AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision PR937858
issued by Deputy President McCarthy on 12 September 2003
Finance Sector Union of Australia
(C2003/5655)
s.170LW application of settlement of dispute
Finance Sector Union of Australia
and
Australian and New Zealand Banking Group Limited
(C2003/3943)
Banking services | |
VICE PRESIDENT ROSS |
|
SENIOR DEPUTY PRESIDENT O'CALLAGHAN |
|
COMMISSIONER WHELAN |
MELBOURNE, 22 MARCH 2004 |
Appeal - s.45(1)(g) - s.170LW application for settlement of dispute - refusal to make a recommendation - errors and misconceptions about the conciliation process and the role of recommendations - but errors not jurisdictional in nature - leave to appeal granted - appeal dismissed.
DECISION
Background
[1] This decision deals with an appeal by the Finance Sector Union (the FSU) pursuant to s.45 of the Workplace Relations Act 1996 (the WR Act) against a decision [PR937858] issued by Deputy President McCarthy on 12 September 2003.
[2] In the decision subject to appeal his Honour rejected a request by the FSU that the Commission issue a recommendation in respect of a dispute which the union had notified pursuant to s.170LW of the WR Act and clause 18 of the ANZ/FSU Agreement 1998 (the Agreement).
[3] The Agreement was certified by the Commission on 12 August 1998 and has a nominal expiry date of 12 February 2001. The Agreement remains in operation pursuant to s.170LX. Clause 18 of the Agreement provides as follows:
"18. Disputes Settlement
In the event of a dispute in relation to any matter arising out of or concerning this Agreement the parties will apply clause 10 (procedures for the avoidance of industrial disputes) of the ANZ Group Award without delay. Any such matter which cannot be resolved between the parties will be placed before the Commission for conciliation or where the parties agree for arbitration."
[4] Clause 10 of the Banking Services - ANZ Group - Award 19981 (the Award) sets out a dispute settlement procedure which culminates in the referral of an unresolved dispute to the Commission, as follows:
"10. Procedures for the avoidance of industrial disputes
10.1 It is both the staff and management's responsibility to attempt in the first instance to resolve any dispute locally. In the event of a dispute not being resolved locally in the workplace the procedure to be followed to resolve the matter shall be as follows:-
10.1.1 Raise the matter with the branch or department manager.
10.1.2 If not resolved, further discussions shall be held between the staff member and his or her nominated representative. If any, and more senior levels of management.
10.1.3 If the matter is still not resolved a discussion shall be held between the National Human Resources area and the union or other staff member representative.
10.1.4 If not resolved, place the matter before the Commission.
10.2 Without prejudice to either staff or management, work shall continue in accordance with this award whilst the matter in dispute is being dealt with.
10.3 Staff may seek assistance or guidance, including from the Union, at any stage of this process."
[5] The facts which led to the relevant dispute notification are, generally speaking, uncontested. The main factual dispute between the parties is whether a Ms Sherborn, a member of the FSU and an employee of the Australian and New Zealand Banking Group (ANZ), was entitled to a severance payment.
[6] The dispute was the subject of proceedings before Deputy President McCarthy on 1 and 14 July 2003. At the conclusion of the proceedings on 14 July 2003 his Honour said:
"I've had discussions with both parties separately and both parties jointly. The discussions I had separately was for me to form a view or try and form a view as to whether there was a propensity or a likelihood for amicable resolution of this. So I ascertained the positions of the parties in confidence to me separately. I then joined the parties and inform [sic] them that I did not think that it would be productive for me to further involve the parties and myself in canvassing the issues any further than we had given the position of the parties. I did not consider that conciliation, however, was at an end, rather I considered that the parties should review their positions and consider whether they were of a view as to what further potential there may be once they had received instructions from their member and from their client.
Following that discussion I've suggested to the parties that the manner that this matter could proceed is for me to be provided with written submissions as to: one, whether I have the power to issue recommendations arising out of a section 170LW application and, in particular, this application; secondly, whether I should issue any recommendations should I have that power and; thirdly, if I should issue recommendations what those recommendations should be."2
[7] The parties subsequently filed written submissions directed at the two issues identified by his Honour. Both parties accepted that the Commission had power to make a recommendation in respect of the matter in dispute,3 but ANZ submitted that his Honour should not exercise that power in the circumstances of this case.
[8] In the decision subject to appeal his Honour declined to make a recommendation.
