Australasian Meat Industry Union of Employees & Ors v The Metropolitan Regional Abattoir & Anor [1993] ICQ 24 (1993) 144 QGIG 313

31 2 QUEE NSL AN D GOV ER NMENT IN DUST RI AL GAZETTE [ 1 October, 1993 I October, 1993] QU EENS LAN D GO VERNMENT IND USTRI AL GAZETT E 313 #################################################### QUEE NSLAND INDUSTRIAL COURT Industrial Relations Act 1990 s. 9 .2 (2) [n ow s. 92(2)) - appeal from decision of industrial reg istrar Austral as i an Meat Industry Union of Emp loyees (Q u eensland Bra n ch) and the Pres ident, Sec retary, South ern District Secretary, organisers and other office rs of the A ust ra lasian Meat Industry Un i on of Emp l oyees (Queensland Branch) App licants AND The Metropoli ta n Reg ional Abattoir Fi rst Respondent AND . The Assistan t In du st rial Reg i strar Mr Blumsom ot t he Q ueensl and Industri al Relations Commi ss ion (No . CIS of 1993) JUST ICE MACKENZIE, PR ESIDENT Second Res pondent 20 September 1993 App ea l - lndustri at Reg is trar - Industri al Dispu te - Order - Rest raint Order - Substantial Compliance - N o ti ce iss u ed under s. 8.23(3) oi the Industrial Relations Ace 1990 - N at ural Justice - Jurisdiction - Authority - Judicial Review Ac! 199 1 - In the cas e of AM I EU sub j ect to directions the appeal i s di smi ssed - In the ca.se of the President, Secretary, Sou th ern D i st ri ct Secretary, Organisers and other Officers of t he AM IEU the decision is set as i de. -- 1 of 3 -- 314 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [1 October, 1993 JUDGMENT On 7 May 1993 the Commission made orders in relation to an industrial dispute between members of the Australasian Meat Industry Union of Employees (Queensland Branch) ("AMIEU'') and the Metropolitan Regional Abattoir ("MRA"). The order was expressed to operate trorn 4.00 p.m. that day and thereafter for 60 days or until otherwise ordered and it was ordered that the AMIEU and the MRA each file an affidavit with the Industrial Registrar by 4.00 p.m. on Monday 10 May 1993 advising as to whether there had been compliance with the order and, in default of compliance, what steps, if any, had been taken to comply with the order (s. 8 23(1 )(d)). On 11 May 1993 after receiving affidavits from Mr Richardson, the Southern District Secretary of the AMIEU and Mr Wharton on behalf of the MRA the Assistant Industrial Registrar sent letters to the two organisations requesting th_em to appear before him on 12 May 1993 so that he could make turther inquiries whether there had been substantial compliance with the Commission's order. He was authorised to make further inquiries under s. 8.23(2) [now s. 89(3)]. Conierences involving representatives of the organisations were held on 12 May and 20 May 1993. On 2 June 1993 a determination by the .Assistant Industrial Registrar was released under which, tor reasons set out in the determination, he concluded that he was required under s. 8.23(3) [now s. 89(4)] to cause a notice to show cause in Form 13 to the SE!cond Schedule of the Rules of Court to "the Industrial organization, the relevant Officers and the members employed at MRA who were on strike''. On 11 June 1993 a document entitled "application for a statutory order of review" was filed in the Registry. On 16 June 1993 a directions order was made that the parties be the AMIELJ and its President, Secretary, Southern District Secretary, organis~rs and other offic<:,r_s as applicants and the MRA ,as respondent. On 21 June 19:d an appIIcatIon was made to me ror !eave to file an amended application which, ,iltimately, the parties who appeared before me at the hearing were content to treat as being in substantial compliance with the form for instituting an appeal under s. 9.2(2) [now s. 96(2)) as well as substantial compliance with the form of application for a statutory order for judicial review under the Judicial Review Act 1991. The Assistant Industrial Registrar was made a to the proceedings pursuant to the amended application by leave. The Crown Solicitor was ordered to be served. Through counsel briefed by the Crown Sokitor, the Assistant Industrial Reg,strar indicated that he would abide the order of the court. However counsel also indicated that he w,shed to address submissions to me on instructions from the Attorney-CenerJ! that the Industrial Court lacked jurisdiction to entertain an application under the Judicial Review Act 1991. I gave him leave to make those submissions. I put that question aside for the mon1ent. Section 8.23 [now s. 89] sets out the procedure for enforcing orders of the Commission. Procedural ,teps of the kind in s. 8.23 [now s. 89] were recommended in the report of the Committee of Inquiry into the Industrial Conciliation