2007 WAIRC 00559

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 00559

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
COMMISSIONER P E SCOTT
COMMISSIONER S J KENNER

HEARD
:
TUESDAY, 17 APRIL 2007

DELIVERED : WEDNESDAY, 27 JUNE 2007

FILE NO. : FBA 40 OF 2006

BETWEEN
:
THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH
Appellant

AND

THE ROMAN CATHOLIC BISHOP OF BUNBURY CHANCERY OFFICE AND OTHERS
Respondents

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : COMMISSIONER J L HARRISON
CITATION : (2006) 86 WAIG 3297
FILE NO : CR 38 OF 2006

CatchWords:
Industrial Law (WA) - Appeal against declaration of the Commission - Application for conference pursuant to s44 of the Industrial Relations Act 1979 (WA) (as amended) - Dispute about application of clause of agreement - Interpretation of industrial agreements - Jurisdiction to interpret agreements in s44 application, given specific procedure in s46 - Appeal allowed due to lack of jurisdiction

Legislation:
Industrial Relations Act 1979 (WA) (as amended), s7, s7(1)(i)(i), (ii), s44, s44(6)(bb)(i), s44(9), s46, s46(1)(b), s46(3), s46(5), s83

Industrial Relations Commission Regulations 2005, r31

Result:
Appeal allowed
REPRESENTATION:
Counsel:
APPELLANT : MS L KIRKWOOD (OF COUNSEL), BY LEAVE
RESPONDENTS : MS K WROUGHTON (OF COUNSEL), BY LEAVE
Solicitors:
APPELLANT : LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH
RESPONDENTS : CATHOLIC EDUCATION OFFICE


Case(s) referred to in reasons:

Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia
(1932) 47 CLR 1
BGC Contracting Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers
[2004] FCA 569
Crewe and Sons Pty Ltd v AMWSU (1989) 69 WAIG 2623
Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598
J-Corp Pty Ltd v The Australian Builders’ Labourers’ Federated Union of Workers, Western
Australian Branch (1993) 73 WAIG 1185
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR
370
Murcia and Associates (A Firm) v Grey (2001) 25 WAR 209
R v Commonwealth Industrial Court and Another; Ex parte The Australian Coal and Shale
Employees’ Federation (1960) 103 CLR 171
Seamen’s Union of Australia v Matthews and Another (1957) 96 CLR 529
SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760


Case(s) also cited:

AMWSU v Grant Electrical Industries Pty Ltd (1989) 69 WAIG 1019
BHP Billiton Iron Ore Pty Ltd v AFMEPKIUW (WA Branch) and Others [2006] WASCA 124
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA
Branch v Wormald International Australia Pty Ltd and Others (1990) 70 WAIG 1287
Minister for Works and Water Resources v AMWSU (1983) 63 WAIG 1389
Norwest Beef Industries Ltd v West Australian Branch, Australasian Meat Industry Employees
Union (1984) 64 WAIG 2124
Ralph M Lee Pty Ltd and Others v Metal and Engineering Workers Union – Western Australian
and Another (1994) 74 WAIG 1722
Re Cram and Others; ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140
Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of WA and
Others (1987) 67 WAIG 1097
The Forest Products, Furnishing and Allied Industries Industrial Union of Workers, WA v The
Australian Builders, Labourers Federated Union of Workers, Western Australian Branch (1994)
74 WAIG 1357
The Hospital Laundry and Linen Service v The Federated Miscellaneous Workers Union of
Australia, Western Australian Branch (1993) 74 WAIG 45
United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd (1950) 30 WAIG 539

Reasons for Decision

THE FULL BENCH:

The Appeal
1 By notice of appeal filed on 20 November 2006 the appellant appeals against the decision of the Commission given on 1 November 2006. The decision was in the form of a declaration. The terms of the declaration will be later set out.

