FEDERAL COURT OF AUSTRALIA

Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The appeal be upheld.

2.    The orders of the primary judge be set aside and in lieu thereof it be ordered that:

(a)    The application filed in this Court by the first, second and third applicants on 8 July 2013 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

GREENWOOD J

1    These proceedings are concerned with an appeal from Orders of a Judge of this Court made in the exercise of original jurisdiction conferred under s 39B of the Judiciary Act 1903 (Cth).

2    In the principal proceeding, the first three respondents to the present appeal sought the issue of orders in the nature of certiorari so as to quash three decisions of Fair Work Australia made by Deputy President Hamilton on 20 December 2012 approving under s 186 of the Fair Work Act 2009 (Cth) (the “Act”) applications made by the present appellant under s 185 of the Act for approval of three enterprise agreements said to have been made in accordance with the provisions of the Act. In the principal proceeding, the first three respondents also sought an order in the nature of mandamus directed to the Full Bench of the Fair Work Commission (the “Commission”) requiring the Commission to hear and determine, according to law, an appeal by the respondents to the Full Bench from the decisions of Deputy President Hamilton approving the three enterprise agreements. The first three respondents also sought a declaration that there were no enterprise agreements capable of approval for the purposes of s 186 of the Act when Deputy President Hamilton purported to exercise a statutory jurisdiction under s 186 to approve the three agreements.

3    The first three respondents are Kaizen Hospitals (Essendon) Pty Ltd (“K H Essendon”), Kaizen Hospitals (Malvern) Pty Ltd (“K H Malvern”) and Kaizen Hospitals (Mount District) Pty Ltd (“KHMD”). The shares in these three operating companies are assets of a unit trust called the Independent Private Hospitals of Australia Trust although from January 2012 the relevant group of companies are now called, for trading purposes, the Macquarie Health Corporation Group. The units in the Trust are held ultimately by Dr Thomas Wenkart and his family. Dr Wenkart is the Chief Executive Officer of each of the three operating entities. In April 2011, the trustee of the Trust was Independent Private Hospitals of Australia Pty Ltd (“IPHOA”). Each respondent operating company is an employer of nurses who work, respectively, at hospitals operated by K H Essendon, K H Malvern and KHMD known, for trading purposes in each case, as the Essendon Private Hospital, the Malvern Private Hospital and the Melbourne Eastern Private Hospital.

4    The appellant, Australian Nursing and Midwifery Federation (“ANMF”), is an organisation of employees registered under the Act and each of the first three respondents employ persons who are either members of the ANMF or are eligible to become members of that organisation.

5    On 20 December 2012, Deputy President Hamilton approved under s 186 of the Act three enterprise agreements found by him to have been made with each employer corporation for the purposes of the Act.

6    In the principal proceeding, the primary judge found (Kaizen Hospitals (Essendon) Pty Ltd v Australian Nursing and Midwifery Federation [2014] FCA 428) that Deputy President Hamilton had exceeded the statutory jurisdiction conferred upon Fair Work Australia by s 186 of the Act because in order to exercise that statutory jurisdiction, a jurisdictional fact had to subsist as a condition precedent to the exercise of the jurisdiction. That fact was said to be the making of an enterprise agreement for the purposes of the Act in the case of each employer. Since the primary judge found that no agreement had been made, the primary judge concluded that Deputy President Hamilton fell into jurisdictional error by purporting to approve each contended enterprise agreement and thus orders in the nature of the constitutional writs were to issue quashing each approval decision as one made in excess of jurisdiction. The primary judge concluded at [56] that it would necessarily follow that the decision of the Full Bench should be set aside. That conclusion seemed to follow for the primary judge because the decision of the Full Bench finding no appellable error rested upon a decision found by the primary judge to have been made by Deputy President Hamilton in excess of jurisdiction.

7    There is, of course, no statutory right of appeal from a decision of the Full Bench of the Commission to this Court. The Federal Court of Australia does not exercise any right of appeal from the Full Bench whether in the “strict” sense, whether by way of “rehearing” or whether by way of an appeal “de novo” in the sense in which those terms are discussed by Gleeson CJ, Gaudron and Hayne JJ as a matter of general principle at [12] to [14] in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at 203 and 204 (“Coal & Allied v AIRC”). The jurisdiction which the respondent employer corporations sought to invoke was this Court’s jurisdiction under s 39B to grant a remedy arising out of a proposed determination by the Court that, as a matter of legality, the relevant decision-maker had reached a decision in excess of jurisdiction. In this case, the decision the subject of particular examination was a decision, in the case of each employer, made by Deputy President Hamilton of Fair Work Australia (as it was then called) on 20 December 2012 in the purported exercise of jurisdiction conferred under s 186 of the Act to approve an enterprise agreement having regard to the particular statutory integers and the evidence before him going to those integers.

8    An appeal, however, from each decision of Deputy President Hamilton to approve each enterprise agreement does lie, under the Act, to the Full Bench of the Commission.

9    Each of the three respondent employer corporations applied to the Full Bench of the Commission by way of appeal for orders setting aside each approval decision of Deputy President Hamilton. The Full Bench, having regard to the statutory provisions to be mentioned shortly, exercised that appeal jurisdiction (or a jurisdiction to determine whether permission to appeal ought to be given having regard to the contentions of appellable error), by way of rehearing. Having found no error of law or error of fact-finding on the part of Deputy President Hamilton, the Full Bench refused permission to appeal.

10    In order to establish a right to the grant of the constitutional writs in this Court on the ground of jurisdictional error, the applicant employer corporations were required to demonstrate (apart from any question of error on the face of the record, which was not contended for in the proceeding) that the Full Bench of the Commission fell into jurisdictional error in the sense described by Gleeson CJ, Gaudron and Hayne JJ at [31] in Coal & Allied v AIRC, in these terms:

There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd, Re Kearsley Shire Council; it “misunder[stood] the nature of [its] jurisdiction … or ‘misconceive[d] its duty’ or ‘[failed] to apply itself to the question which [s 45 of the Act] prescribes’ … or ‘[misunderstood] the nature of the opinion which it [was] to form’”. The Full Bench did none of those things.

                                [citations omitted]

11    The answer to the question of whether the Full Bench exceeded its jurisdiction or fell into jurisdictional error is not likely to be found in examining whether the Full Bench was itself in error in its assessment of the merits of the contended appellable errors on the part of Deputy President Hamilton as such an examination is likely to reveal, simply, whether the Full Bench made an error within jurisdiction when exercising the statutory appellate jurisdiction: see Coal & Allied v AIRC at [32]. The questions to be addressed in the context of jurisdictional error are those reflected in the passage quoted at [10] of these reasons. Did the Full Bench misconceive its role in exercising the appellate jurisdiction? Did the Full Bench misconceive the content of the provisions of the Act to be applied in exercising its jurisdiction? Did the Full Bench in exercising its appellate jurisdiction when undertaking, by way of rehearing, its examination of appellable error in fact-finding by Deputy President Hamilton so fail to undertake that role that it failed to properly exercise its jurisdiction?

12    The task for the Full Bench of the Commission was to exercise a jurisdiction invoked by each employer of determining by way of rehearing whether contended appellable error was made out in the decision-making of Deputy President Hamilton. In the proceedings in this Court, it is not this Court’s task to determine for itself whether the relevant fact, said to be a jurisdictional fact, subsisted before Deputy President Hamilton on the evidence. The question is whether the Full Bench of the Commission fell into jurisdictional error in the sense described in the passage quoted at [10] of these reasons, in the exercise of its appellate jurisdiction.