and Arbitration Act (November 1988), but s. 8.23 [now s. 89] casts its net more widely than the Comrnissi,in's recomrnendation The report was concerned only with non-compliance by an industrial organisation. However s. 8.23 [now s. 891. arid s. 8.24 [now s. 90] which prescribes a range of powers available to the ~ull Industrial Court. apply not only to industrial organisations but also to 1ndiv1duals who do not successfully show cause. That is the cause of some practical difficulties to which i will refer in due course. Section 8.23 [now s. 89] is concerned with cases where the industrial Commission has made an order directed to - (a) an industrial organisation; (b) a person in the capacity of an officer or agent of an industrial organisation; or le) any other person. In such order the Industrial Commission is required to - !a) specify a time within which the industrial organisation or person must comply with the order; (b) direct the filing of an affidavit with the Industrial Registrar as to: {i) whether there has been compliance with the order; and (ii) if not, what steps, if any, had been taken to comply with the order; (c) specify a time within which affidavits must be filed with the Industrial Registrar. When the time has expired for filing the affidavits the Industrial Registrar is to - (a) examine all affidavits filed; and (b) where he considers it necessary, make such further inquiries as he thinks fit. If the Industrial Registrar is not satisfied that there is substantial compliance with an order he is to cause a notice to show cause to be issued to - (a) the industrial organisation to which the order was directed; (b) the officer or agent of the industrial organisation to whom the order was directed; and (c) any other person to whom the order was directed. The form of notice is a notice to show cause to the Full Industrial Court why an industrial organisation or person should not be dealt with under s. 8.24 [now s. 90]. If the industrial organisation or person does no_t show cause which in the opinion ot the Full Industrial Court ,s suff1c1ent cause the Court can exercise the powers in s. 8.24(1) [now s. 90(1 )] with respect to the organisation and s. 8.24(2) [now s. 90(2)] in respect of the individuals. In this case the Commission made a variety of orders, variously directed. For convenience, I will refer to the persons to whom the orders were directed as the AMIEU, the officers and the members. Firstly there were restraints imposed: (a) (b) \C) a restraint from "refusing or failing to carry out normal duties", directed to the AMIEU and the members (cl.2); a restraint from "aiding in, and/or authorising, encouraging, instigating, advising or directing any of the members ... from continuing to take part" in the strike, directed to the AMIEU and the officers (cl.3). a restraint from "being directly or indirectly being a party to or concerned in the continuation" of the strike, directed to the AMIEU, the officers and the members (cl.4). Secondly there were orders requiring positive acts to be done: (d) to forthwith take all reasonable steps - (i) to ensure that the members complied with the order, directed to the AMIEU and the officers (cl.5) (ii) to procure the members to forthwith cease the strike, directed to the AMIEU and the officers (cl.5). (e) to take all reasonable steps to advise the members of the making of the order and endeavour to ensure that the contents of it were made known to them, directed to the officers (cl.7). It is against this background that the grounds of appeal must be considered. The grounds are - (a) There were no grounds upon which a reasonable Industrial Registrar could have found that the AMIEU and the officers had not substantially complied with the order; !b) The jurisdiction of the Assistant Industrial Registrar was not established on the face of the record; 1 October, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 315 (c) There was a breach of natural justice by reason of the Registrar having had regard to (i) an affidavit furnished by the MRA; and (ii) a list of employees furnished by the MRA; which was not provided to the AMIEU and concerning which the AMIEU was not given a right to be heard. 2. It was necessary, for the Assistant Industrial Registrar to act within jurisdiction, for the reasons to state, but they do not state - (a) (i) which persons had not substantially complied with an order; (ii) which order or orders had not been substantially complied with; (b) any steps which could have been reasonably taken by one or more of the applicants which were not taken. 3. The Assistant Industrial Registrar had misconstrued his jurisdiction as enabling a single notice to show cause to be issued. 