The Application
2 The initiating application was for a conference pursuant to s44 of the Industrial Relations Act 1979 (WA) (“the Act”). The grounds of the application were set out in Schedule A to the application. In Schedule B there were listed 15 respondents in addition to the first-named respondent in the body of the application. In Schedule C there were listed 16 enterprise bargaining agreements which had been made between the appellant and the respondents. These were referred to in Schedule A to the application as “the agreements”. The full name of the agreements was for example for the first-named respondent, “The Roman Catholic Archbishop of Perth Inc Non-Teaching Staff Enterprise Bargaining Agreement 2004”.
3 Schedule A asserted the agreements were substantially similar in their terms and application. Clause 16 of the agreements provided for the referral of disputes or difficulties that may arise in their operation to the Commission for conciliation/arbitration. The schedule asserted there was a dispute about the application of clause 40(7) of the agreements. This clause provided:-
“Subject to the provisions of subclause (4) of this clause, during the school vacation periods the employer shall be relieved of the obligation to provide work and the employee shall not be entitled to the payment of wages in respect of any such period during which no work is performed other than any period during which the employee is on annual leave or a public holiday where the public holiday falls on a day on which the employee would normally be employed to work. Provided that the maximum period covered by this subclause shall be four weeks (20 days) in any one year.”

4 The schedule set out the nature of the dispute about the “application” of the agreements and sought the Commission’s assistance in resolving the matter. The schedule said school employees such as canteen workers covered by the agreements were being paid for 44 weeks or 220 days per year inclusive of annual leave. Part-time employees were being paid on a pro-rata basis. The appellant asserted school employees should be paid a minimum of 48 weeks per year. The schedule asserted that:-
“Clause 40(7) of the Agreements provides that the employer is not obliged to provide work or pay an employee during the vacation period, provided that the maximum period covered by the subclause is four weeks (or 20 days). Thus, in an ordinary working year of 52 weeks (or 260 days), the employer is entitled not to pay the employee for four weeks (or 20 days). Therefore, the employee should be paid for 48 weeks (or 240 days) each year.”

5 The dispute was not resolved through conciliation and therefore a memorandum of matters referred for hearing and determination, pursuant to regulation 31 of the Industrial Relations Commission Regulations 2005, was drawn up and signed by the Commission. A schedule to the memorandum said the parties remained in dispute about the terms and conditions of employment of school employees covered by the 16 agreements which were then listed.
6 The schedule said the appellant sought the answers to the following questions:-
“1. Whether a School Employee, as defined under Clause 45. – Classifications of above the Agreements employed by any of the respondents named in the Agreements is entitled to be paid a minimum of 48 weeks per year; and
2. If the answer to point 1 is yes, whether all part-time School Employees are entitled to be paid 48 weeks per year on a pro rata basis.”

The Hearing of the Application
7 The application was heard on 14 August 2006. Both the appellant and the respondents were represented by counsel. Mr Terence Wilson, the Assistant Director of the School Personnel Section of the Catholic Education Office, gave evidence for the respondents. The parties also provided written submissions which were to some extent elaborated upon at the hearing.
8 In the appellant’s amended written submissions it was stated in paragraph 2.1 that the appellant “submits that the nub of the issue in question is one of interpretation and application of clause 40(7) of the agreements”. Substantive submissions were then made about the principles to apply in the interpretation of an industrial agreement and the correct interpretation of the clauses in dispute.
9 In the respondents’ written submissions the questions in dispute were similarly addressed. Again the respondents set out the law about interpretation of industrial agreements and the interpretation they submitted was correct. In paragraph [2] of the written submissions it was said that the agreements “need to be interpreted in accordance with section 46” of the Act. The written submissions did not clearly articulate the consequence which flowed from this submission, nor make any suggestion that there was a concomitant jurisdictional issue.

