WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THIESS PTY LTD

APPELLANT

-and-

The Automotive, Food, Metals, Engineering, Printing & Kindred Union of Workers - Western Australian Branch

RESPONDENT

PARTIES O'Donnell Griffin Pty Ltd, Total Corrosion Control, Perkins builders, cimeco group pty ltd, ausclad group of companies ltd, thiess kentz, cbi constructors pty ltd, and thiess pty ltd

APPELLANTS

-and-

Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing, and Allied Workers Union of Australia, Engineering and Electrical Division, The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, wa branch, and the construction, forestry, mining and energy union of workers

RESPONDENTS

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Commissioner J H Smith

 Commissioner J L Harrison

HEARD TUESDAY, 13 JUNE 2006

DELIVERED THURSDAY, 6 JULY 2006

FILE NO. FBA 14 OF 2006, FBA 15 OF 2006

CITATION NO. 2006 WAIRC 04715

CatchWords Industrial Law (WA) – Appeal against declarations of Commission sitting as Occupational Safety and Health Tribunal – Jurisdiction of Tribunal to hear and determine applications referred to it – Referrals made by a “party to the dispute” – Meaning of word “party” – Authority of registered organisations to refer disputes to Tribunal – Industrial Relations Act 1979 (WA) (as amended), s7, s27(1)(k), (l), s29(1)(a)(ii), (b)(ii), s31(1), (2), s44(9), s49(2a), (4)(a), (5)(b), (6), s60, s61 – Mines Safety and Inspection Act 1994 (WA), s3(1), s4, s68C(1), (3), s70, s71(2), s72(1)(a), (2), (2a), (2)(b), (3), s74, s74(2), s102, s102(1), (2), (3), (4) – Occupational Safety and Health Act 1984 (WA), s28, s28(2), s51G(1), (2), s51I(1), S51J(2)(b)(i), (ii) – Interpretation Act 1984 (WA), s3(1)(b), s5

Decision Appeals allowed, declarations made by the Occupational Safety and Health Tribunal set aside, and applications to the Occupational Safety and Health Tribunal dismissed

Appearances

Appellants  Mr T Caspersz (of Counsel), by leave

Respondents Mr T Stephenson (of Counsel), by leave, on behalf of the AFMEP&KU, Mr L Edmonds (of Counsel), by leave, on behalf of the CEEEIPPAWU, and Mr G MacLean (of Counsel), by leave, on behalf of the CFMEU

Reasons for Decision

THE ACTING PRESIDENT:

The Institution of the Appeals

1         There are two appeals before the Full Bench.  They were, with the agreement of the parties, heard together.  This is because the appeals are against decisions on applications which were heard together at first instance, have identical grounds of appeal and accordingly raise common issues of law.

2         The applications at first instance were heard and determined by a single Commissioner of the Commission sitting as the Occupational Safety and Health Tribunal (the Tribunal).  The decisions appealed against are declarations made on 3 May 2006 to the effect that the Tribunal had jurisdiction to hear and determine the applications.

3         The jurisdiction of the Tribunal which the applications sought to utilise was that provided by s74 and s102 of the Mines Safety and Inspection Act 1994 (WA) (the MSIA).

4         The applications which were before the Tribunal were “referred” by the respondent organisations purportedly under s74(2) of the MSIA.  Section 102(1) of the MSIA provides, amongst other things, that the section applies where a matter is referred to the Tribunal under s74(2) of the MSIA.  Sections 102(2) - s102(4) of the MSIA in turn provide that:-

“102. Determination of certain matters and appeals by Tribunal

(2) Where this section applies 

(a) the matter, claim or appeal may be heard and determined; and

(b) a determination made by the Tribunal on the matter, claim or appeal has effect, and may be 

(i) appealed against; and

(ii) enforced,

as if it were 

(c) a matter in respect of which jurisdiction is conferred on the Tribunal by Part VIB of the Occupational Safety and Health Act 1984 (Part VIB); or

(d) a determination made for the purposes of Part VIB.

(3) The provisions of 

(a) Part VIB; and

(b) the Industrial Relations Act 1979 applied by that Part,

have effect for the purposes of this section with all necessary changes.

(4) In the operation of subsection (3), section 51J(1) of the of the Occupational Safety and Health Act 1984 has effect as if it were expressed to apply where a matter has been referred to the Tribunal for determination under section 55(6), 55A(4), 56(11), 62(1), 67F or 74(2) of this Act.”

5         By s4 of the MSIA, “Tribunal” has the meaning given by s51G(2) of the Occupational Safety and Health Act 1984 (WA) (as amended) (the OSHA).  Section 51G(1) of the OSHA provides that the Commission has jurisdiction to hear and determine matters referred to it under specified sections of the OSHA.  Section 51G(2) of the OSHA, in turn, provides that when sitting in exercise of the jurisdiction conferred by s51G(1), the Commission is to be known as the Tribunal.

6         As provided for in s102(2)(b), a determination made by the Tribunal may be appealed against as if it were a matter in respect of which jurisdiction is conferred on the Tribunal by Part VIB of the OSHA.  Within Part VIB of the OSHA is s51I(1).  This subsection relevantly provides that the provisions of s49 of the Industrial Relations Act 1979 (WA) (as amended) (the Act) apply to and in relation to the exercise of the jurisdiction conferred upon the Tribunal.  Section 49 of the Act provides for appeals to the Full Bench from decisions of the Commission.  Accordingly, by a combination of s102 of the MSIA, s51I of the OSHA and s49 of the Act, the present appeals may be made to the Full Bench.

Leave to Appeal

7         As stated, the decisions of the Tribunal which are appealed against are declarations to the effect that the Tribunal has jurisdiction to hear and determine the applications before it.  These declarations were made because the present appellants had argued that the Tribunal did not have any such jurisdiction.  The jurisdictional argument was determined as a preliminary point.  The same point was sought to be agitated in these appeals.

8         The appellants accept that the decisions of the Tribunal were “findings” as defined in s7 of the Act.  Accordingly, pursuant to s49(2a) of the Act, an appeal does not lie unless in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.

9         The appellants’ primary argument was that the requirements of s49(2a) of the Act were satisfied because of the nature of the questions sought to be agitated by the appeals.  This was primarily whether the Tribunal had jurisdiction to hear a matter purportedly referred to it under s74(2) of the MSIA by an organisation registered under the Act.  It was pointed out that the Full Bench has not previously considered this issue, which is an important one.  The issue is whether an organisation registered under the Act may be a party to a dispute under s74 of the MSIA and accordingly, is a party who may refer such a dispute to the Tribunal for determination.  Section 28(2) of the OSHA confers jurisdiction upon the Tribunal with respect to worksites within Western Australia other than mine sites, similar to that contained in s74(2) of the MSIA.  Accordingly, the appellants argued that the determination of the issues sought to be argued in the appeals would have wide ramifications.  It was also submitted that the MSIA operates in the context of the important mining industry in Western Australia.

10      Each of the respondents contended that the Full Bench should not form the opinion referred to in s49(2a) of the Act.  Counsel for the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers – Western Australia Branch (the AMWU) made submissions on this issue which were adopted by both Counsel for the Construction, Forestry, Mining and Energy Union of Workers (the CFMEU) and the Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Workers of Australia, Engineering and Electrical Division (the CEPU).  Counsel for the AMWU argued that since the commencement of s28 of the OSHA and s74 of the MSIA in their present form, it has been a regular practice for registered organisations to make referrals under those sections to the Tribunal.

11      It was submitted that, until recently, there has been no challenge by employers to an organisation’s capacity to do so.  It was submitted that, given the appellants seek the Full Bench to decide that the Tribunal has no jurisdiction to deal with any referral under the MSIA made by a registered organisation, a finding to this effect would potentially lead to all previous decisions where this had occurred being liable to be set aside.  In my opinion, whether or not this conclusion would follow is not necessary to determine at the present time.  In my opinion, however, the existence of the regular practice as described by Counsel for the AMWU is a reason in favour of rather than against the hearing of the present appeals by the Full Bench.  This is because it highlights the importance of the issue involved in the proposed appeals.