4. Section 8.23 was not complied with because no time for compliance with the orders was specified. Ground 1 (b) may be disposed of quickly. The Assistant Industrial Registrar has under s. 6.4 [now s. 59] authority to exercise the powers of the Industrial Registrar if the Industrial Registrar is temporarily unable to discharge the functions of office. Mr Jerrard informed me that he was filing no material to establish that the Assistant Industrial Registrar had acted without jurisdiction in this regard and did not intend to make submissions on the issue. It is also convenient to deal with ground 4 at the outset. I have already noted that the orders fali into two categories, restraints and positive obligations. Where an order imposing a restraint is expressed to operate from a specific time, as the order requires, the restraint comes into effect immediately upon the order coming into force. Notwithstanding Mr Jerrard's argument to the contrary I am satisfied that there is a time specified in the order within which the persons to whom the orders in this category were directed must comply. The effect is that the person is from 4.00 p.m. on the date upon which the order came into effect restrained from doing certain things. That restraint remains in force for the duration of the order. Turning to the orders which impose obligations on specified persons to perform actions to cause other persons to do or cease to do something or to become possessed of certain information, the requirement in s. 8.23(1)(c) [now s. 89(1 )(c)], by its wording, creates some difficulty. It is therefore desirable to analyse each of the obligations in this category separately. Commencing with Order (d)(i) above the obligation is to forthwith take reasonable steps to ensure that the members complied with the order. The word "forthwith" means "as soon as reasonably possible in the circumstances" or "as soon as conveniently may be" (A G. for N. T. v. Thomas (1979) 24 ALR 172) or "as soon as practicable" (Sameen v. Abeyewickrema (1963) 2 WLR 1114.) It therefore carries with it a requirement that the obligation be carried out within a definable but not definite time. Whether an obligation has been complied with is a question of fact. It might be that a particular step would undoubtedly be a reasonable and logical step to be taken at some time during the course of complying with an order but if it were to be proved that it was practically impossible to take it sooner rather than later it would not be in contravention of the order if it was not taken at the earlier time. That would be because it was not reasonable to expect the step to be taken at that time although, given more time, it would be unreasonable not to take it. The time within which the order must be complied with is a question of fact, the ultimate question being at which point it can be said that all reasonable steps have not been taken as soon as reasonably possibie in the circumstances. The process of making this determination involves identifying whether reasonable steps which might have been taken were not taken as soon as reasonablv possible in the circumstances. I therefore conclude that the order contains a provision specifying a time within which the order must be complied with. The obligation in paragraph (d)(ii) is that the AMIEU and its officers forthwith take all reasonable steps to procure members to forthwith cease the strike. The same principles as apply to (d)(i) apply to (d)(ii). The question Is to identify whether reasonable steps to procure members to forthwith cease the strike were not taken as soon as reasonably possible in the circumstances. The remaining paragraph of the order ((e) above) does not contain the word "forthwith". With the benefit of hindsight it is easy to suggest that the particular order could have been more precisely drafted. However the word "reasonable" in that context has dual aspects. One is that steps that were not reasonable were not required to be taken. Ii it were to be suggested that a particular step should have been taken but it were also established by satisfactory evidence that it was unreasonable to expect such a step to be taken, then the obligation under the order would not have been breached. For example while it might be an effective way of communicating a directive from a union to its members to return to work if a commercial were run during a State of Origin telecast it might be quite impractical to do so for a variety of reasons such as cost and availability of air time. The second aspect of the word "reasonable" is the same as that discussed above, of ascertaining whether there is a point of time when it can be said that it was unreasonable that a particular step had not been taken. If