The Reasons and Declaration
10 At the conclusion of the hearing the Commissioner reserved her decision. Reasons for decision were published on 30 October 2006. As stated earlier the declaration was published on 1 November 2006. In the reasons for decision the Commissioner set out the procedural background, dispute, claim, terms of the agreements, submissions of the parties, evidence and then commenced a final section of the reasons headed “Findings and conclusions”. The Commissioner set out that she accepted the evidence of Mr Wilson and then referred to the “legal principles to be applied when interpreting awards”. The correct interpretation of the agreements was then considered and analysed by the Commissioner. The Commissioner set out her reasons for preferring the respondents’ submissions about the interpretation of the agreements. It is not presently necessary to set out the basis upon which the Commissioner reached her conclusion. The declarations made by the Commission were:-
“1 THAT the answer to question 1 is ‘yes’ on the basis of a full-time School Employee being an employee who is required to work 52 weeks per year including four weeks of annual leave entitlements and vacation periods.

2 THAT all part-time School Employees are entitled to a salary based on a pro rata proportion of a full-time School Employee’s salary, that is an employee who works over 52 weeks per year.”

The Grounds of Appeal
11 The grounds of appeal were set out in Schedule A to the notice of appeal. There were four grounds. Ground 1 contained 12 “Particulars” although the appellant obtained leave at the commencement of the appeal to delete “particulars” 1.2, 1.7 and 1.9. The appellant also obtained the leave of the Full Bench to amend ground 4 to delete the word “applies” and replace it with the words “does apply”. Relevantly for present purposes grounds 1 and 3 asserted the Commissioner erred in law in her interpretation of clause 40(7) of the agreements. Ground 2 asserted the Commissioner erred in her use of “custom and practice” in the interpretation of clause 40(7), whilst ground 4 set out what the appellant asserted was the correct interpretation of the clause.

Crewe and Sons Pty Ltd v AMWSU (1989) 69 WAIG 2623
12 The appeal was listed for hearing on 17 April 2007. At the commencement of the hearing the Full Bench brought to the attention of the parties the Full Bench decision of Crewe. It was suggested to the parties, based on Crewe, that the Commission may not have had jurisdiction to interpret the agreements under s44 of the Act given the specific process and jurisdiction contained in s46. It was apparent that neither counsel was in a position to respond to the point and accordingly copies of Crewe were provided and the hearing was stood down whilst counsel considered the issue. Upon resumption both counsel sought the opportunity to make written submissions. This was agreed to by the Full Bench and orders were then made to facilitate this. As a consequence the appellant filed supplementary written submissions on 26 April 2007 and the respondents did so on 10 May 2007.
13 The appellant submitted the Commission was acting within jurisdiction when it heard and determined the application pursuant to s44 of the Act and urged the Full Bench to hear and determine the substantive appeal. The respondents submitted the Commission did not have jurisdiction to hear and determine the matter in accordance with s44 and therefore opposed the Full Bench hearing the substantive appeal.

The Nature of a Jurisdictional Point
14 It is apparent that neither party nor the Commissioner at first instance addressed the present jurisdictional issue. This does not of course mean that it is an issue which the Full Bench can overlook. Issues of jurisdiction are fundamental to the hearing and determination of applications.
15 In SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760 at 1762 the Full Bench confirmed that jurisdiction cannot be waived, given by consent or conferred when non existent. In Murcia and Associates (A Firm) v Grey (2001) 25 WAR 209 Steytler J (with whom Wallwork J agreed) said at [14] that even where no jurisdictional point was taken at first instance this cannot “create jurisdiction”. As his Honour said it is the duty of a judicial officer to satisfy themselves that they have jurisdiction and an appeal court “is obliged itself to take notice of the fact of that absence of jurisdiction”. (See also Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598 at [96]-[97]).

The Relevant Sections of the Act
16 It is appropriate at this stage to set out the relevant sections of the Act.
17 Section 7 of the Act relevantly defines an “industrial matter” as follows:-
““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;
…
(i) 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 …”

