Keir100320551

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES HANSSEN PTY LTD

APPELLANT

 -and-

 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (WESTERN AUSTRALIAN BRANCH)

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  SENIOR COMMISSIONER A R BEECH

DELIVERED MONDAY, 8 MARCH 2004

FILE NO/S FBA 26 OF 2003

CITATION NO. 2004 WAIRC 10828

_______________________________________________________________________________

Catchwords  Industrial Law (WA) – Appeal to Full Bench from decision of single Commissioner – Union seek to negotiate industrial agreement – Refusal by employer to participate in negotiations – Union apply for declaration that bargaining has ended – Application granted – Declaration issued to that effect – Enterprise order made – Appeal to Full Bench against making of enterprise order – Discussion of Part II, Division 2B of the Act – Extension of time s42I(2) application - Conditions precedent to making of an enterprise order – Issues of fresh evidence – Definition of “industrial matter” – Appeal upheld – Procedural fairness - Breach of s26(3) of the Act – Industrial Relations Act 1979 (as amended), s6, s7, s19, s22, s26(3), s27, s32, s41, s41A, s42, s42G, s42H, s42I, s44, s49, s90 – Workplace Relations Act 1996 (Cth), S170LJ

Decision  Appeal upheld and decision at first instance quashed

Appearances

Appellant   Mr R Le Miere (Queens Counsel), by leave, and with him  Ms K Primrose (of Counsel), by leave

Respondent   Mr H Borenstein (Senior Counsel), by leave, and with him  Mr T Dixon (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          These are the unanimous reasons for decision of the Full Bench.

2          This is an appeal by the above-named employer company against the decision of the Commission, constituted by a single Commissioner, given on Friday, 20 August 2003 in application No 606 of 2003, (and wrongly described in the notice of appeal as having been given on 15 August 2003).

3          The appeal is brought pursuant to s49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”).

4          The appeal is brought on a number of grounds which appear at pages 2-6 of the appeal book (hereinafter referred to as “AB”)), and the order sought is that the decision of the learned Commissioner be set aside and the applicant’s application be dismissed.  We do not reproduce the grounds of appeal in this paragraph.

DECISION OF THE COMMISSION

5          The order of the Commission appealed against is the decision of the Commissioner made on 20 August 2003.  It was an enterprise order made pursuant to s42I(1) of the Act.

6          We reproduce the terms of that order hereunder (see pages 17-18 (AB)):-

“WHEREAS on 15th August 2003 the Commission issued Reasons for Decision and Minutes of Proposed Order in this matter; and

WHEREAS on 15th August 2003 the parties were advised that they could speak to the Minutes by advising the Commission by the close of business on Tuesday 19th August 2003 if they required to speak to the Minutes; and

WHEREAS the parties were also advised that if they had not contacted the Commission by close of business on Tuesday 19th August 2003 it will be assumed that they did not require a speaking to the Minutes and the Order would issue; and

WHEREAS on 19th August 2003 the Applicant Union spoke to the Minutes in writing; and

WHEREAS by the close of business on 19th August 2003 the Respondent had not advised that it wished to speak to the Minutes; and

WHEREAS the Commission having considered the submissions made in writing by the Applicant Union decided to make minor amendments to the Minutes and to issue final Orders.

NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979 hereby orders:

THAT an enterprise order in the form of the schedule attached is made binding to the parties hereto with effect from 16th August 2003 until 15th August 2004.

BACKGROUND

7          On 14 May 2003, the Construction, Forestry, Mining and Energy Union (Western Australian Branch) (hereinafter referred to as “the CFMEU”), the above-named respondent, applied to the Commission for an enterprise order pursuant to s42I of the Act against the above-named appellant, then the respondent, Hanssen Pty Ltd Project Management (hereinafter referred to as “Hanssen”).

8          The CFMEU is an “organisation” of employees registered under the Act and therefore, “an organisation” as that term is defined in s7 of the Act.  Hanssen is a company, and an employer.  Hanssen is engaged in the building industry on various building sites in Perth and it would seem, this state.  In this particular case the sites were in Terrace Road and Wellington Street, Perth.

9          On 19 February 2003, pursuant to s42 of the Act, the CFMEU gave notice in writing to Hanssen of its intention to reach an industrial agreement with that company, and sought to negotiate such an agreement to be registered pursuant to s41 of the Act, to operate on building and construction projects throughout Western Australia while work is being performed by persons who are members of or who are eligible to be members of the CFMEU.

10       As required by s42 of the Act, the CFMEU served a draft industrial agreement on Hanssen which contained the conditions sought to be incorporated in the industrial agreement which it wished to achieve as a result of negotiations with Hanssen.

11       The CFMEU gave notice that it intended that all the classifications that are described in the Building Trades (Construction) Award 1987, No R 14 of 1978 (hereinafter referred to as “the award”), and all classifications described in the draft agreement be incorporated in any agreement made.  The parties to the agreement would then be the CFMEU and Hanssen and any business that consented to be joined as a party to the agreement.

12       As is required by s42 of the Act, the CFMEU gave 21 days notice to Hanssen requiring the company to advise in writing whether or not it would bargain for an industrial agreement.  Twenty one days passed with no response from Hanssen, other than a refusal to participate in negotiations.  There was an impasse.

13       In accordance with s42H(1) of the Act, the CFMEU applied to the Commission for a declaration that bargaining in respect of the claim that had been made on 19 February 2003 had ended.  This application was heard by the Commission on 1 April 2003.  After considering the submissions of the parties, the Commissioner at first instance, applying conditions precedent which are prescribed in s42H(1) of the Act, that is:-

“If, on the application of a negotiating party, the Commission constituted by a single Commissioner determines that —

(a) the applicant has bargained in good faith; (as described in s42B(2))

(b) bargaining between the applicant and another negotiating party has failed; and

(c) there is no reasonable prospect of the negotiating parties reaching an agreement,

the Commission may declare that the bargaining has ended between those negotiating parties”

concluded that there was no reasonable prospect of the parties reaching agreement and declared that the bargaining period between the parties had ended.

14       The Commissioner then issued an order to that effect.

15       On 14 May 2003, the CFMEU filed the application which was made at first instance.  That was an application made pursuant to s42I of the Act seeking that the Commission make an “enterprise order” as defined in the section.

16       The matter seems to have lain dormant until 15 July 2003 when there was an invitation to Hanssen to hold discussions about the terms of an enterprise order.  In the alternative, the CFMEU asked Hanssen to advise in writing if there were any clauses in the draft agreement to which it objected and the basis for such objection.  The CFMEU also advised that if there was no response by 18 July 2003, it would be assumed that Hanssen did not object to the terms of the draft agreement as proposed, but rather that it had objected to the principle of signing any agreement to which the CFMEU is a party.

17       The application was heard on 28 July 2003.  There was no contention that the application was invalid, nor could there have been.  If the Commission declares under s42H(1) that bargaining has ended between negotiating parties (see s42I(1)(a)), the Commission may, upon application under s42I(2), make an enterprise order.  The Commission may also make an enterprise order if the person to whom a notice to bargain under s42I is given under s42I and there is no response to that notice within the prescribed period, or that person responds with a refusal to bargain (see 42I(1)(b)).

18       In the latter case, no s42H declaration is required as a condition precedent to a s42I(2) application.

19       At the hearing of the application, Hanssen’s managing director, Mr Gerardus Pieter Marie Hanssen (hereinafter called “Mr Hanssen”) appeared for Hanssen and, on behalf of the company, opposed the application.  Ms Scoble (of Counsel) appeared for the CFMEU and advised the Commission that evidence would be adduced from Mr Michael John Buchan (hereinafter called “Mr Buchan”), an organiser employed by the CFMEU who has responsibility for the two sites, the subject of the application.  These sites were in Wellington Street and Terrace Road, Perth, in this State.

20       The Commissioner was informed by Ms Scoble, in opening, that there would be no witnesses called who were currently employed by Hanssen because of their fear of victimisation if they spoke out.  However, she also informed the Commissioner that the CFMEU would “provide” a survey which it says was conducted amongst workers on the sites.  That survey was directed to determining which benefits and working conditions construction workers wanted and currently did not receive when working on Hanssen’s sites.  It was submitted by Ms Scoble, too, that there was no impediment under the wage fixing principles to the Commission granting any of the conditions claimed in the draft agreement.  In opening, Ms Scoble said that there were occupational health and safety problems and disability matters which were required to be considered and about which there would be evidence.  It was not part of her opening that the enterprise order sought would impose terms and conditions similar to those in other agreements or to those applying to sites in the city centre of Perth.

21       Mr Buchan gave evidence that he was an organiser of the CFMEU in the central business district of Perth and visited various sites where he discussed with employees safety and other union matters.  He gave evidence of complaints about safety matters where there was work being conducted by Hanssen at Terrace Road.  He also gave evidence about “disabilities” which it would seem were difficult or unsafe conditions on sites (see the list of these at pages 169-172 (AB)).  He also gave evidence about the Wellington Street Market Boas-Gardens apartments, another site of Hanssen.  Again, his evidence was that there were problems there with health and safety matters.

22       Mr Buchan told the Commissioner at first instance that he had conducted a survey of working conditions at the site, that most of the survey forms were returned unsigned because employees were concerned about revealing their “identification”, and that Mr Buchan initialled each survey form and dated it when it was distributed, certifying that it was, in fact, filled in by an employee employed on one of the sites.  He did not, significantly, say that the survey forms were completed by employees of Hanssen.

23       There were 22 survey forms tendered through Mr Buchan (exhibit S6) (see pages 147-168 (AB)).

24       These were tendered to the Commission.  Copies were given to Mr Hanssen with the names blacked out.  Those handed to the Commission did not have the names blacked out. Mr Hanssen did not see those, that is the originals with the names blacked out.  Ten people subscribed their names to the forms.  No objection was taken to these documents being tendered, by or on behalf of Hanssen.  Copies of those documents tendered are headed “Better Working Conditions”.

25       They also contain lists of working conditions, and people were asked in them to tick boxes if they agreed with the listed condition.

26       The survey contains, inter alia, the following notations:-

“The Construction, Forestry, Mining and Energy Union (CFMEU) is running a case in the WA Industrial Relations Commission to improve the wages and working conditions for construction workers on all Hanssen building sites.  Gerry Hanssen claims that the workers on his sites are NOT interested in receiving the wages and conditions construction workers get on other city building sites.

There are many benefits working for an employer who has signed an Enterprise Bargaining Agreement (EBA) Construction workers whose employers have signed an EBA with the CFMEU get the following benefits”.  (Then there is listed the benefits).”

27       Next it is said (see page 38 (AB)):-

“The underlying question Gerry Hanssen won’t answer is, why construction workers on his sites DO NOT receive such benefits?  The CFMEU wants to hear YOUR views on better working conditions.”

28       Nine forms, which are part of the exhibit S6, bear the full name of the person completing the form.

29       There is general approval of the conditions in the forms by those who completed them.

30       There was evidence given about a lack of parking, about exposure to the elements on Terrace Road, and of the boggy conditions which increased the disability suffered by the employees.  Mr Hanssen appeared and cross-examined Mr Buchan by asking him one or two questions only.  He then said that he did not wish to ask any more.  Mr Buchan’s evidence was not challenged in cross-examination.

31       At this time, the Commissioner at first instance asked Mr Hanssen whether, because of the importance of the case, he had considered obtaining legal advice, and the Commissioner gave him an opportunity to think about it and think about whether he wished the matter adjourned for him to obtain legal advice.  Mr Hanssen did not take that opportunity.  He confined himself to making unsworn statements from the bar table.

32       Mr Hanssen made various comments to the Commissioner about the evidence.  He was asked by the Commissioner whether he wished to give evidence on oath, whether he intended to call any person to give evidence, or whether he would merely make submissions from the bar table.  He declined to give evidence, describing his conduct as defending himself and giving witness.  Again, and for the second time, the Commissioner suggested to him that he might wish to obtain legal advice.  Further, the implications of his failing to give evidence on oath were explained to him.  He still did not take the opportunity to seek an adjournment and obtain legal advice.  Mr Hanssen declined to give evidence on oath and passed some comments about the application.

33       The statements made from the bar table by Mr Hanssen, at first instance, summarised, were as follows:-

(a) That there were sub-contractors on the two sites.

(b) That signing the agreement, as far as he could see, gave him no relief from industrial action by the CFMEU.

(c) That therefore he saw no benefit to Hanssen in making an agreement.

(d) He made allegations about being blackmailed on sites, which he did not identify.

(e) That he also made a number of statements concerning his philosophy relating to enterprise bargaining agreements and site allowances.

(f) That he said that site allowances were not necessary and that the only time when he had granted them they had been ineffective in providing a positive return to his company.

(g) That various photographs which had been produced by the CFMEU were not truly indicative of the situation on sites.  He admitted that two prohibition notices had been served on Hanssen.  By that, we assume that he meant prohibition notices issued under the Occupational Safety and Health Act 1984.

(h) That he declined to give evidence saying that he was defending himself and giving “witness”.  (That was followed by the Commissioner’s second suggestion that he might wish to take legal advice and take an adjournment to do so).

34       We wish to make it clear that Mr Hanssen attacked no clause of the agreement as unfair or unreasonable at all.  He did say that site allowances were not necessary.  He did not assert that the order which was sought would be unfair or unreasonable, and his case indeed was that because of the CFMEU’s conduct in its dealings with him, he wished to have nothing to do with the union and certainly did not wish to make any agreement with it.

