High Court of Australia Mason, Wilson, Brennan, Deane & Dawson J Re Amalgamated Metal Workers' Union; Ex parte Horwood Bagshaw Ltd Mason, Wilson, Brennan, Deane & Dawson JJ This is an application to make absolute an order nisi for prohibition directed to Commissioner Brown of the Australian Conciliation and Arbitration Commission (the Commission) prohibiting him from further proceeding with hearing or from making any award, determination or decision in relation to a dispute between the Amalgamated Metal Workers' Union (the union) and the prosecutor, Horwood Bagshaw Ltd. The dispute arises out of the termination by the prosecutor between 6 and 10 January 1986 of the services of a number of its employees, some or all of whom were members of the union. The union claimed that the termination of employment was such as to bring it within the provisions of cl 42 of the Agricultural Implement Making Award 1980 (the award) as varied on 9 April 1986 with retrospective effect from the beginning of the first pay period commencing after 10 May 1985. Termination of employment under that clause entitled an employee to severance pay, the amount payable being calculated by reference to the length of the employee's service. The prosecutor, claiming that the award distinguishes between retrenchment and redundancy, denied that it was liable for severance pay under cl 42 and asserted that it had retrenched the employees in question pursuant to cl 6 of the award which governs termination of employment generally. On 16 January 1986 the union notified the Commission of the existence of an industrial dispute under s 25 of the Conciliation and Arbitration Act 1904 Cth (the Act), as amended. The notification described the dispute in these terms: With respect to refusal by the above company to make redundancy payments, provided for in the Agricultural Implement Making Award 1980, to redundant employees who are members of this and other unions. The notification requested "that the Commission do all such things as it deems necessary and desirable for the prompt settlement of the dispute". In the proceedings before Commissioner Brown which took place as a result of the notification of the dispute the union representatives described the dispute as one concerning "the non-payment of severance pay as provided in cl 42(c) of the Agricultural Implement Making Award 1980". The union representatives did not identify with any degree of precision what action they wished the Commissioner to take by way of resolving the dispute. However, they asserted that the prosecutor was in breach of cl 42 and that the employees whose employment had been terminated were entitled to severance pay under that clause. Moreover, the union representatives led evidence with a view to establishing both these matters. At the outset of the proceedings before Commissioner Brown the prosecutor's representative applied under s 34 of the Act for a reference of the matter to the Full Bench of the Commission for an award or order under s 59(2) clarifying the provisions of the award with respect to the retrenchment/redundancy issue. The President of the Commission refused the application for the reason that the prosecutor was seeking to have the award varied in order to give it an operation or effect that had been rejected by the Full Bench in its earlier decision in the Termination, Change & Redundancy case (1984) 9 IR 115, a decision having an application to the making of a number of awards, including the instant award. Following the refusal by the President of the requested reference the prosecutor's representative submitted that the Commission had no jurisdiction to deal with the dispute, except by way of varying the award under s 59. In particular, the prosecutor's representative submitted that the Commission had no power to make a binding declaration of right that the prosecutor was in breach of the award or that it was bound to pay severance pay to employees whose services had been terminated and that is what the Commissioner was being asked, or was proposing, to do. It is on this ground that the prosecutor now asks this Court to make the order nisi absolute. The Commission, which is not established as a Ch III court, or indeed as a court at all, cannot exercise the judicial power of the Commonwealth. It is well settled that the Commission cannot make binding declarations of right or enforce its own awards: R v Austin ; Ex p Farmers and Graziers Co-operative Co Ltd (1964) 112 CLR 619 at 627, 629; R v Gough ; Ex p Key Meats Pty Ltd (1982) 148 CLR 582(1982) 1 IR 359 at 361. However, as the judgments in Key Meats at 587, 591 and 595 (CLR); 361, 363 and 365 (IR) recognise, the Commissioner had power to vary the award and it may be, though we do not need to express any opinion on the question, to make a new award in resolution of the dispute. It is by no means easy to ascertain from the lengthy and discursive discussions recorded in the transcript of proceedings before the Commissioner what are the possible modes of resolution of the dispute that he has under consideration. This makes it difficult for the prosecutor to demonstrate that the Commissioner intends, or is likely to deal with the dispute in a manner that is necessarily beyond his jurisdiction. The Commissioner's failure to make a finding of dispute and to determine what are the matters in dispute pursuant to s 24(1) of the Act, together with the way in which the proceedings have been conducted, have no doubt encouraged the belief that he may be embarking on an enforcement of the award. However, albeit at a late stage in the proceedings and after the prosecutor's representative had indicated that it wished to test the question of jurisdiction in this Court, the Commissioner adverted to his power to make an award, or vary the award, in order to resolve the dispute. He said: So in this matter it is my opinion that the Commission does have, and should accept, that jurisdiction has not been exhausted. There is power remaining to make awards in a piecemeal fashion and the Act does empower the Commission to vary an existing award if ambiguity or uncertainty is shown to exist after an award has been made. In one of the circumstances the Commission is going to proceed to hear the parties to a conclusion and then make a decision. On a later day the Commissioner stated his function in these terms: That is why it is before the Commission, before this single member, to examine whether or not the facsimile copy of the metal industry order is suitable for the circumstances in this company. That seems to me to be my function. Although the Commissioner had not explained why it is that a new award or a variation of the existing award will assist in the resolution of the present dispute, the absence of such an explanation does not mean that either course is beyond his jurisdiction. It is possible that a variation of the award would entail the joining of other parties to the award, see Key Meats at 594 (CLR); 361 (IR). But we do not think that the absence of the joinder of such parties at this stage indicates that the Commissioner has decided against variation of the award as a possible outcome. There are other passages in the transcript which tend to suggest that the Commissioner may have under consideration the enforcement of the award. However, in the light of the particular passages which we have quoted we are not persuaded that he has decided upon such a course. Indeed, in view of the attitude taken by the respondent union's counsel before us, it is unlikely that the Commissioner intends to make an order enforcing the award. In the circumstances it has not been shown at this stage that the Commissioner intends to deal with the dispute in a manner beyond his jurisdiction. Before a prosecutor is able to show that the Commission is about to exceed the jurisdiction conferred upon it when the Commission has not formulated the order it proposes to make, a clear indication to go beyond that jurisdiction must appear. The order nisi is therefore discharged.