WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT. Heard: 2 October 1987 and 2 November 1987. Delivered: 18 December 1987. Coram: Kennedy J. (Deputy President), Olney and Rowland JJ. Appeals Nos. 8 and 9 of 1987. Between Robe River Iron Associates, Appellant and Amalgamated Metal Workers and Shipwrights Union of Western Australia and Others, Respondents. Mr E.M. Heenan QC and Mr H.J. Dixon (instructed by Messrs Parker and Parker) appeared for the appellant. Mr D. Stone (instructed by Messrs Northmore Hale Davy and Leake) appeared for the respondents. Cases cited: Buckland v. Palmer (1984) 3 All ER 554. Chief Secretary of State v. WA Prison Officers Union (1981)61 WAIG 1913. Davis v. Galmoye (1883) 34 ChD 322. Electrical Trades Union v. Northern Territory Electricity Commission (1987) AILR 75. The Forrest Lake (1968) p. 270. Hamersley Iron Pty Ltd v. Adste (1983) 64 WAIG 852. House v. The King (1936) 55 CLR 494. 68 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 5 Maple v. David Syme & Co Ltd (1975) 1 NSWLR 97. Re Metal Trades Award (1970) AILR 70. Mt Newman Mining Co Ltd v. Amalgamated Metal Workers and Shipwrights Union of Western Australia (1981) 61 WAIG 1043. Munday v. Munday (1954) 2 All ER 667. Pap Publishers v. Minister for Business (1982) 42 ALR 377. Pittalis v. Sherefettin (1986) 2 All ER 227. Pearce v. Lake View & Star Ltd (1969) WAR 84. Penniel v. Driffel (1980) WAR 31. R v. Commonwealth Court of Conciliation and Arbitra- tion; Ex parte Ozone Theatres (1949) 78 CLR 401. R v. Moore; Ex parte Australian Telephone Association (1982) 148 CLR 600. Rutt v. Metropolitan Underwriters (Australasian) Ltd (1929) SASR 426. Tameshwar v. R (1957) AC 476. WA Pines Ltd v. Hamilton (1980) WAR 29. KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Olney J. I agree with him that each of these appeals should be dismissed and with his reasons for arriving at that conclusion. OLNEY J: Background to the Appeals. In appeal No. 8 of 1986 this Court quashed part of an order made on 5 December 1986 by the Western Australian Industrial Commission in Court Session in application 758 of 1986 which required the appellant to pay to its employees bound by industrial agreement No. 10 of 1979 (the agreement) ordinary wages whilst attending union meetings during working hours (67 WAIG 723). Clause 18 (6) of the agreement provides: An employee who is absent from duty (other than on annual leave, workers' compensation, absences paid under the Sickness and Accident Benefit Scheme, bereavement leave and periods of stand downs) for a day or part of a day shall not be paid for the time he is so absent nor will the loading factor described in subclause (5) be credited towards the averaging system. The Commission in Court Session order made provision for "paid union meetings" i.e. it provided that within defined limits, the appellant was to be obliged to pay its employees bound by the agreement for absences from work while attending union meetings during working hours. It was the view of this Court that the order amounted to an amendment to the agreement and that therefore the provisions of section 43 (2) of the Industrial Relations Act applied thereto. That subsection provides: On the application of any party to an industrial agreement the Commission may, by order, vary the industrial agreement at any time while the agree- ment is in force if and to the extent that the terms of the variation are not contrary to this Act, or any General Order made under section 51 or any principles formulated in the course of proceedings in which a General Order is made under section 51, and if — (a) in the opinion of the Commission — (i) circumstances have arisen since the making of the agreement that at the time the agreement was made could not reasonably have been foreseen by the parties to the agreement; and (ii) those circumstances render the provisions of the agreement, or any of them, no longer just; or (b) all the parties to the agreement agree that the agreement be so varied by the Commission. and the agreement shall be varied accordingly. The Commission in Court Session had not adverted to the issues raised by section 43 (2) and for this reason the appeal was allowed, the order quashed and the matter referred back to the Commission in Court Session for further hearing and determination according to law. For myself, I would have thought that the further hearing and determination would have been little more than a formality. No further evidence would have been necessary for the Commission in Court Session to determine whether or not the variation was contrary to the Act or to a general order made under section 51 or to any principles formulated in the course of proceedings in respect of which a general order had been made and indeed the evidence that was before the Commission at the time that it made the order on 5 December 1986 seems to me to have been adequate to enable the Commission to form an opinion one way or the other on the matters referred to in section 43 (2) (a). Be that as it may, the respondents chose to follow a different course. It became known early in March 1987 that the Commission in Court Session could deal with the remitted application on 4 May 1987. On 12 March 1987 however the respon- dents filed a new application in the Commission (application 247 of 1987) whereby they sought to amend the agreement in a manner which would have exactly the same effect as the order made on 5 December 1986. On the initiative of the respondents the hearing of application 247 of 1987 was expedited and same came before the Commission constituted by Commissioner Salmon on 9 April 1987. On that occasion the appellant moved the Commission to dismiss the new application on the ground that it was vexatious and an abuse of process. After full argument, the Commission refused to dismiss the application and proceeded to hear and determine same. On 1 May 1987 the Commission made orders amending