35       Mr Hanssen did not challenge any of Mr Buchan’s evidence.  It was no part of his case that the terms and conditions were unfair or unreasonable or were not able to be provided for in agreement.  He did not assert that his employees should not be subject to or have the benefit of the terms of the proposed agreement (see pages 19-42 (AB)), as such.  He did not assert that his employees enjoyed equal, better or worse terms than the terms which were sought by the application in the enterprise order.  He did not assert that the terms were inferior to or better than the terms applying generally on building sites in Perth.

36       No evidence was adduced by or on behalf of the CFMEU that the terms in the agreement sought were comparable with enterprise bargaining agreements registered in this Commission or certified agreements registered in the Australian Industrial Relations Commission, or with those generally found on building sites in Perth.

37       The Commissioner at first instance, having heard only one witness for the CFMEU, namely Mr Buchan, accepted him as a credible witness in the absence of any attack on his evidence by way of cross-examination or otherwise.

COMMISSIONER’S FINDINGS

38       The Commissioner then went on to find and decide, summarised, as follows:-

(a)      That the CFMEU requests a set of conditions that are considerably in excess of the award.  However, they are, he found, conditions similar to those which are contained in dozens of enterprise bargaining agreements registered in this Commission and the Australian Industrial Relations Commission.

(b)     That, in contemporary industrial law (see paragraph 27 of the reasons for decision at first instance), there is no room for the archaic concept of comparative wage justice, but one would have to say that the terms and conditions set out in the draft agreement are not greatly less or more than might be expected by a contemporary building industry employee working on building works in the central business district of this city.

(c)      That it may be that some individual provisions of the agreement would never find their way into safety net awards of the Commission, but that that was not the issue to be determined here.

(d)     That the Commissioner, having found that there had been a refusal to bargain, and having decided that an enterprise agreement should issue, was required to do so if the contents of the order to be made were fair and reasonable.

(e)      That the conditions claimed were the subject of so many registered Australian Industrial Relations Commission and this Commission’s consent agreements that they can be used as a measure to establish whether they are fair or reasonable.

(f)       S42I of the Act is exempted from the operation of the State Wage Fixing Principles.

(g)     He then expressly decided that for the reasons expressed in paragraph 27, which we have summarised above, that an order should issue.

(h)     That the Commissioner, having found that there had been a refusal to bargain, and having decided that an enterprise order should issue, was required to do so if the contents of that order were fair and reasonable.

ISSUES AND CONCLUSIONS

The Statutory Framework and the Application

39       Part II Division 2B of the Act deals with industrial agreements, bargaining for industrial agreements, registering the same, enterprise orders and various provisions pertaining thereto.

40       It is clear that the CFMEU had initiated bargaining for an industrial agreement, an agreement which is defined in s7 of the Act as follows:-

““industrial agreement” means an agreement registered by the Commission under this Act as an industrial agreement;”

41       S41(1) in Part II Division 2B of the Act provides for the making of industrial agreements in the following terms:-

“(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.”

42       S41(2) provides for the registration of an industrial agreement by the Commission in the following terms:-

“(2) Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission shall register the agreement as an industrial agreement.”

43       S41A(1) prescribes other conditions precedent to registration.

44       Significantly, s41A(2), inter alia, prohibits the registration of an agreement as an industrial agreement to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration are members of or eligible to be members of that organisation or association.

45       What occurred in this matter was clearly as follows.

46       The CFMEU, an “organisation” of employees within the definition of that word in s7 of the Act, gave notice to Hanssen as the intended party to an industrial agreement and thereby initiated bargaining for an industrial agreement (see s7).  (It is not clear whether that was a written notice, there being, it would seem, no industrial agreement existing or applicable and no enterprise order in force).

47       No response was received, except for a refusal to bargain, or, indeed, to enter into any agreement.

48       Then, upon application under s42H(1) of the Act by the CFMEU, the Commissioner at first instance declared that the bargaining had ended.

49       The Commission is empowered, where it declares under s42H that bargaining has ended between negotiating parties (see s42I(1)), and an application under s42I(2) is made to the Commission, to make an order called an enterprise order.  The same applies pursuant to s42I(1)(b) which, in our opinion, could have been used in this case.  Such an application, subject to the question of time limit, was validly made in this case.

50       S42I(1)(c) and (d) of the Act prescribes as follows:-

“the Commission may, upon an application under subsection (2), make an order (an “enterprise order”) —

(c)          providing for any matter that might otherwise be provided for in an industrial agreement to which the negotiating parties referred to in paragraph (a), or the initiating party and the person referred to in paragraph (b), were parties, irrespective of the provisions of any award, order or industrial agreement already in force; and

(d)          that the Commission considers is fair and reasonable in all of the circumstances.”

51       S42I(2) provides that an application for an enterprise order may be made where sub-section (1)(a) applies, as it did in this case.

52       S42I(3) prescribes that an application for an enterprise order may be made within the period of 21 days after the declaration under s42H was made.

53       It is noteworthy, too, that the Commission may exercise its powers of conciliation in relation to a matter, even if an application for an enterprise order has been made in relation to the same matter (see s42I(3)(a) and 42I(4)) (see also the time limit for s42I(3)(b) matters).

54       That was how the matter came before the Commission.  The application was opposed.  The terms of the order sought were “the terms of the enterprise order sought by the CFMEUW are as provided for under the draft Enterprise Agreement that was annexed to the document initiating the bargaining period between the CFMEUW and the respondent”.

Ground 1

55       By this ground, it was asserted that the Commissioner had no jurisdiction or power to make the enterprise order sought because the application for the order was not made within 21 days after the making of the declaration under s42H, as required by s42I(3) of the Act.  S42I(3) provides as follows:-

“An application for an enterprise order may be made:-

(a)      Where sub-section (1)(a) applies, within 21 days after the making of the declaration; and

(b)     Where sub-section (1)(b) applies, within 21 days after the end of the prescribed period.”

56       The section enables the application to be made within 21 days (see the use of the word “may”, in this case an enabling word, and s56 of the Interpretation Act 1984 (as amended)).

57       It was accepted that the application was made outside the 21 day period.  No objection of any type was taken at first instance that the application was out of time.  No application was made at first instance for the extension of the time limit.

58       Since the question raised by this ground is one of jurisdiction, then it can be raised at any time (see SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760 (FB)).

59       There are, as emerged from the submissions of Mr Le Miere QC for Hanssen and Mr Borenstein SC for the CFMEU, two classes of bar to a right of action or remedies or to an application such as this and the remedy sought by the application.

60       The first bar arises because the time limit is an ingredient of the cause of action, and therefore, if the cause of action is not pursued within the time limit, the writ (application) is a mere nullity and the claim must fail.  In other words, the period of the time limit having run and the plaintiff (applicant) not having pursued the “cause of action” within the prescribed time limit, the court will not take a step to validate proceedings which are then ab initio defective (see Maxwell v Murphy [1956-1957] 96 CLR 261 at 276-277).

61       In The Crown v McNeil and Others [1922] 31 CLR 76 at 100, Isaacs J referred to both classes of bar but relevantly, too, to this submission, to the second class of bar.  The second class of bar is the one which usually arises under statutes of limitations of various kinds.

62       As distinct from the first class, statutes of limitations abolish the right of a person who is already in possession of a right or remedy.  That is in contradistinction to the first class where a new right vested in the person is extinguished if it is not pursued within the prescribed time limit in any statute.  A statute of limitations takes away something which exists already independent of the relevant statute of limitations.

63       As Isaacs J said in The Crown v McNeil and Others (op cit) at page 100:-

“In Hurrinath Chatterji v Mohunt Mothoor Mohun Goswami, Sir Richard Couch in the Privy Council said:-

“The intention of the law of limitation is, not to give a right where there is not one, but to impose a bar after a certain period to a suit to enforce an existing right”.”

He went on to say, however, in relation to the first type of bar (see pages 100-101):-

“S37 is a condition of the gift in sec. 22,and unless that condition is satisfied, the gift can never take effect.  Non-compliance with its terms is not a matter in bar of the claim as in the case of the Statute of Limitations: it is an objection which goes to the foundation of the procedure, and shows that the petitioner is not “rectus in curia”.”

64       The latter part of that dictum describes the approach which Mr Le Miere invited the Full Bench to take.  It was contended for Hanssen that the application, because of the terms of the Act read with s42I(3) and the right to apply, was therefore conditional for its existence upon the application for an enterprise order being made within 21 days of the event prescribed in s42I(1)(a) or (b).

65       Thus, if the application were not made within 21 days, pursuant to s42I(3), then the application was void ab initio.

66       For the CFMEU, it was contended that the application was of a kind akin to the second class of bar.  That is, that a right and remedy existed independent of the statutory bar which was akin to a statute of limitations barring the enforcement of the remedy or the “cause of action”.

67       Thus, there being no plea at first instance that the application was made outside the time limit, such a plea could not now be raised on appeal, so the submission went.  Further, according to the submission, the time limit could be extended by the powers of the Commission under s27(1)(n) of the Act.

68       We turn to determine the nature of the time limit, and therefore the nature of a s42I(3) application.

69       These are principal objects of the Act:-

“6. Objects

The principal objects of this Act are — 

(a)          to promote goodwill in industry and in enterprises within industry;

(aa)       to provide for rights and obligations in relation to good faith bargaining;

…

(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;”

70       S6(ad) prescribes that one of the principal objects of the Act is to promote collective bargaining and to establish the primacy of collective agreements over individual agreements.

71       Next, s6(ae) prescribes as a principal object, the following:-

“To ensure that all agreements registered under the Act provide for fair terms and conditions of employment;”

72       Principal object (ag) contained in s6 is:-

“To encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises;”

73       S6(ca) prescribes that it is a principal object to provide a system of fair wages and conditions of employment.

74       Part II Division 2B of the Act which contains s41 and s42H and s42I, inter alia, fulfils and manifests those objects.  There is a mechanism provided by the Division to enable goodwill in industry to be achieved by industrial agreements which are collective agreements brought about by bargaining and indeed, good faith bargaining.  They are achievable within enterprises.  Such agreements exist, inter alia, to prevent or settle disputes and by agreement to achieve fair and reasonable terms and conditions in enterprises for employers and employees.

75       That is borne out further by the fact that an enterprise order must be made only if it is fair and reasonable in the circumstances and provided that it contains the provisions which might be contained in an industrial agreement between organisations, associations and employers, not individual employees.

76       The initiative under Part II Division 2B is in the hands of the parties who initiate and continue the process of bargaining in good faith until they reach an agreement.  The Commission’s role is only to register and to assist the clear expression of the parties’ intentions in the agreement (see s41(1) and (3) of the Act).

77       Further, if the process to agreement requires assistance or if it does not succeed, the Commission is empowered to assist in or resolve the process by its powers of conciliation and arbitration under the Act.  Indeed, the parties may, inter alia, agree to the Commission making orders for some of the terms of the agreement in that event (see s42G).

78       However, the Commission cannot require a negotiating party to enter into an agreement or to prescribe its terms save and except to the limit and the extent prescribed by s42G.

79       It is only if bargaining does not occur or does not lead to an agreement that the Commission can make an enterprise order under s42I(1) pursuant to an application under s42I(2) made within 21 days under s42I(3).  At first instance in this case, there was a s42I(2) application for an enterprise order when bargaining did not occur or failed.

80       It is noteworthy that the Commission may use, in any event, its almost unlimited powers to conciliate and arbitrate conferred by s32 and s44, including the power to summon compulsory conferences under s44 (see s32A), at any time, and, in particular, to do so, even if an enterprise order has been made.

81       This illustrates the fact that the Commission is a participant in processes under Part II Division 2B in certain circumstances, including the circumstances which obtained here.  In making an enterprise order, it is trite to observe, the Commission must act according to equity, good conscience and the substantial merits of the case without regard to technicality or legal forms (see s26(1)(a)).

82       Further, a s42I(2) application is not an inter partes matter of the kind referred to in the authorities cited above.  An application under s42I(2) is not a cause of action nor does it relate to a cause of action or a suit.  It is an act of arbitration dealing with the future rights of the parties akin to the award-making power.  The Commission, in making its decision, is required to have regard for the interests of the persons immediately concerned, whether directly affected or not, and, where appropriate, for the interests of the community as a whole (see s26(1)(c)).  That illustrates that the proceedings are not inter partes.  In addition, there are matters such as the state of the national and state economy and the need to encourage employers and employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises. There are also matters such as the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises are required to be adverted to.  (These matters need to be adverted to pursuant to s26(1)(d)(i), (ii), (iii), (vi) and (vii) respectively).  There are other matters, too, under that section which the Commission is required to take into account which are not directed necessarily to the interests of the parties to the application before the Commission.

