100421725

METAL TRADES (GENERAL) AWARD 1966

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES (COMMISSION'S OWN MOTION)

APPLICANT

 -v-

 DARDANUP BUTCHERING CO & OTHERS

RESPONDENTS

CORAM CHIEF COMMISSIONER W S COLEMAN

 SENIOR COMMISSIONER A R BEECH

 COMMISSIONER J H SMITH

COMMISSION IN COURT SESSION

DATE WEDNESDAY, 10 MARCH 2004

FILE NO. APPLICATION 44 OF 2004

CITATION NO. 2004 WAIRC 10864

Representation Mr G R Blyth on behalf of the Chamber of Commerce and Industry of Western Australia acting in its capacity under s 40B(2)

 Mr A Cameron on behalf of Australian Mines and Metals Association

 Ms S Mayman on behalf of the Trades and Labour Council

 Mr T Anthony on behalf of the Minister for Consumer and Employment Protection

 Mr D Kelly on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch

 Mr M C Borlase and Mr P G Robertson on behalf of the Chamber of Commerce and Industry of Western Australia acting for employer parties and others

Statement

1          The Commission in Court Session on its own motion convened proceedings pursuant to s 40B of the Industrial Relations Act 1979 ("the Act") for the purpose of hearing named parties, the Chamber of Commerce and Industry ("the Chamber"), the Trades and Labour Council ("the Council"), the Mines and Metals Association ("AMMA") and the Minister for Consumer and Employment Protection ("the Minister") on the matter of amending the following awards:-

(a)          Metal Trades (General) Award 1966.

(b)         Children's Services (Private) Award.

(c)          Cleaners and Caretakers Award 1969.

(d)         The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977.

2          Prior to convening the proceedings the Commission in Court Session directed the Registrar to provide to the parties and interested persons a copy of a discussion paper.  The opening paragraphs of the discussion paper state:

"Following an advertisement in The West Australian on 12 August 2002 by the Registrar of the Western Australian Industrial Relations Commission pursuant to his obligations under reg 94A of the Industrial Relations Commission Regulations 1985, the Registrar received written submissions in relation to award reviews.  The advertisement sought written comments in relation to the review of awards generally or in relation to an award or awards in particular.  The Registrar prepared a summary of those submissions.  This paper takes into account comments in those submissions which appear to raise relevant issues in respect of four awards, the Metal Trades (General) Award 1966, Children's Services (Private) Award, the Cleaners and Caretakers Award 1969 and The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977.  This paper also takes account of some matters that are issues that may arise in relation to award reviews generally.  This discussion paper is issued by the Registrar following a direction from the Commission to do so.  The Commission in Court Session has determined that it will call on its own motion the four awards to hear submissions in relation to the matters raised in this discussion paper and the attached documents.  Since s 40B was enacted a number of awards have been reviewed by the Commission and amended.  This discussion paper sets out in Attachment A matters which relate specifically to the review, redrafting and modernisation of the four awards under review which have been identified in reports from the officers of the Commission.  Attachment B describes a standard arrangement clause recommended by the Registrar following a review conducted under reg 94A.”

3          Prior to convening proceedings, the parties to the awards, the Chamber, the Council, AMMA, the Minister and the employee organisations parties to the four awards were afforded the opportunity of inspecting the Registrar's s 40B review file.  That file contains the steps taken by the Registrar to complete his review by 31 August 2002, including the report he submitted to the Chief Commissioner on 29 August 2002.  The report contained the summary of submissions referred to in the opening paragraph of the discussion paper.

4          On 16 January 2004, the Commission heard from the parties to the awards, the Chamber, the Council, AMMA, the Minister and persons who seek to be heard in these proceedings.  After taking appearances the Commission heard from the parties and others in conference. 

5          As the Chamber points out pages 1 to 8 of the discussion paper identifies issues that may arise in relation to the four awards and all awards of the Commission, which include among other things:

(a)          What is the meaning and effect of s 40B(1) of the Act.

(b)         Whether there should be an explicit right for an employee to refuse to work overtime in circumstances where it would result in the working of unreasonable hours.

(c)          Whether there should be an explicit right for part-time work, job-sharing and flexibility in working hours to fulfil family responsibilities.

(d)         Whether shift penalties are still relevant and should such clauses be reviewed.

(e)          Whether all awards should contain redundancy and introduction to change clauses.