The Appeal
[9] It is important to recognise that this is an appeal pursuant to s.45(1)(g), which states:
"(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:
. . .(g) a decision by a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction in a matter arising under this Act."
[10] In order to succeed the appellant must show that the Deputy President erred in refusing or failing to exercise jurisdiction. It is not enough for the appellant to show that his Honour fell into legal error.
[11] To succeed the appellant must establish jurisdictional error in the decision subject to appeal. The majority of the Full Federal Court in Tweed Valley Fruit Processors Pty Ltd v Ross and others dealt with the scope of an appeal under s.45(1)(g) in the following terms:
"The finding that Commissioner Redmond fell into error does not necessarily lead to the conclusion that the Full Bench had jurisdiction to quash his decision. The Full Bench had jurisdiction to take that course only if his error amounted to a failure to exercise jurisdiction. If he had asked himself the right question, the Full Bench would not have been entitled to interfere with his decision, even though its members thought he had come up with the wrong answer; for example, if he had appreciated that, having regard to the terms of the EFA, para.(a) of s.170NC(2) was satisfied and he needed to consider para.(b), but he had reached a conclusion about public interest with which the Full Bench disagreed. This would be an error within jurisdiction, if it was an error at all, and not susceptible to attack under s.45(1)(g) of the Act."4
[12] The question of whether a particular error constitutes an excess of jurisdiction or a failure to exercise jurisdiction is often difficult to determine.5 The mere fact that a member at first instance has made a mistake of law, even as to the proper construction of a statute or an agreement, does not necessarily constitute constructive failure to exercise jurisdiction.6
[13] The essence of the appeal before us concerns the proper characterisation of the Deputy President's decision. The appellant contends that despite a formal acceptance of jurisdiction his Honour in fact held that he did not have jurisdiction to make a recommendation in respect of the dispute between the parties. In the course of oral argument Mr White, counsel for the FSU, put the appellant's contention in these terms:
"Whilst he said he had jurisdiction, in fact what he said was that he didn't. So you shouldn't be beguiled by the words or the process when in fact the actuality of it was that he held, in our submission, that he did not have jurisdiction."7
[14] There are two broad limbs to the appellant's argument. The first concerns observations made by his Honour at paragraph 41 of the decision subject to appeal. The second limb concerns what are said to be a number of errors in his Honour's reasons for decision at paragraph 34 to 40. We will deal with each limb of the appellant's argument in turn.
1. Whether the Deputy President erred by concluding that the Commission was not empowered by clause 18 of the Agreement to settle disputes over the application of the Agreement which was a matter that the parties were not called upon to address.
[15] Paragraphs 41 and 42 of the decision subject to appeal are in the following terms:
"[41] Whilst it was not argued that the Commission was not empowered by Clause 18 in the Agreement to settle disputes over the application of the agreement, I consider that the Commission is not so empowered by operation of s.170LW and is therefore arguably without jurisdiction in this matter.
Conclusion
[42] I consider that the conciliation has concluded. Agreement has not been reached and there is no prospect of agreement being reached. It is also inappropriate for the reasons expressed above that I make any recommendations. The role for the Commission in this matter is therefore at an end."
[16] The FSU contend that paragraph 41 is fundamental to its appeal. It is argued that in this paragraph the Deputy President held that the Commission was not empowered by the operation of s.170LW to settle disputes over the Agreement. In its written submission in support of the appeal the FSU says:
"His emphasis, by way of underlining, is on the word `settled'. To hold a conciliation of a dispute is not a means of settling a dispute would obviously be absurd. It might be, therefore, that the learned Deputy President held that clause 18 does not empower the Commission to conciliate. Such a conclusion flys [sic] in the face of the express words of clause 18.
The parties, and the Commission, had proceeded for two days and by the provision of written submissions, on the basis that the Commission was relevantly empowered. To hold without reason or notice to the contrary is to fall into fundamental error. This is particularly so where both parties agree otherwise and where cogent and compelling arguments exist to that effect."8
[17] It is also argued that his Honour's determination in paragraph 41 was one of the reasons why he declined to make any recommendation in respect of the matter in dispute. This is said to follow from the use of the expression "for the reasons expressed above" in the concluding paragraph of the decision subject to appeal.