the agreement so as to provide for paid union meetings. In the meantime however, notably on 13 April 1987 the appellant had filed a notice of appeal to the Full Bench against the Commission's refusal to stay or dismiss Application 247 of 1987 (appeal 406 of 1987). And on 12 May 1987 the appellant filed a further notice of appeal to the Full Bench against the order made on 1 May 1987 (appeal 506 of 1987). These appeals were heard on 9 June 1987. After hearing argument on appeal 406 of 1987, the Full Bench dismissed the same and proceeded to hear appeal 506 of 1987. It reserved its decision and on 3 August 1987 gave reasons for the dismissal of both appeals. Appeal 8 of 1987 in this Court is an appeal from the Full Bench decision dismissing appeal 406 of 1987 whilst appeal 9 of 1987 is an appeal from the Full Bench decision dismissing appeal 506 of 1987. In this Court the appeals were argued together, the hearing commencing on 2 October 1987 and being adjourned through lack of time to 2 November 1987 when both matters were completed and the Court reserved its decision. In the period intervening between 2 October 1987 and 2 November 1987 the respondents filed a notice in the Industrial Commission discontinuing that part of application 758 of 1986 as relates to paid union meetings. They may be some doubt as to whether or not in the circumstances such a discontinuance can be effected without leave of the Commission but on 2 November 1987 in this Court counsel for the respondents gave an unequivocal assurance that the respondents would not proceed further on application 758 of 1986 in relation to paid union meetings. Appeal No. 8 of 1987. Before the Full Bench and again in this Court the respondents argued that appeal 406 of 1987 was incompetent. The Full Bench did not accept the 6 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. argument advanced but nevertheless dismissed the appeal on other grounds. The respondents have given notice of their intention to seek to support the Full Bench decision dismissing the appeal on the ground that the Full Bench appeal was incompetent and thus raise the same issues as were unsuccessfully raised in the Full Bench. The task of this Court is to adjudicate upon whether the decision appealed from "is erroneous in law or is in excess of jurisdiction" [IRA section 90 (1)]. The decision appealed from is a decision to dismiss appeal 406 of 1987. The respondents do not question the Full Bench's jurisdiction to dismiss that appeal. Even if the Full Bench should be found to be in error in having failed to dismiss it on the ground of it being incompetent its jurisdiction to dismiss the appeal cannot be challenged. In these circum- stances it seems to be appropriate to look first at the grounds upon which the appellant seeks to challenge the dismissal of appeal 406 of 1987. If the appellant is unable to establish an error of law on the part of the Full Bench the question of the competence of the appeal before the Full Bench will not arise. The situation with which the appellant was confronted on 9 April 1987 was extraordinary to say the least. This Court had ordered that the Commission in Court Session should further hear and determine according to law the matter which had led it on 5 December 1986 to make an order with respect to paid union meetings. That matter was listed for hearing before the Commission in Court Session on 4 May 1987. The Commission constituted by a single Commissioner was about to embark upon the hearing of an application in which the respondents sought relief identical to that being sought in the Commission in Court Session. The parties to the two separate matters were identical, the relief sought in each case was identical, both matters were pending in the same tribunal albeit before different arms of that tribunal and the issues in each case were identical. There was potential, at least in theory, for the two arms of the Commission to come to different decisions. The unsuccessful party in application 247 of 1987 would have a right of appeal to the Full Bench and subsequently to this Court on the limited grounds provided for in section 90. Any decision reached by the Commission in Court Session would only be subject to appeal to this Court on those limited grounds. There can be little doubt that if the same or similar circumstances had arisen in the Supreme Court or indeed any other court administering the common law, the appellant could reasonably have expected that proceedings in one or other of the matters would be stayed or, alternatively, that the two matters would be consolidated. But the Industrial Commission is not the Supreme Court nor is it a court of justice acting according to the principles of the common law. It is a tribunal created by statute exercising a limited juris- diction of a specialist nature which it is required to exercise according to defined principles. The appellant's motion to stay application 247 of 1987 was an invitation to the Commission to exercise its power under section 27 (1) (ii) or (iv). That section provides: 27. (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determination the matter of part if it is satisfied — (i) ... (ii) that further proceedings are not necessary or desirable in the public interest; (iii) . . . or (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be; Clearly the power to dismiss or refrain from further hearing is in the terms of the statute discretionary. The Commission is required to exercise that discretion con- sistently with its obligation as provided in section 26 (1) (a) to exercise its jurisdiction under the Act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms. In the event the Commission at first instance declined to exercise its discretion to dismiss proceedings or to refrain from further hearing same and it is apparent from the reasons given that the Commission was well aware both that the power to dismiss was discretionary