13    Although I will mention the statutory provisions later in these reasons, it seems to me that the proper construction of the first limb of s 185(1) of the Act and its relationship with s 186 having regard to ss 604 and 607 of the Act is that the making of an enterprise agreement is not a jurisdictional fact in the decision-making of the primary decision-maker within the Commission (or Fair Work Australia as it was then known in the case of the decision made by Deputy President Hamilton) but rather simply a fact in issue to be established as one of the relevant statutory integers on the application for approval. A decision as to that matter on the part of Deputy President Hamilton might reflect appellable error capable of correction by the Full Bench of the Commission in the exercise of the statutory rehearing jurisdiction according to the terms upon which that jurisdiction is conferred upon the Full Bench. There would be no point, however, in conferring a rehearing jurisdiction in respect of appellable error by a primary decision-maker within the Commission (at least so far as this point concerning the first limb of s 185(1) and its relationship with the s 186 powers is concerned) in the Full Bench if the question of whether an enterprise agreement was made at all is construed as a jurisdictional fact operating as a pre-condition to the exercise of the primary decision-maker’s jurisdiction to approve (or not) an enterprise agreement. There may be jurisdictional error on the part of the Full Bench in the purported exercise of the jurisdiction to determine by way of rehearing whether appellable error occurred in the decision-making of Deputy President Hamilton but that question is to be determined by addressing the considerations mentioned at [10] of these reasons.

14    In construing the first limb of s 185(1) and its relationship with s 186 so as to determine whether the making of an enterprise agreement is properly characterised as a jurisdictional fact rather than a fact in issue, it is not appropriate to simply ignore the conferral of appellate jurisdiction on the Full Bench to correct appellable error on the part of the primary decision-maker. If the decision of the primary decision-maker in the Commission was not susceptible of correction on appeal in the way contemplated by ss 604 and 607 of the Act before the Full Bench (and no right of appeal was otherwise conferred in respect of a decision of Deputy President Hamilton, such as a statutory right of review before the Federal Court of Australia), the proper construction of the first limb of s 185(1) and its relationship with s 186 might well require the determination of whether an enterprise agreement was made as a precondition to the exercise of the jurisdiction to approve the agreement.

15    That, however, is not the statutory scheme.

16    Each employer invoked the jurisdiction of the Full Bench by seeking to demonstrate appellable error in Deputy President Hamilton’s decision. The contention did not seem to be that there was no decision susceptible of an application for appeal or that Deputy President Hamilton’s decision was a nullity for reasons of jurisdictional error. In this Court, the question must be whether the Full Bench fell into jurisdictional error in the exercise of its jurisdiction. The proceedings before the primary judge, however, focused upon whether there was jurisdictional error in the decision of the primary decision-maker within the Commission, Deputy President Hamilton, on the footing that if that decision was made in excess of jurisdiction, the Full Bench fell into jurisdictional error by failing to recognise jurisdictional error in the primary decision. That seems to me to be an incorrect approach.

The Statutory Scheme

17    Plainly enough, matters relating to the relationship between an employer engaged in an enterprise and its employees can be the subject of an enterprise agreement described as a “single-enterprise agreement” for the purposes of s 172 and Pt 2-4 of the Act. Enterprise agreements are negotiated between the proposed parties, and the bargaining representatives in that process include an employer (itself) that will be covered by any agreement and an employee organisation in the particular circumstances of s 176(1)(b) of the Act. Apart from the employer itself, a person is a bargaining representative of an employer if the employer appoints that person, for that purpose, in writing. If the employees of an employer to be covered by a single-enterprise agreement have been asked to approve the agreement under s 181 of the Act, the agreement is made when a majority of those employees who cast a valid vote approve the agreement: s 182(1).

18    If an enterprise agreement is made, a bargaining representative for the agreement must apply to the Commission for approval of the agreement: s 185(1). The application must be accompanied by a signed copy of the agreement (s 185(2)(a)) together with any declarations that are required, by the procedural rules, to accompany the approval application (s 185(2)(b)). Relevantly here, the application had to be made within 14 days after the making of the agreement (s 185(3)(a)) or within such further period as the Commission might allow if, in all the circumstances, the Commission considers it fair to extend the period of 14 days (s 185(3)(b)). The regulations made under the Act may prescribe requirements relating to the signing of enterprise agreements for the purposes of s 185(2)(a) of the Act. Regulation 2.06A(2) of the Fair Work Regulations 2009 (Cth) does so prescribe. That Regulation provides that a copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement (Reg 2.06A(2)(a)(i)) and at least one representative of the employees covered by the agreement (Reg 2.06A(2)(a)(ii)), and it includes the full name and address of each person who signs the agreement together with “an explanation of the person’s authority to sign the agreement” (Reg 2.06A(2)(b)).

19    Section 186 sets out a statutory proposition described at s 186 as the “Basic rule” and the rule is this. If an application for the approval of an enterprise agreement is made under s 185 of the Act, the Commission must approve the agreement under s 186 if the requirements set out in ss 186 and 187 are met. As to the s 186 requirements, the Commission must be “satisfied” that, relevantly here, the agreement has been genuinely agreed to by the employees covered by the agreement; that the terms of the agreement do not contravene s 55 of the Act; and that the agreement passes the better off overall test. Section 186 then sets out a series of other matters about which the Commission must be satisfied which need not be mentioned further here.

20    As to the appeal provisions, s 604 of the Act provides, relevantly for these proceedings, that a person who is aggrieved by a decision made by the Commission (other than a decision of the Full Bench) may appeal the decision with the permission of the Commission: s 604(1). Without limiting when the Commission may grant permission to appeal, the Commission must grant permission if it is satisfied that it is in the public interest to do so: s 604(2). A person may appeal the decision by applying to the Commission: s 604(3). In the conduct of the application, the Commission may admit further evidence and may take into account any other information or evidence: s 607(2). The Commission may do any of the following things in relation to an appeal: confirm, quash or vary the decision; make a further decision in relation to the matter that is the subject of the appeal; refer the matter the subject of the appeal to a member of the Commission and require that member to deal with the subject matter of the decision or require that member to act in accordance with the directions of the Commission: s 607(3).

21    Having regard to ss 604(1) and 607(2) and 607(3) of the Act, the jurisdiction exercised by the Full Bench of the Commission is one of rehearing: Coal & Allied v AIRC at [13].

22    The President may refer a question of law arising in a matter before the Commission to the Federal Court for the Court’s opinion in accordance with the requirements of s 608 of the Act.

23    A provision of the Act that loomed large in the determination by Deputy President Hamilton of whether to approve each enterprise agreement, and in the considerations of the Full Bench on the question of appellable error, was s 793 as that section was central to the question under s 185(1) of whether each employer corporation, by the conduct of the relevant individuals, had made an enterprise agreement for the purposes of that section and s 186. Section 793 provides that any conduct by an officer, employee or agent of a body corporate engaged in by that person on behalf of the body corporate which falls within the scope of that person’s actual or apparent authority is taken, for the purposes of the Act and the procedural rules, to have been conduct engaged in also by the body corporate: s 793(1)(a).

24    Any conduct engaged in on behalf of a body corporate by any other person at the direction or with the consent or agreement, whether implied or express, of an official (defined to mean officer, employee or agent) of the body corporate, is taken to have been conduct engaged in also by the body corporate for the purposes of the Act and the procedural rules, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official of the body corporate: s 793(1)(b).