12      In Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 at [13] – [14], I described the public interest requirement in s49(2a) of the Act in the following way (with the concurrence of Gregor SC and Smith C):-

“13  In RRIA v AMWSU and Others (1989) 69 WAIG 1873, the Full Bench at 1879 said that the words “public interest” in s49(2a) of the Act should not be narrowed to mean “special or extraordinary circumstances”.  As stated by the Full Bench, an application may involve circumstances which are neither special nor extraordinary but which are, because of their very generality, of great importance in the public interest.  The Full Bench, on the same page, went on to say that important questions with likely repercussions in other industries and substantial matters of law affecting jurisdiction can give rise to matters of sufficient importance in the public interest to justify an appeal.  The RRIA decision was cited with approval and applied in the recent Full Bench decision of CSA v Shean (2005) 85 WAIG 2993 at 2995-2997.

14 The forming of the opinion referred to in s49(2a) of the Act involves a value judgment and is clearly a matter which the Full Bench needs to assess on a case by case basis, having regard to the issues which the proposed appeal will give rise to.”

13      In my opinion, the issues raised by the present appeals are of sufficient importance to lead to the conclusion that an appeal should lie under s49(2a) of the Act.  This is because they raise important questions about the nature and extent of the jurisdiction of the Tribunal and the authority of registered organisations to refer a dispute to the Tribunal of the type referred to in s74(2) of the MSIA and s28(2) of the OSHA.

The Applications Before the Tribunal

14      As stated, there were two applications before the Tribunal.  Application OSHT 13 of 2005 was referred to the Tribunal by the AMWU.  Relevantly, it sought “payment for members required to work at the Alcoa Pinjarra Upgrade Site from 28th November to the 1st December 2005”.  The appeal against the decision of the Tribunal that it had jurisdiction to hear and determine the application is appeal FBA 14 of 2006.

15      Application OSHT 1 of 2006 was referred to the Tribunal by the CEPU, the AMWU and the CFMEU.  The application in Schedule B referred to the construction workforce at the Worsley Alumina Refinery.  The application claimed that the workforce was entitled to be paid for regularly scheduled overtime on Monday, 23 January 2006, ordinary hours and regularly scheduled overtime on Tuesday, 24 January 2006 and ordinary hours between 7.00am and 10.00am on Wednesday, 25 January 2006.  The appeal against the decision of the Tribunal that it had jurisdiction to hear and determine this application is appeal FBA 15 of 2006.

The Reasons of the Tribunal

16      The reasons for decision of the Tribunal in deciding that it had jurisdiction to hear and determine both applications were delivered on 24 April 2006.  A single, combined set of reasons was published.  In the reasons for decision, the Tribunal set out the relevant background to both applications OSHT 13 of 2005 and OSHT 1 of 2006.  The reasons for decision set out the way in which the appellants had sought the determination by the Tribunal of the jurisdictional issue which is at the heart of these appeals.  They also set out that the Tribunal decided the jurisdictional challenge should be determined before any consideration of the merits of the applications in accordance with Springdale Comfort v Building Trades Association (1987) 67 WAIG 325.

17      The jurisdictional argument was heard and determined on the basis of the written and oral submissions made by the parties to the Tribunal.  There was no oral or documentary evidence which elaborated upon the background to the disputes which were before the Tribunal nor the involvement of the present respondents in these disputes.  Schedule B to application OSHT 1 of 2006 did however note the involvement of “union officials” in some of the events which led to the dispute involved in that application.

18      The reasons of the Tribunal set out in detail the submissions made by the parties about the jurisdictional issue.  The conclusions of the Tribunal on this issue are set out in paragraphs [27] – [29] of the reasons for decision as follows:-

“27 The Tribunal seeks to address the role and effect of trade union registration pursuant to s60 of the Industrial Relations Act 1979 (“the IR Act”).  Under the terms of that section a registered trade union has the authority, under its own constitutional rules, to act on behalf of the persons who are claiming the entitlement.  In applications OSHT 13 of 2005 and OSHT 1 of 2006 the Tribunal finds that three registered unions, registered under s60 of the IR Act have made applications on the relevant employees’ behalf and, are entitled to do so.

28 Particularly relevant is s 61 of the IR Act:

“61. Effect of registration

Upon and after registration, the organisation and its members for the time being shall be subject to the jurisdiction of the Court and the Commission and to this Act; and, subject to this Act, all its members shall be bound by the rules of the organisation during the continuance of their membership.”

The operation of the rules of each of the respondent unions; the AFMEPKIU, the CEPU and the CFMEU, as registered under s 60 of the IR Act allow for each trade union to represent its members before the Industrial Relations Commission.  Section 51G of the OSHT Act defines the Tribunal as “the Industrial Relations Commission sitting as the Occupational Safety and Health Tribunal”.  Of particular relevance is s 51G(2) and (3):

“(2) When sitting in exercise of the jurisdiction conferred by subsection (1) the Commission is to be known as the Occupational Safety and Health Tribunal (the “Tribunal”).

(3) A determination of the Tribunal on a matter mentioned in subsection (1) has effect according to its substance and an order containing the determination is an instrument to which section 83 of the Industrial Relations Act 1979 applies.”

The Tribunal finds that the trade unions (AFMEPKIU, CEPU and CFMEU) each appear in a representative role on behalf of their members.  Even if an employee the subject of a s 74(2) referral by a trade union was not a member of a trade union, so long as their occupation was covered within the constitutional rules of the trade union bringing the application, then such representation would be permitted under the MSIA and indeed the OSHT Act.  The Tribunal so finds.

29 In representing the claim for entitlements of employees at the Alcoa Pinjarra Upgrade and Worsley Alumina Construction sites, the Tribunal finds the respondent trade unions are parties to the disputes as referred to the Tribunal for determination.  The Tribunal finds, that to the extent that jurisdiction is challenged in OSHT 13 of  2005 and OSHT 1 of 2006, that the Tribunal has jurisdiction. The Tribunal rejects any application for an order to strike out the applications.”

The Grounds of Appeal

19      The grounds of appeal in both appeals are, as stated earlier, identical.  They are as follows:-

“1. The Tribunal erred in law in determining that in representing the claim for entitlements of employees the respondents are parties to the disputes referred to the Tribunal pursuant to section 74(2) of the Mines Safety and Inspection Act 1994 (the MSI Act) when:

(a) even if the respondents were entitled to represent employees, that fact of itself does not make them a party to the dispute within the meaning of that phrase in section 74(2) of the MSI Act.

(b) properly construed, the phrase party to the dispute in section 74(2) of the MSI Act does not include any of the respondents.

2. The Tribunal erred in law in that it failed to properly approach the task of constructing the phrase party to the dispute in section 74(2) of the MSI Act by taking into account or having regard for irrelevant matters, namely:

(a) sections 60 and 6l of the Industrial Relations Act 1979 (the IR Act):

(b) the constitutional rules of the respondents:

(c) the fact that one counsel represented 10 employers:

(d) given the need to expedite applications, 600 separate applications could result in inequities, obvious delays and difficulties in recalling accurately the circumstances surrounding the events that led to the dispute in the first instance.

3. The Tribunal erred in law in that there was no evidence of the matters that it took account of described in grounds 2(b) and 2(d) above.

4. The Tribunal erred in law in that it took into account the matters referred to in grounds 2(a)-(b) above without first giving the appellant any proper opportunity to be heard in respect of such matters.

5. The Tribunal erred in law in finding in effect that the respondents could make applications under section 74(2) of the MSI Act on behalf of unnamed persons who were not their members when, properly construed, neither the IR Act nor the MSI Act permits that.”