(f)           What ‘structural efficiency’ and ‘enterprise bargaining’ initiatives should now be reflected in all awards.

(g)         Whether all awards should comprehensively contain all legislative rights and obligations or should awards simply refer to legislative rights and obligations (such as parental leave, right of entry, keeping of time and wages records, and inspection of records) and leave the reader to refer to those legislative provisions.

(h)         Whether references to de facto spouse should be deleted and references to de facto partner inserted into entitlements to bereavement and parental leave by single sex partners to reflect recent legislative changes.

(i)           Whether the entitlement to take sick leave to care for family members should be incorporated in all awards.

(j)           Whether to define the scope of awards by reference to named classifications of employees and industries rather than defining the industry only by lists of respondents.

(k)         Whether all awards should be redrafted in a standard arrangement and format.

(l)           What is required to ensure award provisions do not create direct or indirect discrimination.  Some of these issues may overlap with “pay equity” and “equal remuneration” for men and women for work of equal value.

6          At the conference on 16 January 2004, the Chamber contended that the Commission cannot proceed on its own motion in these proceedings as no variations to the four awards have been proposed by the Commission.  In particular it says the Commission only has before it a discussion paper prepared by the Registrar. Specifically the point is also made that the discussion paper is issued by the Registrar following a direction from the Chief Commissioner to do so; see page 1 of the discussion paper.  It is not the Commission’s discussion paper and, therefore, it is not the Commission’s proposed variations (as is required by s 40B(2) of the Act): see ss 7 and 8 of the Act for the definition and constitution of the Commission.  Also, the discussion paper is not the “review of awards” conducted pursuant to s 96 of the Act and reg 94A of the Industrial Relations Commission Regulations 1985.

7          The Chamber says that if the Commission proceeds to conciliate or arbitrate in this matter, it will be acting ultra vires the Act.  The Chamber also argues that the Commission has no power to convene conferences in these matters.  Following the conference the Commission in Court Session directed the Chamber and others to file written submissions in relation to this preliminary jurisdictional issue.  The Commission in Court Session received submissions from the Chamber, the Council, the Minister, AMMA, the Australian Liquor Hospitality and Miscellaneous Workers' Union Western Australian Branch ("the LHMWU”), and the Chamber of behalf of particular organisations that have filed warrants to appear.  Some of these are Respondents to the Cleaners and Caretakers Award 1969 and the Metal Trades Award (General) Award 1966.

8          The Council says the discussion paper is a valid exercise of the Commission's approach to award updating under the Act.  In particular it says:

(a)          Section 40B(2) provides that before making an order under the section the Commission must give the parties to the award and the s 50 parties an opportunity to be heard in relation to the “proposed variations”.

(b)         The Act does not specify the procedures that apply when the Commission brings on a matter of its own motion. It is therefore reasonable that the broad powers the Commission has under the Act are applicable.

(c)          The Commission has broad powers under s 27 to deal with matters before it.  Section 27(v) provides for the Commission to “generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.”

(d)         Section 40B does not stand outside the scheme of the Act as a whole. Where s 40B does not provide guidance on how a matter brought under it is to be progressed the general provisions of the Act should apply.

(e)          The Council submits that the Commission acted within the power provided by the Act when it brought the current matter under s 40B of its own motion, provided the parties with the discussion paper and sought comment from the parties for directions on how to progress.

(f)           Whether or not the discussion paper represents proposed variations is not relevant.  While it is clear that the Commission must allow parties to be heard on "proposed variations" before it makes an order under s 40B, the Commission may exercise its broad powers to deal with the matter in a manner in which it sees fit prior to reaching the stage of being about to make an order.

(g)         Further, pursuant to s 26(1)(a) the Commission has the duty to act according to equity and good conscience.

(h)         It is appropriate that in the early stages of a complex matter of this nature, the Commission is not seen to be favouring or prejudicing any one party or group of parties to the proceedings.

(i)           While this is a matter brought on by the Commission on its own motion, the Commission would be aware that the parties to the proceedings would have different views on the issues raised.

(j)           In this sense the discussion paper is appropriate in its terms as it raises the issues that the Commission seeks to address in its motion without providing an indication of the Commission's views of those issues.

(k)         Once the Commission has heard from those parties who wish to participate in the proceedings, it can formulate and present "proposed variations" which parties can again be heard on prior to the Commission making an order.