18 Section 44 of the Act relevantly provides:-
“44. Compulsory conference
(1) Subject to this section, the Commission constituted by a commissioner may summon any person to attend, at a time and place specified in the summons, at a conference before the Commission.
(2) A summons under this section —
(a) may be given in the prescribed manner; and
(b) when so given shall, in any proceedings under this Act relating thereto, be deemed to have been served on the person to whom it is directed unless that person, in those proceedings, satisfies the commissioner who caused the summons to be given or the Full Bench, as the case may be, that he did not receive the summons.
(3) Any person so summoned shall, except for good cause, proof of which is on him, attend the conference at the time and place specified in the summons and continue his attendance thereat as directed by the Commission.
[(4) repealed]
…
(5a) In endeavouring to resolve any matter by conciliation the Commission shall do all such things as appear to it to be right and proper to assist the parties to a conference under this section to reach an agreement on terms for the resolution of the matter.
(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may — 
(a) direct the parties or any of them to confer with one another or with any other person and without a chairman or with the Registrar or a deputy registrar as chairman;
(b) direct that disclosure of any matter discussed at the conference be limited in such manner as the Commission may specify;
(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission — 
(i) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter;
(ii) enable conciliation or arbitration to resolve the matter in question; or
(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question;
(bb) with respect to industrial matters —
(i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and
(ii) without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;
and
(c) exercise such of the powers of the Commission referred to in section 27(1) as the Commission considers appropriate.
(6a) An order made under subsection (6)(ba) or (bb) — 
(a) binds only the parties to the relevant conference under this section; and
(b) may vary the operation of an existing award or industrial agreement in respect of the parties referred to in paragraph (a).
(7) The Commission may exercise the power conferred on it by subsection (1) — 
(a) on the application of — 
(i) any organisation, association or employer;
(ii) the Minister on behalf of the State; or
(iii) an employee in respect of a dispute relating to his entitlement to long service leave;
or
(b) on the motion of the Commission itself whenever industrial action has occurred or, in the opinion of the Commission, is likely to occur.
…
(9) Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.
…”

19 Section 46 of the Act provides:-
“46. Interpretation of awards and orders
(1) At any time while an award is in force under this Act the Commission may, on the application of any employer, organisation, or association bound by the award — 
(a) declare the true interpretation of the award; and
(b) where that declaration so requires, by order vary any provision of the award for the purpose of remedying any defect therein or of giving fuller effect thereto.
(2) A declaration under this section may be made in the Commission’s reasons for decision but shall be made in the form of an order if, within 7 days of the handing down of the Commission’s reasons for decision, any organisation, association, or employer bound by the award so requests.
(3) Subject to this Act, a declaration made under this section is binding on all courts and all persons with respect to the matter the subject of the declaration.
(4) Section 35 does not apply to or in relation to this section unless an order is made under subsection (1)(b) or under subsection (2).
(5) In this section “award” includes an order, including a General Order, made by the Commission under any provision of this Act other than this section and an industrial agreement.”

An Interpretation was Sought
20 In our opinion it was quite apparent from the application, memorandum, hearing, submissions, reasons for decision and declarations made that the parties sought and the Commission provided an interpretation of the relevant clause of the agreements. Indeed the grounds of appeal asserted error of law in the interpretation of the agreements.

The Reasons in Crewe
21 In our respectful opinion the reasons in Crewe are a little unwieldy. The outcome however is clear enough. With respect to the jurisdiction and powers that may be exercised by the Commission under s44, the Full Bench decided at page 2628:-
“A bald interpretative decision is precluded by the express existence of the power in section 46. However, in our opinion, in the course of a section 44 matter, unless the question is a bald interpretative matter, the Commission is entitled to interpret an award or any other document before it.”