The Affidavit of Mr Ellis

20      At the hearing of the appeals, the AMWU sought to tender an affidavit of Mr Dean Ellis sworn on 12 June 2006.  Mr Ellis is a solicitor employed by the AMWU who has the conduct of the present matters on their behalf.  In general terms, the affidavit deposes to Mr Ellis’ knowledge and belief as to the involvement of the AMWU in the disputes which have given rise to OSHT 13 of 2005 and OSHT 1 of 2006.  It does so for the purpose of trying to aid the AMWU in submitting that it is a “party to the dispute” in accordance with s74(2) of the MSIA.  The affidavit also sets out reasons why, if the appellants’ jurisdictional argument is accepted, the AMWU ought to be allowed to intervene in the applications before the Tribunal.

21      The appellants opposed the Full Bench receiving into evidence the affidavit of Mr Ellis.  In doing so, in part, they call in aid s49(4)(a) of the Act.  Relevantly, this provides that an appeal under s49 “shall be heard and determined on the evidence and matters raised in the proceedings before the Commission”.

22      The appellants submit that, although in previous decisions the Full Bench has decided that evidence may be received by the Full Bench, notwithstanding the terms of s49(4)(a) of the Act, the affidavit of Mr Ellis does not meet the relevant tests of admissibility.  In this regard, the appellants referred to the decision of the Full Bench in Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch v George Moss Limited (1990) 70 WAIG 3040.  The Full Bench there decided that, notwithstanding the terms of s49(4)(a) of the Act, it was entitled to receive additional evidence on appeal.  As stated at page 3041, this was fresh evidence “which was not available … at the time of the trial and which reasonable diligence in the preparation of the case could not have made available”.  On the same page, the Full Bench said that to be received, “the evidence must be such that it would have had an important influence on the result of the trial, and it must be credible but not necessarily beyond controversy”.  The George Moss decision has been followed in subsequent decisions of the Full Bench.  (See, for example, Hanssen Pty Ltd v CFMEU (2004) 84 WAIG 694).

23      In my opinion, the affidavit of Mr Ellis does not satisfy the strictures of the test referred to in the George Moss decision. The evidence was readily available to the AMWU at the time of the hearing at first instance and could have been placed before the Tribunal if the AMWU had so wished.  It did not do so and cannot, in my opinion, now attempt to supplement its case by the contents of the affidavit.

24      Accordingly, in my opinion, the affidavit of Mr Ellis ought not to be received into evidence by the Full Bench.

The Statutory Framework

25      I have earlier referred to s102(1) of the MSIA which states that that section applies where, amongst other things, a matter is referred to the Tribunal under s74(2) of the MSIA.  I have also quoted s102(2) which provides that, where the section applies, a matter so referred may be heard and determined by the Tribunal.  Also, as stated earlier, the applications which were referred to the Tribunal were purportedly referred under s74(2) of the MSIA.  This subsection links with ss70, 71 and 72 of the MSIA in the following way.

26      Each of these sections is included in Part 6 of the MSIA which is headed “Resolution of Safety and Health Issues”.  Section 70(1) refers to the way in which an occupational safety or health issue in relation to a mine must be attempted to be resolved.  Section 71 of the MSIA provides that where attempts to resolve an issue in accordance with s70 are unsuccessful “and where there is a risk of imminent and serious injury to or imminent and serious harm to the health of any person, the manager of the mine, any employer or employee involved, or safety and health representative may notify the district inspector for the region in which the mine is situated of the unresolved issue”.  Section 71(2) provides that a district inspector, upon being so notified, must attend without delay at the mine and either take such action under the MSIA as the inspector considers appropriate or determine that no action is required to be taken under the MSIA.

27      Section 72(1) of the MSIA then relevantly provides:

 “Nothing in s71 prevents an employee from refusing to work where that employee has reasonable grounds to believe that to continue to work would expose that employee or any other person to a risk of imminent and serious injury or imminent and serious harm to the health of that employee or other person.”

28      Section 72(1)(a) sets out matters which are relevant to consider in determining whether an employee has reasonable grounds for the belief referred to in s72(1).  Section 72(2) of the MSIA sets out whom an employee must notify when they refuse to work, in accordance with s72(1).  Sections 72(2a) and (2b) refer to procedural aspects of the entitlement of an employee to refuse to work in accordance with s72(1).  Section 72(3) provides that an employee who contravenes s72(2) or (2a) commits an offence.  Section 73 of the MSIA provides that an employee who refuses to work as mentioned in s72(1) may be given reasonable alternative work to do until that employee resumes his or her usual work.

29      Section 74 of the MSIA is central to the present appeals.  Accordingly, it is appropriate to set it out in full:-

“74. Entitlements to continue

(1) An employee who refuses to work as mentioned in section 72(1) is entitled to receive the same pay and other benefits, if any, which that employee would have been entitled to receive if the employee had continued to do his or her usual work.

(1a)  Subsection (1) does not apply if 

(a) the employee leaves the mine without the authorisation of the employer as required under section 72(2a); or

(b) the employee refuses to do reasonable alternative work that the employee is given under section 73.

(2) A dispute arising as to 

(a) whether a person is entitled to pay and other benefits; or

(b) what pay or benefits a person is entitled to receive,

in accordance with subsection (1), may be referred by any party to the dispute to the Tribunal for determination.”

30      In short, the appellants’ main argument on the appeals was that the respondent organisations are not “any party to the dispute” in accordance with s74(2) of the MSIA.  Accordingly, it was submitted that they are not able to refer the disputes covered by the present applications to the Tribunal for determination.  In consequence, it was submitted that the Tribunal has no jurisdiction to determine the applications made to it, the Tribunal was in error in deciding that it did and this error should be corrected by the upholding of the appeals and making an order that the applications be dismissed.

31      The appeals therefore, in large part, turn on the point of construction of whether the respondent organisations are a “party to the dispute” in accordance with s74(2) of the MSIA.

Grounds of Appeal 1-3

32      The issue of statutory construction referred to in the previous paragraph is at the hub of grounds of appeal 1 and 2 and to some extent grounds 3 and 5.  I will now summarise the main submissions of each of the parties.  In the course of the summary I will, in some instances, set out my opinion of the strength or validity of the submissions.  Otherwise, I will address them in an analysis of the issues which will follow.

The Appellant’s Submissions

33      The appellants submitted in effect that s74(2) of the MSIA confers a narrow and specific entitlement upon specified parties.  The entitlement is to refer a dispute of the type described in s74(2) of the MSIA to the Tribunal for determination.  The only party who may make such a referral is a “party to the dispute”.  The appellants submitted that if the referral is not made by such a person, then the Tribunal has no authority or jurisdiction to determine the dispute, because the matter is not properly before it.  In making this submission the appellants also rely on s102 of the MSIA.  As set out earlier, s102(1) provides that the section applies, amongst other things, where under s74(2) a matter is referred to the Tribunal.  Section 102(2) then provides that where the section applies, the matter may be heard and determined as if it were a matter in respect of which jurisdiction was conferred on the Tribunal by Part VIB of the OSHA.

34      The appellants submitted that the ordinary meaning of the word “party” should apply in construing s74(2) of the MSIA.  The appellants argued that a “party” should therefore be construed to mean “someone who is immediately concerned in some transaction or a legal proceeding”.  This definition is from The Macquarie Dictionary.  (No particular edition of The Macquarie Dictionary was cited in the appellants’ written submissions, but the definition quoted is definition number 7 of “party”, in the Macquarie Dictionary, second edition).  The appellants submitted that a party to the relevant dispute is someone who is immediately concerned in it.  It was submitted in effect that only someone whose rights or interests could be directly affected by the dispute could be a party to the dispute within s74(2) of the MSIA.  It was submitted therefore that this would include a putative employee or employer but no other entity such as a registered organisation or union of which the putative employee was a member.  It was submitted that s74(2) referred to a “party to the dispute” rather than simply an employer or employee, to cover for the position of a putative employee or employer.  Accordingly, a putative employer (for example) as a party to the dispute, could refer a claim being made against them under s74 of the MSIA to the Tribunal for determination, even in circumstances where they would argue that they were not the employer of the person who had allegedly refused to work in accordance with s72 of the MSIA.