9          In relation to the power to conciliate the Council says:

(a)          Section 32 states that the Commission shall endeavour to resolve a matter by conciliation where an industrial matter has been referred to the Commission.

(b)         There is no question that the mater brought by the Commission in these proceedings is an industrial matter.

(c)          There is nothing in the Act to suggest that a matter brought on by the Commission's own motion is not a matter referred to the Commission.  The process of the Commission bringing proceedings on by its own motion is in effect the Commission referring a matter to itself.

(d)         The submissions of the Chamber going to ss 29 and 29A are not relevant to understanding s 32 in circumstances where the Commission has brought the proceedings on it own motion.

(e)          The Commission clearly has the power to bring of its own motion proceedings under s 40B.  Section 40B does not provide specific direction on how a matter is to be progressed and thus the general powers of the Commission including s 32 must apply.

(f)           Again the fact that this is a matter brought by the Commission on its own motion, does not mean that the proceedings are not amenable to the conciliation processes outlined in s 32.  The parties will still be in dispute about the issues raised in the proceedings and conferences would play a similar role they do for matters brought under s 29.

(g)         If s 32 does not apply to proceedings on the Commission's own motion, then the broad power under s 27(v) would apply to allow the Commission to convene conferences in these circumstances.

10       The LHMWU makes a similar submission to the Council.

11       AMMA contends there is no scope for conciliation in the absence of competing claims between the parties. It however says that the present proceedings are within power.  It says so for the following reasons:

(a)          AMMA agrees with Chamber's contention that the discussion paper prepared by the Registrar does not consist of proposed variations. But the discussion paper does not purport to consist of, or even contain, proposed variations.

(b)         The discussion paper appears to be designed to assist the Commission in its review of awards. In its opening paragraph it states that the Registrar had received written submissions in relation to award reviews and had summarised those submissions, and goes on to say "This paper also takes account of some matters that are issues that may arise in relation to award reviews generally."  (Emphasis added) Further in the body of the discussion paper it states “This is a summary of issues identified by the Commission’s Award Review Team and members of the Commission for the Commission’s consideration in its review of the Metal Trades (General) Award 1966.” (Discussion paper p. 9 Emphasis added). Statements of this nature regarding the remaining awards under review are to be found at pages 22, 32 and 42 of the discussion paper. Clearly the Registrar has envisaged his role as assisting the Commission in the Commission conducting its own review of the four awards under consideration, which coincides with AMMA’s understanding of the proceedings.

(c)          The fact that the Registrar has been delegated the task of performing a review does not preclude the Commission from continuing on with this task. First s 96(2) of the Act provides for delegation “of all or any of the functions” listed. Secondly s 96(7) of the Act provides for a function being performed by the Commission “despite it being a delegated function”.

(d)         The Act is silent on how such a review is to be undertaken by the Commission, as noted earlier s 40B of the Act does not even explicitly spell out the existence of such a power. AMMA submits that in exercising its discretion as to how this power is to be exercised the Commission is not precluded from hearing from the parties to the awards and from the s 50 (sic) parties.  Indeed AMMA submits that it is sensible to do so and in accord with the overall scheme of the Act.

(e)          AMMA submits that the Commission is able to convene conferences for the purpose of conducting its review of awards. AMMA submits that the words “any matter” where they appear in s 27(1) of the Act are sufficiently broad to cover the matter of an award review. Further the words “Except as otherwise provided in this Act” do not come into play where the legislature has seen fit to confer the power on the Commission to review awards without giving any directions of any nature whatsoever as to how that power shall be exercised, or award reviews conducted. AMMA submits that it therefore follows that the Commission has all the powers enumerated in s 27 of the Act available to it.

(f)           Section 40B(2) of the Act does not require the Commission to provide proposed variations if it is simply conducting a review.

(g)         Properly viewed s 40B(2) imposes a prohibition on the Commission, namely the Commission is prohibited from issuing an order under s 40B without first satisfying the conditions precedent set out in the sub-section, that is giving notice to the parties named and providing them with an opportunity to be heard in relation to the proposed variations.

(h)         If and when the review of awards by the Commission gets to the stage where proposed variations actually do come into existence, AMMA has no basis to presuppose that the Commission will then fail to fully comply with this requirement. Indeed AMMA is confident in its anticipation that the Commission will fully comply with the requirements of the Act.