83       It will be clear from the outline of the objects of the Act, and the manifestation of them in Part II Division 2B of the Act, that the Division provides a scheme for the parties to reach agreements, inter alia, in enterprises by collective bargaining, the end result of which bargaining is an agreement which can be registered and which is then enforceable pursuant to the Act.  The Commission has a role in the process by conciliation and arbitration.  Finally, if the bargaining process is not successful, a party who is a negotiating or initiating party in the bargaining process, for such an agreement, may invoke the Commission’s jurisdiction to make an order as it were, in lieu of the agreement, but enforceable as if it were an award.  It is noteworthy that an enterprise order enables the Commission, in the proper exercise of its discretion, to stand in the shoes of the parties and make an order providing for any matter that might otherwise be provided for in an industrial agreement, had it been reached by the parties, we would add.  Further, the order must be one considered fair and reasonable in all the circumstances by the Commission and the making of which was considered fair and reasonable.  What the Commission is doing, however, is confined to the completion of the agreement process which a party or the parties commenced themselves and were unable or unwilling to complete.  Thus, the application for an enterprise order is part of a process where the parties have the carriage of it in order to reach an agreement but where the Commission can intervene by conciliation and/or arbitration at any time to resolve the dispute and the process.  In the end, an enterprise order is an order made to resolve a dispute.  The ability to apply to the Commission under s42I(2) and (3) is to enable the Commission at the behest of a party to fulfil its major role to resolve disputes as part of the end of the process commencing with an initiative in bargaining to achieve an industrial agreement.  The entitlement to make such an application as that under s42I(2) is not the only way in which the matter can come to the Commission.  It is an application to resolve a dispute and is a procedural step.  It is not the enforcement of a remedy, nor is it the pursuit of a right conferred anew on it apart from the Act (see also the power of the Commission to intervene under s32, s32A and s44 of the Act).

84       The process is about agreeing, and, in the absence of agreeing, determining rights and obligations arbitrarily and industrially.  S42I(2) and (3) are part of that process and one step in it.  The matter cannot therefore be characterised as a cause of action which depends on its being pursued within a specific time for its validity.  It is a mere procedural prescription in a continuing process commenced under s42 of the Act.  Therefore, such an application cannot be characterised as or in the manner of a cause of action or suit in the courts, and certainly not one which is void ab initio if not commenced within a prescribed time.  Further, s42I(3) does not prescribe a limitation to the invocation of a remedy such as a statute of limitation does.  The section is part of a dispute resolution process based on agreements and ultimately resolvable by an enterprise order or by s32 or s44 conciliation and/or arbitration.  No new right, in any event, is created other than a procedural right to seek resolution of the process where no agreement has been reached according to statutory prescription.  Accordingly, quite clearly, s27(1)(n) of the Act can be used because s42I(3)’s prescription of a time limit is a “prescribed time” within the meaning of s27(1)(n) and within the meaning of the word “prescribed” as defined in s5 of the Interpretation Act 1984 (as amended).  S27(1)(n) reads as follows:-

“(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — 

…

(n) extend any prescribed time or any time fixed by an order of the Commission;”

85       Assistance can be also derived from Arpad Security Agency Pty Ltd v FMWU (1989) 69 WAIG 1287 (FB)  and the authorities cited therein.

86       Even if we are wrong in that and this was a limitation statute, in the event that such an application under s42I(2) and (3) could be treated like a suit or cause of action of the type referred to in The Crown v McNeil and Others (op cit) and the other authorities above, then the right to extend time by virtue of s27(1)(n) was maintained.  We say that because the statute evinces no intention that an application under s42 is void ab initio if not made within 21 days.  S42I(3) enables the making of such an application by the use of the word “may” without any further limitation than the period of 21 days for the making of the application.  In particular, s42I does not contain the plainly limiting words “may only” which were part of the statute referred to and were plainly prohibitive in State Electricity Commission of Western Australia Salaried Officers’ Association Union of Workers v The State Electricity Commission (1975) 55 WAIG 747 (IAC).  Further, there is no use of words such as “may only be made within 21 days” (see David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] 184 CLR 265).

87       In Maxwell v Murphy (op cit) at 266 the prescription was “Every such action shall commence within such a prescribed time”.

88       The strong prescriptive language of a mandatory type which appears in those examples illustrates the fact that s42I(3) is not a provision of the same type.  The use of the word “may” in s42I without the strict words of prohibition or requirement of the type which we have just quoted, means, in our opinion, and we find, that the time limit in s42I(3) is merely procedural and relates to one procedural step in a prescribed process of dispute resolution by agreement, by order and/or by conciliation and arbitration in the Commission.  There was no cause of action created.  Therefore, the application was not barred and no “plea” was made or objection taken to the application being made out of time.  Thus, there is and was nothing to prevent the Commission being invited to extend the time.  It was also contended for Hanssen that the proceedings were null and void because there was no application to extend time.  That was met by the submission that that this was a procedural matter of limitation and that therefore the failure to “plead” to the matter out of time raised no defence and the defence of limitation was waived or estopped.  We agree that such a defence is now waived or estopped on the authority of Australian Iron and Steel Ltd v Hoogland [1961-62] 108 CLR 471 at 489.

89       Next, we agree that Commonwealth of Australia v Verwayen [1990] 170 CLR 394 is authority for the proposition that Hanssen not having raised a “defence” that the application was out of time at first instance, is estopped from raising it now, and for the reasons expressed by Their Honours in that case.

90       Further, and cogently, since this defence was not a matter raised at first instance, which if raised might have required evidence to be lead and findings of fact to be made, it cannot now be raised by virtue of s49(4), and, in particular, by the application of the principle in cases like O'Brien and Others v Komesaroff [1982] 150 CLR 310 at 318-319 and Banque Commerciale SA (en liq) v Akhil Holdings Ltd [1990] 169 CLR 279.

91       Further, Hanssen is bound by the conduct of its case at first instance and should not be permitted to make this submission on appeal (see Metwally v University of Wollongong (1985) 60 ALR 68 (HC)).  In any event, it was arguable that the matter could and should be entirely remedied by virtue of s27(1)(n) and (m) combined or individually, having regard to s26(1)(a) of the Act.

92       For all of those reasons, there was no merit in that ground and it is not made out.

Ground 2

93       By this ground, it was alleged that the Commissioner failed to comply with the prescription of s42I(1)(c) and (d) of the Act and thereby failed to exercise its discretion as required by the sub-sections.

94       Mr Le Miere for Hanssen submitted that there were three steps to be taken in the exercise of the discretion as required by s42I.  These steps, Mr Le Miere submitted, were as follows:-

The Commission must see whether the conditions under s42I(1)(a) and (b) were satisfied.  In this case it was because of the declaration made pursuant to s42H.  Next, if that condition is complied with so the submission went, the Commission may, in the exercise of its discretion, upon application under s42I(2) make an order providing for the matter set out in s42I(2)(c).

95       The word “may” confers a discretion to make an enterprise order (see s56 of the Interpretation Act 1984 (as amended)).

96       All that is clear, as we find.

97       The third step, so the submission went, is that the Commission may only make an order “that the Commission considers is fair and reasonable in all of the circumstances” (s42I(1)(d)).

98       The submission also is that the Commissioner at first instance erred in jumping from step one to step three.  The Commissioner (see page 16 (AB)) considered in paragraphs 27 and 28 whether the terms and conditions were fair and reasonable.  This the Commissioner did by reference to the conditions claimed to be the subject of so many consent agreements which could be used as a measure to establish that the orders sought were fair and reasonable.  What the Commissioner failed to consider was whether he should make an enterprise order at all, so the submission went.  Hanssen referred to paragraph 24 of the reasons for decision at first instance where the Commissioner said:-

“Upon such an application the Commission may make an enterprise order “providing for any matter that might otherwise be provided for in an industrial agreement to which the negotiating parties were parties, irrespective of the provisions of any order or industrial agreement already in force”.  Then Commission may then make an enterprise order that it considers is fair and reasonable in all the circumstances.”

(See paragraphs 27, 28, 29 and 30 generally of the reasons for decision at first instance).

99       The Commissioner said at paragraph 30:-

“I have considered the issues that have been raised in this case.  While I am concerned that there has not been a proper ventilation of the principles to be applied, I am required to deal with the matter on the basis that is set out in s42I of the Act.  In doing so for reasons set out in paragraph 27 and following hereof, I have decided the enterprise order sought by the CFMEUW should issue. . .”

100    It was submitted for the CFMEU that the Commissioner was cognisant of his obligations under s42I.  It was submitted that Hanssen must satisfy the Full Bench that the Commissioner failed to discharge the task which he was given by the Act.  It was further submitted that there was nothing in the decision of the Commissioner to support the proposition that the Commissioner was not alive to the fact that he had the discretion which he was required to exercise.

101    Next, it was also submitted for the CFMEU that it was difficult as a matter of common sense and judicial process to separate the issue of whether one could make an enterprise order because the content of the order one can readily see would be significant and influential in the decision of whether one would make an order at all.

102    In this case, it was submitted, when the Commissioner was speaking about the terms and conditions and the factors which he took into account about these, that was reflective of the fact that he was deciding whether he could exercise his discretion to make an order, being an order containing those terms and conditions.  Accordingly, it was submitted that he had not failed to exercise the discretion which the section gives to him.

103    It is not sufficient to say either, so the submission went, that the Commissioner had failed to advert to a particular step in the process which led to his conclusion in order to establish a failure to exercise the discretion conferred by the Act. 

104    S42I enables the Commissioner to make an order which in effect imposes on the parties the terms of an industrial agreement which they have been unable to reach by agreement between themselves or has not been reached because of the refusal of one party to negotiate.

105    Once a s42H declaration was made, as it was in this case, the Commission may by the operation of s42I(1), (2) and (3) make an order providing for any matter that might otherwise be provided for in the agreement.

106    It follows then that the s42H declaration is a declaration that bargaining has ended because there are three things that have occurred, namely:-

(a)      The applicant has bargained in good faith;

(b)     That bargaining between the applicant and another negotiating party has failed; and

(c)      There is no reasonable prospect of the negotiating parties reaching an agreement.

107    S42I(1)(b) does not require a declaration under s42H to issue as a condition precedent to the Commission being empowered to make an application for an enterprise order under s42I(2) within the time prescribed by s42I(3).

108    The right to make application and the power to make enterprise orders arises because a person has been given notice under s42(1), and does not reply or refuses to bargain.  That occurred in this case.  Once that occurs, the Commission is empowered to make an enterprise order subject to and under s42I.

109    The terms of such an order are limited.  They are limited to providing for any matter that might otherwise be provided for in an industrial agreement to which the initiating, negotiating or other prescribed parties were parties.  Also, the Commission can only make provision in the order for matters which the Commissioner considers fair and reasonable in the circumstances.  In our opinion, that clearly means that the Commissioner stands in the shoes of the parties and constructs, in lieu of an industrial agreement, orders which are in the same terms as such agreement were it reached and contained fair and reasonable conditions.  The role of the Commissioner is therefore to determine also whether there should have been an agreement and what matters the enterprise order, in its place, ought to provide for, asking himself whether it is fair and reasonable to make the order sought, in all of the circumstances, therefore.  The Commissioner must make a finding, therefore, that there are matters which might otherwise have been provided for in the agreement between the prescribed parties, and, second, that the Commissioner considers it fair and reasonable to make the order, in all of the circumstances.  There are only two steps in the process.  This, of course, means that the Commissioner must consider and apply s26(1)(a), s26(1)(c) and, if applicable, s26(1)(d).  It is inevitable that one of the circumstances to be considered will almost always be whether the terms sought are fair and reasonable and therefore the two considerations contained in s42I(c) and (d) were, to some extent, overlapped.  It is also fair to say that, if the terms of the order sought might have been contained in an agreement between the parties, which has to be found before the Commissioner can proceed, then that sort of finding may often go a long way to determining whether the terms are fair and reasonable and whether even sometimes it is fair and reasonable to make the enterprise order sought.

110    The Commissioner decided that the conditions sought were considerably in excess of the award but were similar conditions to those contained in the dozens of enterprise bargaining agreements that have been registered in the Commission and the Australian Industrial Relations Commission.  Further, the Commissioner went on to find that “the terms and conditions set out in the draft agreement are not greatly less or more that might be expected by a contemporary building industry employer working on building works in the central business district of this city”. 

111    Thus, the enterprise order issued because it reflected terms and conditions comparable to enterprise bargaining agreements and federal agreements registered in relation to the building industry in this city.  Further, the order was made because the Commissioner found that the terms and conditions were not that much greater or less than what one would expect to find in building sites in this city.

112    It is noteworthy that the application was opposed only on the basis that there should be no agreement at all and that that was the way the case was run by Mr Hanssen on behalf of Hanssen at first instance.  We have already observed that the actual terms of the order sought were not contested.

113    The Commissioner at first instance made no express findings as a result of his acceptance of Mr Buchan’s evidence which included the survey documents (exhibit S6).  In our opinion, the decision made was one on the merits considering whether the matters provided for were fair and reasonable.   The Commissioner decided that they were because they were common conditions in agreements and throughout the industry in this city.  There were no other reasons expressed for the finding and for making the order.  It is clear that those reasons were the reasons why the Commissioner found that it was fair and reasonable to make the order, in all of the circumstances.

114    It is noteworthy and relevant, too, that the application was opposed only on the basis that there should be no agreement at all.  The actual terms were not contested.  The merits of the making of the order were not contested on any other basis than the enmity between the CFMEU and Hanssen and the CFMEU’s alleged unsatisfactory conduct.  In our opinion, and we so find, no step was omitted, the Commissioner answered the two questions which he was required to answer, clearly enough, and did so as he was required to do by the Act.  Whether he took into account all relevant factors or whether the exercise of the discretion miscarried for other reasons, are not matters raised by this ground.  However, that ground is not made out for the reasons which we have expressed.