35      The appellants argued that although a registered organisation could represent an employee in a hearing before the Tribunal pursuant to s74(2) of the MSIA, this did not mean that the organisation was a party to the dispute.  The same followed, it was argued, even if the organisation was involved in representing their members or potential members in the events which led to a dispute arising in the terms described in s74(2) of the MSIA.  The appellants argued that a solicitor may also be involved in representing employees in any dispute as to whether they were entitled to the relevant pay or other benefits, but this did not mean that the solicitor was a party to the dispute within the terms of s74(2) of the MSIA.

36      The appellants also argued that the Tribunal was in error in deciding that because the respondent organisations were entitled to represent employees this made them a party to the dispute within s74(2) of the MSIA.  The appellants also submitted that the Tribunal erred in relying on s60 and s61 of the Act to reach the conclusions it did.  It was submitted that s60 simply confers corporate status to an organisation upon registration.  It was submitted that s61 makes a registered organisation and its members subject to the jurisdiction of the Industrial Appeal Court and the Commission and binds members of organisations to its rules, for so long as they are members.  It was submitted that the rules of the respondent organisations did not operate to confer upon them the status of being a party to the dispute described in s74 of the MSIA.  It was submitted that even under the Act, more is needed than s60 or s61, or the rules of the organisation, for an organisation to have standing to refer a matter to the Commission, in its general jurisdiction.  Reference was made to s29(1)(a)(ii) of the Act.  This provides an organisation with an entitlement to refer an industrial matter to the Commission when persons to whom the industrial matter relates are eligible to be enrolled as members of the organisation.

37      The appellants also relied on the contents of s68C(3) of the MSIA to support their contentions.  Sections 68A-68D of the MSIA are about discrimination against safety and health representatives in relation to employment.  Section 68C(1) provides that a person may refer to the Tribunal claims that their employer, prospective employer or relevantly described contractor, has caused disadvantage to them in contravention of s68A or s68B and request the Tribunal to make one or more of the orders provided for by s68D of the MSIA.  Section 68C(3) then provides that a “referral under subsection (1) may also be made on a person’s behalf by an agent or legal practitioner referred to in section 31” of the Act.  The appellants submitted that this section is a “powerful indicator that Parliament’s intention was that, even as concerns the ability to refer something on behalf of a person, unless an express provision exists in the MSIA permitting that, then the person in question must refer the matter in their own name”.  I do not accept this submission as s68C and s68D are in different terms to s74(2) of the MSIA.  If an organisation can be a “party to the dispute” in s74(2) then they are a “person in question”, to use the expression just quoted from the appellants’ written submissions.

38      Overall the appellants submit that there is nothing within the MSIA which supports the contention that the respondent organisations can refer a dispute to the Tribunal under s74(2) of the MSIA as they have done.

The Submissions of the AMWU

39      The AMWU submitted there was no warrant within the MSIA to “read down” the expression “any party to the dispute” in the way contended for by the appellants.  The AMWU submitted that the referral entitlement in s74(2) of the MSIA needed to be considered by reference to not only the contents of the MSIA but also the OSHA and the Act.  It was argued the Act acknowledged that organisations could be parties to disputes before the Commission.  It was submitted that there was nothing in the MSIA which clearly excluded organisations from referring disputes to the Tribunal.  It was submitted that in the absence of something clear in this regard, the overall legislative intention was to allow this to occur.

40      The AMWU submitted that the position of an organisation may be distinguished from that of a solicitor who represents a client in seeking to obtain the entitlement described in s74 of the MSIA.  The distinction was, so it was submitted, that an organisation and their members have coincident interests, whereas the interests of the solicitor and the client are not.  It was argued in effect that the solicitor has a purely representative status as opposed to the greater involvement of, and benefit for, the organisation in any relevant dispute.

41      The AMWU also argued, by reference to the definition of “person” in s5 of the Interpretation Act 1984 (WA), a “person” in s74(2) of the MSIA could include an organisation as an incorporated entity.  It was then argued that if an organisation may be the “person” referred to in s74(2) then they can be a “party” to the relevant dispute.  In my opinion this argument is clearly untenable.  The reference to a person in s74 is a reference to an employee who refuses to work as mentioned in s72(1) of the MSIA.  This is a reference to a natural person.  It is a situation where, as contemplated by s3(1)(b) of the Interpretation Act, there is something in the context of the MSIA which is inconsistent with the application of the extended definition of a person as contained in s5 of the Interpretation Act.

42      The AMWU also referred to the objects of the MSIA as contained in s3 of the MSIA.  The object referred to in s3(1)(a) is to promote, and secure the safety and health of persons engaged in mining operations.  The AMWU asserted that this object will be promoted if an organisation, as well as an individual employee, is able to refer a matter to the Tribunal under s74 of the MSIA.  Attention was also drawn by the AMWU to the object referred to in s3(1)(d) of the MSIA which is to foster and facilitate cooperation and consultation between employers and employees, and associations representing employers and employees, and to provide for the participation of those persons and associations in the formulation and implementation of safety and health standards and optimum working practices.  Again it was argued that this object will be enhanced by a construction of s74(2) that allows an organisation to refer a dispute to the Tribunal.

43      The AMWU also cited the decision of the Full Bench in Transfield Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) and Others (1990) 70 WAIG 3023, in support of their arguments.  In this matter the Full Bench observed at page 3029 that a union may be a party to a dispute under s28 of the then titled Occupational Health, Safety and Welfare Act 1984.  It was acknowledged by the AMWU however that the legislative provisions of the Occupational Health, Safety and Welfare Act 1984 and its interaction with the Act were somewhat different to the relevant sections of the Act, the OSHA, and the MSIA as they presently stand.  Additionally, the observation made by the Full Bench was not attended with any discussion of the issue at hand.  The decision of the Full Bench in Transfield did not purport to decide the jurisdictional issue now before the Full Bench.  For these reasons, in my opinion, the Transfield decision is of no real assistance to the present appeals.

44      The AMWU also drew attention to the potential inconvenience of the appellants’ arguments being accepted.  It was submitted that in a case such as this, where there may be a dispute about payments being made to a large number of workers, it would be highly inconvenient for each of those people to have to file an individual application in their own name with the Tribunal.

The Submissions of the CFMEU

45      The CFMEU supported the submissions made by the AMWU and made additional written and oral submissions.  The CFMEU submitted that implicit in the structure of s74 of the MSIA is the proposition that a person who is entitled to pay and other benefits is not the same entity as a party to the dispute.  It was submitted that “a party” has a broader meaning.  It was submitted that if no distinction was intended between a person entitled and a party then the same term would have been used to describe both.  This submission can be readily countered however by understanding that both a putative employee and employer may refer the dispute to the Tribunal; it is not simply the person who is arguably entitled to the pay and other benefits.

46      It was also submitted by the CFMEU that s74 of the MSIA is identical to s28 of the OSHA.  It was submitted that by using identical terms, Parliament intended that it have identical operation.  It was also submitted that when s74 of the MSIA was enacted it was common practice for unions to be parties to disputes under s28 of the OSHA.  It was submitted it was reasonable to assume Parliament was aware of this practice.  It was submitted that if Parliament intended a “party” to have a narrower meaning than the practice referred to, it could have specifically provided for this at the time of drafting.  Whilst mentioning this argument I should note that both the appellants and some of the respondents referred the Full Bench to the explanatory memoranda and second reading speeches of the Minister when the relevant provisions of the MSIA and OSHA were introduced into Parliament.  There is nothing within the explanatory memoranda or second reading speeches which refers to this regular practice or otherwise throws any light upon the meaning of the expression “party to the dispute”, in s74(2) of the MSIA.