and that it was required to exercise its discretion according to the principles set out in section 26 (1) of the Act. In refusing the appellant's motion Commissioner Salmon said: I am asked to exercise my discretion pursuant to section 27 (1) (a) of the Act and thereby dismiss this application for the reasons advanced by the respondent. My decision in this matter is to be made with section 26 in mind and, in that context, I am moved by practical industrial relations considerations rather than technicalities. Notwithstanding the decision of the Industrial Appeal Court the matter was referred to me for hearing and determination by the Chief Commissioner in circumstances which he appears to have thought were urgent. From a perusal of all the material before me and with Mr Stone's submissions in mind, I have no doubt of the desirability of the matter being determined as quickly as possible. In the final analysis what I must decide is whether all things considered, there is a probability that an injustice will be done to the respondent if I proceed to hear and determine this matter myself. The alter- native, of course, is that the matter be heard and determined by the Commission in Court Session constituted by members of the Commission who have already decided in all substantial respects the merits of the issue in contention. These views are known to me. Indeed, they clearly form part of the equity and substantial merit of the applicant's case. I think the very least one can say about the outcome of any further decisions by the Commission in Court Session on the merit of the matter is that it is as likely as not that it will remain the same. As to the wage fixing principles and what is said they imply, it seems to me that practicality and justice will be best served if I do not refuse to embark upon the inquiry and that I determine, pursuant to section 43 whether the variation to the agreement which is sought is contrary to the principles. At this stage I am not convinced that the principles will be departed from. However, there is power pursuant to section 27 (1) (t) for the matter to be referred to the Commission in Court Session if I am persuaded that that is necessary in order that the principles be complied with. If necessary, section 50 parties may be invited to appear in those proceedings. My decision is that the respondent's motion for dismissal is denied and that I will hear the applicant's case. In the reasons given on 3 August 1987 for dismissing appeal 406 of 1987 the members of the Full Bench canvassed the various arguments that had been advanced for and against the motion for dismissal and in the end concluded that in the events which had happened there was no reasonable likelihood that the appellant would be put in a position of prejudice because of the proceedings in application 247 of 1987. That being so, I am unable to detect any error of law on the part of the Full Bench in its decision to dismiss appeal 406 of 1987. The Commission at first instance was obviously aware of the relevant considerations and exercised its discretion in accordance WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 7 with its statutory obligations. To have upheld the appeal the Full Bench would have had to substitute its own discretion for that of the Commission at first instance and whilst in a proper case such a course would have been open to the Full Bench, in this case it did not seek to follow that course. To do so would have required it to find that in some way the discretion exercised at first instance had miscarried. It did not so find nor is there anything about the manner in which the discretion was exercised which justifies it being called into question. It cannot be said that the Full Bench decision was erroneous in law and therefore quite apart from the question of whether the appeal to the Full Bench was competent, the dismissal of it cannot be impeached and therefore the appeal to this Court must fail. Appeal 509 of 1987. In relation to Full Bench appeal 506 of 1987 the appellant says that: 1. There was no evidence nor any grounds, upon which the Commission could form the opinion that circumstances had arisen since the making of Industrial Agreement No. 10 of 1979 which, at the time that agreement was made, could not reason- ably have been foreseen by the parties to the agree- ment so as to justify a variation of that agreement to provide for paid union meetings; 2. There was no evidence nor any grounds upon which the Commission could form the opinion that any change in circumstances which might have occurred since Industrial Agreement No. 10 of 1979 was made which render the provisions of Clause 18 (6) of that agreement, or any of its other provisions, no longer just, so as to authorise a variation of Industrial Agreement No. 10 of 1979 to provide for paid union meetings; 3. The learned Commissioner erred in law in admitting and acting upon evidence, namely Exhibit 1, comprising the transcript of the proceedings before the Commission in Court Session in Application No. 758 of 1986 from witnesses whom he had not seen or heard, and whose evidence on the issue before him, was not subjected and was not capable of being subjected to cross-examination; 4. The learned Commissioner erred in admitting into evidence and acting upon the findings of the Commission in Court Session on Application No. 758 of 1986 as to the alleged desirability of the provisions of paid union meetings; and 5. In receiving evidence from parties who were not called as witnesses before the Commission, and in adverting to the reasons for decision of the Commission in Court Session in Application No. 758 of 1986 the learned Commissioner took into account matters or information not raised before him on the hearing of the matter and, contrary to the provisions of section 26 (3) of the Act, failed to notify the parties concerned and failed to afford them an opportunity of being heard in