[18] In the alternative the appellant contended that in the circumstances his Honour was empowered to arbitrate the dispute before him. This contention flows from the appellant's construction of clause 18 of the Agreement. It will be recalled that clause 18 requires the parties to apply clause 10 of the Award in the event of a dispute in relation to any matter arising out of or concerning the Agreement. The appellant advanced the following interpretation of clause 18:
"In this case the parties have agreed that the first thing that they must do to resolve disputes is to apply the award provisions. That is, in part, the parties have agreed for the Commission to arbitrate within the confines of the powers given to it by the Act. Whether that is a grant of private right of arbitration or merely an acceptance by the parties that that is the process to be followed is irrelevant.
Where, after an arbitration or attempted arbitration the matter is still unresolved then the Commission is given "private" powers ie., conciliation and by agreement, arbitration."9
[19] The appellant's alternative argument is premised on the proposition that in paragraph 41 of the decision subject to appeal the Deputy President made a determination in respect of the meaning of clause 18 without providing the FSU with an opportunity to put submission in respect of the matter. During the course of oral argument Mr White, appearing on behalf of the appellant put the proposition in these terms:
"In this case the learned Deputy President has denied us an opportunity to put an argument about the meaning of clause 18 because everyone had been proceeding on an assumption that it did empower the Commission, albeit it at that stage conciliation only, but he denied us the opportunity of putting a more fulsome argument. Without argument or notice he held that it didn't empower the Commission to do anything. So the jurisdictional error isn't in relation to an actual error found about whether or not the clause provides for an arbitral function, but rather a denial of natural justice and in any event the other jurisdictional error is that fundamentally he is wrong in relation to the proposition that clause 18 doesn't empower the Commission to settle disputes."10
[20] In reply ANZ submitted that while it is not clear what opinion his Honour is expressing in paragraph 41 it is apparent that it is no more than an opinion and hence no appeal lies.
[21] The Agreement was certified under the provision of Part VIB of the WR Act. Sections 170LT(8) and 170LW are relevant to ascertaining the Commission's role in clauses such as clause 18. Those sections read as follows:
"s.170LT (8) The agreement must include procedures for preventing and settling disputes between:
(a) the employer; and
(b) the employees whose employment will be subject to the agreement;
about matters arising under the agreement."
"170LW Procedures for preventing and settling disputes
Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes."
[22] A disputes procedure in a certified agreement that complies with s.170LT(8) will not necessarily have within it a role for the Commission and, where such a procedure does provide a role for the Commission, s.170LT(8) does not prescribe what that role will or should be.11
[23] In paragraph 41 of his decision the Deputy President appears to be expressing the view that clause 18 of the Agreement was not a procedure which empowered the Commission "to settle disputes over the application of the agreement".
[24] We agree with the respondent's characterisation of paragraph 41. It seems to us that it is apparent from his Honour's use of the word "arguably", and the fact that the matter he was addressing was not in issue in the proceedings and had not been the subject of argument, that his Honour was simply expressing an opinion rather than making any determination as to the meaning and effect of clause 18.
[25] We acknowledge that there is some force in the appellant's argument that part of paragraph 41 supports the contention that his Honour made a determination, particularly the use of the expression "I consider the Commission is not so empowered . . .". But this expression ought not be viewed in isolation. In this regard it is relevant to note that his Honour characterised the decision subject to appeal as being about "the propriety of making recommendations from the conciliation proceedings".12 Absent jurisdiction questions of propriety do not arise. Hence his Honour's characterisation of the matter before him supports the view that in paragraph 41 he was merely expressing an opinion as to his jurisdiction to deal with the matter.
[26] We do not know why the Deputy President felt it necessary to express an opinion in respect of a matter that was not in issue before him and without providing the parties with an opportunity to make submissions on the matter. It would have been better had he not done so. Particularly as, on its face, the opinion expressed appears to be inconsistent with Full Bench authority.13 The failure of a member at first instance to follow an authoritative Full Bench decision is a serious error of principle.14
[27] But as his Honour was merely expressing an opinion no appeal lies in respect of his observations in paragraph 41 of the decision subject to appeal.15 Contrary to the appellant's contentions we do not think that the opinion expressed in paragraph 41 was integral to his Honour's decision to decline to make a recommendation in respect of the matter in dispute.
[28] In the circumstances it is unnecessary for us to express a view about the appellant's alternative argument. The point was not argued at first instance and his Honour did not make a determination as to the meaning of clause 18, he merely expressed his opinion on the matter.