Background factual matters

25    On 19 April 2011, the trustee of the Trust, IPHOA, entered into an “annually renewable and ongoing” agreement, commencing that day, with Flagtail Pty Ltd (“Flagtail”) by which Mr Subramanian was appointed as Flagtail’s nominated representative as “Corporate Manager responsible for the [Essendon Private Hospital, the Malvern Private Hospital and the Melbourne Eastern Private Hospital] and related business activities owned by IPHOA in Victoria”. Mr Subramanian’s position title was “Corporate Management Victoria and Hospital Director of Essendon Private Hospital”. He was to be located at the Essendon Private Hospital although he regularly moved between the three private hospitals.

26    Mr Subramanian’s 17 identified “Specific Objectives” were concerned with matters such as implementing business plans to realise nominated earnings before interest and tax, and profit benchmarks for the financial years ending 30 June 2011 and 30 June 2012; overseeing and monitoring rosters; and, identifying costs and profit drivers. His “General Objectives” required him, among other things, to: “Read understand and apply Staff Awards, Agreements, and Contracts as relevant to each Hospital”. Mr Subramanian was accountable to the Corporate Manager of IPHOA and “in the event of an organisational or crisis issue” accountable to Dr Wenkart.

27    On 2 November 2011, Mr Megennis, the Industrial Officer of the Victorian branch of the Australian Nursing Federation (“ANF”) sent a log of claims to the Chief Executive Officer of IPHOA and expressed interest in negotiating an agreement to replace the enterprise agreements which were to expire in early 2012.

28    In February 2012, Mr Subramanian appointed Service Industry Advisory Group Pty Ltd (“SIAG”) to assist him with industrial relations matters.

29    On 21 March 2012, IPHOA sent a memorandum with an attached “Notice to Nursing Staff” to all nursing staff from Ms Val Davie, the Manager of Clinical Services for each of the three hospitals in issue, concerning a meeting to be held on 29 March 2012 to begin negotiation for a nursing staff enterprise agreement. Nursing staff were encouraged to read IPHOA’s memorandum and attached Notice carefully. The memorandum and Notice in evidence advised nursing employees employed by the Essendon Private Hospital entity of that employer’s intention to negotiate a new enterprise agreement. The Notice gave nursing employees notice of their rights to representation in the negotiation of the new enterprise agreement. In the Notice attached to IPHOA’s memorandum, the Essendon employer requested that any nursing employee wishing to appoint a bargaining representative in the upcoming negotiations for the new enterprise agreement give notice of that matter before 29 March 2012 to Ms Davie or to Mr Subramanian in writing.

30    As to the Notice under s 174(6) of the Act, the Essendon Private Hospital employer gave notice to its nursing staff that “it is bargaining in relation to an enterprise agreement which is proposed to cover employees that are employed by the Employer as nursing staff as classified in the proposed enterprise agreement” [emphasis added].

31    Although the IPHOA memorandum and attached Notice to the nursing employees of K H Malvern and KHMD for the other two private hospitals is not in evidence, the respondent employers do not assert that a memorandum and Notice in the same terms adjusted relevantly to reflect the correct hospital and nursing staff employees at that hospital was not sent in each case.

32    In response to IPHOA’s invitation to nursing employees to respond to Mr Subramanian, Mr Megennis did so for the purpose of the negotiations concerning the earlier log of claims and the proposed enterprise agreement negotiations, on 26 March 2012, and suggested that a meeting might take place. Mr Subramanian responded that day saying that he was happy to meet, and since Mr Subramanian moved around the three hospitals, could Mr Megennis nominate a location for the meeting which would suit Mr Megennis. On the same day Mr Subramanian asked Mr Megennis for a copy of the log of claims. Mr Megennis responded that day, forwarding the log of claims to Mr Subramanian and setting out the ANF’s proposed enterprise agreement outcomes sought to be achieved.

33    On 3 May 2012, Mr Megennis sent an email to Mr Brian Cook, the Managing Director of SIAG, noting that he understood that Mr Cook would now be acting in the negotiations on behalf of the IPHOA hospital employers concerning the new agreements. Mr Megennis requested an indication of Mr Cook’s availability for a meeting. Mr Cook responded on 4 May 2012 and again on 17 May 2012 with comments on aspects of the proposed enterprise agreements for the IPHOA hospitals and also four other hospitals. SIAG provided Mr Megennis with a draft enterprise agreement for the Melbourne Eastern Private Hospital on 23 May 2012 and draft agreements for the Malvern and Essendon Private Hospitals on 25 May 2012 by email. A meeting was proposed for 4 June 2012 and Mr Subramanian was to be in attendance. A meeting took place on 18 June 2012 between Mr Megennis, Mr Subramanian and Mr Cook. On 19 June 2012, Mr Subramanian responded by email to Mr Megennis on three issues arising out of the meeting the previous day on the topics of shift allowances, lost hours and overtime.

34    Between 19 June 2012 and approximately 8 July 2012, correspondence about the proposed agreements and particular terms of those agreements was exchanged between Mr Megennis and either Mr Cook for the employers or alternatively Mr Cook and Mr Subramanian for the employers. Agreement was reached with Mr Megennis by 9 July 2012. Mr Cook advised Mr Megennis that employees would be able to vote on acceptance or otherwise of the agreements at each hospital between 23 July 2012 and 5.00pm on 26 July 2012. The ballot was to be counted on 27 July 2012. The vote was counted at each hospital on that day. Each enterprise agreement was approved by a majority of those who voted. Each agreement was made on 26 July 2012 for the purposes of s 182 of the Act.

35    Each agreement so made was signed for each employer by Mr Subramanian on 1 August 2012. In each case he signed a form which asserted that he was authorised to sign the enterprise agreement on behalf of the hospital employer.

36    On 8 August 2012, each employer, as the recited applicant, applied to Fair Work Australia under s 185 of the Act for approval of each enterprise agreement. The “applicant’s representative” in each case is recited as SIAG with Ms Sascha Cook recited as the contact person. Each application is signed by Ms Cook as the “Employer Bargaining Representative”. SIAG, however, was not appointed by each employer entity for the purposes of s 176(1)(d) of the Act as a bargaining representative of the employer. SIAG was appointed in February 2012 by Mr Subramanian to assist him in the negotiations with Mr Megennis, with Mr Subramanian’s approval.

37    Each application was supported by an employer’s declaration for the purposes of s 185(2)(b) of the Act made by Mr Subramanian on 3 August 2012. In the declaration in support of K H Essendon’s application, Mr Subramanian describes himself as “Hospital Director” consistent with the description in the agreement with IPHOA of 19 April 2011. In the other two declarations he describes himself as “Corporate Manager, Victoria”, a title essentially consistent with the 19 April 2011 agreement.

38    The applications for approval were heard on the papers by Deputy President Hamilton and each agreement was approved by him on 17 August 2012 (Kaizen Hospitals (Mountain District) Pty Ltd re Melbourne Eastern Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012 [2012] FWAA 7071 (17 August 2012); Kaizen Hospitals (Essendon) Pty Ltd T/A Essendon Private Hospital re Essendon Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012 [2012] FWAA 7066 (17 August 2012); Kaizen Hospitals (Malvern) Pty Ltd T/A Malvern Private Hospital re Malvern Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012 [2012] FWAA 7068 (17 August 2012)). Each employer applied to the Full Bench for permission to appeal those decisions. The Full Bench determined that as SIAG had not been appointed as the employer’s bargaining representative in each case by an instrument in writing in conformity with the “prescriptive and formal requirements” of ss 176 and 178 of the Act, SIAG had not been validly appointed as each employer’s bargaining representative: Kaizen Hospitals (Essendon) Pty Ltd v Australian Nursing Federation [2012] FWAFB 8866 (18 October 2012) at [11]-[14]. The Full Bench also decided at [17] that if the applications were made by an invalidly appointed employer bargaining representative, they were not made in conformity with s 185(1) of the Act and if the applications were treated as made by the employer in each case, they were nevertheless applications signed by an invalidly appointed bargaining representative and also failed to comply with s 185 of the Act.