47      The CFMEU also argued that whether or not an employee was entitled to be paid despite their refusal to work depended, in accordance with s72(1) of the MSIA, on whether the “employee has reasonable grounds to believe that to continue to work would expose that employee or any other person to a risk of imminent and serious injury or imminent and serious harm to the health of that employee or other person”.  It was submitted that this involved an objective question which was “premised on whether reasonable grounds exist to believe that a continuation of work will lead to a risk of harm.  The test is not concerned with the subjective state of mind of each employee but rather on the objective existence of reasonable grounds to found the belief”.  This submission was supported by reference to the reasons for decision of Commissioner Mayman in The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch and Others v CBI Constructors and Others [2005] WAIRC at [7].  In that paragraph, Commissioner Mayman said that the test “is not whether the employee in question believes that it is unsafe to work, but whether he or she has reasonable grounds to believe that to continue to work would expose themselves or other persons to a risk of imminent and serious injury or imminent and serious harm to their health”.  The CFMEU therefore submitted that it was appropriate in cases involving large numbers of employee claimants for a representative union body to lead evidence from selected employees and other witnesses to establish whether reasonable grounds objectively exist to found a belief that to continue to work could involve a risk of imminent and serious injury/harm.  It was submitted that it is not necessary for each individual employee to establish that they had a subjective belief.  It was submitted that the focus being on objective rather than subjective beliefs was consistent with an ability to bring “union type collective claims” rather than an insistence on an individual employee being a party to a dispute over entitlements.  It was submitted that this also had a pragmatic advantage in that the question of entitlement to pay and other benefits could be determined once and for all in a single application rather than by multiple applications which could number into the hundreds in a particular case.

48      Although it is probably not necessary to finally determine this issue in these appeals, I doubt whether the contention is correct that the subjective beliefs of an individual employee are irrelevant for the purposes of s72(1) of the MSIA.  I state this with respect to the views expressed by Mayman C in the CBI Constructors case.  It seems to me that s72(1) directs attention to both the subjective beliefs of an individual employee and an objective analysis of those beliefs.  This is because the section seems to require the employee to have a belief.  Furthermore, that belief must be based on “reasonable grounds”.  In other words, there needs to be a belief actually held by the employee and one which is based on reasonable grounds.  Accordingly, absent some concession being made by a respondent, it would seem that in the determination of a dispute under s74(2) of the MSIA it would be necessary for an individual employee to attest to their belief and the reason for that belief.  In addition, it would be necessary for the applicant to provide evidence establishing the reasonable grounds for the employee’s belief.  This would need to be assessed by the Tribunal together with those factors specifically listed in s72(1)(a) of the MSIA, to determine whether “reasonable grounds” existed.

49      The CFMEU also submitted that a collection of employees speaking through a representative body of their organisation can just as accurately be described as a party to a dispute involving its members, as can an individual employee.

50      In support of this submission, the CFMEU referred to CFMEU v Clarke [2006] FCA 245.  There, Nicholson J at [61] stated, for the purpose of an alleged contravention of s170MN of the Workplace Relations Act 1996 (Cth), that a union was not a “separate juristic entity” from its members.  In that paragraph and by reference to the rules of the union before the Court, his Honour said, “the Union consists of the Employees.  The Union comprises every part of the Union.  There is no constitutional concept of the Union on the one hand and the Employees on the other hand… The consequence is that if the Employees make a decision to go on strike, the Union is on strike.”  The CFMEU, in these appeals, therefore argued in effect that if an organisation’s member was, together with the organisation, involved in a dispute about payments due under s74(1) of the MSIA, that organisation was a party to the dispute.

51      The CFMEU also referred to and provided copies of collective agreements which the CMFEU is a party to which governs the employment relationship of its members at the sites which are involved in the present disputes.  These agreements were also before the Tribunal but were not included in the Appeal Books.  The agreements are between the CFMEU, the relevant employer groups and the employees.  It was submitted that the agreements provide for an obligation to pay wages at a particular level and also provide for a dispute resolution procedure.  The CFMEU submitted that by entering into the agreements the CFMEU becomes a party to the agreement creating the obligation to pay wages.  It was also noted that it is the obligation to pay wages that is currently in dispute.  It was therefore argued that a union which is a party to an agreement creating obligations to pay wages must be a party to any dispute concerning this obligation.  It was submitted that, as the agreements created an obligation to pay wages and the CFMEU was a party to the agreements, then the CFMEU thereby had standing to enforce the obligation.

The Submissions of the CEPU

52      The CEPU did not file any written submissions.  In a brief oral submission, counsel for the CEPU simply adopted the written and oral submissions made by the AMWU and the CFMEU.

Analysis

53      The determination of these grounds of the appeals involves the construction of the expression “any party to the dispute” in s74(2) of the MSIA.

54      In Wilson v Anderson (2002) 213 CLR 401, Gleeson CJ said at [8]:-

 “In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of parliament.  Courts commonly refer to the “intention of the legislature”.  This has been described as a “very slippery phrase”, (Salomon v Salomon & Co Ltd [1897] AC 22 at 38, per Lord Watson) but it reflects the constitutional relationship between the legislature and the judiciary… Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will.”

55      In Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 at [113], Kirby J reiterated that it is necessary when engaging in the exercise of statutory construction to focus attention “upon the crucial language of the relevant provisions before other aids to construction are considered”.

56      In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ at [69] quoted from the reasons of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320, the effect that the meaning of a statutory provision must be determined “by reference to the language of the instrument viewed as a whole”.

57      Although the focus must be on the meaning of the language used in the statute, s18 of the Interpretation Act, requires that in “the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object”.  As stated however by the Full Federal Court in R v L (1994) 122 ALR 464 at 468/9, the command contained in provisions like s18 of the Interpretation Act “can have meaning only where two constructions are otherwise open”, and the section “is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”.

58      I will first consider the context of s74(2) in the MSIA.  The preamble to the MSIA states that it is an Act “to consolidate and amend the law relating to the safety of mines and mining operations and the inspection and regulation of mines, mining operations and plant and substances supplied to or used at mines; to promote and improve the safety and health of persons at mines and for connected purposes”.  Reference has already been made to some of the objects of the MSIA as set out in s3(1).  I note that the objects of the MSIA do not make reference to registered organisations taking legal proceedings on behalf of members such as under s74(2) of the MSIA.  As set out earlier, there is reference in the object described in s3(1)(d) to “associations representing employers and employees”.  This is for a limited purpose however, being to “foster and facilitate cooperation and consultation” and “to provide for the participation of those persons and associations in the formulation and implementation of safety and health standards and optimum working practices”.  In my opinion, this object does not greatly assist with the present issue of statutory construction.  It is largely given effect to in Part 5 of the MSIA which deals with safety and health representatives and committees.  In my opinion, the expressed objects of the MSIA do not further the contentions of either the appellants or the respondents as to the preferable construction of s74(2).

59      There are no other sections of the MSIA which use the expression “a party to the dispute” as being the descriptor for those who may refer a matter to the Tribunal.  This expression is not, for example, found in s31BA, s55(6), s55A(4), s56(11), s59(1), s62(1), or s67F(1), (2) or (3), whereby a matter may be also referred to the Tribunal.  Within these sections, the parties who may refer a matter to the Tribunal are more specifically described.  There is specification of referral by, for example, the State mining engineer (eg s31BA), an employer, mine manager or “relevant employee” (s59), or with respect to s67F, the “relevant parties” as defined in s67E(1) of the MSIA.