Ground 3

115    By this ground, it is asserted that the CFMEU, as applicant at first instance, failed to discharge the burden of establishing that on the merits of the case an enterprise order should be made and the terms of the order were fair and reasonable in the circumstances.

116    The ground alleges that this was so because there was no or no sufficient evidence before the Commissioner to the effect that:-

(a)      The employees of Hanssen wanted or supported the application by the CFMEU or the terms and conditions of the order.

(b)     There was no evidence concerning the terms and conditions of the enterprise order other than those dealing with health and safety matters.

117    As Mr Le Miere, who appeared for Hanssen, correctly submitted, the making of an enterprise order is similar to the making of an award.  In each case, the order confers rights and imposes duties upon the parties.

118    It is not a matter of consent to an agreement in the manner which s41 of the Act prescribes, however.  It is, as we emphasise, the making of an order which is enforceable in the same manner as an award.  It is the resolution of matters between the parties by an order of the Commission.

119    It was, however, submitted for Hanssen, by analogy, that the principles applying to the making of awards apply to the making of an enterprise order, and, with that, we agree.

120    In particular, so the submission went, the party who applies for an award to issue carries the burden of establishing that it should.  Therefore, it was submitted that the party who seeks an enterprise order carries the burden of establishing that that order should be made and in the terms which it is sought the order be made.  With that, we also agree.

121    Mr Le Miere submitted that the failure to bargain is a matter relating to whether a declaration should be made under s42H, and is not a reason for making an enterprise order.  With that, we also agree.

122    Next, he took us to the bases of the CFMEU’s case, which were, he submitted, that the CFMEU would lead evidence of the desire of workers, including union members working on Hanssen’s sites, for improved terms and conditions as they appear in the draft agreement.  That was said by Ms Scoble in opening at first instance.

123    Next, he submitted, it was asserted at first instance that evidence would be led why no-one on Hanssen’s sites had asked for an enterprise bargaining agreement or complained about working conditions, namely fear of reprisals for so doing.  It is said in Ms Scoble’s opening that there would be evidence about disabilities on sites and poor safety management practices.  That evidence was, of course, led, we observe.

124    However, Mr Le Miere submitted that evidence about those matters was about only a few limited conditions of the agreement, which is correct.

125    The submission in that respect for Hanssen, therefore, was that there was no material before the Commission on which it could exercise its discretion to make the enterprise order.  We would also observe that there was no evidence adduced against it.  Mr Le Miere submitted that the Commissioner at first instance erred because he did not consider what were the positive reasons why an enterprise order should be made.  In particular, it was submitted that there was no or no sufficient evidence that the employees supported the application by the CFMEU on the terms and conditions of the enterprise order.

126    It was also submitted, however, for the CFMEU, that there was very much sufficient evidence, on the substantial merits of the case, that the order be made.

127    It was submitted for the CFMEU that there is no requirement under the Act that the employees be consulted and that should be contrasted with the express different provisions of the Workplace Relations Act 1996 (Cth).

128    Part VIB of the Workplace Relations Act 1996 (Cth) proceeds on a basis of bargaining which involves the employer and organisations of employees rather than employees themselves, which is similar to s41, so Mr Borenstein, who appeared for the CFMEU, submitted.  In this connection, the Full Bench was referred also to s6(ad) of the Act.  (Interestingly s170LJ(2) of the Workplace Relations Act 1996 (Cth) requires that an agreement between an organisation of employees and a constitutional corporation must be approved by a majority of the employees.  There is no such presumption in the Act).

129    Therefore, the fact that there was no or no sufficient evidence of support by employees is not a matter of relevance and could not sustain a challenge to the order, it was submitted.  We would also add that there was no opposition by Hanssen to the terms of the order sought, with the possible exception of site allowances.

130    It was also submitted that there was substantial evidence of disabilities, as well as evidence of rates of pay and failures to manage sites safely.  It was also submitted first, that there was evidence (in exhibit S6) of a range of benefits available to employees, and these conditions were prevalent therefore under agreements which the CFMEU had and, second, that these were reflective of the terms and conditions contained in the enterprise order proposed by the CFMEU.  That this was the case was not challenged or controverted by Mr Hanssen, so it was submitted.

131    It was also submitted that these clauses were not challenged, that Mr Hanssen’s case was put only on the basis that he opposed any agreement with the CFMEU, and that he adhered to that position despite it being suggested to him that he seek legal advice and that there be an adjournment so that he could do so.

132    There are a number of matters to consider.

133    The CFMEU sought to establish, at first instance, that the order should be made in the terms which it contended were the terms in fact of the agreement which it had wished to enter into with Hanssen.  These were:-

(a)      That the difficulties described as “disabilities” and safety matters should be resolved in the orders.

(b)     That the exhibit S6 survey forms were evidence that employees of Hanssen required the order sought and the terms and conditions which were in it.

(c)      That, in fact, there was no evidence except undenied and unobjected to evidence from the bar table that employees were afraid to deal directly with Hanssen as alleged.

134    As was submitted for the CFMEU, the following comments also apply:-

(a)      Hanssen conducted the hearing on the basis that the order was opposed solely because of the enmity between Mr Hanssen and the CFMEU, and, for that reason, Mr Hanssen wanted no agreement and no S42I order.  That was the real basis of the opposition to the order.  No exception was taken by Mr Hanssen to the order and its terms on the ground of fairness and reasonableness or fairness and reasonableness at all.

(b)     Hanssen did not conduct the case on the basis that the terms of the order would not benefit the employee.  It was not so asserted.

135    The Commissioner at first instance noted as we have said, his opinion that Mr Buchan was a credible witness, but expressly limited his reasons for making the order to the reasons which he expressed in paragraph 27 (page 16 (AB)), which reads as follows:-

“What the CFMEUW requests is a set of conditions which are considerably in excess of the Building Trades (Construction) Award.  However they are similar conditions to those which are contained in dozens of enterprise bargaining agreements that have been registered in this Commission and the Australian Industrial Relations Commission.  In contemporary industrial law there is no room for the archaic concept of comparative wage justice but one would have to say that the terms and conditions set out in the draft agreement are not greatly less or more than might be expected by a contemporary building industry employer working on building works in the central business district of this city.”

136    Those reasons are augmented in paragraphs 28 and 29.  However, the reasons essentially are that, because the order sought would apply conditions which are the subject of so many consent agreements that they can be used as a measure to establish that they are fair and reasonable therefore implicitly, they justify a finding, too, that such an order is fair and reasonable in the circumstances.

137    There was, of course, a further finding that such agreements reflected with no great variation the sort of conditions which applied to employment on building sites in Perth which was a reason for the decision made, as we have already observed above.  Although the Commissioner would have knowledge of conditions in the industry, there was no evidence of actual agreements or conditions in the building industry which might have established that the conditions in the agreement were fair and reasonable and no evidence to justify the order as fair and reasonable.  There were only assertions in the survey forms that certain conditions existed, which was not denied

138    It is fair to say that, because the Commissioner did not accept the survey evidence as evidence to support those findings, he went to examine agreements registered in the Australian Industrial Relations Commission and this Commission of his own motion.  Otherwise, he would have accepted and relied on the survey evidence (exhibit S6).  There is, however, significantly, expressly no reliance by the Commissioner on Mr Buchan’s evidence which includes exhibit S6, and it cannot be properly said that that evidence and Mr Buchan’s evidence was any reason for the order being made.

139    It should be added that no evidence was adduced at first instance of the content of other registered agreements in the Commission and federally.  It is noteworthy, as we have said, that the Commissioner was not disposed to make that order without going to the evidence himself.

140    In the circumstances, having regard to the CFMEU’s case and the way it was conducted, it was open to find that the CFMEU had established its case in the way in which it did, on the evidence which it did, which was the matter or information relied on by the Commissioner, but subject to our finding hereinafter about the statutory validity or procedural fairness in the use of that evidence.  It was, however, open to find that the unchallenged, uncontradicted evidence justified a finding that an order should be made to reflect the terms relating to matters of safety and disability, which orders were not opposed.  That, of course, however, as Mr Le Miere submitted, justified only some small number of the provisions, being the subject of an order.

141    There is an argument that the Commissioner might have been required to consider the views of the employees, but their views, in any event, as we will discuss later in these reasons, were not views which opposed the terms and conditions sought to be made the subject of an enterprise order.  They merely objected to an enterprise bargaining agreement.  In short, by a small margin, there was, subject to what we say hereinafter about the material used by the Commissioner, sufficient to justify the order being made, particularly having regard to the way that Hanssen ran its case.

Ground 4

142    This ground was expressed in the alternative.  By this ground it was asserted that the CFMEU had not discharged the burden of establishing that, on the substantial merits of the case, an enterprise order should be made for the reasons advanced by the CFMEU, namely that it was the desire of the employees of Hanssen to have improved conditions in line with the draft agreement.  It was submitted that there was no evidence that the employees wished to have such an agreement, and that each of the survey forms was, in fact, not filled out by a relevant employee, and that the survey forms were not accurate and truthful.  It was submitted for the CFMEU that these forms were not put forward as an expression of opinion by the direct employees of Mr Hanssen, and that was not the basis on which these matters were put forward.  It was submitted that Mr Buchan gave unchallenged evidence, and, on the face of it, plausible evidence about how he went about collecting the survey forms and, nowhere in the transcript was there an assertion by him that he specifically singled out the employees of Mr Hanssen.  Indeed, he said, that he knew a number of the employees on the site were not direct employees, that is that they were employees of subcontractors.  That is, of course, so.

143    The submission was that the survey evidence was led on the basis that it reflected the views of a sample of building workers employed on the Hanssen sites to the extent that the Commissioner might find them relevant to the exercise of his discretion.  That was so.

144    By this ground, it was alleged that the Commissioner at first instance erred in finding that, on the substantial merits of the case, an enterprise order should be made for the reasons sought by the CFMEU, that is:-

(a)      It was the desire of the employees of Hanssen (“the relevant employees”) working on the relevant sites (“the sites”) to have improved terms and conditions in line with the draft agreement put forward by the CFMEU.

(b)     The relevant employees, some of whom were identified as union members, were interested in receiving the conditions set out in the draft agreement put forward by the CFMEU.

(c)      The relevant employees of Hanssen were too afraid to deal directly with the CFMEU about improved terms and conditions.

(d)     Each of the 22 survey forms, the survey forms tendered into evidence by Mr Buchan on behalf of the CFMEU (“the survey form evidence”), was, in fact, filled out be the relevant employee employed on one of the two sites referred to above on 21 and 22 July 2003.

(e)      The survey form evidence:-

(i)            Was accurate and truthful.

(ii)               Supported the CFMEU’s contention that it could form the basis of the CFMEU’s request to the Commission to make the enterprise order.

145    It is not at all clear, on Mr Buchan’s evidence, or on the forms themselves, that the forms were completed by employees which might explain why the Commissioner did not rely on them or that evidence in making his findings.  The fact of the matter is that the Commissioner did not make the orders for any of the reasons expressed in this ground of appeal.  He made them for the reasons which he expressed in paragraph 29 of his reasons for decision, which identified particularly the reasons expressed in paragraphs 27 and 28.  Thus, that ground is not made out.

146    There are a number of matters to consider.  The CFMEU, at first instance, sought to establish that the order should be made in the terms which it contended for, which were the terms, in fact, of the agreement which it had wished to enter into with Hanssen.

147    That matter is covered to a great extent by what we observed in relation to ground 3.  The Commissioner did not at all rely on the evidence of persons who, in fact, Mr Buchan did not represent in oral evidence as employees, to justify the order which the Commissioner made.  The reasons for which he made the order are clearly set out in paragraphs 27, 28 and 29 of the reasons for decision and we have referred to them in detail above.

Ground 5

148    This ground calls for the admission of new evidence in the form of affidavits from Mr Hanssen and from his employees obtained and sworn after the proceedings at first instance were completed, and for the purposes of this appeal.  There are 27 affidavits in all.  There is an affidavit from Mr Gerardus Pieter Marie Hanssen, an affidavit of searches by Ms Wendy Matz, an articled clerk in the employ of Hanssen’s solicitors, and an affidavit by a solicitor, Ms Renae Louise Harding, also in the employ of Hanssen’s solicitors.  We will deal with Ms Matz’s evidence later in these reasons.  The rest, 24 affidavits in all, were sworn by employees of Hanssen who say that they never signed any survey and that they do not wish to be subject to an enterprise bargaining agreement.  It is noteworthy that no deponent says that they do not want better conditions; nor do they say that their conditions are better than that being offered by the agreement.  Further, they do not say that they are being paid at the rate which other agreements provide in the industry.  They make no comment on whether the order affords them better conditions.  They confine their remarks to whether they want an enterprise bargaining agreement.  Further, no deponent disagrees with the terms sought in the order.

149    Many deponents said that they saw the form.  All gave evidence that they completed or signed no survey form (exhibit S6).