relation to those matters or information before deciding the matter; 6. The Full Bench failed to give effect or proper effect to the provisions of Clause 6 (12) (a) of Industrial Agreement No. 10 of 1979 which pre- cluded any contract of employment being made between the Appellant and any of its employees which contained any term or condition which was inconsistent with or contrary to the provisions of the said Agreement; 7. The Full Bench failed to give effect to the wage fixation principles as annunciated (sic) by the Commission in Court Session from time to time and in particular the principle dealing with conditions of employment which were being changed in the manner contemplated by the Respondents. Grounds 1 and 2. These two grounds are directed to the provisions of section 43 (2) (a) and by their terms acknowledge that the only effective way in which the expression of opinion in relation to the relevant issues made by the Commission at first instance can be attacked on an appeal to this Court is to establish that there was no evidence before the Commission upon which it could arrive at the necessary opinions. It is appropriate therefore to turn to the transcript of the proceedings at first instance to determine the extent of the evidence. In the course of his opening submissions to the Commission counsel appearing for the respondents (who were then the applicants) canvassed in detail the pro- ceedings in application 758 of 1986, the evidence given in those proceedings, the reasons for decision of the separate members of the Commission in Court Session and the judgments of the members of this Court in appeal 8 of 1986. Various documents were produced without formal proof and were marked as exhibits without objection. One such document (Exhibit 1) is said to be an extract of the transcript and proceedings 758 of 1986. At one stage in the course of the respondent's opening counsel for the appellant (the respondent at first instance) objected to a submission put on behalf of the respondents namely that the previous arrangements with regard to paid union meetings had been instituted on the initiative of the appellant. The objection was expressed in this way: Mr Commissioner, I object to that. It is about the third time that broad allegation has been made and it does not accurately reflect the evidence which has been given. The evidence is that there were circumstances in which trade union meetings were brought about at the instigation of the company but there were good reasons for that — sometimes it was continued pressure. To suggest, as my learned friend is, repeatedly that this is all brought about by the invitation of the company is not an accurate reflection and I raise to object to that now. Obviously he is entitled to make submissions but if they are so wayward from the evidence I am obliged to object. There can be no doubt from the nature of the objection that the parties regarded the evidence given in the earlier proceedings (the transcript of which the Commission had earlier marked as an exhibit) was part of the material adduced in support of the applicant's case. By the end of the opening address virtually the whole of the evidence in the earlier proceedings relevant to the issue of paid union meetings had been discussed and the same documents as had been produced in those proceedings were again tendered and marked as exhibits without either formal proof or objection. Counsel for the applicant then called two witnesses. The first witness was Mr Colin Albert Hollett now a Deputy Registrar of the Commission but in the years 1969-84 a State organiser of the Amalgamated Metal Workers and Shipwrights Union resident at Karratha with responsibility for industrial relations in the iron ore industry throughout the Pilbara region. HoUett testified as to the developing industrial relations climate in relation to the appellant (then known as Cliffs Robe River Iron Associates) and specifically in relation to the question of paid union meetings. The context in which the evidence quoted below appears is that following a series of questions relating to the appellant's attitude towards the adoption of a policy of paid trade union meetings, the witness first said that it had been a gradual development which to the best of his knowledge was sponsored by the company. When asked in what sense it had been sponsored by the company he replied: I believe that the company's policy was to get away from the unions determining the length of the meetings in respect of any matter. Meetings of the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. membership of the organisation which I belonged to at that time would decide that they would have a meeting for whatever purpose they believed necessary and, inevitably, once that meeting was called, if it went for two hours they would then have the rest of the day off and the company was losing quite an amount of production. It is my belief that they wanted to alter this; to rationalise and regularise communication meetings of the unions. .. . Well it was a very tumultuous industry and, of all the large disputes, it was generally considered that there seemed to be a lack of communication. It was the excuse that was always arrived at. If it was the unions that were being blamed, there was a lack of communication to the unionist. If it was the company that was being blamed, it was a lack of communication within the company. So it was developed that there needed to be better communications and it became a catch cry and it became a word of wide usage in the industry — not just particularly to Robe River. The procedure in the organisation that I was associated with was: Representatives of the union held many negotiations between their membership and the membership's employer. It was necessary for the finalisation of any documents to become formal to have the membership first accept it and then the state secretary of my organisation at that