(i)           The jurisdictional objection raised by the Chamber appears to be largely predicated upon the present proceedings being something other than a review being conducted. Conversely AMMA’s lack of objection is predicated upon its view that this is a review. Hence AMMA’s view that it is necessary to determine the nature of these proceedings.

(j)           If the Commission concurs with the AMMA (and the repeatedly expressed view of the Registrar) that the Commission is conducting a review, it is AMMA’s submission that any jurisdictional objection is without foundation. However, if it is the view of the Commission that it is currently doing something other than conducting a review, AMMA then reserves its rights to reconsider it’s position in relation to the question of jurisdiction.

12       The Minister also says the Commission is acting within power to date.  In particular the Minister submits:

(a)          the discussion paper and standard arrangement clause (collectively referred to as "the discussion paper") in question were validly made pursuant to s 96(2) of the Act.  Specifically, the scope of the term "review" in s 96(2) is broad enough to encompass the Registrar's process of compiling and issuing the discussion paper;

(b)         in the event the discussion paper was not validly made pursuant to s 96(2), the paper was validly made under s 93(8) of the Act.  There is no inconsistency between ss 93(8) and s 96(2) of the Act rendering s 93(8) inapplicable;

(c)          section 26(1)(b) of the Act enables the Commission to inform itself on s 40B matters by virtue of the discussion paper;

(d)         the discussion paper is not intended to be, nor does it constitute, “proposed variations” as envisaged by s 40B(2) of the Act;

(e)          the term “proposed variations” does not mean “actual variations”, so that the Commission is not required to issue actual variations before affording parties an opportunity to be heard under s 40B(2) of the Act;

(f)           the right to be heard under s 40B(20 is “in relation to” the proposed variations.  The term “in relation to” is broad enough to allow parties an opportunity to be heard before the Commission has necessarily issued any proposed variations; and

(g)         the Commission is empowered by ss 40B(2) and 27(1)(v) of the Act to convene conferences.  "An opportunity to be heard" as referred to in s 40B(2) is not confined to parties presenting their case in hearing.  What is an appropriate "opportunity to be heard" depends on the circumstance of the case.

13       The Chamber argues that the terms of s 40B are clear, the Commission cannot on its own motion proceed under s 40B until it has formulated and given to the parties (and persons mentioned in s 40B(2)) proposed variations to the four awards.  Section 40B(1) and (2) provides:

"(1) The Commission, of its own motion, may by order at any time vary an award for any one or more of the following purposes —

(a) to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under s 51;

(b) to ensure that the award does not contain conditions of employment that are less favourable than those provided by the MCE Act;

(c) to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984;

(d) to ensure that the award does not contain provisions that are obsolete or need updating;

(e) to ensure that the award is consistent with the facilitation of 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.

(2) The Commission shall not make an order under this section until it has given notice to the named parties to the award and the Council, the Chamber, the Mines and Metals Association and the Minister and afforded them an opportunity to be heard in relation to the proposed variations.”

14       Section 96(1), (2)(b) and (6) provides:

"(1) In this section —

"Registrar" means the Registrar or a Deputy Registrar.

(2)               Subject to subsection (3), the regulations may provide for and in relation to the delegation to a Registrar of all or any of the functions of the Commission in relation to the following —

(b)         the review of awards for the purposes of section 40B"

15       A function performed by a Registrar as a delegate of the Commission is to be taken to be performed by the Commission.

16       Regulation 94A provides:

"(1) Registrar shall undertake a review of all awards pursuant to s 40B of the Act with respect to matters set out in sub-s 40B(1)(a) to (d).

(2)               The review shall be completed and submitted to the Chief Commissioner by 31st August 2002."

17       In identifying matters which may need to be addressed in sub-s 40B(1)(a) to (d), the Registrar shall confer with the parties set out in subclause 40B(2) and relevant registered organisations and employer associations.

18       The Registrar shall publish in a newspaper circulating throughout the State and on the website maintained by the Commission a notice listing the awards of the Commission and advertising the terms of s 40B of the Act.  Parties with an interest in these awards are to be invited to provide written comments on matters relevant to the review of awards generally or to an award or awards in particular.