39    Thus, in exercising its rehearing jurisdiction, the Full Bench found appellable error on the part of the primary decision-maker and set aside the approval decisions. At [21], the Full Bench noted that notwithstanding these deficiencies, the enterprise agreements had been negotiated between the parties over “many months” throughout a “whole course of negotiations”. At [21], the Full Bench also noted that notwithstanding these lengthy negotiations, at least one person with managerial responsibilities for the operations of the hospitals advised the bargaining representative for the employees (after the agreements had been approved by the Commission) that he had acted without the approval of the employer entities in signing the agreements.

40    These remarks of the Full Bench at [21] are a reference to an email sent by Mr Subramanian to Mr Megennis dated 23 August 2012 in which he said this:

Subject: EBAs for Essendon, Malvern & Melbourne Eastern Private Hospitals

Dear Barry,

I refer to the Enterprise Agreements for Essendon, Malvern & Melbourne Eastern Private Hospitals that were approved by Fair Work Australia on 17 August 2012.

In signing these agreements, I have acted without the approval of IPHoA and the Board and did not have the authority to do so. The Board of IPHoA had not been informed of the substance of the agreements and are currently completely uninformed about them. They need to study these agreements and I am addressing this to provide them with the background to the agreement documents and any other information they [may] require. The Board has committed to working through this problem as a matter of priority.

Hence, we will be lodging a request for variation of these agreements with Fair Work Australia. I will remain in communication with you about this process so that we can move to a quick resolution.

Regards,

Sub

Sankar Subramanian

Corporate Manager – Victoria

[IPHOA title and logo]

41    The position reflected in that letter was the position each employer corporation continued to press from 23 August 2012.

42    On 18 October 2012, the ANF applied to Fair Work Australia under s 185(1) in its capacity as a bargaining representative, for approval of the three enterprise agreements made on 26 July 2012. In these three applications, the ANF contended that each employer had acted as bargaining representative for the purposes of s 176(1)(a) of the Act in the negotiation of each enterprise agreement by reason of the conduct of Mr Subramanian and as assisted by Mr Cook. The ANF contended that Mr Subramanian had been held out by IPHOA to employed nursing staff of each employer entity as someone they might respond to concerning the negotiation of the new enterprise agreements and that Mr Subramanian’s conduct and acts fell within the scope of the duties of someone exercising the role he had performed on behalf of IPHOA and the operating hospital entities.

43    Dr Wenkart gave evidence before the Full Bench and Deputy President Hamilton that notwithstanding the negotiations and processes surrounding the development of the enterprise agreements, the conduct of staff meetings, discussions at operations meetings in each hospital, the voting processes put in place and the matters described at [3] of Deputy President Hamilton’s reasons for decision (Australian Nursing Federation [2012] FWA 9905 (20 December 2012); (2012) 227 IR 303), Dr Wenkart did not know of the making of the three enterprise agreements until 20 August 2012, a date after each enterprise agreement had been initially approved by Deputy President Hamilton (see paras 9 and 21 of Dr Wenkart’s statement dated 5 October 2012). Each employer contended before Deputy President Hamilton that it was unaware of any negotiation and that Mr Subramanian had no authority to negotiate or execute an enterprise agreement for each employer. Moreover, each employer noted that the applicant (the present appellant) for approval relied upon the declarations of Mr Subramanian of 3 August 2012 filed in support of the earlier applications notwithstanding that Mr Subramanian had sent his email of 23 August 2012 asserting that he lacked any authority to negotiate or execute the enterprise agreements.

44    Deputy President Hamilton found at [18] of his reasons that Mr Subramanian, Mr Cook and Ms Cook acted to negotiate agreements with the ANF although (at [29]):

SIAG undertook most of the direct negotiations with the ANF, but did so by way of assisting Mr Subramanian, and with his involvement and direction. This is the only plausible explanation of the sequence of events.

45    Having regard to all of the matters taken into account by Deputy President Hamilton and described by him at [12] to [51] of his reasons, Deputy President Hamilton found at [53] that Mr Subramanian (and others) had acted with apparent or ostensible authority on behalf of each operating employer hospital corporation. Deputy President Hamilton also found at [60] that each employer acted as a bargaining representative for the agreement on its own account pursuant to the authority of Mr Subramanian consistent with ss 176(1)(a) and 793(1)(a).

46    The Full Bench of the Commission heard, by way of rehearing, applications by each employer for permission to appeal from the decisions of Deputy President Hamilton: Kaizen Hospitals (Malvern) Pty Ltd T/A Malvern Private Hospital; Kaizen Hospitals (Mountain District) Pty Ltd T/A Melbourne Eastern Private Hospital; Kaizen Hospitals (Essendon) Pty Ltd T/A Essendon Private Hospital [2013] FWCFB 1846 (26 March 2013). At [60] of its reasons, the Full Bench observes that in exercising the jurisdiction conferred under s 604 of the Act it would normally require an appellant to demonstrate an arguable case of appellable error and refer to other considerations which would justify the granting of permission to appeal. Since s 604(2) of the Act requires the Full Bench to grant permission to appeal (assuming an arguable ground of appellable error is made out at the threshold) if it is satisfied that it is in the public interest to do so, not every appeal where an arguable ground of appellable error is made out will necessarily result in the granting of permission to appeal. Thus, an appellant needs to demonstrate a ground of appellable error and also identify additional considerations which would warrant the exercise of the discretion to grant permission to appeal. That was the methodology applied by the Full Bench in the exercise of the jurisdiction to entertain applications for permission to appeal from a primary decision-maker within the Commission.

47    The Full Bench at [61], however, was not satisfied that the employer in each case had established any ground of appellable error in the decisions made by Deputy President Hamilton and refused the applications for permission to appeal.

48    It is not necessary in these reasons to recite each contention of appellable error put by the employers to the Full Bench. It is sufficient to recognise that three principal propositions (with sub-propositions) were put to the Full Bench by the employers.

49    The first was that no enterprise agreement was made with the employers because those individuals who engaged in particular conduct which, on the face of it, brought about a concluded agreement simply had no authority to negotiate or execute such an agreement and the evidence before Deputy President Hamilton did not give rise to a factual foundation upon which a finding could be reached that those individuals acted within the apparent or ostensible authority of persons discharging the roles performed by the relevant individuals.

50    The second was that no enterprise agreement signed by each employer was put into evidence by the applicant for approval of each enterprise agreement.

51    The third was that there were a number of failures to comply with formal requirements of the legislation and procedural rules which Deputy President Hamilton described as technical matters.

52    As to the authority question, the Full Bench examined the findings of Deputy President Hamilton and considered the basis upon which the primary decision-maker reached his findings. The Full Bench considered the content of the law in relation to s 793 of the Act and the application of those legal principles to the evidence before Deputy President Hamilton and the basis upon which Deputy President Hamilton concluded that the conduct of Mr Subramanian aided by Mr Cook and Ms Cook on behalf of SIAG had the effect of binding each employer to an agreement. At [52], the Full Bench observed that the central issue raised in the appeal was whether Deputy President Hamilton erred in finding that Mr Subramanian acted with apparent or ostensible authority on behalf of the operating companies, and thus the employers, in negotiating and signing the agreements.