that point were to be reached then the requirement to take reasonable steps to advise the members of the making of the order and to ensure that they were aware of its contents would not have been complied with. This analysis illustrates that a requirement to take reasonable steps imposes, by the use of the word "reasonable", an obligation to take steps as soon as they can reasonably be taken in the circumstances of the case. Whether the obligation has been complied with is a question of fact to be determined in the factual context of the particular case. In formulating orders of this kind it would be better, if it is not possible to specify a specific time within which they are to be complied with, to inciude the word "forthwith" rather than to formulate the order in terms such as this order was formulated. However I do not think that the failure to include the word "forthwith" is fatal. The wording of the order makes it intelligible in terms ot an obligation to comply with the order within a reasonable time. Ground 4 has therefore not been made out. Grounds 1 (a), 1(c), 2 and 3 may initially be dealt with together because an underlying issue is "What are the essential steps under s. 8.23?" Strictly, Ground 3 is premature because the Industrial Registrar has not unequivocally demonstrated an intention to issue only one notice, but it is an important issue upon which some comments may be made in the course of discussing the wider question. The commentary in the report of the Committee of Inquiry upon which the provision is based describes It as a "stringent proposal" There is no reason to disagree with that description. However as conceived by the Committee the provision would have had the benefit of simplicity of operation in that only the applicant and the industrial organisation would have been parties and the Industrial Registrar would have the relatively simple task of considering whether there had been substantial compliance on the basis of affidavits from them, affidavits from any other person whom the Commission considered appropriate and the results of any further inquiries the Industrial Registrar saw fit to make. It is clear that as conceived the process of ordering of and filing of attidavits by the Commission and the examination of them by the Industrial Registrar and the making of further inauiries were the relatively uncomplicated steps that would lead to the Industrial Registrar's decision whether he was satisfied as to substantial compliance. The breadth of s. 8.23 [now s. 89] has been expanded by including persons in their capacity as officers rn· agents of an industrial organisation and any other person, as well as the industrial organisation. In the present case that has resulted in an order in general terms to the industrial organisation, the officers and all of its members employed by the MRA. If the procedure in s. 8.23 [now s. 89] is to be invoked in respect of a particular person it can in my view only be on the basis of an order of the Commission which directs the industrial organisation or person individual to file an affidavit as to compliance with the order. The phrase "is to" is a technique of modern drafting practice and is mandatory. The concept involved is that the requirement that affidavits be filed provides a simple means by which the Industrial Registrar can establish the facts as to whether a particular organisation or person has substantially complied with the order. If the Industrial Registrar is not satisfied of that, he is required to issue a show cause notice to that person. In the present case the only persons required by the Commission's order to file an affidavit were the AMIEU and the MRA. The Industrial Registrar -- 2 of 3 -- 316 QUEENSLAND GO VERNMENT INDU ST RIAL GAZETTE [ l October, 19 93 has conducted further inquiries and has decided that he is sat isfied th at "t he AMIEU and i ts rel evant officers h ave not substantially complied w ith the order". He also decided that the members had not substantially complied with the Commission's order. The philosophy involved in s. 8.23 is se t out at p.8 of the Committee's report. The provision wa.s intended as an automatic procedure leading to enfor cem ent of the Commission's orders. The "mischief" at which the prov isi on was aimed was the risk that orders of the Comm is sion would be brought into disrepute by viriue of non-enforcement by the party who had obtained the order. When the provision was limited to action aga inst the industrial org an isa tion only II wa s adminis trat ively convenien1. The li mi ts of the argumen t we re cl ose ly confined. t-towever, now that the sect ion as enacted is capable of applying not only to industria l organ1sattons but to ofiicers and members of the organisation, the process of autom at ic enforcement envisaged by s. 8.23 is capable of becoming an adm,nistrative nightmare. The sit ua tion is compounded in a case like the present where the procedure of actually engag ing employees on a partic ul ar day is atypical. The mandatory requirements of s. 8. 