19       With respect to s 40B(1)(e) the Registrar shall, after reviewing all awards and conferring with parties set out in subclause 40B(2) and relevant registered organisations and employer associations, recommend the format for a Standard Arrangement Clause to be applied to awards to facilitate the efficient application of awards by electronic technology for employees, employers, registered organisations and employer associations."

20       The Chamber also says the status of the discussion paper is unclear.  However it was conceded in conference that if the discussion paper can be characterised as a document containing proposed variations to the four awards and these variations are proposed by the Commission, then the Commission may proceed.  The Chamber, AMMA and the Minister assume the whole of the discussion paper was prepared by the Registrar under s 96(6) of the Act and reg 94.  This contention is with respect misconceived.  Attachment B has been prepared by the Registrar.  Pages 1 to 8 of the discussion paper and Attachment A were prepared by members of this Commission in Court Session.  Attachment A raises clause by clause suggestions in respect of potential amendments to each of the four awards.  Attachment A is in part a summary of issues identified by the Commission's award review team as part of the Registrar's award review that was completed on 28 August 2002.  The Registrar's review has been reviewed by members of this Court Session and Attachment A was compiled.  Attachment A also contains issues the Commission in Court Session itself raises as matters that could be the subject of award variations to each of the four awards, Attachment B was prepared by the Registrar as part of a report to the Chief Commissioner dated 27 November 2003 pursuant to reg 94A(4).  Pages 1 to 8 of the discussion paper simply pose questions the Commission sees may be relevant in these proceedings. 

21       Whilst the opening paragraph of the discussion paper records that the Registrar undertook a review of all awards under s 40B and reg 94A in August 2002, this review was completed by 28 August 2002 as required by reg 94A(1).  Whilst pages 1 to 8 of the discussion paper and Attachment A take account of the comments received by Registrar when conducting that review, these proceeding are separate and have not been commenced by the Commission by delegation of any of its functions under s 96(2)(b) of the Act.  The Registrar however prepared Attachment B as required by reg 94A(4).  This function was delegated to him by reg 94A(4) pursuant to the Commission’s power to do so under s 96(2)(b).  Attachment B has been provided to the parties to the awards and persons and organisations mentioned in s 40B(2) on the basis that when each of the four awards are varied the arrangement clause may or may not be varied in accordance with the recommended format for the standard arrangement clause.

22       The Chamber also contends that after 31 August 2002, there is nothing more in the Regulations for the Registrar to do in relation to s 40B of the Act.  The Chamber's submission is correct in so far as the Registrar's duties under reg 94A(1) to (3) and s 40B(1)(a) to (d) of the Act are concerned, as pursuant to reg 94(A)(1) the review was to be completed by 31 August 2002.

23       There is however no time limit on the preparation of a recommended Standard Arrangement clause in reg 94A(4).  Regulation 94A(4) contemplates a separate review by the Registrar in respect of the recommended Standard Arrangement Clause as this review is authorised by s 40B(1)(e) of the Act.  Although the Chamber says the Registrar's award review file shows the Registrar submitted a report to the Chief Commissioner on 29 August 2002 with a recommendation on the Standard Arrangement Clause, the Registrar's review process was not completed until 27 November 2003 (see page 55 of discussion paper, the Registrar's report of 28 August 2002 and his report on 27 November 2003).  In his report dated 28 August 2002 the Registrar advised that consultation about the Standard Arrangement Clause should take place with unions and employers. 

24       In separate submissions filed by the Chamber on behalf of employer organisations that have filed warrants to appear in these proceedings, the Chamber contends that the award review conducted by the Registrar under reg 94A(1) the Registrar failed to confer with the parties set out in s 40B(2) and relevant registered organisations and employer associations.  With respect to that submission it is factually incorrect.  In his report to the Chief Commissioner dated 29 August 2002, the Registrar states:

"Following the review of all awards, a report on each award was complied setting out issues which needed attention.  During the review, the persons or organisations nominated in s 50 have been continually and consistently consulted and copies of reports on each award have been discussed with them.  In addition and in consultation with the TLC, we have conducted seminars with unions involved and provided copies of the reports reviewing awards relevant to them."

25       In any event this submission is irrelevant to the efficacy of these proceedings.  As set out above the Registrar's award review conducted under reg 94A(1) to (3) was concluded on 29 August 2002.  These proceedings are separate and they do not constitute a "review" in the sense of an appeal of the Registrar's review.