time was authorised to sign such agreements on behalf of the union, subject to it going to what could be referred to as a management meeting or a state council meeting — executive meeting. MR STONE: So then a meeting with the member- ship — and in this context that is the employees of the respondent — was necessary to enable the decision to be made? — That is correct. At the time of your association with Cliffs Robe River did it work around the clock at either or both of its operations? — Basically it was a continuous operation. It wasn't completely continuous at the mine site. It regarded itself as a continuous operation. You became involved in — can I use the matter loosely — the negotiation of paid trade union meetings and formed a certain conception about them? — Yes. What was the conception you had of those meetings as an industrial relations practice? Did you consider they were there to stay or were they only a temporary thing? — I never considered they would be a temporary thing. It was a new innovation for employers to pay for meetings of unionists. Like all new innovations they — in the iron ore industry, anyway the new innovations were there to stay. You had to be very careful what you introduced into the iron ore industry. Give a dog a bone you will not get it back off him — in the iron ore industry. Cliffs as they were known in those days were seeking to develop a lasting and worthwhile industrial relationship within their company as were other iron ore companies at that time. There had been many industrial relations programmes, policies. It didn't last. They didn't see the time of day out. I think Hamersley tried to be the leaders. They had big booklets with stick men — of thepeople in this room who were aware of that; but there was an endeavour, I believe, by all iron ore companies and in particular Cliffs weren't any different to others, that they were striving for a lasting and worthwhile industrial relationship. As to how they developed that model, Cliffs at that time went about it in a different way to other companies; not in particular did they go about it in a different way for paid union meetings. That is not new to Cliffs and it's not unique to Cliffs or what was Cliffs. MR STONE: When the industrial agreement was renegotiated in August 1982 it is a fact that no provision was made in it for paid union meetings. Can you tell the Commission how that came about? — To the best of my recollection, there were over a period of time some very harsh criticisms of agree- ments reached between unions and iron ore companies in respect of rates, conditions, privileges issued (call them that) from the general sector and the public. The iron ore industry approached its industrial relations, its wages concept, differently from many other employers of that time. It wasn't necessary for the iron ore industry to have regard for anyone else except themselves. They started off in remote areas and had to address themselves to those types of difficulties. Hence, the air fares and all those type of things — subsidised housing, very subsidised air conditioning, wives needing to go to Perth for medical reasons. The company always responded to these because it felt it necessary; but the reaction of the general public, particularly down in the cities, was, "What the hell are you doing? We're going to be copped with these type things" so we used to endeavour to keep them quiet. The reason the paid union meetings, to my recollection, did not go into the award was because then it could be then again criticised to the trade union movement and companies alike that they had agreed to something which was not expected to be agreed to by the general sector of employers. Quite often agreements were made in the iron ore industry that never went into the award and for that reason I could see no necessity for it to appear in the award. MR STONE: . . . why there was no necessity for the provision to appear in the award? — As far as I was concerned I had reached a stage with the company — I believe my credibility was well established, therefore in the development of a lasting industrial relationship you don't have to have it put in a registered agreement because sometimes that more often suggests that you do not trust anyone, anyway. There had been lack of trust for many years and we were trying to overcome that lack of trust between the parties. The witness was then shown Exhibit 1 which he agreed he had read. He was then asked whether or not he agreed with the general burden of the evidence given by the appellants to the Commission in Court Session in application 758 of 1986. This question was objected to but allowed. The witness answered: I have read the document and I believe that it is correct in the historical development of paid union meetings. The following exchanges occurred between Hollett and the appellant's counsel in the course of cross examination: Paid union meetings for members, as it were, were in existence for some time prior to 1979 on a one-off basis. Is that correct? — Around about the late 70s or the early 80s. As a matter of fact, I was not aware when they were first introduced for metal workers. It was a site agreement that was done — what they called local site deals. But you were aware that those site meetings were held from time to time well before 1979? — Yes, around about that time, yes. In particular, the shop stewards were holding meetings on a regular basis prior to 1979? — I believe that to be the case, yes. From your knowledge, are you saying that the company was trying to introduce a policy to get away from the unions determining the length of the 68 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 9 meetings? — Yes. I believe that the company was trying to rationalise union meetings. Because they were just being called far too often, frequently and for too long? — Yes, they were. Any suggestion from the company then that meetings were to be