53    Having reviewed the reasoning of the primary decision-maker, the Full Bench concluded at [53] that the members were satisfied that the correct legal principles had been applied and that the finding that “Mr Subramanian acted with apparent or ostensible authority on behalf of the operating companies and the employers in negotiating and signing the agreements” was open to him on the evidence and that the evidence supported a conclusion at [54] that Mr Subramanian:

… acted with the assistance of SIAG to negotiate and sign the three Kaizen agreements and acted with the appearance that he had authority to do so, consistent with the representation of authority arising from his title, status and facilities and his interaction with the ANF, assisted by SIAG, in negotiating, the making of and the signing [of] the agreements.

54    The Full Bench also accepted that it was open to Deputy President Hamilton to find that the negotiation and entering into the enterprise agreements fell within the contractual responsibility of Mr Subramanian having regard to the terms of the agreement of 19 April 2011. Moreover, the evidence of IPHOA’s memorandum and Notice to nursing staff at each hospital expressly invited nursing employees to respond in relation to the enterprise bargaining arrangements to Mr Subramanian who was ultimately assisted in that process by Mr Cook and Ms Cook.

55    In relation to the question of authority, the Full Bench did not misconceive its role or misunderstand the nature of its jurisdiction. Nor did it misunderstand or misconceive its duty. Nor did it fail to apply itself to the questions required to be addressed by the provisions of the Act, by it, in the context of contended appellable error in relation to the question of whether an agreement was made by each of the employer entities.

56    The second proposition put to the Full Bench was that no enterprise agreement signed by each employer was put into evidence by the applicant in support of the application for approval of each enterprise agreement as required by the Act.

57    The Full Bench concluded that the signing of each enterprise agreement by Mr Subramanian on 1 August 2012 was a signing by the employer on the footing that Mr Subramanian’s signing of the agreement fell within his apparent or ostensible authority on behalf of each employer corporation. Deputy President Hamilton had taken the same view of that matter. The Full Bench found no appellable error in that finding on the footing that the same considerations which led to the conclusion that each enterprise agreement had been made with the apparent or ostensible authority of Mr Subramanian (through the processes earlier described) also led to the conclusion that each agreement was signed on 1 August 2012 within the scope of that apparent or ostensible authority.

58    Section 185(1) provides that if an enterprise agreement is made, a bargaining representative for the agreement must apply to the Commission for approval of the agreement as made. By s 185(2), taken in conjunction with Reg 2.06A(2), the application must be accompanied by a copy of the agreement signed by the employer (among other things).

59    At the moment in time when the Commission makes a decision to approve the enterprise agreement (or not), made in accordance with the provisions of the Act, it must have before it a copy of the agreement signed by the employer. The agreement might be made between the parties to it in circumstances where an individual for a corporate employer engaged in conduct which fell within the apparent or ostensible authority of that individual to make the agreement.

60    However, at the point on the continuum when the Commission must turn its regulatory mind to approval or otherwise of the enterprise agreement as made, it must have before it a copy of the enterprise agreement signed by the employer.

61    I would respectfully depart from the views of the primary judge on the “best evidence” point as it seems to me that the issue is not one of what is the “best evidence” at the moment in time when the Commission is called upon to approve (or otherwise) the enterprise agreement, but rather, the question is what does the statute require to be before the Commission in the exercise of its decision-making as to approval or not?

62    Section 185(2), taken in conjunction with Reg 2.06A(2)(a)(i), contains a mandatory requirement that a copy of the enterprise agreement signed by the employer be put in evidence in support of the application. There was no copy of the enterprise agreement signed by an person acting with the express actual authority of the employer to sign the agreement put into evidence before Deputy President Hamilton on the approval applications.

63    In fact, Mr Subramanian made it plain, after the event, that he did not have actual authority to sign the agreement.

64    The question then is this: If Mr Subramanian engaged in conduct within the scope of his apparent authority for each of the relevant employer entities (for the reasons mentioned earlier), which led to the making of the agreement, such that that conduct is taken to have been engaged in by each employer entity by operation of s 793 of the Act, does the conduct of signing the agreement for each employer entity, as made, also fall within his apparent authority such that the act of signing is taken to have been engaged in by each employer entity by operation of s 793 of the Act even though Mr Subramanian did not have the express actual authority to sign? If the answer is yes, then on the approval application there was, before Deputy President Hamilton, a copy of the agreement in each case signed by the employer, as a matter of law.

65    I am satisfied that the answer to the question is yes.

66    I accept that it would be an odd result to find that an agreement made on behalf of each employer entity by reason of Mr Subramanian’s apparent authority to so conduct himself was not regarded as signed “by the employer” for the purposes of an approval application when signed by Mr Subramanian in recognition of the agreement so made in the exercise of his apparent authority. Put simply, if Mr Subramanian had apparent authority to make the agreement, it seems difficult to conclude that he did not have apparent authority to sign the agreement as the employees were not on notice of any circumstance which would have suggested that his apparent authority was at an end. Once it is accepted that Mr Subramanian enjoyed apparent authority to sign the agreement, the act of signing is taken to be an act of the employer by operation of s 793 of the Act.

67    I have had the benefit of reading the reasons in draft of Buchanan and Jagot JJ on this issue and I agree with their reasoning. I also agree with the orders they propose.

Associate:

Dated:    5 March 2015

REASONS FOR JUDGMENT

Buchanan and Jagot JJ:

Introduction

68    This is an appeal against orders by a judge of the Court made on 16 June 2014, to give effect to findings made in a judgment delivered on 2 May 2014 (Kaizen Hospitals (Essendon) Pty Ltd v Australian Nursing and Midwifery Federation [2014] FCA 428).

69    The appellant is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The first to third respondents employ persons who are members of, or are eligible to be members of, the appellant.

70    The orders made by the primary judge quashed decisions of a Deputy President of the Fair Work Commission (“FWC”) which had approved three enterprise agreements involving the first to third respondents respectively. Those enterprise agreements had been found by the Deputy President to have been validly and effectively made under the Fair Work Act 2009 (Cth) (“FW Act”). The orders made by the primary judge declared that there were no such agreements which were capable of approval by the FWC as enterprise agreements pursuant to s 186 of the FW Act.

71    The judgment found that the Deputy President had made jurisdictional errors, and so had a Full Bench of the FWC when it refused permission to appeal against the decisions of the Deputy President.

The statutory scheme

72    Under the FW Act employers may make enterprise agreements with unions or with employees. Provided certain statutory requirements are observed, such agreements if properly made must be approved by the FWC upon application. Upon approval, an enterprise agreement becomes enforceable under the FW Act and various other statutory consequences come into play.

73    In the case of a corporate employer, s 793(1) of the FW Act provides:

793    Liability of bodies corporate

Conduct of a body corporate

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

(Emphasis in original.)

74    Negotiating parties for an enterprise agreement are to be represented by a “bargaining representative”. Relevantly, for present purposes, s 176(1) of the FW Act provides:

176    Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1)    The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a)    an employer that will be covered by the agreement is a bargaining representative for the agreement;

…

(d)    a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

(Emphasis in original.)

75    If an agreement is made, an application for approval must be made. The application must be accompanied by certain stipulated material. Section 185(1), (2)(a) and (5) provide:

185    Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1)    If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

…

Material to accompany the application

(2)    The application must be accompanied by:

(a)    a signed copy of the agreement; and

…

Signature requirements

(5)    The regulations may prescribe requirements relating to the signing of enterprise agreements.