26       In the separate submissions filed by the Chamber on behalf of employers bound by the Cleaners and Caretakers Award and other organisations the Chamber also contends that the Registrar failed to confer with the parties to the awards as required by s 40B(2) of the Act before recommending the Standard Arrangement Clause.  This submission is also misconceived.  In a letter dated 2 October 2003 the Registrar attached a draft format for a standard arrangement clause and sought comment from persons and organisations mentioned in s 50 of the Act and all registered organisations.  Except in relation to the parties to the awards persons and organisations mentioned in s 50 are the same as those set out in s 40B(2).  The parties to the awards will have an opportunity to be heard in these proceedings in relation to whether the recommended Standard Arrangement Clause should be applied to the four awards the subject of these proceedings.

27       The Chamber in its capacity to be heard under s 40B(2) also argues:

(a)          It is clear from s 40B of the Act that the Commission, of its own motion, may vary awards for the particular purposes of that section.  But before doing so, the Commission is required to give the parties (mentioned in s 40B(2) of the Act) an opportunity to be heard in relation to the proposed variations.

(b)         As a matter of construction, it is submitted the plain and ordinary meaning of the term ‘the proposed variations’ must be that they are the Commission’s proposed variations.  It is the Commission that may, of its own motion, vary the awards.  The Commission itself can formulate the proposed variations (perhaps based on the review of awards conducted by the Registrar) that it believes will achieve the purposes of s 40B of the Act.

(c)          However, before proceeding to vary the awards for the purposes of s 40B of the Act the Commission is required to allow the parties mention to be heard in relation to the Commission’s proposed variations.

(d)         Additionally, the content of the Registrar’s discussion paper is a long way short of providing the parties mention in s 40B(2) of the Act with “the proposed variations”.

(e)          The words “the proposed variations” in s 40B(2) of the Act are general words that should be given their plain and ordinary meaning.  Proposed variations must be the actual variations the Commission intends to be made to particular awards (subject to hearing from the parties that are entitled to be heard in the matter).  It cannot mean a range of possible variations or listing “the issues that may arise” or asking whether a provision “could be re-worded” (in an unspecified way) or “are these rates fair” or “is a clause discriminatory”.

(f)           Unless the actual ‘proposed variations’ are known, there will be a denial of natural justice to the parties mentioned in s 40B(2) of the Act.  Those parties must be made aware of the specifics of the proposed variations so that they may be heard in relation to the ‘proposed variations’ by putting evidence and submissions to the Commission in relation to the specific matters that will arise as a result of the ‘proposed variations’.

(g)         If, as the Act requires, those parties are to be heard “in relation to the proposed variations” that can only be achieved if they have the proposed variations.  The discussion paper does not contain “the proposed variations”.

(h)         An examination of the content of the discussion paper reveals that it contains matters that may arise in award reviews and almost endless questions about what might or could be included in an award review.  In some limited cases, suggested answers (not “proposed variations”) are provided to the questions but in most cases no answers are given.

(i)           The discussion paper can be contrasted to s 29A of the Act that provides where an industrial matter has been referred to the Commission the claimant, or applicant, is required to specify the nature of the relief being sought.

(j)           Further, where a party to the award (or some other person) applies to vary the award under s 40 of the Act the Regulations require that an application to vary an award include the particulars of the variation sought and that it be served on the respondents to the award.  The respondents can then file and serve an answer and counter-proposal (with particulars) to the claim.  The Commission is then required, by s 32 of the Act, to deal with the industrial matter referred to it by conciliation or arbitration.

(k)         As a matter of natural justice, at all stages of proceedings before the Commission the parties are entitled to know, with particularity, what is being sought.

28       As set out above it is not the case the discussion paper is not the Commission in Court Session's paper.

29       We are of the view that to adopt the Chamber's construction of s 40B(2) would be to narrowly construe the Commission's power under s 40B.  Under s 40B(1) the Commission can on its own motion make orders to vary an award for any one or more of the purposes set out in s 40B(1)(a) to (e).  Prima facie those purposes are wide in scope.  As the Minister points out unlike s 40, s 40B is not constrained by the same service and notification requirements.  Section 40B contains few limitations or prescriptions as to the manner in which the Commission is to perform its functions.  Section 26(1)(b) confers a "wide discretion" on the Commission in respect of the matters upon which it may inform itself, and the way in which it is entitled to deal with the material before it without being bound by rules of evidence or legal forms – Australian Workers' Union, Western Australian Branch, Industrial Union of Workers v Hamersley Iron Pty Limited (1986) 66 WAIG 322 at page 323.  However s 26(1) does not confer a general jurisdiction on the Commission – there must first be a foundation in the Act itself for the exercise of jurisdiction before s 26 operates: Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11 at page 20.