held was merely an attempt to rationalise an unsatisfactory situation? — Yes. When you visited the various mine sites to get the approval of your members to endorse any negotiations you had conducted, you met at times other than in working hours, did you not? — More often than not, yes. After the negotiations the report-back meetings were, I think without exception, in company time by agreement with the companies. That was specifically for report-back meetings? — Yes. And those report-back meetings took place prior to 1979? — Yes. On other occasions you had meetings outside of company time if there was a pressing issue to be determined? — Yes — not too many though, apart from the normal meetings of the internal union's organisation. It had nothing to do with the work situation. Sometimes you had to get a mandate from your members on those issues as well? — Yes. And those would take place outside of working hours? — Very very seldom did they take place outside of working hours because they worked around the clock. You in fact participated in the negotiations for a paid union meeting agreement in 1979 — would that be correct? — Yes, I believe so. You negotiated for a period of time. It was to be reviewed after a while? — Most of the agreements were open to a trial period and a review. One of the issues which would determine whether your agreements would stay or not was whether they were abused. Would that not be correct? — Yes. And in fact I think you indirectly referred to it when you were talking about getting a bone off a dog once given. If it was abused it was quite well known to you and your unions that attempts would be made to take that bone away? — Specifically that is what the review periods were because, after the review period, you could back it in: That was it forever unless — Except if they wre abused thereafter? — I don't think I would go as far as to say that. After that review period — it was like a probationary period — If it went well for both parties or sufficiently well enough for both parties to accept it on a permanent basis — and you had that period up until usually the date of review to decide whether that was good or bad for whoever you represented — As far as I was concerned — whether it was good or bad for the membership of the Metal Workers employed by Cliffs. But you have already told the Commissioner that the unregulated way in which meetings were held was pulled into line by the company and I suggest to you that if there was further abuse of these arrangements they again would have been subject to review at any stage — if they were being abused? — No, I don't believe that. After the review you wear what you win in the iron ore industry. That's the way it is put. You also said in evidence that many IR programmes and policies were introduced into the iron ore industry from time to time? — Yes. And many did not see the time of day out, I think you said? — Mm. That meant that they were changed at fairly regular intervals — Particularly with Hamersley Iron. So there would be no legitimate expectation on your part that any particular arrangement dealing with IR introduced this month would be there next year because a new programme might be introduced — is that not correct? — In respect of many things but not in respect of the type of thing that is being discussed at the moment. Discussed where at the moment? — Here — matters of evidence. Probably the best way to answer that question is that it took the trade union movement many years to get the recognition of its representatives within the iron ore industry; the recognition of the rights of shop stewards, the rights of conveners and the rights of union officials to even get on a number of sites in the early days. Once they were established and acceded to they were the linchpins, to use a term, which would remain around the structure forever — the peripheral parts were always being changed. Yes, the people? — Yes. This following question was put to you: Did the company at any stage say whether or not meetings would stay? Do you remember that question? — Mm. To which you replied that matters changed on and off, that many matters would not see out the time of day. Your answer, I put to you, suggested nothing more than you had no certainty at all that these things would change or would not change. That was the answer you gave? — Yes, but no in respect of what I have just referred to, the questions of recognition of the rights of the unions repre- sentatives and the rights of unions to hold meetings and be paid for them. I will take you just a little further on that. You gave as an excuse or reason the fact as to why no provision was made for paid union meetings in 1982 — the fact that there would be criticism from the wider public. Do you recall that? — I don't think it was an excuse. As union officials we never excused ourselves for anything we did or anything we didn't do. But we certainly agreed with the iron ore producers that many of the innovative things which were of benefit to the members of the union I belonged to at that time — not to make public some of the things which were done, and we did them deliberately. The respondent's second witness was Mr Arthur Clarke a State organiser of the Amalgamated Metal Workers and Shipwrights Union resident at Karratha. Clarke had been an employee of Cliffs Robe River Iron Associates from 1978 until 1984 during which time he had held office as a shop steward, a deputy convenor and ultimately from late 1980 to 1984 as a convenor. His evidence concerning paid trade union meetings was as follows: We have been here debating paid trade union meetings. Tell the Commission when those first came into being? — In the formal sense, there was written agreement between the unions and the company. I think that evolved around about the early 80s, 1981 or 1982. Prior to that it had come about on an ad hoc basis. For example, if the company required some matters