22 The Full Bench held the application before the Commission involved a “bald interpretation” and allowed the appeal on the basis of lack of jurisdiction. This was because the Commission had acted without authority by purporting to declare the true interpretation of an award other than under s46 of the Act. In its reasons, the Full Bench placed some emphasis upon the division between the judicial and arbitral functions of the Commission. Commonwealth authorities were cited where the issue was relevant because the jurisdiction to interpret awards is part of the judicial power of the Commonwealth and therefore may only be exercised by a court created under Chapter III of the Constitution. (See for example Seamen’s Union of Australia v Matthews and Another (1957) 96 CLR 529 at 534 and R v Commonwealth Industrial Court and Another; Ex parte The Australian Coal and Shale Employees’ Federation (1960) 103 CLR 171 at 173 both cited by the Full Bench in Crewe at page 2626). In our respectful opinion however this distinction is of little importance to the Commission given that the confines of Chapter III are not applicable to the exercise of judicial powers by the courts and tribunals of Western Australia with respect to the interpretation of awards made by and agreements registered with the Commission.
23 Additionally however the Full Bench at page 2628 said that “section 46 confers an interpretative power which is separately provided for in the Act from arbitral and conciliatory functions. It is quite clear from the Act that there is intended to be a separate enforcement mechanism in the statute and a separate interpretation mechanism. In addition, on the statutory principles we have mentioned above, these are special powers (see Anthony Hordern and Sons Ltd v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1)”. Before reaching the conclusion earlier quoted the Full Bench said that the “separate powers are conferred on the Commission by section  46 to be used accordingly”.
24 Although there are some factual differences between the present appeal and Crewe, which we will mention shortly, in our opinion if Crewe is to be followed then its application leads to the conclusion that the Commission lacked jurisdiction to hear and determine the application. The order appealed against in Crewe was that the respondent pay to named individuals annual leave loading under a clause of an award of the Commission. The application had been made under s44 of the Act. The present application involved the agreements and did not in its terms seek to enforce compliance by the payment of money or some other order. The latter point was relevant in Crewe because of an alternative submission that the Commission did not have the power to enforce the provisions of the award because of the jurisdiction for this purpose of the Industrial Magistrate’s Court under the Act.

The Appellant’s Submissions
25 The appellant submitted the application made pursuant to s44 of the Act involved an industrial matter as defined in s7 of the Act. In particular reference was made to s7(1)(i)(i) and (ii) of the Act. It was submitted that it had not been in dispute that the issue was an industrial matter. It was submitted that s44(6)(bb) deals with industrial matters. It was also submitted that in the reasons of the Full Bench in Crewe it had been stated at page 2626 that “section 44 prescribes a determinative process and the provisions of section 44 should not be read down”. Whilst we accept this, in our opinion it does not deal with the argument that the specific process under s46 contained the sole jurisdiction for the Commissioner to interpret an industrial agreement. That is the specific power impliedly limited the general power under s44, as a matter of statutory construction, when considering the Act as a whole.
26 The appellant also submitted that s46 of the Act had no application because the industrial matter involved an “industrial agreement”. It was submitted, based upon the definition of “award” in s46(5), an industrial agreement was excluded from the s46 procedure.
27 The structure of the definition contained in s46(5) is inclusive. It includes an order, including a general order made by the Commission under any provision of the Act. The definition then provides for an exception which is “other than this section”. The appellant’s contention is that the exception includes an “industrial agreement”. We do not accept that this is the correct grammatical construction of the definition. The exception is expressed as applying to orders made by the Commission which would otherwise be included in the definition of an award. This is then restricted to an order made under s46. In our opinion the exception does not apply to an industrial agreement, as an industrial agreement is not an order of the Commission. An industrial agreement as defined in s7 of the Act is an agreement which has been registered with the Commission under s41. Although the Commission has a role in the registration of the agreement, and the agreement may be enforced under the Act in the Industrial Magistrate’s Court under s83, an industrial agreement is not the product of an order of the Commission. Accordingly an industrial agreement does not fit within the exception contained in s46(5).
28 In addition to this textual and grammatical analysis of s46(5), We cannot perceive any legislative intent and purpose in excluding “industrial agreements” from the jurisdiction under s46 of the Act. That jurisdiction can be equally useful to parties bound by industrial agreements as to awards of the Commission. The present case illustrates this.
29 The appellant also sought to distinguish Crewe from the present situation. It was first stated that Crewe involved an award and not an industrial agreement. In our opinion this is a point of distinction which does not matter for the present purposes having regard to the definition of an award contained in s46(5).
30 It was also submitted that the memorandum of matters in the present case did not request an order to make payments to members but “whether or not pursuant to Clause 40(7) of the Agreements school employees were entitled to be paid a minimum of 48 weeks per year”. It was submitted that in contrast to Crewe the present application sought to settle a dispute. In our opinion however this is beside the point. What the appellant and the respondents sought from the Commission, in order to try to settle the dispute, was the correct interpretation of the agreements. Section 46 of the Act provides a specific jurisdiction and process for this to occur. This is not to say that the subject of the dispute could not be the subject of an application under s44 or conciliation conferences arranged pursuant to s44. If however the dispute did not resolve and the parties wanted it resolved by the Commission interpreting the agreements, s46 contained the jurisdiction and process for this to occur.
31 The appellant referred to three questions asked by the Full Bench in Crewe at page 2628 which were:-
1. Was the essential nature of the matter an enforcement?
2. Was the essential nature of the matter an interpretation of an award?
3. Was the essential nature of the matter a dispute requiring resolution by conciliation and/or arbitration given that section 44 should not be read down?