60      It is also relevant to consider those sections of the Act which are specified to apply to the jurisdiction of the Tribunal to see whether this assists in the construction of s74(2) of the MSIA.  Reference has already been made to s51I(1) of the OSHA which applies to a referral to the Tribunal under s74(2) of the MSIA.  S51I of the OSHA in full provides as follows:-

51I. Practice, procedure and appeals

(1) The provisions of sections 22B, 26(1), (2) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 33, 34(1), (3) and (4), 36 and 49 of the Industrial Relations Act 1979 that apply to and in relation to the exercise of the jurisdiction of the Commission constituted by a Commissioner apply to the exercise of the jurisdiction conferred by section 51G 

(a) with such modifications as are prescribed under section 113 of that Act; and

(b) with such other modifications as may be necessary or appropriate.

(2) For the purposes of subsection (1), section 31(1) of the Industrial Relations Act 1979 applies as if paragraph (c) were deleted and the following paragraph were inserted instead 

“(c) by a legal practitioner”.

61      There have been no modifications prescribed under s113 of the Act as referred to in s51I(1)(a) of the OSHA.  I have considered each of the sections of the Act listed in s51I(1) of the OSHA.  In my opinion none of these sections assist in the construction of s74(2) of the MSIA.  There was some discussion during the hearing of the appeals as to the relevance of s31(2) of the Act to a hearing before the Tribunal, if the appellants’ contention was correct and a registered organisation could not be a party to the dispute referred to in s74(2) of the MSIA.  I accept however the submission of the appellants on this issue as follows.  Section 31(2) of the Act refers to the appearance of, amongst other things, an organisation.  Further, s31(1) of the Act refers to the appearance of a party to proceedings or any other person or body permitted by or under the Act to intervene or be heard in proceedings before the Commission.  It was submitted that an organisation, although not a party to the dispute, may be permitted to intervene in a matter referred to the Tribunal under s74(2) of the MSIA, in accordance with s27(1)(k) of the Act.  Accordingly, the fact that s31(2) of the Act is applicable to the jurisdiction of the Tribunal is a neutral factor rather than a pointer to an organisation being a party to a dispute under s74(2) of the MSIA.

62      It is notable that s51I of the OSHA does not list s29 of the Act.  Section 29 of the Act sets out those parties who may refer an industrial matter to the Commission.  The exclusion of s29 from those sections listed in s51I of the OSHA is no doubt because the sections of the OSHA and MSIA which confer jurisdiction on the Tribunal specify the parties who may refer a matter to the Tribunal.  I also note that the wording used in s74(2) of the MSIA is different to s83(1) of the Act which allows certain parties to apply to the Industrial Magistrates Court for the enforcement of the provision of an instrument (including an award).  The list of those parties referred to in s83(1) of the Act includes in the case of an award or an industrial agreement, any organisation or association named as a party to it and also any person on his or her own behalf who is a party to the instrument or to whom it applies.

63      Section 51J of the OSHA provides the Tribunal with the power to assist the parties to reach agreement by conciliation.  Section 51J(2)(b)(i) of the OSHA provides that, for the purposes of conciliation, the Tribunal may, amongst other things, arrange conferences of the parties or their representatives presided over by the Tribunal.  Alternatively, the Tribunal may arrange for the parties or their representatives to confer amongst themselves at a conference at which the Tribunal is not present (s51J(2)(b)(ii)).  It could be argued, where there are multiple employees in factually similar matters under s74(2) of the MSIA, that conciliation would more likely resolve the dispute when attended on behalf of the employees by their union (if any) rather than the employees individually.  Whilst this may be so, I do not think this provides a guide to the meaning of “party to the dispute” in s74(2) of the MSIA.  This is because an individual employee, or a number of such employees, may nevertheless be represented by a registered organisation as their agent, even if that organisation is not considered to be a party to the dispute under s74(2) of the MSIA.  This may occur under s31(1) of the Act, in combination with s51I of the OSHA and s102 of the MSIA.

64      In my opinion, neither s60 or s61 of the Act nor the constitutional rules of the respondent organisations leads to the conclusion that those organisations are a party to the dispute in terms of s74(2) of the MSIA, as held by the Tribunal.  In my opinion, and with respect, s60 of the Act does not provide an organisation with the authority to act for parties in proceedings before the Tribunal or Commission.  In my opinion, s60(1) simply provides for the incorporation of an organisation upon registration in the terms there specified.  Section 60(2) of the Act provides that such an organisation “may sue and be sued and may purchase, take on lease, hold, sell, lease, mortgage, exchange, and otherwise own, possess, and deal with any real or personal property”.  In my opinion this section confirms, at least for the purposes of the Commission, that registered organisations have a separate legal personality from their members.  (cf CFMEU v Clarke, referred to above.)  Accordingly, registered organisations and their members are not, in effect, one and the same thing, as suggested in at least some of the submissions made by the respondents.  As a separate legal entity, an organisation may represent its members but it is not the same legal entity as those members.

65      Section 61 of the Act provides that, upon registration, an organisation and its members are subject to the jurisdiction of the Industrial Appeal Court and the Commission.  The section does not provide an organisation with the jurisdiction to bring or refer an application to the Commission or Tribunal.  The authority for the taking of such a step must be found in other sections of the Act such as s29.  In my opinion, the Tribunal was correct to say that the respondent organisations represented their members, but this does not lead to a conclusion that they are thereby a party to the disputes.  In my opinion, there is a conceptual difference between being a party to a dispute and being a representative of a party or parties to such a dispute.  Further, I do not accept the suggested distinction, relied upon by the AMWU, between a solicitor representing a client and union representing a member. (See [40] above).  The union and the member may have coincident interests but this does not mean that the union is not separate from and representing the interests of its members, in disputes as to MSIA s74(2) entitlements, as opposed to being a party to the dispute.

66      Overall therefore, I do not think the context of the MSIA, the OSHA or the Act provide much assistance in the resolution of the present point of construction.  (I have already referred to the appellants’ argument about s68C of the MSIA.)

67      In my opinion, the purpose of s74(2) of the MSIA is to provide a mechanism for the resolution of a dispute of the type there described.  That dispute is, in summary, as to whether and/or what pay or other benefits a person is entitled to under s74(1) of the MSIA.  The mechanism of dispute resolution may only be invoked by those who are a “party to the dispute”.

68      In some instances the word “party” may mean “one who participates in some action or affair” (The Macquarie Dictionary, 2nd edition, definition of “party”, number 9).  If so, the word “party” in s74(2) of the MSIA would be apt to include a union whose organiser or official was involved in a dispute on behalf of members.  It may also then include a solicitor who was representing a client in relation to a claim for payments under s74 of the MSIA.  In my opinion, however, for the reasons that follow, this is not the preferred meaning to be given to the word “party” in s74(2).  The preferred meaning is that submitted by the appellants, being the parties “immediately concerned” in the dispute.  In my opinion, a person/company is a party to the dispute by being “immediately concerned” if their rights and interests can be directly affected by the dispute.  Accordingly, it is only the putative employee and employer who may be a party to the dispute under s74(2) of the MSIA.  In my opinion, this construction best fits the text and context of s74(2) of the MSIA.  The use of the word “party” in s74(2) should in my opinion be considered against the background that, in legal proceedings, a party is ordinarily somebody who has a direct interest in the outcome.  In this instance this means, as stated, a putative employee or employer, but not an organisation representing the interests of members or potential members in the dispute.  The preferred construction I have referred to assists the purpose of s74(2) as it provides that the parties, and only those parties, who are directly affected by the dispute may invoke the mechanism provided to resolve it.