30       Under s 40B(2) the Commission is required to afford the parties to the four awards and the other persons and organisations mentioned in s40B(2) an opportunity to be heard "in relation to" the proposed variations.  The words “in relation to” are words wide in scope (see Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 per Toohey J with whom Wilson J agreed at 516).  Although those words gather meaning from the context in which they appear and it is the context that will determine the matters to which they extend (Workers Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 per Deane, Dawson and Toohey JJ at 653 and 654).   In Newbury v Smith (1991) 101 ALR 54 Gray J at 61 observed:-

"It is obviously possible to do an act "in relation to" an event, before that event takes place.  Acts preparatory to an event will usually be regarded as being performed "in relation to" that event.  Even such a thing as the purchase of a ticket for a football match could be regarded as an act performed "in relation to" that football match, although the match has not yet begun.  It was contended on behalf of the defendant that a proposed event may never take place; it may be postponed or cancelled, for whatever reason.  This is true, but it does not mean that the event must have begun before any act can be said to be "in relation to" the event.  The postponement of a football match does not make the prior purchase of a ticket for it any less "in relation to" the football match than it would have been if the football match had proceeded."

31       The Commission has before it the discussion paper which plainly raises specific proposed award amendments to each of the four awards.  The Commission however is not at the stage of issuing proposed variations.  Prior to issuing specific variations to each of the four awards the Commission should hear from the parties to the awards and the other persons and organisations mentioned in s 40B(2) whether the Commission should amend any or all of the four awards.

32       The discussion paper also raises a number of issues which the Commission could after hearing from the parties to the awards and other persons and organisations mentioned in s 40B(2) make variations to each of the four awards in relation to those issues.  Prior to making a decision whether to do so we are of the view the Commission should hear from those persons and organisations in respect of each issue and any other issues raised by the discussion paper which relate to the four awards and the purposes set out in s 40B(1)(a) to (e).  To adopt such a course is within power.  The words to be "heard in relation to the proposed variations" imports the right to be heard in respect of the subject matter and the issues raised in the discussion paper that is to put forward a proposal for consideration acceptance or action. (See Employment Advocate v Williamson [2001] FCA 1164).  It is our view it is in power to raise potential award variations including issues for consideration prior to formulating actual variations.  The consequence of the Chamber's argument, if accepted is that the Commission is required to put forth actual variations rather than proposed variations.  To construe s 40B(2) in the way contended by the Chamber could pre-empt their right to be heard under s 40B(2) if the Commission is required to draft proposed amendments prior to hearing from the Chamber and the parties to the awards and the other persons and organisations mentioned in s 40B(2).  This could provide those persons and organisations with a very limited right to be heard.

33       The Commission also notes that the terms of s 49B(2) are similar to those set out in s 50(10) of the Act in that the Commission cannot make an Order under either of the respective provisions until it has afforded the Council, the Chamber, AMMA and the Minister the opportunity to be heard. When considering s 50(10) of the Act, Rowland J in Re Western Australian Industrial Relations Commission; Ex parte Confederation of Western Australian Industry (Inc) stated:

“I should note is passing that the Commission heard submissions from the bodies who attended as to whether or not it should be satisfied that there were good reasons for it to make a General Order. That to me seems an eminently sensible approach although perhaps, surprisingly, the prohibition in section 50(10) is in terms that only apply if the Commission in fact makes a General Order. One could envisage within the strict construction of section 51(2) the Commission, of its own motion, considering the National Wage Decision and deciding there were good reasons not to make a General Order giving effect to it. In these circumstances, as no General Order is made, there is nothing on which section 50(10) could operate. I am not convinced that such was the intention of the legislature.”

(6 WAR 555 at 560)

34       Similarly a decision by the Commission not to vary an award on its own motion would mean that there would be nothing on which s 40B(2) could operate.