32 The appellant submitted that the answer to these questions in the present case should be “no”, “no” and “yes”. In our opinion the first question is not relevant in the present case and is not determinative of whether the Commissioner at first instance had jurisdiction or not. With respect to the second question in our opinion as stated earlier the answer is clearly “yes”. In our opinion if Crewe is to be followed therefore the Commissioner at first instance lacked jurisdiction to hear and determine the application under s44.
33 The appellant also submitted that the declaration made by the Commissioner was not a declaration of right and could not be enforced. In our opinion this submission is not material to the present issue.
34 The appellant also submitted that s83 of the Act was not presently relevant because enforcement had not been sought at this stage. We accept this submission but as stated do not think it determinative of the issue.
35 The appellant then made submissions as to the judicial/arbitral distinction point. It was submitted in effect that the dichotomy between judicial and arbitral powers which is problematic in the Commonwealth sphere is not so within the State. We have referred to this point earlier. The appellant relied upon the observations by the Full Bench in J-Corp Pty Ltd v The Australian Builders’ Labourers’ Federated Union of Workers, Western Australian Branch (1993) 73 WAIG 1185 at 1188 that:-
“Nothing in s.44(9) of the Act says that what it prescribes must be purely an arbitral decision. S.44(9) reads as follows:-
“Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.”

In the absence of the dichotomy between judicial and arbitral powers which exist because of the Constitution in the Federal area, there is no reason why decisions, which are to some extent judicial, cannot be made under s.44, provided that the decision made resolves the question or dispute or disagreement before the Commission. S.44(9) supports that view in words, as does s.44(12).”

36 The appellant also quoted from the reasons of Carr J in BGC Contracting Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2004] FCA 569 at [14] as follows:-
“It is in that latter sense that, in my provisional view, the Commission was arbitrating in the present matter and, in doing so, granted a declaration of right. It seems to me, again on a provisional basis, that the wording of s44(9) is wide enough to confer both arbitral power in the traditional industrial sense and also arbitral power in the judicial sense. As it is a State tribunal, there are no difficulties in that regard. If, as I discussed briefly in my reasons handed down on 20 February 2004, the Commission has been constituted (as I thought it was) as a “court of the State of Western Australia” then it was also invested with federal jurisdiction to decide, inter alia, matters arising under the Federal Act – see s39(2) of the Judiciary Act.”

37 As set out earlier in our opinion the judicial/arbitral distinction was given with respect undue emphasis by the Full Bench in Crewe. Putting that point aside however the jurisdictional problem remains because of the existence of the specific procedure in s46 of the Act.
38 We note that in s44(6)(bb)(i) of the Act the Commission may with respect to industrial matters in a s44 conference “give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act”. We have considered whether this would include the making of an order or declaration which could have been made under s46 of the Act and thereby resolving the otherwise jurisdictional difficulty. In our opinion however the subsection does not have this effect. This subsection applies during the conference stage of a s44 application, not the determination which follows in accordance with a memorandum after the failure to successfully resolve a matter at conference. Therefore s44(6)(b)(i) did not apply to the hearing which was before the Commission following the publication of the memorandum. The terms of the memorandum as stated earlier, also make it quite clear that what was sought was a “bald interpretation”.