69      It is appropriate to consider the consequences of the possible constructions of s74(2) of the MSIA, for the purpose of determining its proper meaning.  (See, for example, Statutory Interpretation in Australia, DC Pearce and RS Geddes, 5th edition at [2.32] ff.)  In this matter, a consequence of the preferred construction I have referred to is that, in cases where a number of employees are in dispute as to s74(1) entitlements, it may be that it will be necessary for individual employees to refer matters to the Tribunal, rather than any organisation to which they are members making a composite referral on their behalf.  The latter may have the advantage of reducing the number of individual applications which would need to be made and, to that extent, assist the administration of the applications by the Tribunal.  In my opinion, however, this issue of inconvenience is not of sufficient magnitude so as to lead to a construction of the relevant section other than that which I think is the correct meaning of the language as stated above.  Additionally, the administrative burden which may be placed on the Tribunal by the necessity for a multiplicity of applications may be lessened by a consolidation of the matters pursuant to s27(1)(s) of the Act.  Alternatively, it may be possible for a single employee to refer the matter to the Tribunal with any other employees involved in the same dispute being joined as parties pursuant to s27(1)(j) of the Act.

70      The construction of s74(2) of the MSIA in the manner that I have suggested does not lead, as argued by the AMWU, to an exclusion of organisations or unions from participation in the hearing and determination of a dispute by the Tribunal under s74(2) of the MSIA.  As stated earlier, they may participate if leave is granted to intervene or as the agent representative of a member.  They may on the same basis participate in any conciliation of the dispute.

71      I have also considered whether there was any significance in the use of the singular, “a person”, in s74(2) of the MSIA.  I considered whether the use of the singular meant that an organisation could not refer a dispute about multiple employees to the Tribunal as it was not a dispute about the entitlements of “a person”.  I note however that s10(c) of the Interpretation Act provides that in a written law “words in the singular number include the plural”.  Accordingly, I do not think the use of the singular word “person” has any relevance to the construction of s74(2).

72      In [46] above I have referred to the “common practice” argument of the CFMEU.  In my opinion, the materials provided (the explanatory memoranda and second reading speeches of the Minister) are not sufficient for me to be satisfied that, in enacting s74 of the MSIA in the terms in which it did, the Parliament was aware of the “common practice” and intended to preserve that common practice by the use of the expression “party to the dispute” in s74(2) of the MSIA.  The submission of the CFMEU is clearly distinguishable from an argument that the re-enactment of a provision after judicial consideration of its meaning gives rise to the inference that Parliament intended such a meaning to be continued to be applied by the courts.  (See Pearce and Geddes at [3.39] ff.)

73      In [51] above, I have referred to the submissions of the CFMEU based on that organisation being a party to collective agreements which governed the employment relationship of its members at the sites which are involved in the present disputes.  In my opinion, the CFMEU being a party to these agreements does not mean it is a party to the dispute about pay and entitlements owed to their members or potential members within s74(2) of the MSIA.  In my opinion, the two things are conceptually different.  The entitlements which are in dispute in the present appeals are entitlements under s74 of the MSIA.  Although the quantification of those entitlements may be determined by reference to the collective agreements referred to, it is not those agreements which provide for the entitlement.  The CFMEU (or other respondent organisations) being a party to the collective agreements does not, in my opinion, of itself make it a party to any dispute about entitlements under s74 of the MSIA.

74      As stated therefore, in my opinion, the respondent organisations were not “any party to the dispute” under s74(2) of the MSIA.  Accordingly, the respondent organisations did not have the authority to refer the matters to the Tribunal under s74(2) of the MSIA.  It follows that I would uphold grounds 1 and 2 of the appeals.

75      As a consequence, ground 3 does not need to be separately considered.  I accept that there was no evidence of the constitutional rules of the respondents before the Tribunal.  Accordingly, pursuant to s26(3) of the Act, the Tribunal should not have taken into account the content of those rules without first giving the parties the opportunity to make submissions about them.

Ground of Appeal 4

76      Given my conclusions on grounds 1 and 2, this ground does not require separate consideration.  However, to the extent that this ground refers to the taking into account by the Tribunal of the constitutional rules of the respondents, I have referred to this aspect in the previous paragraph.  In this instance, it is not necessary to consider the consequences of such an action having occurred given that I have accepted the submissions of the appellants that the Tribunal otherwise erred in its construction of s74(2) of the MSIA.

77      Ground 4 also refers to the Tribunal taking into account s60 and s61 of the Act without giving the parties any proper opportunity to be heard.  In my opinion, at least in this instance, it was not necessary for the Tribunal to request submissions about s60 and s61 of the Act before taking them into account in its reasons for decision.  The parties were aware that the issues before the Tribunal involved the construction of and/or combined effect of sections of the MSIA, the OSHA and the Act.  It was not a breach of procedural fairness, in my opinion, for the Tribunal to take into account sections of the Act which were not specifically referred to in the submissions of the parties or discussions with them by the Tribunal at the hearing.  In my opinion, this was not required by s26(3) of the Act or the common law rules of procedural fairness.  The parties had the opportunity to make submissions on those sections of the Act they thought to be relevant or irrelevant to the jurisdictional issue.

Ground of Appeal 5

78      This ground is stated in terms of the Tribunal erring in finding that the respondents could make applications under s74(2) of the MSIA on behalf of unnamed persons who were not their members.  Further consideration of this ground does not need to occur as I have found that the respondents could not, in any event, refer the matters to the Tribunal under s74(2) of the MSIA.  It is also relevant to note however that neither of the applications were framed in terms of s72(1) and s74(1) of the MSIA.  For example, the applications did not set out that particular employees had the relevant belief and the reasonable grounds for the belief.  Ordinarily however I envisage that such deficiencies could be cured by the provision of particulars.

Disposition of Appeals and Appropriate Orders

79      As set out above, I have accepted the primary submission of the appellants that the respondent organisations did not have the authority under s74(2) of the MSIA to refer the disputes to the Tribunal for hearing and determination.  The consequences of accepting this submission remain to be considered.

80      During the hearing of the appeals there was some discussion as to whether the applications could be amended to replace the organisations named as the applicants with an employee who is a “party to the dispute” under s74(2) of the MSIA.  The Tribunal possesses a power of amendment under s27(1)(l) of the Act.  The powers of the Tribunal contained in s27(1) of the Act are available, as stated in that subsection, “in relation to any matter before it”.  It was submitted by the appellants however that the Tribunal could not exercise the powers set out in s27(1) of the Act in relation to a matter in which the Tribunal did not have jurisdiction.  It was also submitted that, given the respondent organisations did not have the authority under s74(2) of the MSIA to refer the matters to the Tribunal, it lacked jurisdiction to hear and determine them and consequently exercise the powers under s27(1) of the Act.

81      At least with respect to the power of amendment I have referred to, I accept the appellants’ submission that this may only be exercised in relation to a matter before the Tribunal, in the sense that the Tribunal is possessed of jurisdiction in the matter.  I also accept the submission that the Tribunal did not have jurisdiction in relation to the matters because they were not referred to the Tribunal by a party having the legal authority to do so.

