JUDGMENT No. 37.78%... CATCHWORDS Industrial Law - Conciliation and Arbitration Act 1904 - application under 3.110 for construction 2fF an award - eequest under 3.118C bEhat the yorsceeding Se heard and desarmined by a Fuli Cours - matters taken into acecsunt in granting the request. Conciliation and Arbitrationm Act 1904 35.110,1188,118C,113 AUSTRALTA AND NEW CEALAND BANKING GROUP LIMITED and OTHERS and AUSTRALIAN BANK EMPLOYEES' UNTON Vo Ne. 22s of 1327 NORTHROP JG. 1 FEBRUARY 1983 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. 216 of 1987 wer INDUSTRIAL DIVISION BETWEEN: AUSTRALIA AND NEW SFALAND BANKING GROUP LIMITED and OTHERS Applicants and AUSTRALIAN BANK EMPLOYEES' UNION Pespondent COURT: NORTHRGF J. DATE : 1 FEBRUARY 1988 PLACE: MELBOURNE EX TEMPOPE REASONS FOR JUDGMENT This 15 a further directions hearing in this matter, which has been brought pursuant to 5.110 of the Conciiration and Arbitration Act 1304. in which the applicants, being certain banks bcund by an award, the Bank Officials \FPederal; (1363) Award, are seeking a2 toanstruction af cartain provisions of that award. The respondent 15 the Australian Bank Employees Union, which 15 a party to that award. bs The construction sought by the banks 1s set out in Paragraph 11 of the application. Pursuant to points of contention of fact and law, which have been filed on behalf of the respondent, 1t is apparent that the Union is Mazntaining 105 position that the construction sought by the banks, even aif correct, will not have the effect or determining all the issues raised by the large number of applications brought by the Australian Bank Employees' Union against banks pursuant to 5.113 of the Act in which the Union 1s seeking the imposition of penalties 'for breaches of the award. Those proceadings are continuing, but a discrete issue is raised by the croceedings curcently osfore me, and zt is possible that they cculd have an affect sn a number if r wu the 3.113 proceedings. Undeéc normal circumstances, tr Matter 15 vaady for trial, there are no Further affidavits toa be 'filed, and the issues raised are capable of being determined by the construction of the award itself, having regard to the framing of the construction as set out in paragraph 11 of the application and amplified by the earlier paragraphs of that application. Initially, the Court raised the .ussue of whether this was a matter that should be referred to a Full JZourt pursuant to the provisions of 3.118C of the Act. Before ma, counsel For the banks has argued that the Court should refer the matter for determination by a Full Court while ccunsel for the Union has contended that thera should be no reference to a Full Court, but that the matter should proceed in the normai way, in which case the application would be heard and determined by a Court constituted by a single Judge, and thereafter the dissatisfied party would have a fright to appeal to a Full Court. Tt 15 noted that under sub-section 118B(2) sf the Act there can be no appeal from a judgment of a Pull Court in a matter under 5.1109 of the Act, although, 47 way of aside, there can be an appeal from a decision of a Fuli Court on a matter under 5.113 of the Act by leave of the High Court. It 15 also made clear by zounsel for tha banks that in this case it is not intended cs challenge the earlier decision of a Full Court of the Federal Court of Australia in Gapes vy. Commercial Bank of Australia Ltd. (13930) 41 F.L.R. 27, although if will be sought to distinguish that authcri v from the construction sought in the present case. in my opinion, this 15 an appropriate case to he referred to a Full Court under 5.113C of 'he Act. The reasons why 16 15 an apgrspriate case sq ¢3 45, in my Opinion, are as follows. Ther2 appears to be no disguted question of fact arising as to the construction sought. It apoears there will be no witnesses called, and there are no competing affidavits as tc factual matters. What 15 being raised is the zonstruction of a written document, namely the proper construction of an award of the Conciliation and Arbitration Commission. The jurisdiction conferred by 5.110 of the Act is rather unique in that it gets very close to a positicn where the Court 1s empowered to give an advisory opinion for the guidance of parties, a course which normally the Court does not exercise under its normal jurisdiction and powers. Hera the very wording of 5.110 makes 1t clear that this is the purpose of the section. That section provides:- "Li0. (1) The Court 15 empowered, subject this section, to give an interpretation of an award. ... (3) The decision of the Court upon the application 15 final and conclusive and 15 binding on all organizations and persons bound by the award which or who have been given an opportunity of being heard by the Court." L In my opinion, 1b 15 unwise for rcefarences wu ow pr tr a Wi tl my nm ou i cr made under 5.115C in caaes where disputed que arise. That 15 ict the case here. There is this unique Many respects it 15 similar to the power of a Suprame Court 70 Give an interpretation or a will. It is a type of case which can be dealt with adequately and without undue difficulty as far as facts ara concerned by a Full Court. Secondly, in my opinicn, this is a case wheres, oan tne probabilities, no matter which of the parties succeeds if the matter ware to proceed before a singls Judge, the other warty would appeal to a Fuli Court. The matter is of vita importance to the partias, and it 15 desirable to avoid the unnecessary procedures and axpense of having a single Judge and then an appeal. This 15 not the type of case where a trial and reasons for judgment by a single Judge can be of assistance to a Full Court. It 15 well known that appellate courts derive enormous advantage from having the benefit of a trial Judge giving his reasons for decision, but chieved from 3&3 fu ina case of this kind, the advantage to ba trial followed by an appeal is not 30 great as to deprive the Full Court of dealing effectively with the matter by way of reference under 5.118C of the Act. Thirdly, 16 is apparent that some of the current 5.119 applications do depend upon the construction of the Clauses of the award, the subject of the present application under s.110. Not all those 5.119 proceedings 530 arise, em do. In those TT oa Fs apparently, but a substantial number of Circumstances, 16 seems desirable to have an authoritative Opinion of the Full Court as to the praper construction of the award befora any of those 5.113 applications which depend upon the relevant clauses of the award, the subject of the ng ul present proceedings, come om for hearing. The guidance of a Fothe relevant la Full Court as to the proper consteuction clauses would be of assistance to the Court in hearing those $.119 applications in which the clauses of the awacd, the subject of the 5.110 application, are given. Accordingly, for these reasons, it is my opinion that this is a matter which should be referred toa Full Court and I so order under s.118C of the Act. ee a ! zs and the four C4) prevedirg pages are a tue copy of the Reasons tor idenent herein of the Henouw..ble 'ir. Tustice & M Northrop) Sharev UJuzev Ascociate Teeriy diy. Feeney TOT err sagt. Dated: { Fepruaey {Age