Did the Commission Have Jurisdiction?
39 In our opinion the principle which the Full Bench in Crewe relied upon and illustrated and explained by the High Court in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 remains applicable. The High Court recently examined and explained the principle in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370 in the context of whether the power to cancel a visa under s501 of the Migration Act 1958 (Cth) was limited by the existence of ss200 and 201 of the Act which permitted deportation. The court unanimously held the cancellation power was not restricted by the deportation powers. In doing so their Honours considered a submission based upon Anthony Hordern and Sons. All members of the court emphasised that the application of the principle is ultimately a matter of statutory construction. Gleeson CJ, who otherwise agreed with the reasons of Heydon and Crennan JJ, said the two sets of provisions were not “repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations”. ([2]). Gummow and Hayne JJ analysed Anthony Hordern and Sons and a number of subsequent decisions at paragraphs [44]-[61] of their reasons. Their Honours referred to the relevant principle in paragraph [59] of their reasons as follows:-
[59] Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”,54 or are with respect to the same subject-matter,55 or whether the general power encroaches upon the subject-matter exhaustively governed by the special power.56 However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions. (54 Anthony Hordern at CLR 7; ALR 356. 55 The Wool Stores case at CLR 550; ALR 697–8. 56 Leon Fink Holdings at CLR 678; ALR 518; Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corp (No 2) (1980) 29 ALR 333 at 347)

40 Heydon and Crennan JJ at paragraph [165] said that whilst the powers were different with different criteria for their exercise and different consequences when exercised, they were both special powers. Their Honours held the Anthony Hordern and Sons line of authority did not apply because “there is not repugnancy between the two powers. In fact, they are consonant with each other”.
41 It is clear that s46 of the Act outlines a specific jurisdiction and s44 a general jurisdiction. In our opinion the intention of the legislature is that where parties seek the interpretation of an industrial agreement the process provided for in s46 is to be used. If not s46 of the Act would be otiose. Also, the nature of the s46 jurisdiction and consequences of an order under s46 are different from s44. Section 46(1)(b) provides a power to vary the provision of an award for the purpose of remedying any defect therein or of giving fuller effect thereto. No such specific powers are contained within s44 of the Act and the amendment of an award is otherwise dealt with by s40 of the Act. Section 46(3) sets out the broadly binding nature of a declaration under s46. In contrast the orders which may be made by the Commission under s44(9) are “binding only” on “the parties in relation to whom the matter has not been so settled”. In our opinion there are two complementary reasons, based on Crewe and Nystrom, why the Commission did not in this case have jurisdiction to decide the application. The first is that s46 provides for a specific non-restricted power to interpret “awards” including industrial agreements. As a matter of legislative implication therefore, s44 as a general power does not include this jurisdiction. Secondly, and reinforcing the first reason, the s46 jurisdiction involves additional powers and different consequences than a determination under s44 of the Act.

Conclusion and Orders
42 Accordingly as a matter of statutory construction where, as here, parties seek the “bald interpretation” of an industrial agreement, s46 of the Act contains the exclusive jurisdiction of the Commission. In this instance therefore the Commission had no jurisdiction under s44 to determine this “industrial matter”. As a consequence, although the appeal must be allowed, this is only because the decision at first instance must be quashed because of a lack of jurisdiction. It is regrettable that the hearing and determination at first instance has in effect been a wasted process. However the Commission however constituted must observe the jurisdictional limits which the legislature has provided. This is not to say however that the parties could not now seek under s46 of the Act the interpretation of the agreements.
43 For these reasons a minute of proposed orders will issue that:-
1. The appellant have leave to amend the grounds of appeal to delete from ground 1 particulars 1.2, 1.7 and 1.9 and to replace the word “applies” with “does apply” in ground 4.
2. The appeal is allowed.
3. The decision at first instance is quashed.
1