82      This conclusion is supported by the decision in The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch v Monadelphous Group of Companies (2000) 80 WAIG 611.  There, the applicant union purported to bring a matter before the Commission pursuant to s44(9) of the Act in respect of a “member”, Mr Wilson.  The applicant union sought an order that Mr Wilson be employed by the respondent, alternatively that he receive compensation for loss, or alternatively again that he had been denied a benefit under his contract of service which was a three month fixed term contract of service with the respondent.  The respondent raised as a preliminary point the competence of the applicant union to bring the application before the Commission.  The submission was that the applicant union did not have the constitutional capacity to enrol Mr Wilson as a member and therefore under the terms of s29(1)(a)(ii) of the Act, when read with s44 of the Act, “the application was incompetent” (page 611).  At page 613, Kenner C concluded that, on the evidence, Mr Wilson was not eligible to be enrolled as a member of the applicant union when the “present industrial matter was before the Commission”.  Kenner C stated therefore that the applicant union did not have “standing to bring the matter to the Commission”.  Kenner C concluded at page 613 that he upheld the respondent’s submission; he did so as a matter of fact and law.  In doing so, Kenner C said his conclusions did not preclude Mr Wilson from bringing an application to the Commission pursuant to s29(1)(b)(ii) of the Act in respect of an alleged denied contractual benefit.  The result was that the application brought by the applicant union was dismissed.  Although not stated precisely in these terms, it is clear that Kenner C thought the Commission lacked the jurisdiction to hear and determine an application referred to it by a party who had no legal authority to do so.  Further, there was no suggestion in the reasons of Kenner C that the application could be validly amended so as to be brought by Mr Wilson with respect to the alleged denied contractual benefit claim.  In my opinion, with respect, the reasoning of Kenner C is correct and ought to be followed in these appeals.

83      This conclusion is also supported by reference to s102(1) and (2) of the MSIA.  These sections relevantly give the tribunal the jurisdiction to hear and determine a matter where, “under” s74(2), it is referred to the Tribunal.  The present applications were not, in my opinion as stated above, referred to the Tribunal “under” s74(2) because they were not referred to the Tribunal by a “party” to the disputes.  The structure of s102 is such that if a matter is not referred to the Tribunal “under s74(2)”, as here, then the Tribunal does not possess the jurisdiction to hear and determine the matter.

84      There was also some discussion during the hearing of the appeals as to whether s28 of the Act had any relevant application.  This provides, relevantly, that the powers conferred on the Tribunal “may be exercised in relation to a matter at any time after the matter has been lodged in the [Tribunal] notwithstanding that the procedures prescribed under this Act have not at that time been complied with to the extent necessary to enable the matter to be heard and determined by the [Tribunal]”.  By virtue of s102 of the MSIA and s51I of the OSHA, s28 of the Act would apply to any procedures prescribed under not only the Act but also the MSIA and the OSHA, relevant to referrals to the Tribunal under s74(2) of the MSIA.  In my opinion however the contents of s28 of the Act do not assist the applications which were purportedly before the Tribunal.  This is because “prescribed” in s28 of the Act is relevantly defined in s5 of the Interpretation Act to mean “prescribed by or under the written law in which the word occurs”.  The fact that a party not authorised by s74(2) of the MSIA has attempted to refer these applications to the Tribunal cannot be characterised as a non-compliance with a procedure prescribed under the Act, the MSIA or the OSHA.  It is a matter of substance or legal authority rather than procedure.  In my opinion, a matter of a lack of legal authority to refer the applications to the Tribunal is not curable by the powers provided in s27 and supplemented by s28 of the Act.

85      The AMWU also made a submission that, if the Full Bench did not accept its submissions on the point of construction, it should make an order that the AMWU be made an intervener to the applications; presumably in reliance upon the power provided to the Commission under s27(1)(k), s49(5)(b) and s49(6) of the Act.  I am not satisfied in this instance that such an order could be made by the Full Bench.  This is because, in my opinion, there are no matters which are properly before the Tribunal, instituted by a party who had the authority to refer a matter to the Tribunal and as to which the AMWU could be joined as an intervener.  Indeed, as things stand the AMWU is a purported party to the applications.   They could hardly be an intervener as well.

86      Following the hearing of the appeals, my associate, as directed by the Full Bench, wrote to the parties to request their written submissions on two questions.  The questions were premised on the assumption that the respondent organisations were not a “party to the dispute” for the purposes of s74(2) of the MSIA, although the Full Bench had reached no such conclusion at that time.  The questions were:-

1. As a matter of law, could the respondent organisations have referred the dispute/matter that their members were entitled to payments under s74 of the MSIA to the Commission under s29 of the Act, as an “industrial matter”?
2. If the answer to 1 is yes, are the applications which have been filed now capable of being amended so as to be properly before the Commission as part of its general jurisdiction?

87      The questions elicited a variety of responses from the parties.  The appellants submitted that the answer to question 1 was no and that, even if the answer to question 1 was yes, the applications could not be amended so as to be properly before the Commission as part of its general jurisdiction.  The AMWU gave the same answers to the questions, albeit for differently stated reasons.  The CFMEU submitted that the answer to each question was yes.  The CEPU submitted that the answer to question 1 was no; but if it was wrong and the answer to question 1 was yes, then the answer to question 2 was also yes.

88      The submissions made in answer to question 1 were quite diverse and raise some complex issues.  In my opinion, it is best not to traverse these issues unless necessary to do so.  This is in part because at least some of the submissions involve a consideration of the interaction between the Act and the Workplace Relations Act, with respect to the general jurisdiction of the Commission in the context of question 1.  Prior to considering these issues, it would probably be necessary to have constitutional notices issued to the Commonwealth and State Attorneys General pursuant to s78B of the Judiciary Act 1903 (Cth).  The issuing of these notices, awaiting a response to them and the receipt of any submissions which an Attorney General may wish to make in response to their notice, would all involve a delay in the finalisation of these appeals.  Again, it is preferable, in my opinion, not to so delay the finalisation of the appeals unless it is necessary to do so.

89      In my opinion, it is not necessary to take this path because, even if the answer to question 1 is yes, the answer to question 2 must be no.  In part, this is because, as set out earlier, I am not of the opinion that there are matters properly before the Tribunal which can be amended by use of the powers contained in s27 of the Act.

90      Additionally, I accept the submission made by the appellants that there is no power available to the Tribunal to somehow transfer or “cross-vest” the present applications to become applications before the Commission proper as opposed to the Commission sitting as the Tribunal.  The Commission sitting as the Tribunal exercises a distinct jurisdiction which is separate to that of the Commission proper.  In its exercise of the jurisdiction provided to the Tribunal, the Commission sitting as the Tribunal has certain powers expressed in s102 of the MSIA and s51I and s51J of the OSHA.  The legislature has not provided that the Tribunal is to simply sit as the Commission with all of the powers that the Commission possesses.  For example, as referred to earlier in these reasons, the Tribunal possesses particular powers of conciliation as stated in s51J of the OSHA rather than the powers of conciliation provided to the Commission under the Act when sitting as the Commission.  The jurisdictions of the Tribunal and the Commission have different scope and they possess powers from different statutory sources.  The present applications were purportedly referred to the Tribunal under s74(2) of the MSIA.  The applications purported to invoke the Tribunal’s jurisdiction.  Simply because the Tribunal is constituted by the Commission does not mean the Commission can ignore this fact and without more continue to hear and determine the applications as if referred to the Commission under s29 of the Act.  Further, the powers given to the Tribunal do not include a power to amend and transfer or “cross-vest” an application purportedly referred to it to one before the Commission proper.

91      Accordingly, I do not think that the applications brought before the Tribunal are salvageable in the way postulated by question 2 of the Full Bench as set out above.

92      In my opinion, although it is somewhat regrettable, the conclusion I reach is that each of the applications brought before the Tribunal must be dismissed.  This would not prevent employees who are parties to the disputes referred to in the applications lodging their own applications with the Tribunal.

93      In my opinion, the appropriate orders for the Full Bench to make in each appeal are:-

1.                 The appeal is allowed.
2. The declaration made by the Occupational Safety and Health Tribunal on 3 May 2006 is set aside.
3. The application to the Occupational Safety and Health Tribunal is dismissed.

94      In my opinion a minute of proposed orders pursuant to s35 of the Act should issue in these terms.

COMMISSIONER J H SMITH:

95      I have had the benefit of reading the reasons for decision of His Honour, the Acting President.  I agree with those reasons and have nothing to add.

COMMISSIONER J L HARRISON:

96      I have had the benefit of reading the reasons for decision of His Honour, the Acting President.  I agree with those reasons and have nothing to add.