2. Whether the errors in his Honour's reasons, at paragraphs 34 to 40, were jurisdictional in character.
[29] The second limb to the appellant's argument concerns what are said to be a number of errors in the Deputy President's reasons for decision at paragraphs 34 to 40. It is convenient to deal with each paragraph of this part of his Honour's decision in turn.
"[34] In this matter, I consider that the role of the Commission falls into the category that I should not make any recommendations to either party. The main reason for this conclusion is that the terms of the agreement clearly distinguish the roles of conciliation and arbitration. The agreement itself clearly envisages that the Commission should only be involved in conciliation, unless both parties consent to arbitration. This clear distinction makes it apparent that the agreement does not envisage that the Commission do anything other than facilitate the parties themselves reaching agreement."
[30] The FSU contends that implicit in his Honour's reasoning is the proposition that making a recommendation would not facilitate the parties reaching agreement. The reliance on the distinction between arbitration and conciliation as a reason for not making a recommendation shows an acceptance of the proposition that making recommendations would do something other than facilitate the parties reaching an agreement, and indeed, as falling within what might be characterised as arbitration.
[31] We do not think that paragraph 34 of his Honour's decision has the meaning ascribed to it by the appellant. Whilst the language used lacks precision we think that his Honour was simply expressing the view that in the circumstances of this case a recommendation would not facilitate the parties reaching an agreement. We do not think that this part of his Honour's decision stands for any broader proposition.
[32] We make it clear that in our view the making of a recommendation is often a useful tool in the conciliator's armoury and can facilitate the parties reaching agreement. As the President of the South Australian Commission said in Re: Clerks Customs Agents (SA) Award:
"The prime charter course of the Commission is, in any proceedings before it under the statute, to attempt to effect conciliation by mediation between the parties and that is a process well known to all who appear in this jurisdiction. It is, in our view, quite proper, indeed quite normal, in the course of many if not most mediations, for the person attempting the mediation to make positive suggestions to the parties as to what might be a suitable basis for resolving the matter, indeed, if felt appropriate, expressing strong views as to what might be a possible consequence, prima facie, of any arms length arbitration before the Commission. There is nothing improper about that. It happens every day of the week."16
[33] We agree with the above observations.
[34] Further, the making of a recommendation does not require the agreement of all parties, though such agreement is of assistance as it increases the likelihood of the recommendation being accepted and implemented by the parties as a means of resolving their dispute.
[35] We now turn to paragraphs 35 and 36 of his Honour's decision.
"[35] Furthermore, recommendations can only be made if they are based on some proper grounds. The only grounds that they could be based on in this matter are findings as to the meaning and effect of the agreement and the merit of the claims. The agreement however does not envisage this occurring. By specifically excluding compulsory arbitration it is clear that it is not envisaged that anything can be imposed or have the potential effect of an imposition on either party.
[36] To make recommendations in those circumstances would in my view involve imposition where it is not allowed. Expressing an opinion as to what should occur would take the role beyond that envisaged for the Commission in the agreement and beyond one of facilitating the parties to reach their own consensus."
[36] The FSU contends that in these paragraphs the Deputy President erred by concluding that he should not make a recommendation because to do so would amount to an "imposition" on a party. It is said that his Honour also erred in concluding that expressing an opinion as to what should occur would take the role beyond that of "facilitating the parties to reach their own consensus".
[37] What the Deputy President meant in paragraphs 35 to 36 is not immediately apparent to us. His Honour does not say what would be imposed or what the nature of any imposition would be.
[38] Clearly a recommendation cannot create a legal right or obligation; nor can it enforce an existing right or obligation. It may be that his Honour considered that making a recommendation would impose an obligation on the parties to consider their position and in the circumstances he did not think that the imposition of such an obligation was appropriate.
[39] It seems to us that this part of the decision demonstrates some confusion in his Honour's mind as to the legal effect of a recommendation. The fact that the parties have, by agreement, excluded compulsory arbitration does not mean that the parties did not envisage the Commission making a recommendation during the course of conciliation proceedings. To the extent that his Honour thought that the Agreement had that effect he was in error. But we do not think that the error was jurisdictional in character.
[40] The decision subject to appeal must be read as a whole and approached fairly. As Kirby J said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:
"The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."17
[41] Reading his Honour's decision as a whole, it is apparent that he accepted that he had the requisite jurisdiction to make a recommendation. At paragraph 15 he says that: "This decision concerns the propriety of making recommendations from the conciliation proceedings". As we have already observed the "propriety" of making a recommendation in the circumstances only arises if it is assumed that the requisite jurisdiction exists.