23 (now s. 89) require the Commission to order ea ch of the persons to whom the order was directed to file an affidavit and ior each of th ose persons lo do so. The short answer to the problem In the present case is that t he ste ps envisaged by s. 8.23 have no t b een followed with respect to t he orficers and the em ployees. The procedu re of calling on them to show cause cannot, on the facts of the case, be invok ed . With respe ct to the broader issues I would simply say that while It is in accordance with practice an d wi th the Act (s. 4.23) 10 make orders di rected to officers or members of an industri al organisa ti on gen erally and without further de scr iption, wh en, after apparent non-compliance. a procedure such as that in ss. 8. 23 and 8.2 4 [now ss. 89 and 90) 1s to be invoked, wit h the possibility of a substantial fi ne for being imposed in the even t of failure to show cause, the person who is required to show cause musl be identi fied and given sufficient notification, at the lime of issuing the notice to show cause, of the matters in re spect of which he is requ ired 10 show c ause . II may be that in a particu la r case the Industrial Registrar will not be satisfi ed that any of the req uirements of the order have been su bstantially complied with. In other cases it may be apparent that ii wou ld be futile 10 suggest that, prima facie. a person has fa il ed to comply with the order. For example, it may be that an affidavit fi led by a particul ar person indica te s that he was not aware that an order extending to him had been made. It may be establi shed that he would in any event have had a valid excuse not to be at work throughout the relevant period, although su ch an excuse wo uld need to be scrutinised w i th some care. Where the order consists of a number of distinct obligations there may be cases wh er e it is pl ain th at the person to whom the order was d irected has substantia lly compl i ed with the order in so me res p ects but in other respects has not substanllally complied with it. It is in those circumstan ces not ap propri ate to simp ly call on the person to show c ause w ithout specifying the parts of the order in respect of whic h he has n ot satisfied the Indu st rial Registrar that there has been substan ti al compli ance. II is accept ed that this view creates grave prac ti cal difficulti es in implementing the procedure under s. 8.23 in respect of employees and perhaps officers of a union, but that is a conseq uen ce of the way in which the section is drafted and the application oi the rules of natural Justice. It is a consequence of this view that the Indust ria l Regist rar would be acti ng in excess of jurisdiction if he issued notices to show cause to the office rs of the union and to the employees, as the procedure envi saged by s. 8.23 has broken down in thi s case by reason of the non-incl us io n of a requirement that affidavi ts be fi led by each of those persons so 1haI the Regi strar may determine wheth er there has been substantial comp li ance. So far as the AMIEU is concerned the procedure has been followed. I do not consider the failure to require affidavits to be fi led by the officers and the employees to be fatal to the implementation of the procedure in respect of the AMIEU. In relation to the AMIEU, the i ss ue lo be addres sed by t he Reg istrar was whether he was satisfied that i t had substantially complied w i th the order. The union is a body corporate (s. 13 .8 [now s. 20 I)) and can only act through its officers. In th is ca se the affidavit in compliance with the Commission's order was sworn by Mr Richa rd son, the Southern District Sec retary of the AMIEU. In view of certain subm iss i ons made by Mr Jerra rd it is 10 be noted that Mr Ri chardson sw ore that on t O May 1993 he attend ed a meeting at wh ich "a large number of A.M. I. E.U. members were present". He then deposed that he believed that th ose members were employ ees of th e MRA and "that all or th e great majority of such employees were present". Mr Jerrard's sub mi ssions were directed to establishing that some of the matters upon which the Registrar relied in h is determination were n ot established by evidence and that there had been breaches of natural justice in the conduct of the funher inquiries by the Registrar. One aspect of the sub mission wi th res pe ct to d en ial of natural justice