76    Regulation 2.06A(2) of the Fair Work Regulations 2009 (Cth) provides:

2.06A    Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

…

(2)    For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a)    it is signed by:

(i)    the employer covered by the agreement; and

(ii)    at least 1 representative of the employees covered by the agreement; and

(b)    it includes:

(i)    the full name and address of each person who signs the agreement; and

(ii)    an explanation of the person’s authority to sign the agreement.

Note:    Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

77    Section 186(1) of the FW Act provides:

186    When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1)    If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note:    The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

78    A number of requirements are specified by s 186 which must be met at the time an agreement is made. None of them require particular mention in the present context, except s 186(2)(a):

186    When the FWC must approve an enterprise agreement—general requirements

…

Requirements relating to the safety net etc.

(2)    The FWC must be satisfied that:

(a)    if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

…

(Notes omitted.)

79    Section 187(1) and (2) of the FW Act provide:

187    When the FWC must approve an enterprise agreement—additional requirements

Additional requirements

(1)    This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2)    The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

80    The other particular requirements need not be detailed. The requirements as stated by s 187 are requirements to be assessed at the time of approval.

81    We will need to return to the significance of those statutory requirements in due course.

Background

82    Each of the first to third respondents is owned by Independent Private Hospitals of Australia Pty Ltd (“IPHOA”). IPHOA contracted with Flagtail Pty Ltd (“Flagtail”) to provide the services of an employee of Flagtail, Mr Subramanian, to each of the first to third respondents as “corporate manager”.

83    In February 2012, Mr Subramanian engaged Service Industry Advisory Group Pty Ltd (“SIAG”) to assist with industrial relations matters. It would appear that SIAG, and its Managing Director, Mr Brian Cook, conducted the negotiation of terms as the basis for the enterprise agreements.

84    The terms of the agreements were put to votes of employees between 23 and 26 July 2012 and were accepted. Mr Subramanian signed each of the agreements purportedly on behalf of the relevant employer on 1 August 2012. On 3 August 2012 Mr Subramanian also signed an “Employer’s Declaration” with respect to each enterprise agreement, verifying the procedures adopted with respect to making the agreements.

85    On 8 August 2012 an application for approval of an enterprise agreement was made in the name of each of the first to third respondents. Each application was signed by Ms Sascha Cook, as “Employer Bargaining Representative”. Each application stated that the relevant employer had appointed SIAG as its bargaining representative. No such appointment had, in fact, been validly made. It appears, rather, that SIAG negotiated the terms with the approval of Mr Subramanian.

86    On 17 August 2012 the Deputy President approved the applications without a formal hearing, but on appeal a Full Bench accepted that SIAG had not been appointed as bargaining representative in accordance with the FW Act, and on 18 October 2012 set aside each of the approvals (Kaizen Hospitals (Essendon) Pty Ltd and others v Australian Nursing Federation [2012] FWAFB 8866).

87    On 18 October 2012 the appellant lodged further applications for approval of the same documents on its own behalf. The appellant on this occasion argued that each of the first to third respondents was its own bargaining representative and that Mr Subramanian’s conduct bound each of them as he had acted within the scope of his actual or apparent authority.

88    Before the appellant lodged those further applications, the first to third respondents had explicitly denied Mr Subramanian’s authority to act. He had also, on 23 August 2012, communicated that to the appellant. The Deputy President found, nevertheless, that Mr Subramanian had acted with “apparent or ostensible” authority and on 20 December 2012 (Re Australian Nursing Federation [2012] FWA 9905; (2012) 227 IR 303) he approved each of the agreements, over the opposition of the first to third respondents. A Full Bench refused permission to appeal, saying it saw no error in the decision (Re Kaizen Hospitals (Malvern) Pty Ltd [2013] FWCFB 1846, 26 March 2013).

89    The primary judge found that both the Deputy President and the Full Bench made jurisdictional errors in the discharge of their respective functions and made the orders now under appeal.

Reasoning of the primary judge

90    First, the primary judge rejected a suggestion that the first to third respondents had negotiated the agreements. The primary judge found that the evidence showed that the three agreements were negotiated between Mr Megennis from the appellant and Mr Brian Cook from SIAG. Mr Subramanian’s incidental involvement in, and knowledge of, that process did not signify that it was he who had carriage of negotiations. It is implicit, in our view, in the reasons of the primary judge, that the negotiations were conducted as though SIAG had authority to conduct them as bargaining representative. That premise had, however, been falsified by the time of the Deputy President’s second decision.

91    The primary judge concluded:

27        Short of any “apparent or ostensible” authority of Mr Subramanian to act on behalf of Kaizen Hospitals, no conclusion is open that it was the employer who had negotiated or effected the agreement with its employees, when there is an absence of any evidence of any knowledge on the part of the employer as to the content of the ultimate agreement said to have been reached.

…

39        If this conclusion be correct, it would follow that there was simply no document which recorded the terms of any “agreement” as between Kaizen Hospitals and its employees. In the absence of Mr Subramanian being cloaked with either “apparent or ostensible” authority, Kaizen Hospitals cannot be seen as presenting to the employees any proposal with which it had expressed any “agreement”. There was simply no “agreement” which was capable of being either voted on by the employees or being approved by the Fair Work Commission.

92    The primary judge found that the evidence also did not support the conclusion by the Deputy President that Mr Subramanian had apparent authority when he signed each agreement. Furthermore, the primary judge found that the FWC had an obligation to deal with an application for approval in light of facts known at the time it ruled on the application, namely that Mr Subramanian had in fact no mandate to bind the first to third respondents, and had acted without the authority of IPHOA, or its board, or the first to third respondents.

93    The primary judge concluded that by the time the FWC dealt with the applications lodged by the appellant on 18 October 2012 the true state of affairs was known. Mr Subramanian did not have authority. It was not open to the appellant, or the Deputy President, to rely on any notion of apparent authority when the application for approval of the enterprise agreements was dealt with. The primary judge said:

46        The task entrusted to the Fair Work Commission by s 186 is not confined to any state of knowledge as at 28 July 2012. Although all statutory decision-making processes must necessarily be made within any constraints imposed by the legislature, as a general proposition a decision-maker should have regard to the best and most up to date information which is available: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Mason J there observed at 44 - 45:

The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner’s report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner’s comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner’s report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

See also: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 2) (1987) 77 ALR 601 at 605-606 per Wilcox J; Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 at 600 per Fisher, Wilcox and Spender JJ; Tomson v Minister for Finance and Deregulation [2013] FCA 664 at [49], (2013) 136 ALD 610 at 624 per Rares J.

47        The statutory regime whereby an “enterprise agreement” may ultimately be approved does not stop at that point of time when an agreement is “made”, namely at that point of time “when a majority of those employees who cast a valid vote approve the agreement”: s 182(1). Thereafter, the statutory regime also requires:

•    the making of an application for approval (s 185(1)); and

•    the granting of “approval” by the Fair Work Commission (s 186(1)).

Both the statutory context whereby an “enterprise agreement” is “made” and “approved” and the general principle expressed by Mason J in Peko-Wallsend, supra, indicate that the power conferred by s 186 is to be exercised with reference to facts known as at the time when the statutory power is being exercised. If all that was required before approval “must” be given pursuant to s 186(1) was the vote of the employees and the application for approval, the requirements imposed by s 185(2) (for example) would be superfluous. The power imposed by s 186(1) is not a mere power to “rubber stamp” all that has gone before; the power has the hallmarks of a “final vetting process” to ensure that the enterprise agreement is one which is to be “approved”.