35       A principal object of the Act as amended by the Labour Relations Reform Act, 2002 is to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and employees in those enterprises. It is in the spirit of this objective that the Commission has embarked upon the course pursuant to s 40B of the Act. A strictly adversarial approach is not contemplated by s 40B.  Section 40B simply contemplates that where the Commission forms a preliminary view that proposed variations may be appropriate, the Commission may hear from the persons and organisations mentioned in s 40B.  At the end of the day the Commission in any case may determine not to vary an award.

36       The Commission has the power in s 32 of the Act to endeavour to resolve an industrial matter referred to it by conciliation.  Section 32(1) is as follows:

“Where an industrial matter has been referred to the Commission, the Commission shall, unless it is satisfied that the resolution of the matter would not be assisted by so doing, endeavour to resolve the matter by conciliation.”

37       The Chamber has submitted that s 32 does not apply because no industrial matter has been referred to the Commission.  It is our view that submission is incorrect.  As the Council point out the variation of an award by the Commission is an industrial matter. The Commission has power under s 40B to refer an industrial matter to itself.  It is plain that proceedings under s 40B raise an "industrial matter" within the meaning of s 7 of the Act.  This construction of s 40B arises from the Commission’s power not only under s 40B but also from s 23(1) and the duty of members of the Commission under s 19 of the Act. Further, the variation of an award pursuant to s 40B is still a variation to an award.  The fact that it is done pursuant to s 40B does not alter this conclusion. 

38       The variation of one or more awards pursuant to s 40B has been referred to the Commission on the Commission’s own motion.  It has not been referred to the Commission pursuant to s 29 by an application made by a party.  It does not have to be in order for the Commission to vary an award pursuant to s 40B.  The variation is effectively referred to the Commission by the Commission itself.  Accordingly, an industrial matter has been referred to the Commission and s 32 is available to the Commission when it has before it a matter pursuant to s 40B.

39       The Chamber and AMMA also argue that there is no dispute between the parties to the awards and other persons seeking to be heard that is amendable to conciliation.  Plainly that is not the case, the Commission is yet formally to hear from the parties to the awards and other persons as to whether there is any dispute in relation to any of the issues raised in the discussion paper.  If there is a dispute about any issue, the Commission may conciliate under s 32 (see s 32A of the Act).  Further the Commission has a duty to conciliate unless it is satisfied the resolution of the industrial matter would not be assisted by conciliation (s 32(1)).  In light of the submissions made by the Chamber and the Council contained in the Registrar's report dated 29 August 2002, this Commission in Court Session would be surprised if there is no dispute about any issue raised in the discussion paper.

40       The Chamber in its capacity under s 40B and the Chamber as agent for the organisations that it represents pursuant to warrants to appear and the Council, seek to be joined as parties to the proceedings under s 27(1)(j) of the Act.  The Minister seeks leave to be heard as a party or intervenor under s 27(1)(j) or (k) or s 30 of the Act.  In light of the observations made by the Industrial Appeal Court in Food Preservers Union of Western Australia, Union of Workers v The Automotive Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch (2001) 81 WAIG 1141 and because of the issues of interpretation going to the Commission’s jurisdiction raised in these proceedings, the Commission in Court Session will grant leave to the Chamber acting in its capacity under s 40B(2) and in its capacity as agent for employer organisations and the Council, leave to intervene under s 27(1)(j) of the Act.  The Commission in Court Session will also grant the Minister leave to intervene pursuant to s 30 of the Act.

41       The Commission in Court Session intends to progress this matter in the following way:

(a)          The parties to the awards are to confer with each other, the Chamber, the Council, AMMA and the Minister, in respect of matters raised in the discussion paper to explore the possibility of reaching a consensus on issues which may be progressed under s 40B with respect to each award.

(b)         The Commission in Court Session will convene on 16 March 2004:

(i) to hear any further applications to intervene by organisations who have filed warrants to appear and be heard in these proceedings and who are not parties to the awards; and

(ii) to adjourn into conference to allow the parties and the others referred to in paragraph (a) to carry out the task set out in paragraph (a).

(c)          The Commission in Court Session will hear from the parties to the awards, the Chamber, the Council, AMMA, the Minister and any other parties or intervenors who are granted leave to appear and be heard in these proceedings on 17 and 18 March 2004, in relation to the issues raised in the discussion paper.  In hearing from the parties and the others the Commission will hear submissions as to the effect of and the requirements of s 40B(1)(a) to (e).