[42] Further, at paragraph 20 his Honour says:
"For reasons which follow I consider it inappropriate to form a view on the merits of the positions of the FSU and ANZ." [my emphasis]
[43] The use of the word "inappropriate" suggests that his Honour has declined to exercise his discretion to make a recommendation. It does not suggest that he has refused to make a recommendation because he lacks the power to do so. This construction is supported by his Honour's juxtaposition of the jurisdiction to make a recommendation and the appropriateness of doing so, in paragraph 21 of his decision:
"ANZ also appeared to concede that the Commission could make recommendations in the absence of a resolution arising from conciliation but questioned the appropriateness of doing so."
[44] We acknowledge that in paragraph 36 the Deputy President used language suggesting that he did not have the requisite jurisdiction. For example, the expressions "it is not allowed" and "would take the role beyond that envisaged for the Commission". But in the parlance of Wu's case these are verbal slips and when seen in the context of the decision read fairly and as a whole, do not constitute jurisdictional error.
[45] It may be that his Honour was simply expressing the view that the fact that the dispute settlement procedure excluded compulsory arbitration was, in the circumstances of this matter, a relevant consideration in deciding whether or not to exercise his discretion. If so, such a statement would not amount to a jurisdictional error.
[46] We now turn to paragraphs 37 to 40 of his Honour's decision.
"[37] Furthermore, if I were to make recommendations, any opinion or conclusions I reached would be based on material, comments and submissions made in conciliation proceedings. In Fletcher v Crest Engineers Australia Pty Ltd, a Full Bench commented:
`. . . conciliation conferences are held in confidence and may proceed on material which is distinguishable from that relied on in formal hearings. We would not support an approach to documentation which discloses the nature of a conciliation proceeding.' (Print PR923596, 15 October 2002 per Marsh SDP, Blain DP and O'Connor C at [21].)
[38] That decision was approved by the Full Bench in T. Wright v Australian Customs Service:
`During the process [of conciliation], concessions may well be made for the purpose of achieving such a resolution. Should the matter not be resolved by conciliation, such concessions would not be binding upon a party in any subsequent arbitration. It was recently recognised by a Full Bench in Fletcher v Crest Engineers Australia Pty Ltd that ". . . conciliation conferences . . . may proceed on material which is distinguishable from that relied on in formal hearings". The conciliator is not limited by the scope of the application itself. Agreement with respect to matters which may not be within the province of a potential arbitration may assist in bring (sic) about a resolution.' (Print PR926115, 23 December 2002 per Giudice J, Williams SDP and Foggo C at [28].)
[39] Consistent with that approach, in Haitsma v Erindale Hair Centre Pty Ltd Whelan C stated:
`It is the practice of this Commission to consider negotiations which occur within the context of a conciliation conference to have been conducted on . . . a ["without prejudice"] basis. The reasons for such an approach were discussed by McDonald DP in proceedings before the Administrative Appeals Tribunal in Feben v Repatriation Commission (unreported, CLS 1998 AAT 47, 23 January 1998). The Tribunal found
". . . it is plain that offers and other forms of negotiations between parties that are expressed to be `without prejudice' may not be disclosed to a court except by consent of the parties: Calderbank v Calderbank (1975) 3 All ER 333. In this instance the same principles should apply to Tribunal procedures. Although no evidence was presented to the Tribunal that any such discussions were expressly indicated to be `without prejudice', it is clear that the principles just mentioned attach to communications between parties that constitute genuine negotiations despite the absence of any such references." Print S3713, 1 March 2000 per Whelan C at [8].
(My underlining)
"[40] It seems to me that the purpose of conciliation is to facilitate agreement being reached between the parties. Where the conciliation is at an end and agreement has not been reached, a conciliator should not venture opinion or recommendations on the merits of the issues in the absence of consent by all parties."
[47] The FSU contends that in the above extract the Deputy President held that he should make no recommendations because any opinion or conclusions reached would be based on material, comments and submissions made in conciliation proceedings. It is argued that by agreeing to conciliation the parties have agreed to behave consistently with the obligations imposed by engaging such a process. The making of recommendations is a common incident of the conciliation process.