was 1haI the parties did not have access to the a ffi davit and a list of members of the AMI EU em ployed by MRA during the cou rse of the further inquiries. The short answer to this is th at th e affidavits were mentioned during the course of the discussions w ith the Registrar. No specific request was made by e, ther oi the parties to see the other's affidavit, despite some banter about them. In any event the point is a sterile one on the material before me. There is ab so lutely no th ing in the affidavit filed on behalf of the MRA that is contrary to material in the affidavit fi led on behal f of the AMIEU. That is not to say that in a case where there is a dispute on the face of the affidavits the Registrar can proceed, if he conducts further inquiries, to conduct those further inquiries without bringi ng lo the notice of t he part ie s the area s of conflict so th at they may make any commen ts thereon th at they wi sh. However that is not this case. So far as the list of names is concerned the Reg istrar ap paren tl y compared the two li sts wi th a vi ew to determining the degree of coincidence to them. There is nothing in the materi al before me that suggest s that anything turns on th is especially in view of the evidence in the affidavi t oi Mr Richardson to which I have already referred. for the reasons that I have given I conclude that there is no subs ta nce in Ground l(c). Although ii is no t specifically ra is ed in the grounds of appea l, Mr Jerrard developed a wider submission to the effect that the AMIEU had not been given an ad equate right to be heard by reason of the fac t t hat certa in things that were sai d by the Registrar in the latter part of his decision had not bee n spec ifically put to the officers of the union who attended at the further inquiries. Mr Jerra rd went through each of the ma tt ers an d submitted that the Registrar had denied natural justice to the AM I EU by not being more explicit in the questions that he put to the officers of the union. I have read the transcript of the occasions when the further inquiries were conducted in conjunction with the obseNati ons of the Reg istrar. I am left with the impression that overall the AMIEU was given the opport un ity to pul any material on record that it w is hed. One must make allowances for the natu re of a proce ed ing of th at kind in deciding whether certain things may have been put mo re expl ici tly or answered more comprehensive ly . However the overall feeling that I have is that the conduct of th ose proceedings did not deny the AMIEU natural justice. To the extent that that complain! is enc ompasse d in Ground l(a) ii fa il s. So far as Ground 1(a) is a complaint that the material was such that the Registrar could not have reasonably found t ha t t he AMIEU and relevant officers had not substantially complied with the order, in my opinion at l eas t on some of the issue s referred to in the obseNations of the Industrial Registrar there was a basi s upon wh ich he might not have been satisfied that there ha d been subs tantial compliance. Of co urse, my comments in this rega rd are directed to the is su e whether the Registrar might issue "s how cause" no ti ces. II is not to be taken that, when the process moves into the ph ase of placing materi al befo re the Court ior the purpose of showing cau se , a finding that cause has not been shown w ill fo ll ow . Whatever fi nding is made at that time wi ll depend on the state of the evidence produced. Accordingly there is no obstacle to the Registrar iss uing a show cau se notice to the AMIEU. However, consistently with wh at I h ave said previ ously the particular paragraphs of the order as to which the Registrar Is so sa ti sfied should be stated in the show cau se notice. Having regard to the essential nature of the proceedi ngs as show ca u se proceedings, I do not consider that panicularisation of steps that could have been ta k en, but we re not, i s necessary. So fa r as the offic er s are concerned, for t he reasons I have stated previously, the statutory proced ure has been interrupted by reason of the non- compliance w i th s. 8.23 w ith resp ect to the re quiremen t to fi le affidavits. Accordingly notices to show cause against them cannot be pro ce eded with. Ground 2 Is concerned with the proposition that the Industr ia l Registrar wo uld act without j urisdiction if his rea so ns did not state who had failed to comply with the orders, with wh ich order or orders there had been non -compliance an d what steps t ha t might have been taken were not tak en. II is an integral part of the process of deciding whether he is satisfied or 1 Ocrober. I 993 1 QUEENS LAND GOVERNMENT IND US TRIAL GAZETT E 317 not