150    There is some particular evidence to be considered.

151    In relation to whether he wanted an enterprise bargaining agreement, Mr Peter Francis Warren said that he “would go with the flow”.  One person said that as at 28 August 2003, he would have said “Yes” to an enterprise bargaining agreement.  That was Mr Wayne Tumarangi Wiringi.  Mr Eoghan Kieran, who signed a survey form, said that he would not support an enterprise bargaining agreement without reading its terms.  He was an employee of Hanssen.  Ms Harding’s evidence was hearsay evidence that an employee of Hanssen, Mr Michiel Adrianus Van Grusnven, told her on 26 August 2003 and 28 August 2003 that he did not then and had not supported an application for an enterprise bargaining agreement to govern his conditions of employment.

152    Otherwise, all employee deponents said that they did not on 21 and 22 July 2003, or at the time of swearing or affirming their affidavits, wish an enterprise bargaining agreement to cover their terms and conditions of employment and did not support an application for such to occur.  We should add that it was an enterprise order that was made in these circumstances and there was no registration of an enterprise bargaining agreement sought or ordered.

153    Mr Hanssen’s evidence is much wider and amongst other things, he gives evidence about why he did not seek to challenge the evidence of the survey (exhibit S6 at the hearing).  That, in our opinion, is not admissible evidence on any count.  He had every opportunity to object at the hearing and did not, nor did he give any evidence.

154    Mr Hanssen gave evidence in his affidavit, inter alia, that only one of his employees filled in the survey form and that he engaged sub-contractors as well, some of whom had employees.

155    The submission for Hanssen was that the CFMEU’s case at first instance was based, in part, on evidence which was false, and, further, that the enterprise order should not have been made because Hanssen’s employees did not want it at the time of making the order and did not, at the time they swore these affidavits, desire or support the making of the enterprise order.

156    We were taken to Ms Scoble’s opening to which we have referred above.  In particular, in the opening there was reference to the submission that there would be evidence adduced of the desire of employees for improved terms and conditions in line with what had been put in the agreement.  There was, of course, no such evidence.  It was also submitted that evidence would be adduced about why the employees had not asked for an enterprise bargaining agreement or made any complaints about working conditions, namely victimisation of union members and their fearing to speak out.

157    The only evidence adduced in this connection was by the alleged survey documents (exhibit S6).  The documents note in a number of cases “name not given because of fear of reprisal”.

158    There was then reference in the submission to the documents handed to Mr Hanssen not revealing the name of the person concerned.

159    The evidence sought to be adduced, so it was submitted, is evidence of none of those matters, neither the wish for an enterprise bargaining agreement or fear, it was submitted.  Mr Hanssen therefore asserted in his affidavit, that, with one exception, no employee signed the survey.  Mr Van Grusnven said, according to Ms Harding, that although he had seen the form he had never been handed the form nor had he completed one.  He said that he would not then or now support the application for an enterprise bargaining agreement.  One employee would have said “Yes” on 28 August 2003.  Mr Vic John Stanton said that he would not have minded if asked in July 2003, and did not mind as at 28 August 2003, whether his employment was subject to an EBA.  What these documents establish, it was submitted, was that with one exception and two reservations, the employees did not want an enterprise bargaining agreement which would govern their conditions of employment.  They did not say that they do not want improved conditions.

160    Next, comes the question of whether the Full Bench has power to admit fresh evidence.

Is Fresh Evidence Admissible by the Full Bench?

161    That issue was raised on behalf of the CFMEU, on whose behalf it was submitted that the Full Bench should reconsider the principle laid down by the Full Bench in FCU v George Moss Ltd 70 (1990) WAIG 3040 (FB), which has for some years been the law in this Commission.

162    In that case, the Full Bench found that it had power to admit the new or fresh evidence on appeal provided that the evidence met the well known test in Orr v Holmes and Another [1948] 76 CLR 632.

163    S49(4)(a) of the Act makes it clear that a matter shall be heard and determined on the evidence in matters raised in the proceedings before the Commission.

164   There is no specific provision for the reception of new or fresh evidence.  It is correct that an appeal court usually has power to receive fresh evidence.

165   The CFMEU relied on a line of authorities, most recently Eastman v The Queen [2000] 203 CLR 1, Mickelberg v The Queen [1989] 167 CLR 259 and Fox v Percy (2003) 197 ALR 201 (HC), as well as Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194.

166   In Mickelberg v The Queen (op cit) Toohey and Gaudren JJ at pages 298-299 held that the power to admit fresh evidence in an appeal from a State Court exercising state judicial power did not exist in the High Court because such power was not conferred by Chapter III of the Constitution of the Commonwealth of Australia.  That view was supported as having been long held by the High Court, by Mason CJ at pages 266-267, and Brennan J at page 271 (see also Eastman v The Queen (op cit)), and because those authorities are confined to that particular point, they cannot assist the Full Bench in this case.  Kirby J said in Coal and Allied Operations Pty Ltd v AIRC and Others (op cit) at page 223 that:-

“In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with the consideration of the powers enjoyed by, and duties imposed, on the body to which the appeal lies.”

167   Deane J, although dissenting in Mickelberg v The Queen (op cit), said at page 279 (op cit):-

“The traditional common law power to set aside a judgment or verdict on the grounds of fresh evidence has long been accepted as a commonplace component of a general appellate jurisdiction.”

168   We adopt what was said in FCU v George Moss Ltd (op cit), that there would have to be a clear prohibition or extinguishment of a common law power on appeal to admit fresh evidence before the Full Bench might come to the conclusion that it does not have that power.  That arises from a consideration of the language of the statute.  Such an approach also is supported by the principal object s6(c) because, since an appeal process is required, it obviously ought to happen with more expedition and with less technicality and legal form within the Commission, all of whose members are required to act with due speed (s22B) and all of whom are required to keep themselves acquainted with industrial affairs and conditions (s19).

169   S26(1)(a) of the Act is best served by an appeal process which enables fresh evidence to be admitted, particularly in the circumstances and role of the Full Bench.  This is, of course, particularly so where the Full Bench is what we might call the main court of appeal for the Commission, and appeal rights to the Industrial Appeal Court are limited and do not lie in relation to questions of fact (s90(1)).  Further, an appeal, even if made, will not necessarily lead to the decision of the Full Bench being reversed by the Industrial Appeal Court (see s90(3a)).

170   We do not agree with the CFMEU’s submission that the remedies available on appeal, (s49(5)), restrict, on a fair reading of the whole of the Act, the Full Bench from admitting fresh evidence by implication.  There is certainly no express prohibition on that occurring.  The Full Bench has a wide range of remedies which it can order (see s49(5)).  In any event, the Full Bench’s role as a final arbiter on appeal is highlighted by s49(6)(a) which requires the Full Bench not to remit a case to the Commission under s49(5)(c) “unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason”.  That the Full Bench has that obligation supports the view that it has the power and jurisdiction to admit fresh evidence.  We are also mindful of the opinion expressed in Nguyen and Others v Nguyen [1989-1990] 169 CLR 245 that a court such as the Full Bench should not lightly reverse itself for the sake of consistency and certainty.  In relation to the submission, we would also observe that an intermediate court such as the Full Bench should depart from an earlier decision cautiously and only when compelled to the conclusion that it is wrong.  The occasions on which the departures are warranted will be infrequent and exceptionable and cause no real threat to the doctrine of precedent.  That is the substance of what was said in Nguyen and Others v Nguyen (op cit) to which we have referred.  In any event, it is quite clear for the reasons expressed in FCU v George Moss Ltd (op cit) and the further reasons expressed by us above, that the Full Bench has the power to admit new or fresh evidence on proper grounds.  We would so find.

171   The next question was whether the evidence was admissible.  Mr Le Miere submitted that the Orr v Holmes and Another (op cit) line of authorities was not applicable to this case.  That, of course, like FCU v George Moss Ltd (op cit), is a case where all that is involved is that relevant fresh evidence is alleged to have come to the notice of the unsuccessful party after the trial.

172   Mr Le Miere submitted that this case was one which fell within the principle laid down in Commonwealth Bank of Australia v Quade and Others [1991] 178 CLR 134.  The rule is expressed in that case at pages 142-143, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, as follows:-

“It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of a successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict.  The most that can be said is that the answer to that question in such a case must depend upon the appellate court’s assessment of what would best serve the interest of justice, “either particularly in relation to the parties or generally in relation to the administration of justice” (28).  In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party (29), any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available.  While it is not necessary that the appellate court be persuaded in such a case that it is “almost certain” or “reasonably clear” that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.”

173   In this case, it was submitted that if the hearing miscarried for a variety of reasons, as was said in Commonwealth Bank of Australia v Quade and Others (op cit), then the Quade rule came into effect.  In this case, it was submitted, that the hearing miscarried because of the deletion of the names from the copies of the survey documents given to Hanssen.  It was also submitted that that evidence was false because the survey forms were not completed by Hanssen employees except one, namely, Mr Eoghan Kieran, but were presented to the Commissioner as evidence that they were.

174   The case for the CFMEU in opening and closing, it was submitted, was that the employees wanted an enterprise bargaining agreement in the terms and conditions proposed but were too afraid to deal directly with Mr Hanssen or to assert their wishes.  Mr Kieran, however, the only employee of Hanssen to fill in the form, did not fit the description of someone too afraid to state his name for fear of reprisals.  There was, however, it was submitted, no such evidence as was alleged.  It was also submitted that Mr Hanssen was unable to discover that the survey was not, with one exception, survey evidence of the views of any of his employees because the names were blocked out in the copies given to him.

175   It was submitted that the factors in Commonwealth Bank of Australia v Quade and Others (op cit) were met in this case for the following reasons.

176   First, it was submitted for Hanssen, there were general considerations relating to the administration of justice, in that Mr Hanssen was denied evidence tendered to the Commission, and was therefore denied an opportunity to refute or respond to the evidence.  Mr Hanssen accepted what was tendered, he said.  Second, so the submission went, the situation resulted from culpability on the part of the CFMEU.  This is because the CFMEU tendered forms to the Commission as representing the views of employees when they were not the views of Hanssen’s employees and the CFMEU took no steps to ascertain whether they were or not.  Third, it was submitted that there was no lack of diligence on the part of Hanssen because Mr Hanssen was given no notice of the existence of the survey forms or their proposed use in the hearing.

177   Positive evidence of the opinions of employees was lead and that evidence was false and Mr Hanssen was denied a fair hearing so the submission went.

178   Finally, it was submitted that there must be a “real possibility” that the result would have been affected.

179   In support, it was further submitted that the principal argument put in support of the case for the CFMEU was that the employees wanted and supported the enterprise order and were too afraid to ask for it and come and give evidence for fear of reprisals.  It was then submitted that if the evidence now sought to be tendered were before the Commission, that evidence, which was that they did not support the issue of an enterprise order in the terms sought, would have negatived the evidence in exhibit S6.  Further, that evidence which is sought to be adduced as fresh evidence, would have shown that the employees did not want an enterprise order and that would have been a cogent and compelling reason for the Commission not to make such an order.  Thus, so the submission went, the order should be set aside.

180   It was then submitted for the CFMEU that the so-called evidence is not new evidence because it was available and capable of being adduced at the hearing at first instance with reasonable diligence.  Further, even it was fresh evidence, one cannot make a finding that it would have changed the result.

181   It was, however, submitted that Hanssen’s employees did not want an enterprise agreement or order.  (Mr Hanssen knew or should have known before the hearing).  In any event, it was submitted, he could have ascertained from them and they should have been available, if he wanted to contest the terms and conditions of the order.  Thus, his failure to adduce that evidence was a forensic error and what he now sought to do was to overcome that error by attempting to redo what he could and should have done at first instance.

182   Neither the tendering of the documents (exhibit S6) or the blocking out of the names was objected to, it was submitted.  If Hanssen had any concern Mr Hanssen should have voiced it and he did not.  However, Mr Hanssen did not because he had decided to follow a particular course in dealing with the application and that course failed.

183   The CFMEU further submitted as follows.  Mr Hanssen did not need to know the names.  He could have sought an adjournment and asked his employees directly whether they were given the forms and whether they filled them out.  He did not.  Therefore, he did not exercise reasonable diligence with the prosecution of his case.

184   He raised no objection, it was submitted.  He also was bound by the manner in which he conducted his case.  It was also submitted that the survey forms were not tendered as survey forms from the employees or as representing the views of the employees.  This case, it is submitted, is different from Commonwealth Bank of Australia v Quade and Others (op cit) where documents were not disclosed.  Here they were, everything occurred in the open, the documents were able to be perused and no objection was taken.  There was no deliberate or unexplained failure to produce documents as there was in Commonwealth Bank of Australia v Quade and Others (op cit).  This case falls outside the special circumstances raised by Commonwealth Bank of Australia v Quade and Others (op cit), it was submitted.

185   In any event, there was no disadvantage to Mr Hanssen because he could have called his employees to refute the evidence in the survey whether their names were blacked out or not.

186   It was not disputed by the parties that, if fresh evidence were to be admitted, it would have to be admitted pursuant to the principles laid down in Commonwealth Bank of Australia v Quade and Others (op cit), to which we have referred above.  We agree.  First, however, we will find that the evidence sought to be adduced was not new or fresh evidence.  It was entirely open to Mr Hanssen, representing Hanssen at first instance, to have first objected and then to have sought an adjournment to adduce the evidence which he now seeks to adduce from his employees, having made the same enquiries of them which were made after the hearing at first instance, in order to draft the affidavits which are now sought to be adduced from his employees and himself.