94    The appellant argued on the present appeal that the primary judge was in error at each stage of his analysis. First, he should have accepted that the enterprise agreements were validly made. Secondly, the primary judge erred by not accepting that Mr Subramanian had “apparent or ostensible authority” when he signed each of the agreements, whatever may have subsequently come to light and whether or not he had actual authority.

Principles to be applied

95    In Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 (“BNP Paribas”), the High Court said (at [36]), in a passage cited by the primary judge:

36    In Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd, and in Northside Developments Pty Ltd v Registrar-General, this Court followed and applied Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd as to the general principles concerning the apparent or ostensible authority of an officer of a company dealing with a third party. Where an officer is held out by a company as having authority, and the third party relies on that apparent authority, and there is nothing in the company’s constitution to the contrary, the company is bound by its representation of authority. ‘‘The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract.’’ It is not enough that the representation should come from the officer alone. Whether the representation is general, or related specifically to the particular transaction, it must come from the principal, the company. That does not mean that the conduct of the officer is irrelevant to the representation, but the company’s conduct must be the source of the representation. In many cases the representational conduct commonly takes the form of the setting up of an organisational structure consistent with the company’s constitution. That structure presents to outsiders a complex of appearances as to authority. The assurance with which outsiders deal with a company is more often than not based, not upon inquiry, or positive statement, but upon an assumption that company officers have the authority that people in their respective positions would ordinarily be expected to have. In the ordinary case, however, it is necessary, in order to decide whether there has been a holding out by a principal, to consider the principal’s conduct as a whole.

(Emphasis added.) (Footnotes omitted.)

96    In our view, the reference in s 793(1) of the FW Act to “actual or apparent authority” cannot be extended beyond the limits of the principles thus identified. It is therefore of critical importance to identify conduct by the first to third respondents (or on their behalf) which invested Mr Subramanian with apparent authority to bind them to the terms of the enterprise agreements and the procedures for their approval. Mr Subramanian’s own unauthorised conduct would not be a sufficient foundation for a conclusion of “apparent” authority, in the absence of conduct which might be sheeted home to each of the first to third respondents.

Matters for specific attention

97    In our view, it is necessary at this point to make a distinction (as did the primary judge) between whether Mr Subramanian’s conduct made a legally effective contribution to the enterprise agreements being made and whether he later supplied elements necessary for valid approval of the enterprise agreements.

98    In this latter connection a further distinction may need to be borne in mind. On 1 August 2012, Mr Subramanian signed the enterprise agreements, purportedly on behalf of each of the first to third respondents. An agreement signed by an employer is a statutory requirement for an application for approval. On 3 August 2012 Mr Subramanian also signed “Employer’s Declarations” verifying the steps taken to have the enterprise agreements made. That was a procedural step. That procedural requirement was formally waived by the Deputy President in his decision on 20 December 2012 approving the enterprise agreements for a second time.

99    The procedural issue requires no further attention. However, attention will be required to the requirement for an employer signature to an enterprise agreement as a condition for a valid application for approval.

Making the enterprise agreements

100    Although SIAG was never validly appointed as a bargaining representative under s 176(1)(d) of the FW Act, each of the first to third respondents was its own bargaining representative by virtue of s 176(1)(a). From the time that Mr Subramanian engaged SIAG to assist with industrial relations matters, Mr Megennis from the appellant and Mr Cook from SIAG (with the occasional involvement of Mr Subramanian) negotiated, refined and committed to writing explicit terms as the basis for each enterprise agreement. The evidence before the primary judge disclosed that:

23.    … the progress of the enterprise agreement negotiations was raised at operations meetings in the three hospitals, … [which] attend to the daily and weekly formalities of the operation of the hospitals. …

101    The “Manager Clinical Services” for each of the three hospitals also gave a formal notice to nursing staff at the hospitals about meetings:

… to begin negotiation for a Nursing Staff Enterprise Agreement …

102    The formal notice, which was given for the purpose of s 174(6) of the FW Act, included the following:

Notice to Nursing staff

…

Nursing employees employed by [the respondent in question] currently covered by [an existing enterprise agreement] are advised of [the respondent in question]’s intention to negotiate a new enterprise agreement and their rights in respect to representation.

Main points

(1)    [The respondent in question] intends to negotiate a new enterprise agreement in respect to nursing employees.

…

Notice of employee representational rights

Fair Work Act 2009, subsection 174(6)

[The respondent in question] (‘the Employer’) gives notice that it is bargaining in relation to an enterprise agreement which is proposed to cover employees that are employed by the Employer as nursing staff as classified in the proposed enterprise agreement.

…

103    Mr Subramanian was recorded as a point of contact, as was the Manager Clinical Services.

104    In due course, the terms of proposed enterprise agreements were finalised, ballots were arranged and nursing staff at each of the three hospitals voted to accept the terms put before them to vote on.

105    Section 181(1) of the FW Act provides:

181    Employers may request employees to approve a proposed enterprise agreement

(1)    An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

106    Section 182(1) of the FW Act provides:

182    When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1)    If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

(Emphasis in original.)

107    In our view, there was apparent authority, sufficient to engage s 793 of the FW Act, so far as the making of an agreement was concerned in each case. It is sufficiently clear, on the evidence, that the first to third respondents were involved, through management and operational staff and through the use of Mr Subramanian’s services, in negotiating about the terms of enterprise agreements. In this context, Mr Subramanian’s appointment to each of the first to third respondents as “corporate manager” also invested him with an apparent authority consistent with that general appellation.

108    Furthermore, it is obvious enough that both the appellant, and the employees who voted, relied upon the circumstance that the relevant employer, by its various employees and agents, was engaged in bargaining and had proposed specific written terms for acceptance.

109    In our view, the first to third respondents are not able to avoid attribution of that conduct to them pursuant to s 793 of the FW Act.

110    We therefore respectfully disagree with the conclusion of the primary judge (at [39]) which we set out earlier.

The applications for approval

111    Shortly after the votes by employees, Mr Subramanian signed each agreement. In one case he signed as “Hospital Director and Corporate Manager” and in two cases as “Corporate Manager”, stating in each case that:

I am authorised to sign this Agreement on behalf of … [the hospital].

112    The Deputy President accepted Mr Subramanian’s signature as satisfaction of the requirements imposed by s 185(2)(a) of the FW Act and reg 2.06A(2) (each of which we set out earlier). Those are each requirements for a valid application.

113    There was no evidence before the primary judge that any person relied specifically upon Mr Subramanian’s conduct in signing each agreement, or took any action or failed to take any action as a result, except for the applications by the appellant on 18 October 2012. That was a step which depended on the validity of the act of signing but was not one which was impelled by it.

114    By 18 October 2012, when the latest application was made by the appellant, it was clear that Mr Subramanian did not have actual authority to sign the agreements. The primary judge thought that Mr Subramanian’s lack of actual authority, and the fact that the appellant and the FWC each knew of a lack of actual authority before the appellant’s applications for approval on 18 October 2012, were fatal to approval of the applications. The primary judge concluded that the FWC had an obligation to respond to the facts as known, rather than to proceed upon a claim or appearance of authority contrary to known facts.

115    The precise terms used in s 793(1) are that the purported “official” of a body corporate must be an officer, employee or agent of the body corporate and the conduct in question must be within “the scope of his or her actual or apparent authority” (not apparent or ostensible authority). Mr Subramanian could have been only an agent: there was no evidence he was an officer or employee of any of the first to third respondents. However, it may be assumed that Mr Subramanian was an agent of each of the first to third respondents for at least some purposes. In the earlier discussion about whether the agreements were effectively made, we concluded that s 793 was, in fact, engaged at that point. The question now is: did that apparent authority extend to Mr Subramanian’s conduct on 1 August 2012, for the purpose of the FWC ruling on the appellant’s applications made on 18 October 2012?

