen fit to confer jurisdiction to seek an interpretation of an award only where the appli- cation is made by a person or organization answering one of the descriptions in section 110 does not have the con- sequence of limiting the accrued jurisdiction which the Court may exercise once the Court's jurisdiction is attracted by an application properly made in accordance with that section. The second of the above arguments should also be rejected for it postulates that the accrued juris- diction which may be exercised in relation to the appli- cation for an interpretation of the 1981 award is limited on to jurisdiction to give an interpretation of the 197 bal award. But, omce the jurisdiction of the Court is properly 13. attracted, the Court may hear and determine the whole of the issues that arise in the relevant matter. Even if the question whether the operative award conditions are to be found in the 1976 award (a question which the first res- pondent contends should be answered in the affirmative) goes beyond what may properly be characterised as the interpretation of the 1976 award that, of itself, does not require a negative answer to be given to the question whether the ambit of the Court's jurisdiction extends so far. Turning to the question whether the application is properly described as an application for the interpreta- tion of the 1981 award, the first respondent takes the point - that the question whether a particular party isor is not bound by an award is not a question as to the interpretation of the award and reference is again made to sub-section 110(Z). That sub-section is said to implicitly remove from the scope of the section, if it were otherwise within it, the question whether an applicant is bound by the award of which the interpretation is sought. It is, of course, true to say that who is bound by an award is to be determined by ref- erence to section 61 of the Act so that it may not be universally correct to say that the question who is bound by an award will necessarily involve the interpretation of the award. However, it seems to me that it may do so. But, be that as it may, the question which the applicant seeks to agitate 1s not so much whether Amagraze Limzted 14, is bound in any respect by the 1981 award but the extent to which it is bound. The answer to that question, as was said by Menzies J. in The Queen v. Clarkson; Ex parte The Victorian Employers Federation (1973) 103 C.L.R. 100 at pp. 108-9, depends upon the terms of the award. On its face the 1981 award appears to be binding on Amagraze Limited in relation to its employees who are at present employed at the Biloela abattoir and who fall within the classifications set out in the award because that company is a member of the applicant. It will operate in that regard unless its language is to be read in a more restricted sense so as to- exclude those employees from-its ambit. The first respondent submits that because it does not dispute that thé language of the 1981 award is apt to include Amagraze Limited in relation to its employees at the Biloela abattoir the application cannot properly be characterised as an application for the interpretation of the 1981 award. None the less the first respondent asserts that the award does not have operative effect consistent with the width of its language. This conclu- sion is said to arise by reason of circumstances extraneous to the 1981 award including the 1976 award and certain factual material which is not before the Court but to the general nature of which I have aiready adverted. These considerations are said to result in Ama being bound by the 1976 award in reiation te those within 15. the relevant classifications whom it at present employs at its Biloela abattoir. The argument is that to determine these cuescions is not to give an interpretation of the 1981 award within the meaning of that expression in section 110 of the Act and the Court, therefore, has no jursidiction to entertain the application now before it. While having the attraction of simplicity the argument fails to take account of the circumstance that the true meaning and effect of the award must be ascertained not by construing the language used in isolation but by construing that language in its setting and its context - and in the light of all the relevant surrounding circumstances. The resolution of the matter in dispute between the parties namely whether the etiployees of Amagraze Limited who are employed at the Biloela abattoir are governed in their relationship with that company by the 1976 award or the 1981 award seems to me plainly to involve the interpretation of the 1981 award. The jurisdiction of the Court is, therefore, attracted. I should add that the question which the applicant seeks to raise in relation to the 1981 award is not hypo- thetical and the limitations unherent 1n the judicial power do not assist the first respondent in asserting, as it does, that to entertain the present application for an interpretation of the 1981 award would go beyond the prover bounds of that power. For these reasons the objection to the juris- diction of the Court is overruled. The costs of the hearing on the jurisdictional point are reserved. It 1s appropriate, I think, to give further directions concerning the hearing of the application on the merits. It became apparent during the argument on the jurisdictional point that the points of defence filed on behalf of the first respondent do not reflect adequately what are the 1ssues which that respondent seeks to raise. There is, for example, no assertion that the emplovees who were employed at the Biloela abattoir prior to the 1982 closure were employees of F.J. Walker Limited (or, alternatively were employees of both that company and Amagraze Limited). Equally, the factual basis for the contention that section 61(d) operates so as to make the 1976 award the relevant award governing the relationship between Amagraze Limited and its employees at the Biloela abattoir is not stated. I, therefore, direct that the first respondent file and serve amended points of defence within 14 days after the date of this order. I further direct that the first respondent file and serve within 21 days after the date of this order affidavits setting out any evidentiary material on which it wishes to rely in support of the issues raised by the amended points of defence. Any affidavits in reply should be fiied within a further period of 7 days. The parties are to heva Th liberty to apvly on 2 days' notice for any variation o the directions now given or for any further or other directions as they may be advised and to have liberty to approach the Registrar to fix a date for the further hearing of the matter. I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Neaves Dated: 13 June 1984 Z Hagorns Assoc¥ate