187   It is open to infer that he did not do this because of the basis on which he conducted his opposition to the application at first instance.  The evidence was all evidence which should have been adduced and was procurable and adducible at first instance by any diligent effort.  In any event, the original evidence, on a fair reading of Mr Buchan and in the form of the survey documents was not what it was said by Ms Scoble in opening to be, as we have found above.  The survey forms were not the evidence of employees but of persons who were surveyed on the Hanssen sites.

188   The evidence of Mr Hanssen is in same case.  In particular, his evidence of why he failed to object is not at all evidence which fits the fresh evidence rule.  The fact of the matter is that he did not object at first instance and the reason why he did not object is not relevant.  It would not, in our opinion, alter the result.

189   Next, Commonwealth Bank of Australia v Quade and Others (op cit) is not authority for the proposition that if a hearing miscarries that justifies an application to adduce fresh evidence on appeal.  Commonwealth Bank of Australia v Quade and Others (op cit) deals with what should occur when misconduct on the part of the successful party has had the result that relevant evidence in his/her/its possession has remained undisclosed until after the verdict.  We must observe that relevant evidence was not undisclosed; it was disclosed save and except for the names of the persons surveyed.  However, and further, there was an opportunity to consider that evidence, to object to it, to take advice on it and the course and conduct of the application at first instance, to make enquiries and to adduce evidence by way of refutation or otherwise.  Two opportunities were offered to Mr Hanssen to do so and he decided not to do so.  The crux of the matter is that his case was a different case to what he now seeks to mount.  In any event, apart from names about which enquiries could have been made, and in relation to which the views of his own employees could have been checked, and which could have triggered an objection to exhibit S6 being admitted, all of the evidence was available to and seen by Mr Hanssen in court.  The evidence was not undisclosed in that respect until “after the verdict” (see Commonwealth Bank of Australia v Quade and Others (op cit) at pages 142-143).  In our opinion, therefore, Commonwealth Bank of Australia v Quade and Others (op cit) does not apply to this appeal.

190   If we are wrong in that, then general considerations of justice do not apply as one of the Commonwealth Bank of Australia v Quade and Others (op cit) criteria, because the evidence as such was not in the end represented in the evidence of Mr Buchan to be the evidence of the employees of Hanssen at all.  Next, of course, that reduces the degree of culpability of the CFMEU, the successful party, particularly since no objection was taken to the evidence and since Mr Hanssen refused an opportunity to adjourn to seek advice and to investigate and consider the evidence and make enquiries and adduce his own evidence.  As to the third matter referred to in Commonwealth Bank of Australia v Quade and Others (op cit), those failures by Hanssen represented a serious lack of diligence in dealing with the material in court.  Finally, there was no real possibility that the decision would be set aside if that evidence were disclosed and if the new evidence was permitted to be adduced.  This was because the Commissioner did not rely on the survey evidence at all; he relied on the evidence of agreements not produced at the hearing and evidence not identified of the fact that the terms and conditions of the enterprise order sought were similar to the terms and conditions of employees on sites in Perth.  The same remarks apply to Mr Hanssen’s own affidavit for the reasons which we have mentioned above.  For all of those reasons, we would not admit any of the affidavit evidence except perhaps Ms Matz’s which we will deal with later in these reasons.

191   Further, since he did not seek to object to, cross-examine or otherwise seek to challenge the evidence, Hanssen is bound by its case at first instance and should not be allowed to raise this matter now (see s49(4) of the Act and Metwally v University of Wollongong (HC) (op cit)).  That ground fails for those reasons.

Ground 6

192    By this ground it was asserted that the Commissioner failed to afford procedural fairness to Hanssen at first instance in that it received in evidence the survey forms containing the names of the alleged employees which were deleted.  Since, so the submission went, they formed a substantial part of the CFMEU’s case, the deletion of the alleged employees’ names from the copied exhibits given Mr Hanssen, prevented him from testing, refuting or responding to the evidence.

193    It was submitted that in adjudicative proceedings, it will not normally be possible for a party who provides privileged information to the decision maker to resist its disclosure to the other parties (see Aronson and Dyer “Judicial Review of Administrative Action” 2nd Edition, page 417)).

194    In this case, part of the evidence was confidential and not privileged. 

195    It is not necessary for a person alleging breach of natural justice to prove that material requiring disclosure actually affected the decision, so the submission went.  It appears that even an express disavowal by the decision maker of reliance on the material, would not normally overcome the need for disclosure (see Aronson and Dyer “Judicial Review of Administrative Action” (op cit)).

196    In Kioa and Others v West and Another [1985] 159 CLR 550, Brennan J at 629 said:-

“It is not sufficient for the repository of the power to endeavour to shut information of that kind out if his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision, an opportunity to deal with the information.”

197    This was important relevant information, and on the established grounds, procedural fairness having been denied to Hanssen in that it was not given an opportunity to respond to that evidence, the submission was that the decision must be set aside on that ground.  Further, it was submitted, the evidence was not only hearsay evidence, but in being denied the ability to challenge the evidence, Hanssen was denied a fair hearing.

198    For the CFMEU, it was submitted that Mr Hanssen, on behalf of Hanssen, had the right to test or object to the survey evidence but did not.  It was also submitted as follows.  There was nothing which prevented Hanssen from calling its employees at first instance to give evidence.  Mr Hanssen could have raised objection to the names which were blacked out but he did not.  He did not cross-examine Mr Buchan about the matter.  Mr Hanssen, it was submitted, was not interested in those issues.  He wanted to tell the Commission that he was angry with the union and wanted no agreement without it.  He had not interest in the agreement or its terms.  He was there to fight the case on the one ground and he fell or stood by it.  Therefore, no question of procedural fairness arose.

199    In our opinion, no question of procedural fairness arose because Hanssen had every opportunity to put its case, including challenging the evidence, which was the case which he wanted to put, and he put it.  He also had the opportunity to adjourn to take advice about that evidence and object and to make inquiries and object.  We wish to emphasise, in any event, that the material, except for the names, and indeed 10 of them were revealed, was not undisclosed and there was every reasonable opportunity afforded to Hanssen to conduct inquiries and investigations and to prepare better with an adjournment.  We will not repeat Hanssen’s omissions in that respect because we have already referred to them above in detail.  One explanation, if explanation were necessary, is that the failure to object to the tender of exhibit S6, to cross-examine about it, to seek advice or take other necessary steps was because Hanssen had made through Mr Hanssen a decision that these were not relevant to the case which Hanssen conducted.  Hanssen was simply not denied procedural fairness.  Indeed, it was afforded it.  Hanssen was afforded the opportunity of an adjournment to take advice.  Mr Hanssen was practically advised to take advice.  In any event, as we have said before, the actual evidence was not that the survey forms were those of employees, as such.  Except for one, they were not.  Even if they were, in any event, they form no basis for the decision which was made and the failure to reveal the names would not alter that.  It would not, and, in any event, that that was the case was not convincingly contended.

200    First, as we have said, there was no denial of procedural fairness for those reasons.  Secondly, even if there were, it was not in any substantial way for non-disclosure.  In any event, the mere revelation of the name of the surveyees was not likely to change the result, firstly because it was not relevant to Hanssen’s case as Mr Hanssen conducted it, and, secondly, because the Commissioner’s decision was clearly not made on that evidence.  Since the result would not have had changed, the decision at first instance is not flawed even if there were a denial of procedural fairness, which there was not (see Stead v SGIC [1986] 161 CLR 141).  That ground fails for that reason.

Ground 7

201    This was a ground by which it was alleged that the Commissioner acted in breach of s26(3) of the Act.  S26(3) reads as follows:-

“Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.”

202    The effect of that provision is that there is a mandatory requirement upon the Commission to notify the parties concerned that it proposes or intends to take into account any matter or information not raised before the Commission on the hearing.

203    Also, the Commission is then required to then notify the parties concerned of this fact and afford them the opportunity to be heard in relation thereto (that is a mandatory obligation) (see s56 of the Interpretation Act 1984 (as amended)).

204    If s26(3) of the Act is not complied with, then the Commissioner commits an error of law (see Como Investments Pty Ltd v FLAIEU and Others (1989) 69 WAIG 1004 at 1005 (IAC) per Brinsden J and see also Woodberry and Koolan Island Club Inc (1992) 72 WAIG 1751 at 1754 (FB) and Robe River Iron Associates v AMWSU and Others (1990) 70 WAIG 2083 at 2084 (FB)).

205    What was alleged was that the Commissioner made a finding and a finding that supported in a major way the finding that an enterprise order would issue.  That finding was that the order sought was comparable to dozens of individual agreements registered in this Commission and agreements registered in the Federal Commission and similar to conditions in consent agreements on many sites in the city.  These findings were critical to his decision, so the submission went.

206    As Hanssen submitted, the reasons for making the order were those which the Commissioner expressed in paragraph 27 (and following), and those were the only reasons which he expressed for making the order.  That, as was submitted, was the very basis of the decision.  The consent agreements were not referred to or raised by the CFMEU in its own case, so the submission went.  The consent agreements and the dozens of agreements registered in this and the Australian Commission are not referred to by anyone, including the Commissioner, at all in the course of the hearing.  We have just summarised them above (see also paragraphs 28 and 29). 

207    Therefore, s26(3) was not complied with and the Commissioner erred and the decision should be set aside, so the submission went.

208    For the CFMEU, it was submitted that the matter was before the Commissioner at first instance and therefore that the ground fails.  This is because s26(3) only comes into operation if the Commissioner has taken into account something that was not raised in the hearing and in relation to which no opportunity to respond was given.

209    In this case, it was submitted that the conditions and the fact that they were the subject of industrial agreements was clearly raised in the survey as was the fact that other employees did not receive the benefit of such conditions.  Therefore, on that basis, when the document, exhibit S6, was raised without challenge or objection and it made those assertions, then that matter was sufficiently raised before the Commission and s26(3) was not breached.

210    In this case, the only mention of the terms of other industrial and certified agreements was in a broad general way in the survey forms (exhibit S6).

211    It was not said that the terms of other similar industrial agreements justified the making of the order, in the course of the proceedings at first instance.  No evidence was led to that effect.  No such agreements were adduced in evidence.  No evidence was adduced of the similarity of terms and conditions of employment which one might find on sites in the Perth area.  The Commissioner did not raise these matters as evidence or facts likely to justify the decision which he later made.  The Commissioner then went away and inspected or examined or otherwise relied on the terms of dozens of other such agreements and terms and conditions which he said applied to sites in Perth.  Their similarity to the order sought was the sole reason for his order.  We are satisfied that this issue or matter or evidence was not raised by him or before him.  There was general reference to its terms in the survey form but this did not, on any fair reading, purport to raise the arguments on similar terms nor seek the justification on the basis of conditions which prevail elsewhere as a basis for the application to be granted.  The parties were not put on notice about this matter or the actual evidence or information ((ie) the dozens of agreements themselves which were taken into account by the Commissioner or the similarity to conditions on sites in Perth).  When he proposed or intended to take into account this evidence and/or information, it was for the Commissioner, mandatorily to inform the parties accordingly.  He did not.  The Commissioner was then required to afford the parties an opportunity to be heard in relation to these matters and particularly the agreements, their content and effect.  He did not.

212    The Commissioner acted in breach of s26(3) and committed an error of law.  The whole of the order then falls and must be quashed (see Robe River Irons Associates v AMWSU and Others (op cit) at page 2086 per Brinsden, Roland and Nicholson JJ and see Re Coldham; Ex parte Municipal Officers’ Association of Australia (1988) 84 ALR 208). 

213    That ground for all of those reasons is made out.

Ground 8

214    That ground is also expressed in the alternative.  Ground 8 is something of a repetition of ground 7 and succeeds for similar reasons.  For that reason, too, the decision should be quashed (see Kioa and Others v West and Another (op cit)).  If any sufficient opportunity had been given to Hanssen to deal with this matter, which it was not, had been granted, then there is a possibility that a different result might have been achieved (see Stead v SGIC (op cit)).  For that reason, that ground is made out.

Ground 9

215    That is another ground which seeks that new or fresh evidence be adduced, namely evidence in the form of an affidavit sworn by Ms Wendy Matz on 4 September 2003.  She was an articled clerk employed by the solicitors for Hanssen. 

216    Her evidence was that she inspected six files in the registry of the Commission and then made enquiries about the contents of a further 146 where there were industrial agreements made by consent in the building construction industry, we infer.  The upshot was that she was informed by Ms Melissa Rinaldi, Associate to the Chief Commissioner, that clauses 27.5 and 27.6 as they appear in those agreements and in the proposed enterprise order in this case, had been excised.  In those cases where they were not excised, then she was informed, they should have been excised and were not excised because of an oversight.  They were not, of course, excised in this case.  Further, no challenge was made to clause 27.6 in these proceedings.  The only challenge was made to clause 27.5 in the proposed enterprise order. 

217    The point which Hanssen made was that the agreements registered were not the same as the orders sought because those agreements as registered had clauses 27.5 and 27.6 deleted.

218    Let us say that we think that that is something of a minor matter and whilst they were not the same, they were almost the same. Indeed, the Commissioner at first instance found not that agreements in the industry were the same, but that that the order sought in this case was similar to those agreements.  He also found that the terms and conditions in the draft agreement tendered as the basis of the enterprise bargaining agreement contained terms and conditions similar to dozens of bargaining agreements registered in this Commission and in the Australian Industrial Relations Commission.  He further added that the enterprise order sought was not greatly less or more than might be expected by a contemporary building industry employer working on building works in the central business district of this city. 