[48] It seems to us that his Honour's reliance on the authorities cited is misconceived. The cases referred arose in very different circumstances to those which he confronted. The fact that a recommendation may be based on material, comments and submissions made during the course of the conciliation is not a sound reason for refusing to issue a recommendation. If it were, recommendations would rarely be made. As it is they are a common feature of the conciliation process.
[49] The disclosure of a party's negotiating position is quite a different matter. But there is no need for any "without prejudice" offers to be referred to in a recommendation. By its nature a recommendation need not set out all of the reasons which have led the conciliator to recommend a particular course of action.
[50] Further, the circumstances in Wright's case are very different from those in the present matter. Wright's case concerned the appropriateness of relying on what was put in conciliation as a basis for dismissing an unfair dismissal application. The making of a recommendation in the present matter would not adversely affect the rights of either party.
[51] Finally, we do not agree with his Honour's observation that:
"Where the conciliation is at an end and agreement has not been reached, a conciliator should not venture opinion or recommendations on the merits of the issues in the absence of consent by all parties."
[52] As we have noted the making of a recommendation does not require the agreement of all parties. Expressed as a general proposition his Honour's observation is incorrect. But that is not to say that the absence of consent by all parties is not a relevant consideration in deciding whether or not to exercise a discretion to make a recommendation.
[53] It follows that we think his Honour's comments at paragraphs 37 to 39 are erroneous and that he has had regard to an irrelevant consideration. But we think that the errors in question are not jurisdictional in nature. Rather his Honour has made an error within jurisdiction.
Conclusion
[54] It is regrettable that what should have been a routine matter, namely whether it was appropriate or not to make a recommendation in the circumstances, has become the subject of such protracted proceedings.
[55] While the decision subject to appeal contains a number of errors and misconceptions about the conciliation process and the role of recommendations, we do not think that the errors identified are jurisdictional in nature. We have reached this view having regard to the reasons for decision, read fairly and viewed as a whole.
[56] We are satisfied that the matters raised on appeal are of sufficient importance that it is in the public interest to grant leave to appeal.
[57] We grant leave to appeal, but for the reasons given we have concluded that the decision is not characterised by jurisdictional error and we dismiss the appeal.
Appearances:
E White of Counsel with M. Maloney for the Finance Sector Union of Australia.
J Tuck for the Australian and New Zealand Banking Group Limited.
Hearing Details:
2003.
Melbourne:
November 18.
Printed by authority of the Commonwealth Government Printer
<Price code E>
3 See FSU's written submission, Appeal Book at pp. 68-70 and ANZ's written submission, Appeal Book at p.103; also see the transcript of proceedings on 14 July 2003 at PNs 407-410.
4 (1996) 137 ALR 70 at 94-95 per Wilcox CJ and Marshall J.
5 As illustrated by the division of opinion in Public Service Association (SA) v Federated Clerks' Union (SA Branch) (1991) 173 CLR 132.
6 R v Minister of Health [1939] 1 KB 232 at 245 - 246; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 268 per Aicken J.
7 Transcript, 18 November 2003 at PN123.
8 Exhibit A1 at paragraphs 44 and 45.
9 Ibid at paragraph 54 and 55.
10 Transcript of 18 November 2003 at PN 46.
11 CFMEU v Warkworth Mining Pty Ltd, Print PR916526, 8 April 2002 per Harrison SDP, Cartwright SDP and Cargill C; Re: Australian Broadcasting Corporation Journalists and Reporters (Salaries) Award 1990, Print M3463, 11 July 1995 per Williams SDP, Maher DP and Larkin C; FSU v GIO Australia Limited, Print PR928618, 12 March 2993 per Ross VP, Watson SDP and Larkin C.
13 See Ampol Refineries (NSW) Pty Ltd v AIMPE, Print P8620, 9 February 1998 per Giudice P, McIntyre VP and Raffaelli C.
14 See Pacific Access Pty Ltd v CPSU, Print Q4738, 11 August 1998 per Giudice J, MacBean SDP and Lewin C.
15 Re: Shire of Deakin appeal, Print H5027, 5 October 1988 per Ludeke J, Marsh DP and Merriman C.
17 (1996) 185 CLR 259 at 291; also see Drake Personnel (1999) 90 IR 432 at 457 (NSWIC); and ALH Group Pty Ltd t/as The Royal Exchange Hotel v Mulhall, PR919205, 21 June 2002 per Ross VP, O'Callaghan SDP and Redmond C.