to be discussed or that needed a response from the membership of the various unions, they would instigate that meeting and ask for it to take place and it would be paid for; but in terms of an agreed and written procedure, I believe it was approximately 1982. Who suggested there should be written procedure? — The company. Let me put this next question this way: Did all the industrial unions have an agreement or an under- standing about paid trade union meetings? — As far 10 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 68 W.A.I.G. as I know they did. I think — certainly all the unions which were party to the award did. By what date had all of those unions got those meetings? — I would have thought 1982 would have been the conclusion of that process. Look at Exhibit 5. Please skim through those, Mr Clarke, and then tell the Commission what they are? — It is a letter addressed to the state secretary, Mr Bastow of the Amalgamated Metal Workers Union, 29 June 1982 and a local agreement between the metal workers union and Cliffs Robe River 1982 signed by a number of union and company people; and a local agreement 1984, same subject. Which is? — Paid monthly union meetings. Did you regard those meetings as being either a temporary phenomenon or a permanent phenomenon? — I think they were regarded by myself and the members of my union as a permanent feature. When you were in negotiation with the company, did they ever do anything to you which suggested they saw these meetings as either a temporary or permanent phenomenon? — I think the company over a period of time indicated they were quite comfortable with paid monthly meetings. It was something they had aspired to and had encouraged. They thought it was a positive feature of their relationships with their workforce. The witness was then shown Exhibit 1 which he agreed he had read and about which he was asked if there was "anything within that with which you fundamentally disagree". He replied in the negative. His evidence then continued: Paid trade union meetings came to an end. When was that? — I believe July 1986. In what circumstances? — There had been a change in the ownership of Robe River — Cliffs Robe River, as it was, became Robe River — and there was a fundamental change in the management of that company. They then set about making or implementing change within the operation and within the agreements and relationships it had with its workforce at that time. We are not here to debate whether these were good changes or bad changes. Let us be clear about that, but tell the Commission, please, the nature of the changes? — The results of the changes were that a number of practices, agreements or things that had occurred for quite some time — over many years that had evolved — no longer occurred. Housing committee meetings, meetings where there were conveners, shop stewards and rank and file repre- sentatives in discussions with the company over what occurred with housing, meetings that evolved out of the communication process, no longer con- tinued, as I understand it, either at a micro level or at a macro level. They just ceased to occur. The final thing is this, Mr Clark: It is a matter of fact that the paid trade union meetings agreements were not included in industrial agreement No. 10. That is a matter of fact. Can you just explain briefly why that is so? — As I understand it at the time they came in the company had never requested that it be placed in the award. It had never been raised, to my knowledge, in discussions — either major discussions or discussions at the time those arguments were struck. The company never raised the issue of having it implemented in the award or bringing it before the Commission. They hadn't required it. I don't know whether it is appropriate for me to refer to Mr Hollett at all, but the things I have heard today which Mr Hollett referred to are fairly accurate. I think there was also an attitude that Robe River had been somewhat of a pacemaker within that sector of industry and they were fairly sensitive about recording those documents in public places. It may well raise the ire of other people within industry within Western Australia. It was quite a well known feature within the iron ore industry that agreements which were done in such a fasion wouldn't or shouldn't flow outside the iron ore industry into industry in general. Did you consider it to be necessary to put the paid union meetings agreement into the industrial agreement? — No, not at all. Why? — It was something the company had instigated and it was something which was part and parcel of the whole approach by the company — about the way it did its business, about its communications, its whole company philosophy. We never thought that what did happen would happen. The appellant did not call any evidence at first instance but counsel prefaced his submissions with the following statement: May it please the Commission, at the opening of the respondent's case I just wish to place on record some matters which I do with the greatest of respect and they are that given the submissions made yesterday, the respondent wishes to record that it is participating in the further proceedings without prejudice to its position and reserving all its rights. It also does not accept the mere adoption of the previous evidence as an appropriate course of action and we will not be leading any evidence in these proceedings. Having made those preliminary comments I will make submissions on the substance of the application which may be of assistance to you, sir, in your determination. Quite apart from any evidentiary value which the transcript of the earlier proceedings may have had the testimony of the witnesses Hollett and Clarke was evidence before the Commission at first instance relevant to the questions raised by section 43 (2) (a). On that evidence it was open to the Commission to conclude that the arrangements for paid