as to substant ia l compl ia n ce that at some time the Ind ustri al Regi strar must turn his mind to these questions. If he gives reasons for his conclusion that he is not satisfied of substantial compliance, it wou ld be appropri ate to re fer to these matters in them. However, it is too sweeping a statement to say that a failure to do so necessa rily demonstrates a lack of jurisdiction 10 proce'1 funher. The ground is not, in my view, made out on the facts ot th is c ase . It is now necessary to return to the issue of the ava ilability of the procedu re under Part 2 of the Judicial Review Ac1 1991 in rel at ion _to _a decision of an Industri al Reg is tra r that he has no t been sausfied that there has been substantial compliance with an order of the Commi ssio n. Under s. 18, the ludicral Review Act 199 I re_cognizes the continued operation of certa in privative clau ses including ss. 3.7 and 8.5 [now ss. 14 and 71] of the Industrial Relations Act 1990. Sec tion 8.5(1) [ now s. 71(1 )] preserves decisions of the Industri al Commission from impeachment for want of form or informality in any coun on any account whatever. It further provides tha t su ch de cisio ns cannot be appealed ag_ainst, revi ew~ , quashed or called in question except as p_rescnbed. Th e effect Is to enh an ce the recogn rt i on of the rndustnal relations system as a self-contained one and in particular, the appell ate or review mechanism available u~der it in respect of the Commission's decision s. Fu rther, proceedings in the Commi ssi on are protected from prerogati ve writs (as to wh ich Part 5 of the Judicial Review Act 1991 now provides the analogous procedu re) and injunctions. Section 41 (3) of the Judicial Review Act 199 J substitutes orders under Part 5 where references to prerogative wr its previously appeared. As the matters argued as if the procedure rn this case was an appeal appear to be co-e xt ensive wit h those wh ic h would have been argued if the matter h ad been an application under Pan 2 of the Judicial Review Act 1991 and those arguments have fai led the latter . appli ca1 ion would also fail if there were jurisdiction t~ entertain rt. 1 he thrust of the Attorney-General's argumenI before me was th at the provisions of s. 3.6(1) (d) [now s. 13(1)(d)) did not extend to authorising_ the Pres ident to exercise the jurisdiction under Pa rt 2 of the Judic,al Review Act 1991. It was submitted that the jurisdiction was conferred on the Sup reme Coun only and could not be ex ercised by the Industrial Court, notwithstanding s. J.6(1)(d) [now ~- _13(t)(d)]. I prefer to leave this question to another day as rt ,s un ne ce ssary to decide i t to d ispos e of t hese proceedings, and because what may be a more fundamental argu ment about the operation of the Judicial Review Acr 1991 based on lhe recognition in s. 18(2) of the Judicial Review Act 199 I of the continued opera ti on of t he privative clauses in the Industrial Relations Act 1990, was not fully argued before me. In the context of the presen t case, whether a decision by the Industrial Registrar ,s a "decision of the Industrial Commission" wit hin the mean ing of s. 8.5 [ now s. 71] of the Industrial R~lat io ns _Act 1990, given h is integral statutory role in the process or enforcing the decision of the Commission is another issue which was no t devel oped in argument. If _it is not, !t seems anomal ous that this step alone in this c ~se might con_ce,vab ly be subject to rev ie w outside the confines ot the ,ndustnal relations sys tem (sub1ect, of course to the overriding discretion in s. t 2 of the Judicial Review Acl 1991). By way of conclusion, I make the follow i ng orders: 1. In the case of the AMIEU, subject to directing the Assistant lnduslri al Registrar 10 specify, in the notice to show cau se, the paragraphs rn res pect of which he is not sa tis fied th ere has been substantial compliance w i th the Commission's orders, the appeal is dismi ssed . 2. In th e case of the Pr es iden t, Secretary, Southern D1stn ct Secretary, _organisers and other off icers of the AMIEU, the dec1s1on of the Assistant Industrial Registrar is set aside. Dated this 1wen1ieth day of Se pIember, 1993. K.G.W. MA CKE NZI E, Pres ident Appearances:- Mr J. Jerrard QC, with him Ms C. Holmes then M r J. Jerrard instructed by Ken Hooper and A sso ci ates for the Australasian Meat Industry Union of Employees (Queensland Bra nch). Mr R. Traves with him Mr G. Arnold then M r J. McCrea for the Metropolitan Reg ional Abauoir. Mr R. Jones instructed by the Crown Sol ic itor. O pe rative Date: NIA Appeal - AMIEU -v- M et ropolitan Reg ional Abattoir Released: 20 Septemb er 1993 ########## ##### ####################1/#### ############ -- 3 of 3 --