116    By the time of the applications by the appellant on 18 October 2012 Mr Subramanian clearly had no actual or apparent authority to sign any document to support the applications and it was clear he had no actual authority when he purported to sign the documents as a representative of each of the employers. The appellant was not, on 18 October 2012, under any false impression about the true position. Neither was the FWC.

117    This was not a matter about which a choice was available, or about which the FWC might exercise a discretion. Either the appellant could rely upon the doctrine of apparent authority, notwithstanding the actual position, or it could not. There are at least three cogent arguments which give support to the proposition that it could not.

118    First, (concentrating directly upon the act of signature) there was no representation, direct or indirect, explicit or implied, by the first to third respondents that Mr Subramanian had authority to sign. His own conduct must be put aside.

119    Secondly, and in any event, there is no basis to suggest that the protection given to an external party by the doctrine of apparent authority was engaged in relation to the act of signature. The appellant did not rely upon that conduct, except as a foundation for its application on 18 October 2012, by which time it knew Mr Subramanian had acted without authority when he signed each agreement, and earlier. Arguably, the circumstances which engage the doctrine of apparent authority up to the time of a vote by employees do not do so for the purpose of the applications made on 18 October 2012.

120    The third difficulty concerns the independent obligation of the FWC to act on the facts as they are known to it. By relying on the doctrine of apparent authority, the FWC preferred falsified presumptions over known facts. If it was not required to do so, it was not open to do so.

121    As disclosed by the further discussion below, the problem with these considerations is that they overlook the effect of s 793 and the scope that section provides for a corporation to be bound by the acts of its agent even if those acts are undertaken without actual authority, provided that the agent acts within the scope of his or her apparent authority.

122    In BNP Paribas, the High Court observed (in the passage we set out earlier) that earlier decisions of the High Court (Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 and Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 (“Northside Developments”) followed and applied the statements of Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 (“Freeman & Lockyer”). In Northside Developments, Brennan J pointed out (at 172) that “the foundation of ostensible authority is estoppel” (see also per Dawson J (with whom Toohey J agreed) at 200; per Gaudron J at 211-212). Brennan J (at 172) quoted Diplock LJ in Freeman & Lockyer:

“An ‘apparent’ or ‘ostensible’ authority ... is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the ‘apparent’ authority, so as to render the principal liable to perform any obligations imposed upon him by such contract. … The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract.”

(Emphasis added.)

123    The reason why, in such a case, apparent authority prevails over a lack of actual authority is that the external party has committed to a course of action in reliance upon the conduct in question, and was intended to do so by the source of the authority. On one view, those basic requirements are absent from the present case, so far as any reliance on Mr Subramanian’s signature is concerned. There would be no foundation for a specific contention that each of the first to third respondents is estopped from denying Mr Subramanian’s authority to sign on its behalf because it held him out as having that particular authority, or that it intended the appellant to rely on that holding out and that the appellant did so.

124    However, the consequence of this view is that the agreement-making process (which we have held should be accepted as valid and effective) would be frustrated by want of a formality – affixing an employer signature to an agreement validly made within the meaning of s 182(1).

125    The primary judge referred, in a passage which we set out earlier, to the fact that the FWC was not expected merely to “rubber stamp” all that has gone before but was expected to ensure that approval of an enterprise agreement met all necessary conditions at the time of approval.

126    We have come to the view that the act of signing each agreement on 1 August 2012 cannot be divorced, so far as the doctrine of apparent authority is concerned, from the substance of the steps and procedures which preceded it.

127    We set out the relevant provisions of s 186 and s 187 earlier. The primary judge said that the FWC’s task was “not confined to any state of knowledge as at 28 July 2012” (at [46]). So much may be acknowledged. However, as we pointed out earlier, when we outlined some aspects of the statutory scheme, some matters require assessment at the time the agreement is made (e.g. under s 186) and some require consideration of the position when approval is sought (e.g. under s 187).

128    The specific requirements of s 186 must be assessed by reference to circumstances at the time the agreement is made. To conclude that the FWC is bound to exercise its approval functions under s 186(1) by reference to information as known at the date on which it is called upon to exercise the functions does not mean, in our view, that the discovery of a lack of actual authority to make an agreement after the agreement was made can affect the question whether the agreement was made with apparent authority. The validity of an application for approval must be assessed with an appreciation of the overall statutory context, and the importance in the first instance of the existence of an agreement which has been validly made. The agreement was either made with apparent authority or was not at the time it was made. If made with apparent authority at the time it was made the agreement is valid irrespective of any lack of actual authority. Subsequent discovery of the lack of actual authority cannot change that fact.

129    For this reason subsequent knowledge of the lack of actual authority, disclosed before the FWC is called upon to exercise its approval function, is irrelevant to the assessment of whether the agreement was validly made. Such an agreement would also not “be inconsistent with or undermine good faith bargaining by one or more bargaining representatives” within the meaning of s 187(2) (as the primary judge concluded) because s 187(2) is to be applied on the basis that s 793 also operates in the circumstances, being a provision which expressly contemplates that a corporation can be bound by the acts of its agents with apparent, but no actual, authority. To use s 187(2) to conclude that approval of the agreement would contravene s 187(2) would be to ignore the operation of s 793.

130    The only remaining consideration concerns the operation of s 185, and the requirement for an employer signature.

131    Mr Subramanian, on 1 August 2012, when he signed each of the agreements, was taking the final step in the process upon which each of the first to third respondents had embarked (with his participation) earlier in the year. His apparent authority, in our view, extended to that act.

132    The consequence for the appellant, and for the employees who voted to accept the terms of the agreements, of the contrary view would be that all the things they had done in reliance upon Mr Subramanian’s apparent authority, would be put at nought. It was too late for the first to third respondents to deny Mr Subramanian’s agency when the bargain was complete and only the completion of the statutory procedure remained.

133    Section 185(1) (set out earlier) required that a bargaining representative apply to the FWC for approval of the enterprise agreements. Upon the view to which we have come (namely, that the enterprise agreements were each validly made) that obligation fell upon the first to third respondents, equally with the appellant. Section 185(2) required a signed copy of the enterprise agreement to be provided with the application. In the circumstances, it was not open to the first to third respondents to seek to frustrate the statutory scheme by both failing to make the application and also denying the effectiveness of Mr Subramanian’s signature on their behalf.

134    It was therefore not an error for the Deputy President to rely on Mr Subramanian’s “apparent authority” rather than accept the contention that the enterprise agreements were unsigned and that the applications filed by the appellant on 18 October 2012 were therefore invalid and ineffective.

Conclusion

135    It was open to the FWC to conclude that each of the enterprise agreements was validly made.

136    It was open to the appellant and the FWC to proceed upon Mr Subramanian’s signature on each of the agreements as a signature by the relevant employer.

137    The Deputy President did not make a jurisdictional error when he approved each of the enterprise agreements on 20 December 2012.

138    The Full Bench did not make a jurisdictional error when it refused permission to appeal against the Deputy President’s decision of 20 December 2012.

Orders

139    We would therefore uphold the appeal and set aside the orders made by the primary judge.

140     The appellant is protected from costs by the FW Act and no submission has been made that the protection has been lost.

Associate:

Dated:    5 March 2015