219    We do not think that that difference is so great as to constitute an appealable error in these proceedings.

220    It was also submitted that this was a case which fell within the principle in Commonwealth Bank of Australia v Quade and Others (op cit), which we have already canvassed above in detail.  It was submitted that this case miscarried because the Commissioner at first instance made his decision on the basis of evidence not disclosed to Hanssen and which was incorrect.  The Commissioner’s conclusion or assumption was therefore wrong.  Therefore, a new trial should be ordered, first of all because Hanssen was given no opportunity to respond to the proposition that dozens of enterprise agreements were the same or contained conditions the same as those sought in the enterprise order, so the submission went.  The Commissioner therefore failed to comply with s26(3) and Hanssen was unable to answer the material relied on by the Commissioner.  Next, it was submitted there was no lack of diligence on the part of Hanssen.  The matter had not been raised in the hearing so that Hanssen simply did not know about it.

221    It was submitted for the CFMEU that this is not a case for the admission of new evidence.  The point of the appeal grounds, it  was submitted, was not that Hanssen did not know that the Commissioner was going to refer to other agreements, but that those agreements did not contain clause 27.5.

222    Clause 27.5 remains in the proposed enterprise order and no attack was made upon it at first instance.  It was not hidden or blacked out.  The fact is, as the submission went, that Hanssen was not interested in making submissions about the terms of the agreement including clause 27.5 and did not.  The matter, it was submitted, should have been raised at first instance and it was not, either deliberately or through lack of diligence and should not be raised now.

223    In our opinion, this was a matter, since it was in effect an attack on clause 27.5, which should have been raised at first instance and was not.  It cannot be raised now (see Metwally v University of Wollongong (HC) (op cit)).

224    In addition and alternatively, in any event, Commonwealth Bank of Australia v Quade and Others (op cit) does not apply because there was no misconduct on the part of the CFMEU.  The real complaint about this ground was that the Commissioner erred in that he relied on a matter or matters or information which he did not notify the parties of and in relation to which he afforded them no opportunity to be heard in accordance with s26(3).  The matter arose because the Commissioner relied on material which he did not reveal to them and which he did not give them an opportunity to address on.  He did not act in breach of s26(3), except as we have found above that he did.

225    We should add that the Commissioner not only relied on “dozens of enterprise bargaining agreements” to decide as he did, but also on unidentified evidence that the terms and conditions of the enterprise order sought were greatly less or more than might have been expected by a construction building industry employer working on building works in the central business district of Perth.  That one clause in the order sought is missing from a number of agreements registered in this Commission but that cannot vitiate that finding.

226    Grounds 7 and 8 really deal with the subject matter of this ground.  However, ground 9 fails for those reasons.

Ground 10

227    The submission for Hanssen is that clause 27.5 of the enterprise order is not an “industrial matter” and hence is outside the jurisdiction of the Commission.  Clause 27.5 reads as follows:-

“The employer must not engage any sub-contractor that has not executed a certified agreement or industrial agreement.”

228    It seems to have been accepted for the purposes of this appeal that that clause means that the employer, Hanssen, cannot engage any sub-contractor who employs employees with whom he has not entered into a certified agreement under the Workplace Relations Act 1986 or an industrial agreement under s41 of the Act.  It is on that basis that we deal with the clause hereinafter.

229    However, the submission for Hanssen was that this was concerned only with the nature of the instrument and not the terms and conditions of employment. 

230    In our opinion, however, as the CFMEU submitted, the rationale is clear.  The union does not want employees’ jobs to go to employees who might be employed on conditions less advantageous than those obtaining or negotiated pursuant to industrial agreements or certified agreements under the Workplace Relations Act 1986, to which the CFMEU or its federal counterpart are parties.

231    The clause is, in our opinion, prospective too in that it forbids the engagement of any sub-contractor and is not retrospective.  The clause clearly purports to bind only Hanssen and no other employer.

232    By virtue of s42I(1)(c), the Commissioner may only make an order providing for any matter which might otherwise be provided for in an industrial agreement.  Therefore, so the submission went, the subject matter of the enterprise order must be a matter which might otherwise be provided for in an industrial agreement.  S41 enables an agreement to be made with respect to any industrial matter.  However, it enables an agreement to be made “for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto”.  In other words, that extends beyond an industrial matter.   This matter may well fall within those wider limits of the power to make agreements in this case.  If it does, then the clause is actually caught by the statutorily conferred ability to make agreements for the resolution of any questions relating to an industrial dispute or a disagreement.  For that reason, the order and clause 27.5 are clearly within jurisdiction.  It was submitted that the question was whether or not the order was an agreement with respect to any industrial matter.  Except for clause 27.5, it was not contended that the agreement as a whole, which manifested itself as part of the enterprise order, made, was not with respect to any “industrial matter” as defined, upon this appeal.  At first instance it was not so contended at all, not even in relation to clause 27.5.

233    For convenience, it is necessary to produce the definition of “industrial matter” in s7 of the Act in full hereunder and we do so.

““industrial matter” means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to — 

(a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;

(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;

(c) …

(ca) the relationship between employers and employees;

(d) …

(e) the privileges, rights, or duties of any organisation or association or any officer or member thereof in or in respect of any industry;

…”

234    Paragraph (i) of the definition of “industrial matter”, which is a recent edition, reads as follows:-

“Any matter, whether falling within the preceding part of this interpretation or not, where — 

(i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and

(ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;

and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include …”

235    What King CJ said in R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated [1981] 26 SASR 535 at 537-538 (In Banco) in relation to the definition of “industrial matter” in the South Australian Act was this:-

“The Act manifests a clear intention to give the Industrial Commission wide powers to adjudicate upon and to resolve disputes concerning matters which might reasonably be regarded as affecting the employer and employee relationship or which might be the source of disharmony in that relationship.

Clearly there may be causes of disharmony between employers and employee which are totally unrelated to the relationship and which could not be regarded as arising from or relating to industrial matters, but to my mind, the legislature has indicated its will that the Industrial Commission should be a tribunal to which employers and employees can resort to have a decision upon all issues which can legitimately be regarded as industrial issues and which might otherwise result in industrial conflict.  If this is the true policy of the Act, as I think it is, it would be quite inconsistent for that policy to place a restrictive interpretation on the naturally wide meaning of the words “affecting or relating to” in the definition.”

236    That is the approach which we would take to the interpretation of the definition of “industrial matter”.

237    It was submitted for Hanssen that clause 27.5 does not relate to the terms and conditions of employment of the sub-contractors employees let alone those of the employer’s employees. 

238    Next, it was submitted that a matter of an industrial nature is a matter that has the essential character of an industrial matter and the essential character of industrial matter is that it relates or pertains to the relationship between an employer and employees in that capacity.  The submission was that, as a result the definition was not extended.  Next, so the submission went, an employers relationship with an independent contractor is not part of the relationship of employer to employee.  That, it was submitted, was decided in R v The Judges of the Commonwealth Industrial Court and Others; Ex parte Cocks and Others [1968] 121 CLR 313 (see also R v Moore; Ex parte FMWU [1978] 140 CLR 470).

239    Thus, whether a provision of an award or agreement relates to the relationship of employer and employee requires a determination as to whether or not the obligations sought to be imposed upon the employer are connected with the relationship between the employer in its capacity as employer and employees in their capacity as employees in a way that is direct and not merely consequential.  We were also referred to CFMEU v Mt Thorley Operations (1997) 79 FCR 96.

240    In R v The Judges of the Commonwealth Industrial Court and Others; Ex parte Cocks and Others (op cit), the court held that a clause which prohibits the engagement of an independent contractor does not pertain to the relationship of employer and employee.  In that case, what occurred was that an employee left the clothing factory of the employer and set up independently outside the factory doing dry cleaning of clothes produced by the factory.  It was distinguished on that basis in R v Moore; Ex parte FMWU (op cit), where the court held that a clause which seeks to provide or limit the terms and conditions of employment of employees of sub-contractors may pertain to the relationship of employer and employee (see also ALHMWU v AHEIA (AIRC) (FB) Print M8770, Dec 069/96, 30 January 1996).

241    The clause in this case, it was submitted, was closer to the clause in R v The Judges of the Commonwealth Industrial Court and Others; Ex parte Cocks and Others (op cit), in that it was not a complete prohibition on the employer engaging independent contractors but prohibits them from engaging them unless the contractor has entered into a separate certified agreement.

242    There was no evidence to establish any relationship between the letting of contracts and its employees, so the submission went.

243    The submissions for the CFMEU were as follows.

244    This clause should be considered and characterised in the context of the industry in which the agreement is to operate, and that properly understood it seeks to protect terms of employment, though in a non-prescriptive way.  This clause does not seek to impose a particular set of conditions of employment on the contractor.  It seeks to ensure that there is one of two types of industrial instruments in place and there is no disadvantage in that the terms and conditions are not less favourable than the award.  The other form of agreement is of course, an “industrial agreement” as defined in the Act.  The agreement must be made with a union and therefore it was submitted it is not unreasonable to expect that the conditions that workers will be given under that agreement would be suitably protected because of the involvement of a registered organisation on their behalf.

245    By those two mechanisms, so the submission went, what is sought to be avoided is the situation where an employer might bring people onto the site or might bring contractors with employees onto the site whose terms and conditions fall below the minima which might be prescribed under relevant awards or industry standards.  In doing that, it prevents endangering the employment prospects or future employment of Hanssen’s employees or their terms and conditions of employment, so the submission went.  In support of the proposition that this was an industrial matter, R v Moore; Ex parte FMWU (op cit) was cited, and R v The Judges of the Commonwealth Industrial Court and Others; Ex parte Cocks and Others (op cit), was distinguished on the grounds which we have referred to above, and, in our opinion, correctly distinguished.  That what the union had sought to do in Cock’s Case was to bring within the regime of the award a person who is an independent contractor operating apart from and outside the factory.  The High Court decided in Cock’s Case that there was therefore insufficient connection between the activities of the dry cleaner and the employees in the factory.

246    R v Moore; Ex parte FMWU (op cit) was authority for the proposition that there was sufficient interest in the employer companies and the employees at a mine site, in having the conditions of those around whom they worked on the same site, in the same workplace, being regulated either by the same award, but, in any event, having sufficient industrial interest to allow the matter to be included in an award for the settlement of an industrial dispute.

247    Accordingly, R v Moore; Ex parte FMWU (op cit), is authority for the proposition that it is permissible to raise as an industrial matter, the regulation or the terms and conditions of employment of persons who are employed by sub-contractors to the employer because of the interest which the employees of the employer have in the terms of their own employment situation.

248    There was also cited R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated (In Banco) (op cit) per King CJ, Zelling and Mohr JJ.  Their Honours held that the Industrial Commission in South Australia had jurisdiction to include in an award made by it provisions prescribing conditions upon which employers bound by the award may engage independent contractors to do work covered by the award. 

249    King CJ said in R v Moore; Ex parte FMWU (op cit) at page 539:-

“The significance of the case, to my mind is that all members of the Bench recognised implicitly the connection which may exist between the employer and employee relationship and the terms and conditions upon which an employer or potential employer can have the work done by persons other than his employees.”

250    King CJ also said at page 539:-

“I am of opinion that an application by a union to have inserted in an award clauses having the effect of requiring that employers or potential employers enter into contracts for the supply of labour of the kind covered by the award only upon terms that they observe in respect of persons supplying the labour rates of pay and other terms and conditions not less favourable to those supplying the labour than those prescribed by the award, is a “matter” which “relates to” an industrial matter.  In my opinion, therefore, the Industrial Commission has jurisdiction to hear and determine such a matter.”

251   It is necessary also, to observe, that the definition of “industrial matter” in the Act was narrower before 2002 than it is now.  It is also necessary to observe that jurisdiction is conferred on the Commission to enquire into and deal with an industrial matter not with respect to an industrial dispute or a dispute concerning an industrial matter, save and except under definition (i) of the term “industrial matter” in the Act.

252   The Commonwealth Acts have to some extent relied on the words in their statute of “industrial dispute”, at least in more recent times.  Much of the reasoning decided in some cases, particularly in the federal sphere, but not in the South Australian sphere therefore, do give particular weight to the existence of a dispute.  However, under the Act, what is necessary to discern is whether there is an “industrial matter” within the terms of the definition of s7 of the Act, rather than to be distracted by the questions of whether the parties are in dispute (see RGC Mineral Sands Ltd and Another v CMETSWU (2000) 80 WAIG 2437 at 2443 per Parker J (Kennedy P agreeing)).

253   We observe that the definition of “industrial matter” in the Act is even wider now than it was before the amendments of 2002 (see the Industrial Relations Reform Act 2002).  We also agree that the definition of “industrial matter” in the Act is and has been for some time now wider than the term “industrial dispute” or “industrial matter” referred to in some cases decided by the High Court.  However, nonetheless, dicta such as that in Re Cram and Others; Ex parte New South Wales Colliery Proprietors’ Association Ltd and Others [1987] 163 CLR 117 at 134 are of great assistance.  They are clearly applicable, however, to assist a wide reading of a term such as “industrial matter” in the Act.  That is a proper approach to its construction which is clearly and correctly stated by King CJ also in R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated (In Banco) (op cit) to which we have referred above and which we apply.