union meetings had been of long standing, that the parties had contemplated that they were permanent and that they were not specifically included in the agreement by reason of a deliberate decision on the part of both employer and unions not to include them. Findings favourable to the respondent on these questions of fact could form a basis for the Commission to conclude that in July 1986 there had been a change of circumstances of the type contemplated by section 43 (2) (a) (i) and further that the provisions of the agreement [particularly Clause 18 (6) thereof] were no longer just. In my opinion upon an examination of the record there was evidence before the Commission at first instance capable of supporting the necessary opinions referred to in grounds 1 and 2 and for this reason there is no substance in those grounds. Grounds 3, 4 and 5. Having reached the conclusion that the evidence of the witnesses Hollett and Clarke was capable of supporting the relevant findings of fact the issues raised in grounds 3, 4 and 5 are irrelevant and it is unnecessary to say anything further about them. Ground 6. I confess to having difficulty in understanding the significance of this ground of appeal. Clause 6(12) (a) of the agreement provides: 6. (12) It is hereby expressly agreed and declared:— (a) that no contract of employment shall be made between the employer and any worker which contains any term or WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. condition which is inconsistent with or contrary to the provisions of this Agreement. There is no suggestion that the long standing arrange- ment between the respondents and the appellant in relation to paid union meetings formed any part of the contract of employment between the appellant and its individual employees. The only way in which the sort of agreement made between the employer and the unions could become binding on the employer in a way that would make it a condition of the employment would be for the agreement to be registered as an industrial agreement under the Act. This was not done. There is no reason why an employer should not gratuitously allow its employees to attend union meetings or absent themselves from their place of employment for any other reason without deduction of pay. That is the effect of what was agreed to between the employee and the unions. Clause 6 (12) (a) has no bearing upon the specific matters to which section 43 (2) (a) directs attention. Ground 7. The wage fixing principles referred to in ground 7 are relevant by reason of the requirement of section 43 (2) that a variation to an industrial agreement is permissible only to the extent that the terms of the variation' 'are not contrary to ... any principles formulated in the course of proceedings in which a general order is made under section 51". In principles formulated in the course of proceedings in which a general order was made under section 51 on 25 March 1987 (67 WAIG 435) the Commission in Court Session ruled at p. 442 under the heading "Conditions of Employment": Except for the flow-on of recognised standard provisions of the Commission, applications for changes in conditions other than those provided elsewhere in the Principles will be considered in the light of their cost implications both directly and through flow-on and subject to the second tier ceiling. Whether or not the variation sought by the respondents was contrary to this principle was a question of fact. There was evidence before the Commission at first instance which if accepted could support a conclusion favourable to the respondents. If anything, the variation appears to be merely a flow-on from other existing agreements in the same industry. But in any event, it was open to conclude that there were no cost implications in comparison with the situation which had prevailed prior to July 1986. This Court has no authority to interfere with the Commission's findings of fact and it cannot be said that the Full Bench erred in law in reaching the same conclusion as the Commission at first instance. In my opinion these appeals should be dismissed. ROWLAND J.: The relevant facts concerned these appeals are set out in the reasons for judgment of Olney J., which I have had the advantage of reading. It is unnecessary for me to refer to them. The short issue in these appeals has arisen because the Commission in Court Session was unable, within a time evidently suitable to the present respondents, to comply with a direction of this Court to hear and determine an industrial dispute between these parties in accordance with the reasons given on an earlier appeal. That dispute concerned changes of work practices, which dispute was determined pursuant to the powers contained in section 23 of the Act. New proceedings were issued by the present respon- dents before the return date listed to finalise the earlier matter. By those proceedings, the respondents sought an amendment to the Agreement between the parties. The second proceedings, although likely to culminate in the same relief as the earlier proceedings, are different in form. Those proceedings are an application to amend the Agreement, which fairly and squarely faces up to what is 11 involved rather than the use of the rather oblique method of achieving a similar aim, which was the subject of the earlier process culminating in the earlier appeal to this Court. The respondents have undertaken to discontinue or not to proceed further with the original action which was returned to the Commission in Court Session and it seems to me that in the end the relevant issue that was basically behind both proceedings has been resolved and resolved in more appropriate proceedings than the earlier unfinished proceedings. For the reasons given by Olney J., with which I agree, all of the proceedings have been resolved in a way which cannot invoke the power of this Court to interfere. I agree that the appeals should be dismissed. IN THE