254   There are a number of other observations which we wish to make about the interpretation of the term “industrial matter”.

255   Their Honours of the High Court in Re Cram and Others; Ex parte New South Wales Colliery Proprietors’ Association Ltd and Others (op cit) per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ at page 134, held as follows:-

“The words “pertaining to” mean “belonging to” or “within the sphere of” and the expression “the relations of employers and employers and employees” refers to the relation of an employer as employer with an employee as employee; Kelly (78).  And, as Dixon CJ noted in Reg. v Findlay; ex parte Commonwealth Steamship Owners’ Association (79), although the possibility of an indirect and consequential effect is not enough, the conception of what arises out of or is connected with the relations of employers and employees includes much that is outside the contract of service, its incidents and the work done under it.  The Chief Justice went on to say (80): 

“Conditions affecting the employee as a man who is called upon to work in the industry and who depends on the industry for his livelihood are ordinarily taken into account”. 

His Honour referred to the remarks of Isaacs and Rich JJ in Australian Tramways Employees Association v Prahran and Melbourne and Melbourne Tramway Trust (81), Their Honours, with reference to the equivalent of para (h) at the definition of “industrial matters” in the Commonwealth and State Acts, said: 

“The ‘conditions’ of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.  And the words “employers” and “employees” are used in the Act not with reference to any given contract between any specific individuals, but as indicating two distinct classes of persons co-operating in industry, proceeding harmoniously in time of peace, and contending with each other in time of dispute. 

Then they referred to the extended definition of “employee” in s4 of the Conciliation and Arbitration Act which includes “any person whose usual occupation is that of employee in any industry”, asserting that it makes manifest the last point made in the passage already quoted.”

256   That definition is similar to that part of the definition of “employee” in s7 of the Act, which reads as follows:-

““employee” means — 

…

(b) any person whose usual status is that of an employee;

…”

257   It is to be noted that the words “or pertaining to”, meaning “belonging to” or “within the sphere of”, were added in the definition of the Act to the words “affecting or relating to” in 2002.  That has the effect of making the definition of “industrial matter” even wider.  The words “affecting” or “relating to”, it will be clear from the above authorities, are themselves very wide in their application, in any event.  In our opinion, the observation of Dixon CJ as applied in Re Cram and Others; Ex parte New South Wales Colliery Proprietors’ Association Ltd and Others (op cit) is of great assistance.  It is clear that much which is outside of the contract of service, the incidence and the work done under it can still be an “industrial matter”.  Such a view can be applied to the definition of “industrial matter” in the Act.  It is noteworthy that the definition of “employee” in the Act includes a person whose usual status is that of employee, which emphasises that the words “conditions of employment” are not confined to any given contract between specific individuals, but that “conditions of employment” in s7 should be characterised as the phrase was characterised above in Re Cram and Others; Ex parte New South Wales Colliery Proprietors’ Association Ltd and Others (op cit).  We also adopt the general approach taken by the Full Bench in Hamersley Iron Pty Ltd v AMWSU (1990) 70 WAIG 3001 at 3007-3008 (FB).

258   Automotive Food Metals Engineering Union v Qantas Airways Limited (unreported) delivered 26 June 2000 (FB) (AIRC) is clear authority for the proposition that a non-employee or employer may be a party to an industrial dispute under the Workplace Relations Act 1996.

259   In our opinion, clause 27.5 can be characterised in the same way that King CJ in R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated (In Banco) (op cit) characterised the clauses in that case.  The matter in that case was the question whether the South Australian Commission had jurisdiction to include in an award made by it, provisions prescribing conditions upon which the employers bound by the award might engage independent contractors to do work covered by the award.  His Honour, King CJ, said at page 538:-

“The three clauses which the union seeks to insert in the award are designed to prevent an employer or potential employer from procuring work, which would otherwise be performed by employees under the award, to be done by sub-contractors for contract prices and under contracted conditions and under contract conditions less favourable to those performing the work than those prescribed by the award.  Such an application seems to me to affect or relate to the employer and employee relationship in a close and obvious way.  If employers or potential employers can have work which is covered by the award done by sub-contractors at cheaper rates than those prescribed by the award, employees are less likely to be able to obtain and retain employment in the industry.  In some cases, employees may be rendered vulnerable to pressure to accept less than award conditions thereby creating problems for the policeing (sic) and enforcement of the award.  In other cases, they may be vulnerable to pressure to abandon their status as employees and to accept the work under contract on less favourable terms.”

260   His Honour also referred to R v Moore; Ex parte FMWU (op cit).

261   In R v Moore; Ex parte FMWU (op cit) case, the High Court held that the draft order put forward by the union in its log of claims which contained a clause to the effect that no employer should permit work covered by the award to be done under contract except in accordance with the terms and conditions of the award was within the jurisdiction of the Australian Industrial Relations Commission.  As King CJ said at 539, and we respectfully agree:-

“The significance of the case, to my mind, is that all members of the Bench recognised implicitly the connection which may exist between the employer and employee relationship and the terms and conditions upon which an employer or potential employer can have the work done by persons other than his employees.”

262   We would add that R v The Judges of the Commonwealth Industrial Court and Others; Ex parte Cocks and Others (op cit) is distinguishable and inapplicable for the reasons cited in R v Moore; Ex parte FMWU (op cit).

263   Clause 27.5 is clearly a case of similar type to the matter in R v Moore; Ex parte FMWU (op cit) and in R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated (In Banco) (op cit).  The CFMEU and Hanssen as the employer would be bound by an order which requires sub-contractors with Hanssen to employ no one except by entry into a certified industrial agreement or an industrial agreement under the Act.  That means that the union or its federal counterpart which represents Hanssen’s employees is seeking and could achieve similar conditions for Hanssen’s employees and other employees on site and thus lessen the risk of undercutting.  Thus, the damage or risk to Hanssen employees if such agreement were achieved and/or enterprise orders made would be avoided in relation to the sort of matters canvassed by King CJ in R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated (In Banco) (op cit), or greatly reduced.  The conditions of work or the work of Hanssen employees is directly affected by the employment and the terms of engagement of employees by sub-contractors to Hanssen on the same sites as Hanssen employees work on.

264   There is a close link and relationship to the employment relationship between Hanssen and their employees because of this matter.  The clause is very little removed in type from the subject matter of R v Moore; Ex parte FMWU (op cit) and R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated (In Banco) (op cit), particularly since it relates to “employees”, including persons whose usual status is that of employees, within the definition of employee in s7 of the Act.  For those reasons, we are satisfied that the matter of clause 27.5 is a matter affecting or relating to or pertaining to ((ie) belonging to) or within the sphere of, the work, privileges, rights or duties of employers or employees in any industry, namely the building construction industry or of any employer or employee therein.  In addition, the matter is an “industrial matter” on the reasoning applied by the New South Wales Commission to a similar clause in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Another (unreported) delivered 21 December 2003 (1994 of 2003) where that Commission held that a similar clause in an agreement was within jurisdiction because the clauses in that case were clauses which may, like clause 27.5, be properly characterised as having the dominant purpose of establishing a mechanism for the protection of the terms and conditions of the relevant group of employees working under the agreement (see paragraphs 173-175 of that judgement).

265   The definition of “industrial matter” is also extended by the word “includes” (see R v Holmes and Others; Ex parte Public Service Associate of New South Wales and Another [1977] 140 CLR 63) to include a number of specific definitions apart from the general definition to which we have referred above and which is not in any way affected in its generality by the specifics which follow.  In our opinion, within paragraph (a) of the definition of “industrial matter”, for the same reasons, we are satisfied and so find that the matter of clause 27.5 is a matter affecting or relating or pertaining to the wages, salaries, allowances or other remuneration of employees or the prices to be paid in respect of their employment.  We think that that is apparent from the reasoning adopted by King CJ in R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated (In Banco) (op cit) which we have adopted above.

266   Next, the matter of clause 27.5 is a matter affecting or relating or pertaining to ((ie) belonging to) or in the sphere of, the mode (our emphasis), terms and conditions of employment in definition (b).

267   In particular, as conditions of employment were defined in Cram and Others; Ex parte New South Wales Colliery Proprietors’ Association Ltd and Others (op cit), the matter is an “industrial matter” because it relates to the conditions of employment as defined in that very wide sense.

268   Further, for the reasons which we have expressed above, the matter is an industrial matter because it is a matter affecting or relating or pertaining to the relationship between employers and employees (see paragraph (ca)) which adds to the definition of “industrial matter” the specific definition which we have just referred to.

269   We now refer to paragraph (i) of the definition of “industrial matter”, another new paragraph of the definition just as definition (ca) is.  In our opinion, this includes a matter of an industrial nature.  It was submitted by Mr Le Miere that a matter of an industrial nature can only mean an “industrial matter”.  That however, would mean that paragraph (i) of the definition of “industrial matter” has no meaning because a matter affecting an industrial matter, whether there is a dispute about it or not, is by definition within jurisdiction.  A matter “of an industrial nature” is one having the qualities of an industrial matter as otherwise defined without necessarily being one (see the Macquarie Dictionary, 3rd Edition and the definition of “of or in the nature”).  Therefore, a matter of an industrial nature which is wide and inclusive except for some special exceptions actually recited relating to organisations and freedom of association, is a matter which relates to matters arising out of or connected with industry as defined in employers or employees without being the direct sort of matter or the restricted sort of matter which an industrial matter otherwise as defined is.  The second and major determining indicator is that such a matter must be the subject of an industrial dispute or the subject of a situation that might give rise to an industrial dispute.  Therefore, given the objects of the Act which are directed to providing the means for settlement of disputes, inter alia, if it is sufficient that a matter has as it were some mark of the industrial about it, giving it a quality of the industrial, that enables it to be brought within the jurisdiction of the Commission where it is the subject of an industrial dispute or where it is the subject of a situation that might give rise to an industrial dispute (see paragraph (i) of the definition).

270   Thus, this matter if not within the remainder of the definition of “industrial matter”, which it clearly is, is nonetheless a matter of an industrial nature and it complies with the second prerequisite for jurisdiction in paragraph (i) in that it was and is at first instance the subject of an industrial dispute being resolved by the Commission or the subject of a situation giving rise to an “industrial dispute” at first instance.

271   For all of those reasons, we are satisfied that clause 27.5 falls within the definition of “industrial matter”, as we have construed that term above.  We are therefore satisfied that it fell within the jurisdiction of the Commission.  We are satisfied that for those reasons the grounds are not made out.

Can Industrial Agreements Contain Provisions Not “Industrial Matters”?

272   The authority of AMEPKIU v Electrolux Home Products (2002) 118 FCR 177, in the federal context, the existence of a matter not an industrial matter in a federal agreement was not said to be fatal to the registration of a certified agreement federally because the substantial nature of the agreement related to an industrial matter.

273   That authority supports the view which we express herein.  In our opinion, an agreement under s41 of the Act and enterprise order under s42I of the Act, which imposes on the parties the provisions of an agreement which could have been made between them, can contain provisions which are not industrial matters.  We say that because s41I(c) and (d) limit enterprise orders to what might be provided for in an industrial agreement.  However, s41 authorises the registration of an industrial agreement as defined in s7 of the Act “with respect to any industrial matter”.  It does not by those words exclude non-industrial matters, and, in any event, that the agreement goes further than industrial matter and we shall refer to that later.

274   It seems to us that, as Their Honours of the Federal Court said in AMEPKIU v Electrolux Home Products (op cit), the existence of one or more provisions in an industrial agreement which do not relate to industrial matters does not void the agreement and such provisions are capable of being included.

275   It would be clear, of course, however, that an agreement would not be one with respect to an industrial matter if the preponderance of clauses or of significant clauses was such that they rendered the character of the agreement one which did not relate to an industrial matter.  This part of the order, of which only one clause is taken exception to, is not such an order and is wholly within power and jurisdiction for the purposes of making the whole of the order sought.

276   In any event, s41 whose words govern the sort of order which can be made by way of enterprise order, does not exclude non-industrial matters in an agreement, in any event.  An industrial agreement may be registered which does not relate to an industrial matter if it relates to the prevention or resolution of disputes under the Act.  The same obviously applies to an enterprise order.

277   For those reasons, that ground is not made out.

Ground 11

278    We accept the submission for the CFMEU that, because the question of it not being fair and reasonable to make the order made was not raised at first instance, then it should not therefore be raised on appeal.  In particular that is so because had it been raised the CFMEU might have been able to call evidence to justify the agreement on different or more comprehensive grounds (see also Metwally v University of Wollongong (HC) (op cit)).

Finally

279    The only matter fatal to the Commissioner’s decision was that set out in grounds 7 and 8 of the appeal.  The approach of evaluating the application under s42I of the Act was not assisted by the failure of the CFMEU to advance an argument as to why the proposed enterprise order should be considered fair and reasonable by the Commissioner, in all of the circumstances.

280    The Full Bench has no discretion other than to quash the order.  However, the Commissioner is not functus officio so far as the declaration that the bargaining period has ended (see Robe River Iron Associates v AMWSU and Others (FB) (op cit) at page 2086).  There is still a dispute between the parties and another application may be considered under s42I of the Act.

281    For all those reasons, we would uphold the appeal.  We would quash the order made at first instance and issue a minute of proposed order accordingly.

       Order accordingly